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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that any information that could identify the victim or a witness shall not be
published in any document or broadcast or transmitted in any way, in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(iii) REPEALED: S.C.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that could identify the victim shall not be published in any document or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. Safieh, 2021 ONCA 644
DATE: 20210922
DOCKET: C66003
Doherty, Gillese and Huscroft
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Boutros Safieh
Appellant
Stacey Taraniuk, for the appellant
Deborah Krick, for the respondent
Heard: September 13, 2021 by
video conference
On appeal from the convictions entered by
Justice M. McKelvey of the Superior Court of Justice on July 4, 2017.
REASONS FOR DECISION
[1]
At trial, the appellant challenged the
constitutionality of the seizure of his cellphone at the time of his arrest.
The Crown agreed that if the seizure breached s. 8 of the
Charter
, the
evidence should be excluded. The trial judge held the seizure was constitutional.
After the
Charter
motion failed, the appellant did not challenge the
Crowns case and the trial judge entered convictions on two counts of procuring
a person under 18 for prostitution and two charges of making child pornography.
[2]
On appeal, the appellant submits the trial judge
made several errors in his reasons on the
Charter
motion and failed to
adequately explain how he came to the conclusion that there was no breach of
the appellants s. 8 rights.
[3]
We do not accept the arguments advanced by the
appellant. The issue on the
Charter
motion turned on the answer to a
single, simple factual question did the Crown establish, on the balance of
probabilities, that the appellant was arrested in the hallway and not in his
hotel room? If the arrest was in the hallway, the arrest and the search
incidental to the arrest were lawful. If the arrest was in the hotel room, the
arrest and the search incidental to the arrest were unlawful and
unconstitutional.
[4]
The trial judge concluded the arrest took place
in the hallway, outside of the hotel room. He accepted the evidence of the
three police officers who testified that the arrest occurred in the hallway. He
rejected the evidence of the appellant that the arrest occurred in the hotel
room. In coming to his conclusion, the trial judge reviewed the evidence of all
four witnesses, honed in on the sole factual issue, and explained why he found
the evidence of the police officers on that crucial issue credible, while finding
that the appellants evidence on the same issue was not credible.
[5]
We find no material misapprehension of the
evidence by the trial judge. In explaining why he accepted the evidence of the
police officers, the trial judge acknowledged inconsistencies in their evidence.
He also noted deficiencies in the notetaking of one of the officers. The trial
judge appreciated that the evidence of the officers as to the exact location in
the hallway where the arrest occurred differed. The trial judge also indicated
the officers gave somewhat different evidence as to which of them actually made
the arrest in the hallway.
[6]
Discrepancies among witnesses are common in
trials. It is up to the trial judge to evaluate the inconsistencies and the
impact, if any, those inconsistencies had on the officers credibility and
reliability of their evidence. The appellants submissions offer no basis upon
which this court can interfere with the trial judges assessment of the
evidence of the officers and his conclusions with respect to the credibility and
reliability of their evidence.
[7]
The trial judge also explained why he did not
accept the appellants evidence. The trial judge considered the appellants
evidence that he did not go into the hallway to speak to the police by placing
that evidence in the context of the totality of the evidence adduced at trial. He
also examined the appellants evidence, having regard to the trial judges
notions of common sense and human experience. That is what triers of fact are
required to do.
[8]
There is nothing in the record to offer any
support for the contention that the trial judge engaged in uneven scrutiny of
the Crown and defence evidence. The appellants arguments invite the court to
retry this case. We cannot do that.
[9]
The appeal is dismissed.
Doherty
J.A.
E.E.
Gillese J.A.
Grant
Huscroft J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Meloche v. Meloche, 2021 ONCA 640
DATE: 20210922
DOCKET: C67648
Fairburn A.C.J.O., van Rensburg
and Huscroft JJ.A.
BETWEEN
Michael Meloche
Applicant (Appellant)
and
Adrianna Costa Meloche
Respondent (Respondent)
Aaron Franks and Michael Zalev, for the
appellant
Marcela Aroca and Ashley Harmon, for
the respondent
Heard: March 26, 2021 by video
conference
On appeal from the order of Justice Kirk
W. Munroe of the Superior Court of Justice, dated October 22, 2019, with
reasons reported at 2019 ONSC 6143.
Fairburn A.C.J.O.:
A.
Overview
[1]
This appeal concerns the division of pension payments
for family law purposes. The central issue on appeal is this:
Where a retired member
spouses pension payments are divided at source for family law purposes, can
the parties agree (or can a court order or can an arbitrator award) that
payment sharing continue to the non-member spouses estate for the balance of
the retired member spouses life?
[2]
On a motion to decide a question of law under
Rule 16(12)(a) of the
Family Law Rules
, O. Reg. 114/99 (
FLR
),
the motion judge answered this question in the negative.
[1]
He concluded that the
Pension
Benefits Act
, R.S.O. 1990, c. P.8 (
PBA
) specifically precludes
a deceased non-member spouses share of a retired members pension payments
from continuing to the non-members estate after the non-members death. In
other words, the motion judge concluded that the death of the non-member spouse
necessarily results in their share of the pension payment reverting back to the
member spouse.
[3]
Respectfully, I disagree. There is nothing in
the
PBA
, the
Family Law Act
, R.S.O. 1990, c. F.3 (
FLA
),
or the
Family
Law Matters
, O. Reg. 287/11
(Regulation)
(one of the regulations under the
PBA
) that precludes the parties from
agreeing to, a court from ordering, or an arbitrator from awarding a
continuation of shared pension payments to the deceased non-members estate for
the balance of the member spouses life. Indeed, when these provisions are read
together as a cohesive unit, they leave open the possibility of proceeding in
exactly this way.
B.
Background
[4]
The parties were married for just over 33 years.
[5]
During their marriage, Adrianna was a teacher.
Over the course of her career, Adrianna paid into the Ontario Teachers Pension
Plan (OTPP). Upon her retirement on June 30, 2015, Adrianna elected a joint
pension with a 60 percent survivor benefit. The pension payments to Adrianna then
began. Once the payments started, the pension became what I will refer to as an
in-pay pension. What I mean by this term is that [p]ayment of the first instalment
of the retired members pension was due on or before the family law valuation
date:
PBA
, s. 67.4(1)2.
[6]
Combined with additional bridging benefits that
would end when Adrianna turned 65 years of age, she started receiving just
under $5,000 per month in 2015.
[7]
Michael held various jobs over the years. Sadly,
in April of 2016, shortly after Adriannas retirement, Michael fell seriously
ill with Amyotrophic Lateral Sclerosis (ALS). At the time that he fell ill,
he was working as a custodian with a school board. That work had to end when
his illness set in. Michaels motion record suggests that he soon began
receiving Ontario disability as his only source of income, just under $1,000
per month.
[8]
Just over a year later, on July 13, 2017, the
parties separated. This was the agreed-upon valuation date for purposes of
the
FLA
. At the time that he brought the motion, Michael acknowledged
that Adrianna was also voluntarily giving him $300 per month.
[9]
In her responding materials on the motion,
Adrianna suggested that Michael was also receiving income from charity
donations from the community and from GoFundMe.com. She maintained that she
had assisted him in raising those funds. At the time of the motion, it appears that
Michael was living in the matrimonial home and Adrianna was living elsewhere.
[10]
In April 2018, Michael applied to the court for
a divorce, equalization of net family properties, spousal support, and exclusive
possession of the matrimonial home, among other relief. Then, on May 24, 2019,
he brought a motion to decide a question of law relating specifically to the
division of Adriannas pension payments.
[11]
Separating spouses are strongly encouraged to resolve
their family law disputes either entirely outside of court or with limited resort
to the courts. Rule 16(12)(a) of the
FLR
permits the court, on motion,
to decide a question of law before trial, if the decision may dispose of all
or part of the case, substantially shorten the trial or save substantial costs.
[12]
As the Supreme Court of Canada recently
emphasized in
Colucci v. Colucci
, 2021 SCC 24, at para. 69, There is
a trend in family law away from an adversarial culture of litigation to a
culture of negotiation (citations omitted). Recent amendments to both the
Divorce
Act
, R.S.C., 1985, c. 3 (2nd Supp.) and the
FLA
require parties,
to the extent that it is appropriate to do so, to try to resolve family law
disputes outside the court structure through an alternative dispute resolution
process, such as negotiation, mediation, or collaborative law: see
Divorce
Act
, ss. 7.3, 7.7(2)(a), and 16.1(6);
FLA
, ss. 47.2(1),
47.3(2)(a).
[13]
Rule 16(12)(a) of the
FLR
is a useful
tool in this context. At the time of the motion, Adriannas pension had been
valued for family law purposes. Following the procedures outlined in s. 67.2 of
the
PBA
, which include actuarial assessments of each partys life
expectancy,
[2]
the pension administrator determined that the imputed value of Adriannas pension
for family law purposes was $1,281,826.54. Likewise, the pension administrator
determined that the imputed value of Michaels survivor benefit for family law
purposes was $103,952.15.
[14]
The pension administrator also determined that,
if the parties agreed to divide the pension at source for family law purposes,
Michael was entitled to receive 48.99 percent of Adriannas monthly pension
payments. This meant that Michaels share of Adriannas pension, divided at
source, would be $2,094.02 per month, with bridging benefits of an additional
$294.36, which would continue until Adrianna turned 65 years of age.
[15]
There was significant common ground between the
parties. They were well-placed to settle most, if not all, of the issues
arising from the breakdown of their marriage without a trial. There was, and
still is, no dispute about the imputed pension values for family law purposes.
There was, and still is, no dispute about the pension administrators
calculation as it pertained to Michaels share of Adriannas pension. There
was, and still is, no dispute that the most valuable asset owned by the couple
on the valuation date was Adriannas defined benefit pension with the OTPP.
[3]
There also was, and still is,
no dispute that almost all of Adriannas pension was accumulated during the
marriage, such that it would be included in Adriannas net family property as
defined in s. 4(1) of the
FLA
.
[16]
Consequently, had Michaels equalization claim proceeded
to trial, it appears that he would have been entitled to a substantial
equalization payment pursuant to ss. 5(1) and 7(1) of the
FLA
. I will
return to this concept shortly.
[17]
Instead, Michaels notice of motion suggests
that he wanted to divide Adriannas pension payments at source. Notably, this
is an available option under s. 10.1(5) (order for division of pension payments),
s. 56.1(3) (division of pension payments under a domestic contract), and s. 59.4.1(3)
(division of pension payments pursuant to a family arbitration award) of the
FLA
,
all of which explicitly provide for the division of pension payments where the
pension is, as in this case, already in pay.
[18]
However, the parties differed on what should
happen to Michaels share of the divided pension payments following his death
which appeared to be imminent. Michael took the position that, if the pension
payments were divided at source for family law purposes, then, after his death,
his share of the pension could and should continue to his estate for the
remainder of Adriannas lifetime. According to an affidavit filed in support of
his motion, Michael took the position that any other approach would result in
an absurd outcome, as it would fail to adequately respond to the exercise
of attempting to equalize the net family property in substance as well as
form.
[4]
[19]
Adrianna took the position that, if Michael
predeceased her, the
PBA
precluded Michaels share of the pension payments
from continuing to his estate. Instead, Adrianna argued that, following
Michaels death, his share must revert back to her.
[20]
Given Michaels very short life expectancy at
the time that these discussions were taking place, Adriannas position meant
that dividing the pension payments at source would almost certainly result in Michael
receiving far less than he would have otherwise received if he had proceeded to
trial for a determination of his
entitlement
to equalization under s. 5(1) of the
FLA
. I say this for the following reason.
[21]
Section
5(1) of the
FLA
reads in part:
the spouse whose net family
property is the lesser of the two net family properties is entitled to one-half
the difference between them. An application for entitlement under s. 5(1) is
brought under s. 7(1) of the
FLA
. Orders arising from s. 7(1)
applications are made pursuant to s.
9(1)
of the
FLA
.
Pursuant to that provision, the court may
order:
(a) that one spouse pay to the other spouse
the amount to which the court finds that spouse to be entitled under this Part;
(b) that security, including a charge on
property, be given for the performance of an obligation imposed by the order;
[and]
(c) that, if necessary to avoid hardship, an
amount referred to in clause (a) be paid in instalments during a period not
exceeding ten years or that payment of all or part of the amount be delayed for
a period not exceeding ten years[.]
[5]
[22]
Therefore, to place this issue in its proper context, assuming that
there were no other significant assets beyond Adriannas pension and Michaels
survivor benefit in either partys net family property, Adrianna would have
owed Michael an equalization payment of around $590,000.
I say this because, based on the pension administrators assigned
values, the difference between the parties net family properties would be
$1,177,874.39. Of course, Adrianna would owe half that amount to Michael if
such an order had been made in accordance with the criteria set out in s. 9(1)
of the
FLA
.
[23]
To be very clear, I am not suggesting that the
amount of $590,000 reflects with any precision the actual amount of
equalization that Adrianna would have owed Michael following a s. 7(1)
FLA
application. We simply do not have enough information on appeal to know with
precision what that amount would have been.
[24]
What we do know, however, is that Adrianna does
not dispute that her pension would have been the most valuable asset to be
factored into the equalization assessment, and that there were few other assets
that would have played a role in arriving at the ultimate determination of how
much she owed Michael.
[25]
Therefore, had Michael simply sought an equalization
payment by way of a s. 7(1) application under the
FLA
, it would have
come at a very high cost to Adrianna. Even on Adriannas own position, it seems
clear that she would have owed Michael a large sum of money.
[26]
Under s. 9(1)(a) of the
FLA
, the court
may order one spouse to pay the other the full amount required to equalize
their net family properties. Section 9(1)(c) permits the court to order that the
amount or any part of the amount be paid in instalments, but only if necessary
to avoid hardship and only over a maximum of 10 years. Therefore, where one
party owes another an equalization payment of, say, $500,000, the court may
order instalment payments under s. 9(1)(c), which could result in a payment
exceeding $4,000 per month for 10 years.
[27]
Contrast that scenario with the potential
pension division scenario for these parties where, based on the pension
administrators undisputed calculations, Michael would have received a total monthly
payment of just less than $2,400 per month (and less than that after Adrianna
turned 65 years of age and the bridging benefits ended). Based upon this
calculation, over the same 10-year period, well less than $300,000 would be
paid. Of course, as will be further explained, if the pension division at
source could continue to Michaels estate, it would continue until the end of
Adriannas life. On Michaels calculations, if Adrianna lived for another 27
years, which would put her at 86 years of age when she died, the amount paid
through pension division at source would exceed $770,000, adjusted for
increases on account of cost of living.
[28]
Michael saw the exercise of splitting the
pension at source and having it continue to his estate as being based, as he
put it in his motion materials, upon the delivery of an equalization payment.
The difficulty for Michael was that the OTPP, in correspondence sent to his
lawyer, took the position that the payments could only continue to his estate
if there was a settlement instrument directing the OTPP to do so:
Please note that unless the settlement
instrument which provides for the pension division specifically requires that
the split continue to the former spouses Estate should he predecease the
member, on his death the portion being paid to him reverts to the member.
[29]
Therefore, Michael had to move quickly to
resolve this matter. The OTPP was prepared to have the split continue to his
estate, but Michael needed a settlement instrument directing the OTPP
accordingly. Contrary to Michael and the OTPP, Adrianna took the position that
the
PBA
precluded what Michael contemplated would be a means of
achieving some form of equalization. Accordingly, Michael brought a Rule
16(12)(a) motion under the
FLR
.
[30]
As part of the disposition of what he described
as a question of law before trial in accordance with Rule 16(12) of the
Family
Law Rules
, Michael sought an order directing the OTPP administrators to
pay his proportionate share of Adriannas monthly pension benefit directly to
him, and for those monthly payments to continue to his estate until Adriannas
death. He also asked for an order declaring [that] such remedy equalizes [Adriannas]
pension in accordance with the meaning of the term
equalization
in
the
Family Law Act
(emphasis in original).
[31]
Michael died two days after the motion judges ruling
was released. This appeal is brought by the sole Estate Trustee of the Estate
of Michael Meloche.
C.
The Motion Judges Ruling
[32]
The motion judge framed the legal issue before
him as follows:
Whether this court can and/or should make an
order directing the Ontario Teachers Pension Plan to pay to the estate of Mr.
Meloche his portion of his wifes monthly pension benefit for the life of his
wife if Mr. Meloche predeceases his wife.
[33]
The motion judge answered this question in the
negative on the basis that the
PBA
foreclosed the relief sought by Michael.
[34]
The motion judge began by pointing to s. 10.1(7)
of the
FLA
to suggest that, if the
PBA
applies to the
pension plan, which it does in this case, then the restrictions under s. 67.4
of the
PBA
apply with respect to the division of the spouses
interest in the plan by an order under s. 9 of the
FLA
. This was the
only reference that the motion judge made to the
FLA
.
[35]
The motion judge referred to s. 67.5(1) of the
PBA
,
which specifically says that an order made under Part I (Family Property) of
the
Family Law Act
, a family arbitration award, or a domestic contract
is not effective to the extent that it purports to require the administrator of
a pension plan to divide the pension benefits in relation to an in-pay
pension, other than in accordance with s. 67.4.
[36]
The motion judge also addressed s. 67.4 of the
PBA
in his reasons. He correctly observed that s. 67.4(1)2. pertains to those
situations where the pension is in pay before the family law valuation date. As
before, the pension payments in this case started after Adriannas retirement on
June 30, 2015, and the family law valuation date was not until July 13, 2017. As
correctly observed by the motion judge, this brought the pension payments in
question squarely under s. 67.4 of the
PBA
.
[37]
Focusing upon s. 67.4, the motion judge noted
that, in his view, nothing in the provision allows for the payment of a pension
divided at source to continue to a non-member spouses estate where the
non-member spouse dies first. Rather, the motion judge emphasized that s. 67.4
directs that the proportion of the retired member spouses pension is to be
paid to the eligible spouse, not the deceased eligible spouses estate.
[38]
The motion judge also relied on ss. 44(1),
(3), and (3.1) of the
PBA
.
[39]
Section 44(1)
mandates that a pension which goes into pay while a retired member still has a
spouse within the meaning of s. 1(1) of the
PBA
shall be a joint and survivor pension.
As before, Adrianna and Michael were still married and living together when her
pension went into pay. As such, it was a joint and survivor pension.
[40]
Next, the
motion judge turned his mind to ss. 44(3) and 44(3.1) of the
PBA
, concluding
that they made clear that, upon the death of either the pension holder or the
spouse, the remaining pension reverts back to the survivor. Those provisions
read:
44(3) Upon the
death of the retired member, the pension payable to his or her surviving spouse
shall not be less than 60 per cent of the pension paid to the retired member
during their joint lives.
44(3.1) If the spouse of the retired member
dies before the retired member, the pension payable to the retired member after
the spouses death
shall
not be less than 60 per cent of the pension paid to the retired member during
their joint lives
.
[41]
The motion judge interpreted these sections to
mean that the non-member spouse would be guaranteed continued pension payments
on the death of the pension holder (per s. 44(3)) but that any pension
payments to the [non-member] spouse would end
on his or her death (per s.
44(3.1)). This latter interpretation was based upon a finding that the
statutory reference was to a surviving spouse and not to the estate of the surviving
spouse: Again, the reference is to payments to the surviving spouse without
any mention or suggestion that these payments are to be paid to the estate of
the surviving spouse.
[42]
In addition, the motion judge concluded that continuing
payments to a non-member spouses estate until the death of the pension
holder (the situation for which Michael was advocating) would contravene s.
44(3.1) because it would cause Adrianna to receive a pension payment of less
than 60 percent of the total monthly payment. The motion judge reasoned that Michaels
request for the pension sharing to continue to his estate had to be denied
because, if his estate continued to receive 48.99 percent of the monthly
payment owed under the pension, then Adrianna would only be receiving 51.01
percent after his death, which is clearly less than the minimum 60 per cent
that the motion judge saw as required pursuant to s. 44(3.1) of the
PBA
.
[43]
Finally, the motion judge pointed out that there
is no statutory means by which the former spouse could bequeath or share their
portion of the monthly payments of the pension. Indeed, as the motion judge
noted, this is specifically prohibited under s. 65(1) of the
PBA
:
Every transaction that purports to assign, charge, anticipate or give as
security money payable under a pension plan is void.
[44]
For these reasons, the motion judge concluded
that Michaels request for his share of the pension payments to continue to his
estate after his death for the remainder of Adriannas lifetime was contrary to
the
PBA
.
[45]
He then ordered that the OTPP pay Michael 48.99
percent of each of Adriannas monthly pension payments, commencing
retroactively from the valuation date. As he put it: In all other respects,
the applicants motion is dismissed.
D.
Issues
[46]
The appellant raises two issues on appeal.
[47]
First, the appellant argues that the motion
judge erred by concluding that the pension payments could not continue to be
shared after Michaels death, with Michaels portion being paid to his estate for
the remainder of Adriannas lifetime.
[48]
Second, and in the alternative, the appellant
argues that the motion judge erred by ordering retroactive sharing of the
monthly pension amounts. The appellant maintains that Michael did not ask for
this on the motion. Instead, if he was unsuccessful on issue one, it was his
intent to proceed to a s. 7(1)
FLA
application, seeking an
equalization payment from Adrianna. Pursuant to s. 7(2)(a) of the
FLA
,
an equalization application commenced before death can be continued by the estate.
Michaels application was commenced before death.
[49]
On the first issue, the respondent argues that
the motion judge was right to conclude that the
PBA
precludes pension
sharing to the estate of a deceased spouse. On the second issue, the respondent
disputes the appellants version of events. She maintains that Michaels
counsel, during oral submissions at the motion, asked for the remedy ultimately
granted by the motion judge as an alternative to his main request for relief.
[50]
For the reasons that follow, I would resolve
this matter on the basis of the first issue. In my view, there is nothing in
the
PBA
that precludes pension payments divided at source from
continuing to the estate of a non-member spouse during the life of the member
spouse, in the event that the non-member spouse predeceases the member spouse. Having
resolved the narrow legal question that was properly before the motion judge, I
would decline to address the second issue, and instead turn the matter back to
the parties to determine how to proceed from here: either through pension
division at source to Michaels estate or through an equalization payment.
(1)
Where a Non-Member Spouse Dies Before a Member Spouse, Does the
PBA
Preclude the Continued Sharing of a Pension Payment at Source to the Non-Member
Spouses Estate for the Balance of the Retired Member Spouses Life?
(a)
The Parties Positions
[51]
The appellant argues that the motion judge erred
by specifically concluding that the pension payments payable to Michael must
cease upon his death rather than continue to his estate.
[52]
First, the appellant argues that the motion
judge erred by failing to advert to s. 39(2) of the Regulation, which is said
to provide a full answer on appeal. That provision reads:
The eligible spouses
share of the retired members pension
,
is
payable as of the payment date that falls on or immediately after the date on
which the retired members pension is divided under subsection 67.4(4) of the
Pension
Benefits Act
, and
is payable for the life of the
retired member
or until the end of the period for which the pension
instalment under paragraph 1 of subsection (1) is guaranteed, whichever is
longer. [Emphasis added.]
[53]
Second, the appellant argues that the motion
judges conclusion leads to an absurd result which, effectively, frustrates the
legislative purpose of the statutory scheme.
[54]
Third, the appellant argues that the motion
judge considered statutory provisions that were wholly irrelevant to the issue
at hand. In particular, the motion judge is said to have erred by looking to s.
44(3.1) of the
PBA
when determining whether a non-member spouses
share of the pension payments could be paid into their estate after death. The
appellant argues that this provision does nothing more than create minimum
standards for pension plans that are irrelevant to the question of how pension payments
can be divided for family law purposes, either through a domestic contract,
family arbitration award, or court order.
[55]
Finally, the appellant points out that s. 65(3)5.
of the
PBA
specifically precluded the motion judge from relying on s.
65(1) of the
PBA
, which does not apply to prevent the assignment, by
an order under the
Family Law Act
of an interest in money payable
under a pension plan where s. 67.4 is operative.
[56]
For her part, Adrianna argues that the motion
judge was correct in his analysis and that the
PBA
specifically
forecloses the relief sought by the appellant.
[57]
Like the motion judge, Adrianna emphasizes that the
not
less than 60 per cent requirement in s. 44(3.1) of the
PBA
precludes
the appellants requested relief. While parties can waive the joint and
survivorship provisions of the pension pursuant to s. 46(1) of the
PBA
,
Michael and Adrianna took no steps to do so. As a result, since s. 44 of the
PBA
sets out the parameters for joint and survivor pensions, Michaels estate is
precluded from continuing to receive the 48.99 percent of Adriannas pension after
his death because it would force her payments below the statutory minimum of 60
percent.
[58]
Adrianna also argues that s. 39(2) of the Regulation
does not assist the appellant because it does not specifically authorize a
share of the payments of a retired member spouses pension to be made to the
estate of the non-member deceased spouse. Read in context, Adrianna argues that
the use of the term eligible spouse in s. 39(2) of the Regulation confers
rights only on a living person and not on an estate.
[59]
Adrianna further points out that s. 67.3(5) of
the
PBA
, which applies to the division of pensions that are not yet in
pay, allows for a lump sum to be payable to an eligible spouses estate or as
otherwise prescribed. Had the legislature intended for payment sharing in
relation to in-pay pensions to potentially continue to an estate under s. 67.4,
the legislature would have included a similar provision. The silence of s. 67.4
on this point is said to be compelling.
[60]
As for s. 65(3)5., Adrianna argues that the
motion judge was right. While the provision allows a portion of her pension to
be directly shared, it does not allow Michael to re-assign his share of the
pension payment to a third party, specifically his estate.
(b)
Analysis
(i)
Overview
[61]
The parties agree that the issue to be decided
on appeal involves a clear question of law. The standard of review is therefore
correctness:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235,
at para. 8;
Harvey v. Talon International Inc.
, 2017 ONCA 267, 137
O.R. (3d) 184, at para. 32.
[62]
Respectfully, applying this standard of review,
I conclude that the decision appealed from is incorrect.
[63]
While the
PBA
is undoubtedly important
to the resolution of the issue lying at the heart of this matter, unlike the
motion judge, I do not see the
PBA
as the singular guiding force in
answering the central question on appeal. For questions involving the sharing
of pension payments at source in family law matters, it is necessary to look to
both the
PBA
and the
FLA
, as well as the Regulation
.
[64]
The answer to this appeal lies at the intersection
of these two statutes and the Regulation. Reading the
PBA
, the
FLA
,
and the Regulation as a cohesive whole, it becomes clear that the legislature
has not precluded the possibility that pension payments which are divided at
source for family law purposes may continue to the non-member spouses estate
for the balance of the member spouses life in the event that the non-member
spouse predeceases the member spouse. Said differently, parties can agree, a
court can order, or an arbitrator can award that the sharing of pension
payments at source shall continue to the non-member spouses estate after that
spouses death.
(ii)
Interpreting the
PBA
Alongside the Regulation
[65]
The modern principles of statutory
interpretation require that the words of a statute be read in their entire
context and in their grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of Parliament:
Bell ExpressVu Limited
Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R.
559, at para. 26. When interpreting any statutory provision, a textual,
contextual and purposive analysis must be applied to find a meaning that is
harmonious with the entire Act:
Canada Trustco Mortgage Co. v. Canada
,
2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. When considering regulations,
they must be read concurrently with, and in the context of, the enabling
legislation:
Hickman Motors Ltd. v. Canada
, [1997] 2 S.C.R. 336, 148
D.L.R. (4th) 1, at para. 37;
State Farm Mutual Automobile Insurance Company
v. Old Republic Insurance Company of Canada
, 2015 ONCA 699, 127 O.R. (3d)
465, at para. 68. As noted by this court, regulations will generally be
interpreted using the same rules and techniques as statute law, albeit never
losing sight of the context of the enabling provisions that give rise to the
regulations that complete and implement the statutory scheme:
S.H. v. D.H.
,
2019 ONCA 454, 146 O.R. (3d) 625, at para. 31; see also Ruth Sullivan,
Sullivan
on the Construction of Statutes
, 6th ed. (Markham: LexisNexis, 2014) at
§
13.18.
[66]
Applying these principles to the interpretation
of the operative legislation and regulation here admits of only one answer:
that the pension payment sharing could continue to Michaels estate. I say this
for the following reasons.
(iii)
Family Law Matters Under the
PBA
[67]
I start with the observation that only ss. 67.1
to 67.9 of the
PBA
are devoted to Family Law Matters, as the heading
plainly states in the statute. While the other provisions of the
PBA
clearly
govern general pension matters, including the structure of pensions, it is only
ss. 67.1 to 67.9 of the
PBA
that specifically address pension issues
as they pertain to Family Law Matters.
[68]
This observation is supported by s. 10.1 of the
FLA,
which governs the interest in a pension plan for family law purposes, including
the imputed value of a pension for those purposes. Section 10.1(7) establishes certain
restrictions:
If the
Pension Benefits Act
applies
to the pension plan,
the
restrictions under sections
67.3 and 67.4
of that Act
apply
with respect to the
division of the spouses interest in the plan by an order under section 9 or
10.
[6]
[Emphasis added.]
Here, the
PBA
clearly applies
to the pension plan, and therefore the restrictions under ss. 67.3 and 67.4
apply as well.
[69]
The focus of ss. 67.1 to 67.9 of the
PBA
on family law matters is reinforced, not simply by the name given to that
section of the
PBA
and by s. 10.1(7) of the
FLA
, but also by
virtue of a special definition given to the term spouse for the specific purpose
of those provisions. Immediately under the heading Family Law Matters, s. 67.1(2)
of the
PBA
offers the following definition:
A reference in this section and in sections
67.2 to 67.9 to the spouse of a member, former member or retired member of a
pension plan is, where circumstances require,
a reference
to him or her as the former spouse of the member, former member or retired
member
. [Emphasis added.]
[70]
The expansive definition given to the term
spouse only for the purpose of ss. 67.1 to 67.9 (Family Law Matters) can be
contrasted with the much more limited definition offered to the term spouse
in s. 1 of the
PBA
. Section 1 contains definitions that are applicable
to this Act more generally. Notably, the definition of spouse in s. 1 of
the
PBA
does not include former spouses of retired members.
[71]
Therefore, the more expansive definition offered
to the term spouse in s. 67.1(2) of the
PBA
, including as it does a
reference to the former spouse of the member, reinforces the fact that ss.
67.1 to 67.9 of the
PBA
are directly relevant to Family Law Matters.
It also reinforces that the sections of the
PBA
outside the
section devoted to Family Law Matters, such as s. 44(3.1) of the
PBA
,
do not apply to former spouses, which is what Michael was at the time that a
continuing payment to his estate was being contemplated.
(iv)
Contrast Between Sections 67.3 and 67.4 of the
PBA
[72]
I am not persuaded by Adriannas argument that
the silence about payments to an estate in s. 67.4, when contrasted with the
explicit reference to payments to an estate in s. 67.3, demonstrates that payments
cannot continue to an estate when the payment is governed by s. 67.4.
[73]
Section 67.3 of the
PBA
governs those
pensions that are not yet in pay prior to the family law valuation date,
contrary to s. 67.4, which governs pensions that are in pay as of that date. Section
67.3(1) permits a former spouse to apply for an immediate transfer of a lump
sum from the plan if various criteria are met, the second of which states that
[n]o payment of an instalment of the members or former members pension was
due on or before the family law valuation date.
[74]
Where the criteria in s. 67.3(1) are met, s. 67.3(2)
permits the transfer of a lump sum for family law purposes directly from one
spouses pension to another specified location involving enforced savings
requirements: to another pension plan, to a prescribed retirement savings
arrangement, or to another prescribed arrangement, or by leaving it in the pension
plan to the credit of the eligible spouse. In this way, s. 67.3(2) places specific
limits on the structure of lump sum transfers from pensions that were not in
pay before the family law valuation date.
[75]
It is against that context that ss. 67.3(4) and
(5) combine to allow a lump sum which is destined for one of the specified
locations to be redirected to an estate, should the non-member spouse die
before the transfer takes place. Sections 67.3(4) and (5) read:
(4) Once the application is complete, the
administrator shall make the transfer within the prescribed period.
(5) If the lump sum is not transferred under
subsection (4) before the death of the eligible spouse, the lump sum is payable
instead to the eligible spouses estate or as otherwise prescribed.
[76]
Therefore, s. 67.3(5) spells out that, if a lump
sum made payable under s. 67.3(2) has not been transferred before the death of
the eligible spouse, then that sum will instead be made payable to the
eligible spouses estate. Considering the statutory constraints placed upon
where the lump sum amount can be directed pursuant to s. 67.3(2), it makes sense
that the statute specifically addresses what happens to that amount should the death
of the non-member spouse intervene.
[77]
In contrast, s. 67.4 does not involve lump sum payments
directed to enforced savings accounts. Section 67.4(2) of the
PBA
, governing
in-pay pensions, operates in a much simpler manner: the eligible spouse may
apply to the administrator of the plan for division of the retired members
pension and for payment of the eligible spouses share to him or her.
[78]
The absence of any reference to payments to the
estate in s. 67.4 does not force the conclusion that divided pension payments
cannot continue to an estate under s. 67.4. In my view, the contrast between ss.
67.3(5) and 67.4 on this point makes sense given that, unlike s. 67.3(2), s.
67.4 does not require that the divided pension payments be directed into forced
savings plans.
[79]
Therefore, the silence of s. 67.4 on this point does
not preclude the parties from agreeing to, a court from ordering, or an arbitrator
from awarding exactly this approach.
[80]
To avoid uncertainty, where the division of pension
payments under s. 67.4 is engaged, settlement agreements, court orders, and
arbitration awards should always specify whether, in the event of the recipient
spouses death, the intent is for those pension payments to continue to the
recipient spouses estate or to revert back to the member spouse.
(v)
Section 44(3.1) of the
PBA
Does Not Preclude Payment to an
Estate
[81]
Based upon the above, it follows therefore that
it was an error to rely upon s. 44(3.1) of the
PBA
to answer
the question posed at the motion. Quite simply, s. 44(3.1) does not fall within
the section of the
PBA
dealing with Family Law Matters.
[82]
In any event, I would pause to note that s.
44(3.1) does not stand for the proposition the motion judge appears to have
accepted.
[83]
Recall that this section provides: If the
spouse of the retired member dies before the retired member, the pension
payable to the retired member after the spouses death
shall not be less
than
60 per cent of the pension paid to the retired
member during their joint lives
(emphasis added).
[84]
The motion judge interpreted this section to
preclude a monthly payment of 48.99 percent of Adriannas pension from
continuing to Michaels estate, given that the motion judge determined this
would necessarily mean that Adrianna was receiving less than 60 percent of the
full pension amount (as 51.01 is less than 60). But that is not the effect of
this section. Instead, s. 44(3.1) regulates the benefits that must be provided
under pension plans. It requires that the survivor under a pension that has
become joint and survivor will not, upon the death of their spouse, receive a
pension payment that is less than 60% of the payment they were receiving during
the life of their spouse. That is, it requires the pension payable to the
retired member after the spouses death not to be less than 60 percent of the
pension paid to the retired member
during their joint
lives
(emphasis added). Therefore, even if Michaels share continued to
be paid to his estate, Adriannas share would not necessarily be reduced from
what she was receiving during their joint lives.
(vi)
Section 65(1) of the
PBA
Does Not Apply
[85]
The motion judge also found that there was no
statutory means by which the former member spouse could bequeath or share their
portion of the monthly payments of the pension to an estate. In fact, he
concluded that s. 65(1) of the
PBA
specifically precluded this approach because it prevents any
transaction
that purports to assign, charge, anticipate or give as security money payable
under a pension fund.
[86]
Respectfully, this provision has no bearing on
the question to be decided in this appeal. Aside from being outside of those
provisions dealing specifically with family law matters, if that section
precluded Michaels share of his pension from continuing to be paid to his
estate, it would also preclude Adriannas pension division, which is expressly
permitted in the Family Law Matters portion of the
PBA
from ss. 67.1
to 67.9. Read as the respondent suggests, the
PBA
and the Regulation
would produce an inconsistent result. Only a further limitation on the pension
division in those sections dealing with Family Law Matters could have the
effect that the motion judge assigned to s. 65(1).
[87]
Moreover, as the appellant points out, s.
65(3)5. of the
PBA
specifically precludes the operation of s. 65(1) in
this context. That provision reads as follows: Subsections (1) and (2) do not
apply to prevent the assignment, by an order under the
Family Law Act
,
a family arbitration award or a domestic contract, of an interest in money
payable under a pension plan
under
[s]ection 67.4 (division of a pension
for certain family law purposes).
(vii)
The Application of Section 39(2) of the
Regulation
[88]
I turn next to the Regulation that is in force
by virtue of s. 115 of the
PBA
. The Regulation relates to the family
law matters governed by ss. 67.1 to 67.9 of the
PBA
. While Michael
argued the relevance of the Regulation at the motion, the motion judge did not
advert to it in his reasons.
[89]
Section 1 of the Regulation reads: This
Regulation relates to the family law matters governed by sections 67.1 to 67.9
of the Act. Therefore, the Regulation applies to divided pensions and the
amounts payable pursuant to s. 67.4 of the
PBA
and addresses the
intersection between the
FLA
and
PBA
.
[90]
As already mentioned, s. 39(2) of the Regulation
provides that an in-pay divided pension is payable for the life of the member
spouse. For ease of reference, I will set out that provision of the Regulation
again here:
The
eligible spouses share of the retired members pension
,
is payable as of the payment date that falls on or immediately
after the date on which the retired members pension is divided under
subsection 67.4(4) of the
Pension Benefits Act
, and
is payable for the life of the retired member
or until t
he end of the period for which the pension instalment under
paragraph 1 of subsection (1) is guaranteed, whichever is longer. [Emphasis
added.]
[91]
This provision specifically refers to payments
of an eligible spouses share of an in-pay divided pension precisely the type
of payments at the heart of this dispute as payable for the life of the
retired member, in this case, Adrianna. Therefore, the plain language of the Regulation
specifically states that the eligible spouses share of the retired members
pension is payable for the life of the retired member or until some other
guaranteed time, whichever is longer. While the Regulation alone does not
provide a complete answer to this appeal, in the sense that it proactively
states that divided pension payments can continue to an estate, there is nothing
in the Regulation that precludes that outcome from occurring. Importantly, the
only restriction introduced by the Regulation pertains to the members life: namely,
that the pension payments cannot continue after that life has ended.
[92]
Therefore, the plain wording of this section in
no way precludes what Michael requested in his Rule 16(12)(a) motion under the
FLR
.
(viii)
The Financial Services Commission of Ontario
(FSCO) and the Pension Administrator Agree this is Possible
[93]
It is interesting to note that the regulator of
pensions governed by the
PBA
at the time of the original
dispute, FSCO,
[7]
acknowledges the possibility of payments continuing to the former spouses
estate during the retired members lifetime in
Family Law related FAQs -
Pension Payable Upon Death
(2012), online: Financial Services Commission
of Ontario:
Q902. The former spouse of a retired member
is receiving a share of the retired members pension. What happens to the
former spouses share, if he/she dies before the retired member?
A902.
The Ontario
Pension Benefits Act (PBA) does not address this issue. In the absence of a PBA
requirement to continue paying the former spouses share to the former spouses
estate, it is FSCOs view that the former spouses share of the retired
members pension reverts back to the retired member
unless
the Settlement Instrument
(court order, family arbitration award or
domestic contract) that was filed with the Application to Divide a Retired
Members Pension (FSCO Family Law Form 6)
requires
payment to continue to the former spouses estate during the retired members
lifetime
. [Bold in original; underlining added.]
[94]
Similarly, I note that the interpretation of the
PBA
offered in these reasons is also consistent with a letter from Ann
Volpe, Senior Law Clerk, Pension Law & Policy, Ontario Teachers Pension
Plan, dated January 18, 2019, sent to Michaels counsel in the court below. Indeed,
it is that letter that caused Michael to bring his motion in the first place.
[95]
As noted earlier in these reasons, the pension
administrator wrote a letter to Michaels lawyer, stating that pension division
could only continue to his estate if a settlement instrument provided for it.
The letter reads in part as follows:
Our member commenced her pension prior to the
Family Law Valuation Date. Accordingly, the only option for division with her
former spouse is a pension split, assuming that the parties wish to utilize the
pension to satisfy equalization or support obligations.
The amount that is to be paid to the former
spouse will be a deduction to the members pension. The member will lose that
portion of her pension for so long as the split is required to be paid.
Please note that
unless
the settlement instrument which provides for the pension division specifically
requires that the split continue to the former spouses Estate should he
predecease the member, on his death the portion being paid to him reverts to
the member
. Of course, if the member predeceases her former spouse, the
pension ceases and accordingly the pension split ceases as well. [Emphasis added.]
[96]
The FSCO guidance and the letter from the OTPP align.
Both suggest that, while the retired member spouse is alive, the estate of the
former spouse of the retired member is not precluded from receiving a share of
the retired members pension for the balance of the retired members life. While
not determinative, it is still noteworthy that neither FSCO nor the OTPP
indicate that payments continuing to the estate for family law purposes are
precluded by legislation or regulation.
[97]
In many instances, including in the
circumstances of this case, continuing the payment sharing to the estate might
be the only way to make this a viable alternative to a single substantial
payment under s. 9(1)(a) of the
FLA
.
[98]
This takes me to the more general context of the
intersection between the
PBA
and the
FLA
, which must inform
the analysis.
[99]
I will now show that the
PBA
and the Regulation,
read cohesively with the objectives of the
FLA
, accord with FSCO and
the OTPPs articulation: that is, where pension payments are divided at source
for family law purposes, nothing precludes those payments from continuing to
the non-members estate for the balance of the retired members lifetime, as
long as that is provided for by an agreement, court order, or arbitrator award.
(ix)
The Intersection of the
PBA
and the
FLA
[100]
The purpose of the
PBA
was commented upon in
Monsanto
Canada Inc. v. Ontario (Superintendent of Financial Services)
, 2004 SCC
54, [2004] 3 S.C.R. 152, at para. 38, as being of vital importance to long-term
income security:
The Act is public policy legislation that
recognizes the vital importance of long-term income security. As a legislative
intervention in the administration of voluntary pension plans, its purpose is
to establish minimum standards and regulatory supervision in order to protect
and safeguard the pension benefits and rights of members, former members and
others entitled to receive benefits under private pension plans[.]
[101]
Adrianna points to this long-term income security purpose of the
PBA
as antithetical to the appellants position. After all, once someone has died,
there is no longer a need for income security. The difficulty with this
approach with this singular emphasis on the purpose of the
PBA
is
that it ignores the equally important legislative context of the
FLA
. The
answer to this appeal lies at the intersection of these two pieces of
legislation.
[102]
The equalization provisions within the
FLA
serve a very different purpose from the
PBA
, as reflected in the
preamble to the
FLA
:
Whereas it is
desirable to encourage and strengthen the role of the family; and whereas for
that purpose it is necessary to recognize the equal position of spouses as individuals
within marriage and to recognize marriage as a form of partnership; and whereas
in support of such recognition
it
is necessary to provide in law for the orderly and equitable settlement of the
affairs of the spouses upon the breakdown of the partnership
, and to provide for other mutual obligations in family
relationships, including the equitable sharing by parents of responsibility for
their children[.] [Emphasis added.]
[103]
If the sharing of in-pay pension payments cannot continue to an
estate, in many cases, dividing pension payments at source would lose force as
a proxy for what would otherwise be entitlement to equalization of net family
property under ss. 5(1), 7(1), and 9(1) of the
FLA
. This would be
particularly true in situations like this one where, from an actuarial
perspective, the retired member spouses life is likely to be long, but the non-member
former spouses life is predicted to be short.
[104]
As before, s. 5(1) of the
FLA
provides that, when spouses
separate and there is no reasonable prospect of resuming cohabitation, the
spouse whose net family property is the lesser of the two net family properties
is entitled to one-half the difference between them. Section 9(1)(a) of the
FLA
allows the court to order one spouse to pay the other the amount to which that
spouse is entitled under the equalization regime. The idea here is that the
value of property accumulated during the marriage partnership, in which spouses
are assumed to have been equal partners, should be shared equally when that
marriage ends. This includes the accumulation of a pension over the course of a
marriage.
[105]
It is true that pensions have been referred to as sometimes elusive
assets for equalization purposes, being in reality a right to a future stream
of income, rather than a current and exigible fund: Kendra D.M.G. Coats
et
al.
,
Ontario Family Law Practice 2020
, Volume 2 (Toronto:
LexisNexis Canada, 2019), at p. 537. It is because of the elusive nature of the
pension that a new regime was introduced in 2009 to address these difficult
issues. At the same time, the
FLA
was amended so that the
family law value of an Ontario-regulated pension would be determined by the
pension administrator pursuant to a formula set out in the regulations to the
PBA
:
see
FLA
, ss. 4(1)(c), 10.1;
PBA
, s. 67.2. Section 67.2(1)
reads:
The preliminary value of a members pension
benefits, a former members deferred pension or a retired members pension
under a pension plan, before apportionment for family law purposes, is
determined by the administrator in accordance with the regulations and as of
the family law valuation date of the member, former member or retired member
and his or her spouse.
[106]
Adriannas argument on appeal relies heavily on the sense that a
pension payment, by its very nature, does not continue after death. This is of
course true. Adriannas pension payments would and could continue only for her
lifetime.
[107]
But what is at issue on this appeal was never
the duration of the pension payments to Adrianna. They will certainly stop upon
her death. Instead, what is at issue on appeal is whether, given Michaels
entitlement under s. 5(1) of the
FLA
to one half the difference
between his and Adriannas net family properties, the division of pension
payments at source for family law purposes could instead continue to Michaels
estate for the balance of Adriannas life.
[108]
Of course, as with all actuarial calculations, there is an element
of risk. To divide an in-pay pension at source could ultimately be either more
or less lucrative than a single payment pursuant to s. 9(1)(a) of the
FLA
.
If the pension member spouse lived a long life, theoretically, the total value
of the payments to the estate may exceed what would have been received through an
equalization payment under the
FLA
. But, if the pension member spouse experiences
an untimely passing, the value of the divided pension payments to the estate may
result in a total value far less than what would have been received through
equalization under the
FLA
.
[109]
As part of the policy to encourage out-of-court settlement of family
law disputes, it is important that the option for pension sharing to continue
to the estate acknowledged by the OTPP and FSCO remains available. There
are many scenarios where such an option would clearly financially benefit both
sides, thereby facilitating resolution. Viewed as a means by which to avoid
placing a pension-holder in the difficult position of owing money to which they
do not at the time have access, the sharing of pension payments at source for
the continuation of the retired members life, which in no way is precluded by
the relevant statutes or regulation, makes both conceptual and practical sense.
[110]
In my view, contrary to the decision appealed from, nothing in the
PBA
or the Regulation prohibits division of pension payments for family law
purposes from continuing to a former spouses estate for the life of the
pension member spouse.
E.
Conclusion
[111]
I would allow the appeal. The appellants motion was brought
pursuant to Rule 16(12)(a) of the
FLR
, permitting a judge to decide a
question of law before trial if the answer to the question will dispose of all
or part of a case or substantially shorten the trial or save costs. This
question has now been answered. There is nothing that precludes the parties
from agreeing, a court from ordering, or an arbitrator from awarding that pension
payments may continue to a non-member spouses estate after that individuals
death.
[112]
The answer to this question having been given, the parties should now
be provided with the opportunity to settle the litigation to their mutual
benefit.
[113]
On consent, costs will be paid to the appellant
in the amount of $20,000, all inclusive. In light of the disposition of the
appeal, the motion judges costs order in favour of the respondent will be varied
to provide that the respondent pay the appellant $6,500 in costs for the
motion.
Released: September
22, 2021 JMF
Fairburn A.C.J.O.
I agree. K. van Rensburg J.A.
I agree Grant Huscroft J.A.
[1]
As set out below, while the question of law put to the motion judge
was framed somewhat differently, he answered the question framed on appeal in
the negative.
[2]
The Regulation refers to making a preliminary valuation
based upon the methods and actuarial assumptions that are consistent with
section 3500 of the
Standards of Practice
:
Regulation, s. 3(2); see also s. 38(3). Section 2(3) of the Regulation defines
the
Standards of Practice
as
follows:
Standards of Practice
of the Actuarial Standards Board,
published by the Canadian Institute of Actuaries, as amended from time to
time. See
Standards of Practice
(2005,
revised 2020), online: Canadian Institute of Actuaries <
www.cia-ica.ca/publications/standards-of-practice
>.
[3]
The appellant suggests the parties only material asset, beyond
Adriannas pension, was their jointly owned home, holding a fair market value
of between $400,000 and $520,000. While the respondent suggests that Michael
also had a pension with the Ford Motor Company of Canada, it was not in-pay at
the time of the motion, nor does it appear that the parties endeavoured to have
that pension valued for family law purposes. Even so, a February 14, 2019 letter
from the Ford Motor Company suggests that at the normal retirement date of May
1, 2025, Michael would be entitled to monthly pension payments of $184.92.
Therefore, that pension does not seem to have held much value. In any event,
the question of law at issue in this case does not turn on the precise
valuations of these parties other minimal assets.
[4]
Michael still had cognitive capacity as the litigation under
Rule 16(12) of the
FLR
was nearing, but he had lost his ability to
write. Michaels cousin took on signing authority for purposes of this
affidavit, by virtue of his role as Michaels power of attorney for property
(general) and personal care.
[5]
See also:
FLA
, s. 9(4).
[6]
See
also:
FLA
, ss. 56.1 and 59.4.1.
[7]
Effective June 8, 2019, FSCOs regulatory functions were assumed by the Financial
Services Regulatory Authority (FSRA). The FSCO website states: FSRA is
actively reviewing all FSCO regulatory direction, including but not limited to
forms, guidelines and FAQs. Until FSRA issues new regulatory direction,
all existing regulatory direction remains in force
(emphasis added):
Family Law related FAQs -
Pension Payable Upon Death
(2012), online: Financial Services Commission of Ontario <
www.fsco.gov.on.ca
>
.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Maynard
v. Mississippi Mills (Municipality), 2021 ONCA 639
DATE: 20210922
DOCKET: C68881
Benotto, Brown and Harvison Young JJ.A.
BETWEEN
Steve Maynard
Applicant (Appellant)
and
The Corporation of the Municipality of
Mississippi Mills
Respondent (Respondent)
Steve Maynard, acting in person
Tony Fleming and Lisa Scheulderman, for the respondent
Heard: September 9, 2021 by video conference
On appeal from the
order of Justice Martin S. James of the Superior Court of Justice, dated
October 29, 2020, with reasons at 2020 ONSC 6643.
REASONS FOR DECISION
[1]
The appellant, Steve Maynard, appeals the application judges dismissal,
pursuant to r. 21.01(1)(b) of the
Rules of Civil Procedure
, of
his application to quash five municipal by-laws.
[2]
The Local Planning Appeal Tribunal (the LPAT) was one of the
predecessor tribunals to the new Ontario Land Tribunal, which was established
in June 2021:
Ontario Land Tribunal Act,
2021, S.O. 2021, c. 4, Sch. 6.
[3]
Section 11(1) of the now repealed
Local Planning Appeal Tribunal
Act,
2017
, S.O. 2017, c.
23, Sch. 1, provided that the LPAT had exclusive jurisdiction in all cases and
in respect of all matters in which jurisdiction was conferred on it by the
Local
Planning Appeal Tribunal Act,
2017 or by any other general or special Act.
(A similar provision is now found in s. 8(1) of the
Ontario Land Tribunal
Act,
2021 regarding the consolidated Ontario Land Tribunal.)
[4]
The
Planning Act
, R.S.O. 1990, c. P.13, provides that an appeal
lies to the Ontario Land Tribunal (formerly the LPAT) following a council
giving written notice of the passing of a by-law: s. 34(19). Section 34(19.0.1)
provides that:
If the appellant intends to argue that the by-law is
inconsistent with a policy statement issued under subsection 3 (1), fails to
conform with or conflicts with a provincial plan or fails to conform with an
applicable official plan, the notice of appeal must also explain how the by-law
is inconsistent with, fails to conform with or conflicts with the other
document.
[5]
That is precisely the basis of Mr. Maynards challenge to the by-laws.
His notice of application alleges that the by-laws are inconsistent with
provisions of Provincial Policy Statement, 2014 and fail to conform to the
Mississippi Mills Community Official Plan. Given the basis upon which Mr.
Maynard challenges the by-laws, we see no error in the application judges
conclusion that it is plain and obvious that a challenge to the impugned
by-laws falls within the exclusive jurisdiction of the LPAT (now the Ontario
Land Tribunal) and, consequently, the appellants application could not succeed:
see
Country Pork Ltd. v. Ashfield (Township)
(2002)
, 60 O.R. (3d) 529 (C.A.), at para.
32. We see nothing in the case management decision of the LPAT in
Grabe v.
Ottawa (City)
, 2019 CanLII 107083 (ON LPAT) that contains any
suggestion to the contrary about the jurisdiction of the LPAT, now the Ontario
Land Tribunal: see, in particular, paras. 3, 6 and 13.
[6]
The appeal is dismissed.
[7]
Mr. Maynard shall pay the respondent its costs of the appeal fixed in
the amount of $1,500, inclusive of disbursements and applicable taxes.
M.L. Benotto J.A.
David Brown J.A.
Harvison Young J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
31 Kingsbury Inc. v. Delta Elevator Company Limited,
2021
ONCA 656
DATE: 20210922
DOCKET:
C67165
Simmons,
Pepall and Trotter JJ.A.
BETWEEN
31 Kingsbury Inc.
Plaintiff
(Appellant)
and
Delta Elevator Company Limited
Defendant
(Respondent)
James M. Wortzman, for the appellant
Charles M. Gastle and Heather M.
Gastle, for the respondent
On appeal from the judgment of Justice
Mario Faieta of the Superior Court of Justice, dated June 10, 2019, with
reasons reported at 2019 ONSC 3619, 99 C.L.R. (4th) 360.
COSTS ENDORSEMENT
[1]
The appellant abandoned this appeal on the eve
of the appeal hearing date by notice of abandonment dated February 5, 2020. The
respondent seeks costs of the appeal on a substantial indemnity basis in the
amount of $22,926.38, or, in the alternative, partial indemnity costs of
$15,713.48. The appeal related to a judgment enforcing a settlement agreement
that required the appellant to pay the respondent $88,558.10, which was the
balance owing for elevators installed in September 2017. The respondent
points to the appellants actions in creating as much delay as possible to
support its claim for substantial indemnity costs.
[2]
The appellant submits this court does not have
jurisdiction to make a costs award because r. 61.14(3) provides that where an
appeal is abandoned (or deemed abandoned) the appeal is at an end. The
appellant asserts costs should be assessed as permitted under r. 58.07 by
filing the notice of abandonment with the office of the assessment officer. In
the alternative, the appellant submits that, given the amount in dispute and
the quantum of its costs, a just and proportionate award would be 50 percent of
the partial indemnity costs the respondent claims.
[3]
We are satisfied we have jurisdiction to award
costs of an abandoned appeal. Although r. 61.14(3) stipulates that an appeal is
at an end once abandoned (or deemed abandoned), nothing in r. 61.14(3)
displaces this courts discretion under s. 131 of the
Courts of Justice Act
,
R.S.O. 1990, c. C43 to award and fix costs. On the contrary, r. 61.14(3) and r.
61.14(4) demonstrate this courts continuing jurisdiction in relation to the costs
of an abandoned appeal. Rule 61.14(3) stipulates that, subject to subrule
(4), where an appeal is an abandoned, the respondent is entitled to the costs
of the appeal. Rule 61.14(4) provides that the abandonment of an appeal shall
be without costs if the respondent did not file a response to the appeal unless
a judge of the appellate court orders otherwise. Rule 58.07, on which the
appellant relies, does no more than permit an assessment officer to assess
costs where they have not been fixed by the court.
[4]
Although we are not satisfied the circumstances
of this case justify an award of substantial indemnity costs, the circumstances
do support an award of partial indemnity costs that will compensate the
respondent appropriately for the work done to prepare for the appeal. Costs of
the appeal are to the respondent on a partial indemnity scale fixed in the
amount of $15,000 inclusive of disbursements and applicable taxes.
Janet
Simmons J.A.
S.E.
Pepall J.A.
Gary
Trotter J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Belcher, 2021 ONCA 652
DATE: 20210922
DOCKET: C67008
Watt, Benotto and Trotter JJ.A.
BETWEEN
Her Majesty
the Queen
Respondent
and
Brandon
Belcher
Appellant
Julie Santarossa, for the appellant
Nicholas Hay, for the respondent
Heard and released orally: September 20, 2021 by video
conference
On appeal from the convictions
entered by Justice Gregory A. Campbell of the Ontario Court of Justice on April
8, 2019.
REASONS FOR DECISION
[1]
After a joint trial before a judge of the Ontario Court of Justice, the
appellant was convicted of aggravated assault and assault with a weapon. He
appeals his convictions.
[2]
The appellant was alleged to have been one of two assailants who, each
armed with a weapon, attacked another man in a public area of an apartment
building. The area in which the attack occurred was under video surveillance.
[3]
The trial was brief. The single issue to be determined was whether the
appellant was the person who wielded a baseball bat during the attack on the
victim.
[4]
The victim professed no memory of the attack, likewise of the identity
of his attackers.
[5]
In substance, the case for the Crown consisted of video surveillance of
the assault and of the area in which the assault occurred. The assault began in
the hallway on one of the floors of an apartment building and continued into
the stairwell. The assailant said to be the appellant had a bandana covering
his face. Later in the attack, the bandana fell off, but the assailants face
was hidden from the surveillance cameras view by the nature of the safety
glass in the door to the stairwell.
[6]
Both assailants left the stairwell. They entered an apartment unit on
the floor on which the attack occurred. It was the same apartment unit they had
left to begin the armed attack on the victim.
[7]
In addition to the surveillance video, the Crown called a police officer
who was familiar with both participants who appeared in the video. The officer
was satisfied that given the assailants stature, the concave portion of his
face, and his facial hair, the characteristics matched those of the appellant.
However, in cross-examination, the officer agreed that he could not say for
certain that the appellant was the assailant.
[8]
The trial judge watched the video filed as an exhibit. He was not
satisfied on the basis of the video and the police officers recognition
evidence that the appellant was the second assailant who wielded the baseball
bat.
[9]
The critical evidence for the trial judge was that the assailants
entered the apartment from which they had left to commence their attack
immediately after its conclusion. The video surveillance, which the trial judge
believed was uninterrupted, showed no one leaving the apartment until police
arrived at which time the apartment remained under constant police observation.
It followed, the trial judge concluded, that the appellant, the second male to
leave the apartment about six and one-half hours after the assault, must have
been the second assailant. This, even though the appellant was not dressed in
the same clothing as the second assailant shown in the video.
[10]
Critical
to the trial judges conclusion that the appellant was the second assailant was
his finding that the video was uninterrupted from the time of the assault until
the police arrived. But this was not in fact so. There were four interruptions
in the video, of almost seven minutes duration.
[11]
The
parties occupy common ground that the trial judge misapprehended the video
surveillance evidence. Perhaps he conflated admissibility with completeness. In
any event, he misapprehended the nature of this evidence. His reliance on the
completeness of the video to identify the appellant as the second assailant was
central to his reasoning that the appellants guilt had been established beyond
a reasonable doubt.
[12]
It
follows, in our view, that the convictions entered at trial cannot stand. We
recognize, as Crown counsel concedes in this court, that for a misapprehension
of evidence to warrant setting aside a conviction on the basis of a miscarriage
of justice, the misapprehension must meet a stringent standard. The
misapprehension must have to do with the substance of the evidence, not merely
a matter of detail. The misapprehension must be material, not peripheral to the
reasoning of the trial judge. And the error must play an essential part in the
judges reasoning process resulting in a conviction, not simply in the
narrative of the judgment:
R. v. Lohrer
,
[2004] 3 S.C.R. 732,
at para. 3.
[13]
In
the usual course, the appropriate remedy in these circumstances would be to
allow the appeal, set aside the convictions, and order a new trial. However,
the appellant also challenges the verdict rendered at trial as unreasonable and
seeks entry of a verdict of acquittal rather than an order for a new trial.
[14]
We
accept, as the decision in
R. v. Sinclair
, [2011] 3 S.C.R. 3, at
paras. 12 and 13 teaches, that an erroneous understanding of the evidence on a
material issue may render a verdict unreasonable within s. 686(1)(a)(i) of the
Criminal
Code
. Although the case for the Crown was not overwhelming, we are unable
to say that the verdict is one that a properly instructed trier of fact acting
judicially could not reasonably have rendered. We have in mind that the
appellant was found in the same apartment as the first assailant, the apartment
from which the assailants left to commence the attack and to which they
returned at its conclusion. The second assailant was similar in appearance to
the appellant. It is also not without significance that the appellant, who now
alleges that the Crown has failed to negative various possibilities other than
the appellants participation as the second assailant, did not testify at
trial.
[15]
In
the result, we are not satisfied that the verdict rendered at trial was
unreasonable within s. 686(1)(a)(i) of the
Criminal Code
.
[16]
The
appeal is allowed, the convictions set aside and a new trial ordered on the
counts of aggravated assault and assault with a weapon, a baseball bat.
David Watt J.A.
M.L. Benotto
J.A.
Gary Trotter
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Ramroop, 2021 ONCA 642
DATE: 20210923
DOCKET: C66986
Doherty, Gillese and Huscroft
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Avinash Ramroop
Appellant
Jason Rabinovitch, for the appellant
Nicolas de Montigny, for the respondent
Heard: September 14, 2021 by
video conference
On appeal from the conviction entered on
April 2, 2019 by Justice L.M. Budzinski of the Ontario Court of Justice.
REASONS FOR DECISION
[1]
The appellant was convicted of impaired driving
causing bodily harm and fail to remain at the scene of an accident causing
bodily harm arising out of a three-car accident on Weston Road in Toronto. A
Chrysler 300, owned by the appellants father, struck a northbound Toyota Corolla
and an Acura SUV before ending up on the boulevard. An empty can of beer was
found on the front passenger seat of the Chrysler. A witness said that the
driver of the Chrysler had run into a nearby backyard.
[2]
The appellant was found by Constable McGill in
the backyard of a nearby house following the accident. Constable McGill
testified that the appellant had a head injury and a bleeding nose. He was
vomiting, had difficulty speaking, and was in and out of consciousness. Constable
McGill testified that he smelled alcohol coming from the appellant and that
there was a strong smell of gasoline.
[3]
The issues at the short trial were whether the
appellant was the driver of the Chrysler and, if he was, whether the appellant
was impaired. On April 2, 2019, the trial judge gave oral reasons for judgment,
finding that the appellant was the driver and that he was impaired.
[1]
On May 1, 2019, the trial judge provided what he described as a
more detailed judgment in which he corrected an error he had made earlier.
Specifically, the trial judge emphasized that, contrary to what he said on
April 2, he was not relying on a statement the appellant had made to the police
that he had been driving at a high rate of speed and had been drinking, as the
statement was involuntary and not admissible. The trial judge said that his findings
were based on the circumstantial evidence.
[4]
The appellants primary argument is that the
trial judge erred in finding that he was the driver of the Chrysler. The
appellant concedes that there is no doubt that he was in the vehicle but argues
that the trial judge erred in inferring that he was the driver, as there were
other reasonable inferences on the evidence. The appellant argues that although
the trial judge acknowledged that his statement was inadmissible, he failed to
re-evaluate the evidence in his second judgment. His analysis was essentially
unchanged from the first judgment, in which considerable weight was put on the
statement.
[5]
We disagree.
[6]
The trial judge instructed himself as to the proper
approach to drawing inferences from circumstantial evidence, as set out by the
Supreme Court in
R. v. Villaroman
,
2016 SCC 33,
[2016] 1 S.C.R. 1000 at para. 55:
Where the Crowns
case depends on circumstantial evidence, the question becomes whether the trier
of fact, acting judicially, could reasonably be satisfied that the accuseds
guilt was the only reasonable conclusion available on the totality of the
evidence. The Crown is not required to negative every other possible inference
in order to meet its burden. Alternative inferences must be plausible based on
the evidence, not speculative.
[7]
There was a substantial body of circumstantial
evidence in this case from which it could be inferred that the appellant was
the driver of the Chrysler:
·
The Chrysler belonged to the appellants father;
·
Mr. Tran, a passenger in the Acura, saw a
dark-skinned, slim person standing near the Chrysler, wobbling and unable to
stand straight;
·
Constable McGill found the appellant, whose
appearance was consistent with the description of the person seen near the
Chrysler right after the accident, in the backyard of a home about 30 metres
from the accident;
·
The appellant smelled of gasoline and alcohol;
and
·
No one else from the Chrysler was found at the
scene of the accident or sought medical attention.
[8]
The trial judge inferred from this evidence that
the appellant was associated with the Chrysler and was involved in the
accident. He considered and rejected the possibility that the appellant could
simply have been a passenger in the Chrysler: no one else from the Chrysler was
found at the scene of the accident or sought medical attention, so the
appellant was the only person in the Chrysler and had to be the driver. The
discovery of the appellant in the nearby backyard supported the inference that
he had fled the scene of the accident and was hiding in the backyard in an
attempt to avoid criminal liability.
[9]
We see no error in the trial judges
determination, on the totality of the evidence, that the appellant was the
driver of the Chrysler.
[10]
The appellant raised a secondary argument,
challenging the trial judges finding that he was impaired. The appellant
argued that the trial judges reasons on the impairment charge were inadequate,
characterizing this as a
Villaroman
argument rather than an
unreasonable verdict argument.
[11]
It is well established that there is no special
test for determining impairment. The offence of impaired driving is established
by evidence of any degree of impairment ranging from slight to great:
R.
v. Stellato
(1993), 12 O.R. (3d) 90 (C.A.) at 95, affd [1994] 2
S.C.R. 478.
[12]
In this case, the trial judge made several
specific findings. The accident:
·
was caused by the Chrysler;
·
occurred at high speed in excess of the city
speed limit;
·
showed an inattention to the traffic and the
nature of the neighbourhood;
·
displayed an utter lack of control and judgment
by the driver of the Chrysler; and
·
occurred when the road was clear and dry and
there was no evidence of road obstruction.
[13]
The appellant does not challenge any of these
specific findings. He argues that guilt cannot reasonably be inferred from
them.
[14]
This argument must be rejected.
[15]
Although it is not clear exactly how the
accident occurred, there is no doubt as to its violent nature. There was
evidence that the Chrysler was out of control and that it hit the other two
cars at a high speed before landing on its side on the shoulder or sidewalk
area in front of a house. A witness described the Chrysler as flying.
[16]
The trial judge noted that there was no evidence
of anything such as mechanical failure, medical emergency, or road obstruction,
that would explain the nature of the accident, and found that it was consistent
with some sort of impairment by the driver of the Chrysler. Given the presence
of an empty beer can in the passenger seat and the smell of alcohol on the
appellant, it was open to the trial judge to conclude from the totality of these
circumstances that the only reasonable inference was that the appellant was
impaired to some degree, and to find that the Crown had proven its case beyond
a reasonable doubt.
[17]
The appeal is dismissed.
Doherty J.A.
E.E. Gillese
J.A.
Grant Huscroft
J.A.
[1]
The appellant was acquitted on a charge of over 80 because the
trial judge was not satisfied as to the reliability of the blood sample test
results
.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Hanna & Hamilton Construction
Co. Ltd. v.
Robertson, 2021 ONCA 660
DATE: 20210923
DOCKET
:
M52782 (C68707)
Watt,
Benotto and Trotter JJ.A.
BETWEEN
Hanna
& Hamilton Construction Co. Ltd.
Plaintiff
(Respondent in Appeal)
and
Craig Ross Robertson
, 2092637 Ontario Ltd. and
Brenda Robertson
Defendants
(
Appellants
)
Heard: In writing
REASONS FOR DECISION
[1]
The appellants appeal the orders of Donohue J.,
dated September 29, 2020 and October 23, 2020.
[2]
The orders followed the respondents motion
in
the Superior Court of Justice for a declaration that previous orders of the
court survived the bankruptcy of the appellants.
[3]
At the conclusion of oral submissions, the motion judge granted the
relief sought as follows:
Based upon all of
the materials before me, the very detailed submissions I am going to grant the
order that is sought by the moving party and set out in the notice of motion,
paragraph B, C and D. So those declarations are granted with respect to the
writs of execution.
[4]
The motion judge later granted costs to the
respondent and declined to provide reasons for the order, or for the costs
decision.
[5]
Both parties ask this court to set aside the
order.
[6]
The reasons of the motion judge fail to disclose
how she arrived at the conclusion, in fact or in law. They are incapable of
meaningful appellate review and this constitutes an error in law: see
R. v.
Sheppard
[2002] 1 SCR 869 at para. 28.
[7]
The appeal is allowed and the orders of Donohue
J. dated September 29, 2020 and October 23, 2020 are set aside and a new
hearing is ordered before a different judge.
[8]
In accordance with counsels agreement, there
will be no costs of the appeal.
David
Watt J.A.
M.L.
Benotto J.A.
Gary
Trotter J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Skinner v. Skinner, 2021 ONCA 658
DATE: 20210923
DOCKET: C67873
Strathy C.J.O., Pepall and Pardu
JJ.A.
BETWEEN
Lisa
Ellen Skinner
Applicant
(Appellant in Appeal)
and
Michael Wayne Skinner
Respondent
(Respondent in Appeal)
Emily M. Carroll, for the appellant
Eric Sadvari and Ramanjit Gill, for the
respondent
Heard: September 16, 2021 by video conference
On appeal from the order of Justice Jennifer Breithaupt Smith of the
Superior Court of Justice, dated December 2, 2019, with reasons reported at 2019
ONSC 6949.
REASONS
FOR DECISION
Overview of the Facts
[1]
The parties were married in 1998 and separated
sometime in 2006 or 2007. There are two adult children of the marriage. The
court below made orders dealing with parenting and support issues on January
12, 2009 and April 27, 2010. Both the appellant and the respondent sought to
change the most recent order due to material changes in circumstances. The
respondent also argued that the appellant was no longer entitled to spousal and
child support. Justice Breithaupt Smith found that there had been material
changes to the respondents circumstances and reduced the arrears owing based
on her recalculations. Justice Breithaupt Smith also found that the appellants
entitlement to spousal support ended as of June 30, 2019 and her entitlement to
child support ended as of December 31, 2017 and December 31, 2019. The
appellant seeks to appeal Justice Breithaupt Smiths order to this court.
Overview of the Appeal
[2]
The appellant advances five grounds of appeal:
1.
Breithaupt Smith J. erred in finding that there
had been a material change in circumstances warranting a reduction in the
respondents support obligations;
2.
Breithaupt Smith J. erred in finding that the respondent
was excused from his intentional underemployment for the years of 2011-2016;
3.
Breithaupt Smith J. erred in reducing arrears
back to 2011;
4.
Breithaupt Smith J. erred in failing to address
the childrens Section 7 extraordinary expenses accumulated after March 31,
2011; and
5.
Breithaupt Smith J. erred in finding that Steven
was not a child of the marriage in 2018 and 2019, and that Hailey did not
qualify for child support effective December 31, 2019.
6.
The appellant also requests that the costs order
in the amount of $17,313.24 be set aside.
[3]
The appellant, Lisa Ellen Skinner, and the
respondent, Michael Wayne Skinner, were married on February 14, 1998 and
separated sometime in 2006 or 2007. There are two children of the marriage:
Steven, born May 12, 1998, and Hailey, born May 16, 2001. The parenting and
support issues were first addressed on January 12, 2009 in the final order of
Justice Bean (the Bean Order). The respondent brought a motion to change the
Bean Order to accord with his actual income and to address certain parenting
issues, which were addressed on April 27, 2010 in the final order of Justice
Epstein (the Epstein Order). The respondent owed arrears at the time.
[4]
The respondent then sought to change the Epstein
Order, stating that his inability to work consistently due to his illness
constituted a material change in circumstances. He requested that the court
rescind the arrears accumulated since the date of the Epstein Order or, in the
alternative, recalculate child and spousal support to reflect his actual income
and adjust the arrears accordingly. He also requested that spousal support be
terminated effective April 27, 2011 and for child support to end as of the
childrens 18
th
birthdays. The appellant also sought to change the
Epstein Order, arguing that the $5.38 increase in the respondents hourly rate
as of 2011 constituted a material change in circumstances justifying a
retroactive increase in support. The motion to change the Epstein Order was
heard on November 22, 2019, and it is this order that is under appeal.
[5]
In her endorsement dated December 2, 2019, the
motion judge found that material changes in the respondents circumstances took
place as of the date of diagnosis and identification of serious health issues
affecting him and also as of the date of the increase in his hourly rate. In
arriving at this conclusion, the motion judge applied the legal test for a
material change in circumstances as determined in
Willick v. Willick
,
[1994] 3 S.C.R. 670 at p. 688: a change, such that, if known at the time, would
likely have resulted in different terms. She found that there had been a
material change in circumstances as of July 10, 2015, when the respondent was
diagnosed with a significant illness. She also found that there had been an
earlier material change in circumstances as of April 1, 2011, when the
respondent returned to work at a higher hourly rate. As a result of these
material changes in circumstances, the Epstein Order was reviewable and
Breithaupt Smith J. conducted a fresh analysis of the issues dating back to
2011.
[6]
The motion judge also considered whether income
should be imputed to the respondent with a view to assessing his support
obligations. Applying
Lavie v. Lavie
, 2018 ONCA 10, 8 R.F.L. (8th) 14,
she held that the health needs of the respondent excused his underemployment
for the period from 2011 to 2018, but that there was insufficient evidence to
excuse his underemployment for 2017-2018. Once the respondents illness was
properly treated, he was able to increase his working hours.
[7]
In dealing with child support the motion judge
applied the criteria described in
Rosenberg v. Rosenberg
(2003), 42 R.F.L. (5th) 440 (Ont. S.C.)
to assess whether a child over the age of 18 continued to be a child of the
marriage for support purposes. She concluded that the evidence was not
sufficient to establish that the child Steven continued to be a child for whom
support was payable after 2017 and was insufficient to establish that Hailey
was a child for whom support was payable after December 31, 2019, although the
motion judge left open the possibility of a future motion for child support,
without the necessity of demonstrating a material change, upon better evidence.
In that regard, she noted that her decision on termination of child support was
subject to review and reinstatement effective January 1, 2020, based on
production of more evidence.
[8]
The motion judge also terminated the appellants
entitlement to spousal support as of the end of 2019. She noted that the
appellant had completed a program of education that significantly increased her
earning potential and that the academic year 2018-2019 was her youngest childs
fourth year of high school. She observed that application of the Spousal
Support Advisory Guidelines would have suggested spousal support of 4.75-12
years duration, post separation. Here, with termination of support ordered by
the motion judge, spousal support had been paid until a date approximately 12
years after separation.
[9]
With all of these findings in hand, the motion
judge went on to calculate the support that should have been paid from 2011.
Analysis
[10]
The parties agree that the appropriate standard
of review is palpable and overriding error. The standard of review for family
support decisions demands significant deference. This is informed by both the
discretion involved in making support orders and the importance of finality in
family law litigation. An appeal court should only intervene where there is a
material error, a serious misapprehension of the evidence, or an error in law:
see
Hickey v. Hickey
, [1999] 2 S.C.R. 518, at para. 12.
[11]
The motion judge cited the applicable
authorities and correctly distilled the governing tests. The appellant
essentially submits that the motion judge ought to have weighed the evidence
differently. We do not agree. The conclusions reached by the motion judge were
reasonable, based on the evidence before her. The motion judge logically and
carefully explained her conclusions. There is no basis to find any error in her
reasoning, let alone palpable and overriding error.
[12]
While the motion judge did not directly address
retroactive s. 7 expenses for the children, the appellant would have had to
establish that the expense was necessary, in the childrens best interests, and
reasonable in relation to the means of the spouses and children and the
familys spending pattern before separation. Given the paucity of evidence on
these points, the motion judge did not err in not making an order for s. 7
expenses.
[13]
The appellant also submits that the motion judge
erred in ordering her to pay costs to the respondent in the sum of $17,313.24.
The respondent had offered to settle with the appellant on terms that were more
favourable to her than the judgment on the motion. We see no basis to interfere
with the motion judges decision on costs.
[14]
Accordingly, the appeal is dismissed with costs payable to the
respondent fixed at $5000.00 all inclusive.
G.R.
Strathy C.J.O.
S.E.
Pepall J.A.
G.
Pardu J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Diamond v. Berman, 2021 ONCA 653
DATE: 20210924
DOCKET: C68480
Rouleau, Hoy and Thorburn JJ.A.
BETWEEN
Alyssa Beth Diamond
Applicant/Responding Party
(Respondent)
and
Wayne
Mark Berman
Respondent/Moving
Party
(Appellant)
David Sherr, for the appellant
Mark Greenstein, Ashley F. Krol and
Katie Hunter, for the respondent
Heard: September 20, 2021 by video conference
On appeal from the orders of Justice McGee
of the Superior Court of Justice, dated March 16 and June 4 2020, with reasons
reported at 2020 ONSC 1566 and 2020 ONSC 3492, and from the cost order, dated
July 16 2020, with reasons reported at 2020 ONSC 4301.
REASONS
FOR DECISION
[1]
This appeal arises from a bitter family law dispute.
After an 11-day trial, the trial judge ordered the appellant to pay spousal
support at the high-end of the spousal support advisory guidelines, calculated
in accordance with the appellants income and expected income increases, and
the respondents income set at $40,000 without providing for later increases.
[2]
Following the decision, the appellant, by
motion, submitted that the trial judge had erroneously applied the without
child support formula to calculate the spousal support award for the January to
August 2019 period. The appellant argues that the custodial payor formula
ought to have been used. Although the trial judge acknowledged having applied
the wrong formula, she nonetheless declined to revise her order. The trial
judge also awarded the respondent full recovery costs fixed in the amount of
$180,800.
[3]
On appeal, the appellant argues that the trial
judge erred:
i.
in refusing to impute a higher level of income
to the respondent;
ii.
in determining the quantum of spousal support;
and
iii.
in awarding the respondent full recovery costs.
[4]
In our view, the appeal must be dismissed.
[5]
With respect to the first ground of appeal, the
appellant argues that the trial judge seriously misapprehended the evidence regarding
the respondents actual income, her working hours, her credentials and the
availability of full-time work or supplemental employment. In short, the
appellant maintains that the trial judge made multiple errors in her fact
finding.
[6]
We see no basis to interfere with the trial
judges decision. She based her refusal to impute additional income largely on
the evidence of the respondents expert on rehabilitation. According to that
evidence and the respondents testimony at trial, the trial judge determined
that part-time work was widespread among dental hygienists and that the
respondent was earning at the high-end of hourly wages in her field. The
respondent worked part-time throughout the course of the marriage. The trial
judge also found that, over the course of the marriage, the appellant discouraged
the respondent from working longer hours and pursuing opportunities to upgrade
her qualifications. As a result, the trial judge concluded that the
respondents rate of employment was consistent with her occupation, her
experience and her age, and that the appellant had not demonstrated that the
respondent was underemployed or capable of earning more than she was at
present.
[7]
With respect to the alleged factual errors, the
appellant is, in effect, seeking to reargue his case on appeal. He asks this Court
to review and reinterpret the trial evidence so that we might make findings of
fact different from those made by the trial judge. As an example, he argues
that the trial judges finding that the respondents annual earnings were approximately
$40,000 was contrary to the evidence. If, as found by the trial judge, the
respondent worked 20 hours a week at $46 per hour, the appellant submits that
she should earn an annual income of $47,840. This does not, in our view,
constitute palpable and overriding error. As noted by the respondent, the trial
judges finding is explained by the fact that the respondents paid hours on
any particular day may vary if patients cancelled or the schedule of
appointments was not filled. Further, the 20 hours a week include unpaid lunch
breaks. It is not the function of this court to retry the case. From our review,
all of the trial judges factual findings are well-anchored in the evidence and
we see no basis to interfere.
[8]
On the issue of spousal support, the appellant
argues that the trial judge committed errors of fact and law in awarding spousal
support at the high-end range. In his submission, they were equal partners in
the marriage and the respondent suffered no deprivation to her career. In
addition, the appellant maintains that, after he advised the trial judge that
the amount she awarded was based on an incorrect premise, the trial judge ought
to have changed the amount of support ordered.
[9]
We reject this ground of appeal. The trial judge
correctly instructed herself on the applicable principles in finding that the
respondent would bear a disproportionate share of the economic consequences of
the marriage, and that the respondent focussed on the needs of the household. The
trial judge relied on the deep economic integration of the parties to determine
that the breakdown of the financial unit would have a more serious impact on
the respondent. We see no error in her conclusion in that regard.
[10]
The trial judges decision not to change the
amount of support ordered despite the error noted by the appellant was
explained by the trial judge in supplementary reasons. Her explanation is
equally free of error.
[11]
Finally, on the issue of costs, we see no basis
to grant leave. The trial judges decision to award full recovery costs is
well-supported by her reasons. We note in particular that, despite the award of
full recovery costs, the trial judge nonetheless carefully reviewed the amount
being claimed by the respondent and effected substantial reductions from the
amount sought.
[12]
For these reasons, the appeal is dismissed.
Costs to the respondent fixed in the amount of $15,000 inclusive of
disbursements and applicable taxes.
Paul
Rouleau J.A.
Alexandra
Hoy J.A.
J.A.
Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Lalonde v. Agha, 2021 ONCA 651
DATE: 20210924
DOCKET: C68482
Brown, Roberts and Zarnett JJ.A.
BETWEEN
Sophie Lalonde
Applicant
(Respondent)
and
Samer Agha
Respondent
(Appellant)
Robert J.M. Ballance, for the appellant
Michelle DiCarlo, for the respondent
Heard: June 29, 2021 by video
conference
On appeal
from the order of Justice Kirk W. Munroe of the Superior Court of Justice dated
June 3, 2020, with reasons reported at 2020 ONSC 3486.
L.B. Roberts J.A.:
Overview
[1]
This appeal concerns the scope of s. 31 of Ontarios
Marriage Act
, R.S.O. 1990, c. M.3, which operates to validate a
formally invalid marriage solemnized in good faith. Specifically, this appeal
will determine whether s. 31 extends to marriage ceremonies performed outside
of Ontario and to purely religious ceremonies where the parties took no steps
to obtain a licence or register the marriage.
[2]
The trial of the issue of the validity of the
parties marriage arose in the context of the respondent wifes application in
which she sought custody
[1]
of their children, child and spousal
support, and equalization of net family property. In his answer, the appellant husband
claimed there was no legally valid marriage and, as a result, the respondents claim
for equalization of net family property must be dismissed.
[3]
The appellant appeals from the trial judges
final order that the parties August 7, 1998 marriage in Memphis, Tennessee is
deemed to be a valid marriage pursuant to s. 31 of the
Marriage Act
and, therefore, that the parties are spouses under the
Family Law Act
,
R.S.O. 1990, c. F.3 (the
FLA
), s. 1(1), for the purpose, among
others, of equalization of net family property. Under s. 1(1) of the
FLA
,
only legally married spouses, or those who have together entered into a
marriage that is voidable or void, in good faith on the part of a person
relying on this clause to assert any right are entitled to equalization of
property on marriage break down.
[4]
For the reasons that follow, I would dismiss
the appeal.
Factual background
[5]
On August 7, 1998 the parties participated in
a religious marriage ceremony at a mosque in Memphis, Tennessee. The appellant,
a practising Muslim, had attended this mosque for the few months that he
resided and worked in Tennessee. He had arranged for the ceremony to take place
during the weekend that the respondent was visiting him from Canada. While the
appellant subsequently disputed the legal validity of the ceremony for the
purposes of property equalization, his evidence was that he believed the
ceremony was necessary to permit the parties to engage in sexual relations, as
pre-marital sexual relations were considered sinful under Islamic religious law.
The respondent had converted to Islam about a year before the ceremony.
[6]
The mosques Imam performed the marriage
ceremony and signed the marriage certificate. Following the marriage ceremony,
the parties received a marriage certificate with the seal of the mosques Imam.
The certificate states that they [h]ave been married according to the Quran and
Sunnah and are hereby given the rights and privileges of husband and wife
according to the Islamic Shariah.
[7]
No marriage licence was issued by any
government entity. Other than having the marriage solemnized by the mosques
Imam and witnessed by other members of the mosque, the parties did not try to ascertain
or comply with the formal statutory conditions of a legal marriage in
Tennessee, including the requirements to obtain a marriage licence and register
the marriage.
[8]
The parties both gave evidence that they did
not know that they were not complying with Tennessee statutory requirements.
They did not know they had to obtain a marriage licence or register their
marriage. Rather, they considered themselves to be legally married. Until their
separation in 2016, they lived openly as husband and wife for many years in
Windsor, Ontario, where they had three children and purchased the matrimonial
home. They recognized themselves as married to each other on government and
other official documents. On his cross‑examination at trial, the
appellant testified that even following the parties separation, he thought of
himself as married to the respondent. However, in response to the respondents
application for equalization of net family properties, the appellant took the
position that there was no marriage.
Trial of an issue
[9]
The appellant never disputed that the parties were
common law spouses, entitling the respondent to spousal and child support. The
point of contention at the trial was whether the August 7, 1998 religious
ceremony created a valid marriage under Tennessee or Ontario law for the
purpose of the respondents entitlement to make property claims under the
FLA
.
The respondents equalization claim pursuant to s. 5 of the
FLA
relied
on her meeting the definition of a spouse under s. 1(1) of the
FLA
.
[10]
Both parties called legal expert evidence concerning the conditions
of a valid marriage in Tennessee and the validity of their marriage ceremony at
the mosque. Both experts agreed that in Tennessee, marriage is governed by
statute, common law marriage is not recognized, and the statute,
Tennessee
Code Annotated
, requires the issuance of a marriage licence prior to any
religious ceremony. They also agreed that in certain exceptional circumstances,
the absence of a marriage licence does not invalidate a marriage on public
policy grounds and that the equitable doctrine of marriage by estoppel could be
applied to validate a formally invalid marriage.
[11]
The experts disagreed on whether the doctrine of marriage
by estoppel should be applied in the circumstances of this case. While the
respondents expert, Martha Child, opined that the doctrine of marriage by
estoppel should be invoked here, the appellants expert, Jason Ridenour, thought
that it should not, because even though they were unaware of the requirement, the
parties knew they had not obtained a Tennessee marriage licence.
[12]
The trial judge found that the religious ceremony did not create
a valid marriage under Tennessee law because the parties did not obtain a
marriage licence. However, he determined that it was unnecessary to resolve the
question as to whether the Tennessee doctrine of marriage by estoppel should be
applied to validate the parties formally invalid marriage. He concluded that
Ontario law applied because the parties spent their entire married life in
Ontario and the respondent was seeking the division of assets that is governed
by the law of the parties domicile. The trial judge determined that it is the
law of the province of Ontario that controls the legal significance of the
post-ceremony events. While not a valid marriage under Tennessee law, the
parties lived as a married couple in Ontario. According to the trial judge, whether
subsequent events created a valid marriage should therefore be determined by
Ontario law.
[13]
The trial judge considered and applied the following definition
of spouse under ss. 1(1)(a) and (b) of the
FLA
:
spouse means either of two persons who,
(a) are married to each other, or
(b) have together entered into a marriage that
is voidable or void, in good faith on the part of a person relying on this
clause to assert any right.
[14]
He concluded that s. 1(1)(b) did not apply because the
marriage was not voidable or void, given that there was no question that the
parties had the legal capacity to enter into a marriage. In determining whether
the parties were married to each other and therefore spouses under s.
1(1)(a), he looked at the criteria under s. 31 of the
Marriage Act
, which
provides as follows:
If the parties to a marriage solemnized in
good faith and intended to be in compliance with this Act are not under a legal
disqualification to contract such marriage and after such solemnization have
lived together and cohabited as a married couple, such marriage shall be deemed
a valid marriage, although the person who solemnized the marriage was not
authorized to solemnize marriage, and despite the absence of or any
irregularity or insufficiency in the publication of banns or the issue of the
licence.
[15]
The trial judge concluded that the criteria for a deemed valid
marriage under s. 31 of the
Marriage Act
had been met for the
following reasons:
1.
The parties marriage was solemnized in good
faith because there was no evidence of bad faith and both parties wanted to
marry and did so in a religious ceremony.
2.
The parties must have intended to follow the
Marriage
Act
because the respondent wanted to be legally married and therefore
intended to comply with the law. There was no intentional or deliberate
non-compliance or indifference as to compliance.
3.
There was no evidence that either party was
under a legal disqualification to contract marriage.
4.
The parties lived together and cohabited as a
married couple after the religious ceremony at the mosque.
[16]
As a result, the trial judge determined that the Tennessee religious
ceremony was deemed to be a valid marriage pursuant to s. 31 of the
Marriage
Act
and the parties were therefore spouses within the meaning of s.
1(1)(a) of the
FLA
.
As such, they were able to access the
property division, equalization, and security provisions of Parts I and II of
that Act.
Issues
[17]
I would summarize the appellants principal submissions as
follows:
1.
The trial judge erred in applying s. 31 of the
Marriage Act
to validate a ceremony that took place in, and was formally invalid under the
laws of, Tennessee. The law of the jurisdiction where the marriage was
performed (
lex loci celebrationis
) is the sole consideration in
determining formal marriage validity. Section 31 of the Act applies only to
marriages that were solemnized in Ontario and
cannot be imported into
the law of Tennessee.
Under Tennessee law, the parties
marriage was invalid and cannot be validated by the application of the Tennessee
equitable doctrine of marriage by estoppel because the parties knew they had
not obtained a marriage licence.
If the marriage is invalid in the place
where it was solemnized, it cannot be a valid marriage anywhere else.
2.
Alternatively, if s. 31 is applicable to
marriages solemnized outside of Ontario, the trial judge misinterpreted its
provisions by considering the respondents subjective good faith and intention
as to the legality of the marriage and compliance with the Act. Section 31 was
designed to deal with inadvertence, absences, irregularities, or
insufficiencies in the process and was not intended to apply to a ceremony that
totally ignored all formalities of the
Marriage Act
and the process
itself.
Alspector v. Alspector
(1957), 9 D.L.R. (2d) (Ont. C.A.),
was rendered prior to the enactment of the
FLA
and has been overtaken
by this courts approach in
Debora v. Debora
(1999), 167 D.L.R.
(4th) 759 (Ont. C.A.).
Analysis
Standard of Review
[18]
The issues argued by the appellant involve the
interpretation of s. 31 of the
Marriage Act
. As such they raise
questions of law reviewable on a standard of correctness. As I shall explain, in
my view, the trial judge made no error of law.
(i)
Can s. 31 of the
Marriage
Act
apply to validate a marriage solemnized outside
of Ontario?
[19]
I see no error in the trial judges conclusion that s. 31
of the
Marriage Act
applies to validate the parties formally invalid
marriage notwithstanding that it was solemnized in Tennessee.
[20]
In my view, the appellants position that s. 31 can only
apply to marriages solemnized in Ontario represents an overly narrow and
technical interpretation of s. 31. It undermines and is inconsistent with the
public policies underlying family law legislation in Ontario that support the presumption
of the validity of marriages entered into anywhere in good faith where the parties
have lived as, and held themselves out to be, a married couple.
[21]
The modern approach to statutory interpretation requires
that, unless ambiguous, the provisions of a statute are to be interpreted in
accordance with their plain meaning and legislative purpose:
Rizzo &
Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21. The appellant does
not submit that s. 31 is ambiguous. Rather, he urges an interpretation that, in
my view, does not respect the plain meaning of s. 31s provisions or its
legislative purpose.
[22]
For ease of reference, I reproduce the provisions of s. 31:
If the parties to a marriage solemnized in
good faith and intended to be in compliance with this Act are not under a legal
disqualification to contract such marriage and after such solemnization have
lived together and cohabited as a married couple, such marriage shall be deemed
a valid marriage,
although the person who solemnized the
marriage was not authorized to solemnize marriage
, and despite the absence
of or any irregularity or insufficiency in the publication of banns or the
issue of the licence.
[23]
The appellant argues that persons married in Tennessee or
elsewhere cannot intend to be married under the laws of Ontario but, rather, can
only intend to be married under the laws of the place where the marriage is
solemnized or performed.
[24]
However, if s. 31 of the Act applied only to marriages
performed in Ontario, the legislature could have easily included that
requirement. Instead, such limitation is absent from s. 31. It is one among several
provisions in the
Marriage Act
that apply to persons, like the parties
here, who were married outside of Ontario but are domiciled in Ontario when the
Act is invoked. For example, s. 1(2) provides that: This Act does not apply in
respect of any ceremony or form of marriage gone through by two persons who are
married to each other by a marriage previously solemnized in accordance with
this Act
or recognized as valid in Ontario
(emphasis added). And s.
8(3) specifically refers to the dissolution or annulment of a previous marriage
elsewhere than in Canada with respect to the prohibition of the issuance of a
licence in certain circumstances.
[25]
This interpretation is also consistent with well-established
conflict of law principles. As the appellant correctly points out, the formal
validity of a marriage is determined by the law of the jurisdiction where the
marriage is celebrated, the
lex loci celebrationis
:
Berthiaume
v. Dastous
, [1930] 1 D.L.R. 849 (P.C.), at pp. 851, 853;
Brook v.
Brook
(1861), 11 E.R. 703 (H.L.); Janet Walker,
Castel & Walker: Canadian
Conflict of Laws
, loose-leaf (ReI. 82-9/2020), 6th ed. (Markham, Ont.:
LexisNexis Butterworths, 2005) vol. 2, at para. 16-2. As noted by the author in
Canadian Conflict of Laws
, at para. 16-2:
The
lex loci celebrationis
governs the formalities surrounding the marriage ceremony, including such
questions as whether a religious ceremony is necessary or sufficient; whether a
marriage may be constituted
per verba de praesenti
,
that is, by an informal exchange of consent; whether a marriage may be
celebrated by proxy; or simply
by
the couple or one of
them or someone authorized by them reporting the marriage to the appropriate
governmental body. [Footnotes omitted.]
[26]
However, whether a marriage is formally invalid under the
lex
loci celebrationis
is a different question from whether it can be
deemed
legally valid.
[27]
Section 31 contemplates marriages that are otherwise not
legally valid until the provision deems them to be so. It is the law of the
jurisdiction where the parties reside that applies to the question of whether
the marriage will be legally validated notwithstanding its formal
irregularities. Julien D. Payne and Marilyn A. Payne explain in
Canadian
Family Law
, 8th ed. (Toronto: Irwin Law, 2020), at p. 16: Although
based on a contract between the parties, marriage is a status to which the
state attaches its own conditions as to its creation, duration, and consequences
(footnote omitted). As this court reiterated in
Alspector
,
at pp.
685-86, a competent court has jurisdiction to define matrimonial status and, in
particular, to declare a marriage valid.
[28]
In the same way, the appellants reliance on s. 4 of the
Marriage
Act
is in my view misplaced. Section 4 stipulates that [n]o marriage may
be solemnized except under the authority of a licence issued in accordance with
this Act or the publication of banns. However, these provisions do not limit
the use of the word solemnized in s. 31 to marriages performed in Ontario.
Rather, s. 4 refers to the question of formal validity. While they must be read
together, sections 4 and 31 serve different purposes.
[29]
The legal validation of marriages also reflects the
long-standing societal importance of marriage that, in the face of a dispute
between the parties, favours deeming the marriage valid. As the Supreme Court
stated in
Porteous v. Dorn et al.
, [1975] 2 S.C.R. 37, at pp. 40-41:
If persons live together as man and wife for such length of
time and in such circumstances as to have acquired local repute as married a
presumption that they are legally married may arise, which can only be
displaced by cogent evidence to the contrary.
[30]
See also
Powell v. Cockburn
, [1977] 2 S.C.R. 218.
[31]
Section 31 is a validation clause that protects a marriage
contracted in good faith from invalidity on the ground of formal
irregularities: H.R. Hahlo,
Nullity of Marriage in Canada: With A Sideways
Glance At Concubinage And Its Legal Consequences
, (Toronto: Butterworth
& Co. (Canada), 1979), at p. 19. As the authors of
Canadian Family Law
,
at p. 19, state: Non-compliance with statutorily presented formalities, though
subject to penalties, does not render the marriage void unless the statute
expressly or by necessary implication invalidates the marriage (footnote
omitted): see also
Peppiatt v. Peppiatt
(1916), 30 D.L.R. 1 (Ont.
C.A.), at pp. 10-12;
Kerr v. Kerr and Ontario (Attorney General)
,
[1934] S.C.R. 72;
Clause v. Clause
(1956), 5 D.L.R. (2d) 286,
at pp. 292-93.
[32]
Strict compliance with the statutory requirements for a
formally valid marriage licence is therefore not required to invoke the deeming
validity provisions of s. 31. If that were so, there would be no need for s.
31. As this court held in
Alspector
, the Legislature did not assume,
believe or expect that every couple who should intermarry in the Province would
be familiar with
this
Act. It would be the rare case, indeed, in which
either of them would know of the existence of the
Marriage Act
(emphasis in original): at p. 687.
[33]
I also note that section 31 has existed more or less in the
same form since at least 1896 and the history of validating formerly invalid
marriages extends back to legislation enacted in the province of Upper Canada:
The
Marriage Act, 1896
, S.O. 1896, c. 39, s. 29; William Renwick Riddell, The
Law of Marriage in Upper Canada (1921) 2 Can Historical Rev 226. The
historical need for the legal validation in Ontario of marriages formally
solemnized outside of Ontario likely stems from the practical reality that not
all of the hundreds of thousands of individuals who have settled in this
province have been in a position to prove the formal validity of their marriages.
This practical difficulty, along with the strong presumption in favour of the
regularity and validity of marriage, was observed by Robinson C.J. for the
Upper Canada Court of Queens Bench in
Breakey v. Breakey
(1846),
2 U.C.Q.B. 349, at p. 354:
Now I take the principle of law to be, that on
all questions of pedigree arising in a contest about property, the presumption
is strong in favour of the regularity and validity of the marriage, especially
when the parties have lived together as man and wife for twenty or thirty
years, and have been so reputed till the connection has been dissolved by
death, and when they have left issue. The presumption is indeed so strong, that
those who would impeach the validity of the marriage are required to make the alleged
illegality clearly appear. It would be cruel, as regards the feelings and
interests of parties, if the law were not in this respect rigid, and the
hardship in this country would be grievous, where so many thousands of people
have emigrated from distant countries, and are of that station in life that
they cannot be supposed always to have preserved or to be able to procure such
evidence as could satisfy any doubts and cavils in regard to the regularity of
their marriages
.
[34]
As the court concluded in
Smith v. Waghorn
, 2012
ONSC 496, upon finding the requisite intention to comply for the purposes of
applying s. 31 of the
Marriage Act
to validate a marriage celebrated
in Florida, absent evidence to the contrary,[i]t would be unusual that a
person following the laws of one state intended to be married within that
jurisdiction but not married in another jurisdiction: at para. 42.
[35]
As a result, I would not give effect to this argument.
[36]
In my view, s. 31 of the
Marriage Act
can apply to
validate a marriage solemnized outside of Ontario.
(ii)
If s.
31
applies to marriages solemnized
outside of Ontario,
can a court
consider the subjective intention of the parties to comply with the Act
?
[37]
The appellant submits that even if s. 31 of the
Marriage
Act
can apply to marriages solemnized outside of Ontario, it was an error
to consider the parties subjective good faith and intention. For the
appellant, the words, intended to be in compliance with this Act, mean that
the parties
objectively
intended to be in compliance with the
Marriage
Act
of Ontario and that the objective nature of the parties intention
requires them to take objectively reasonable steps to formally comply with the
Act. The consideration of either partys
subjective
intentions is
irrelevant and would lead to confusion and uncertainty. The trial judge
therefore erred in taking into account the respondents subjective intentions
to marry the appellant. Moreover, the appellant argues, the applicable deeming
provision of s. 31 in this case relieves against only technical
irregularities and insufficiencies with respect to the issue of the marriage
licence
[2]
; the failure to obtain a marriage licence
is not a technical irregularity or insufficiency.
[38]
Here too, in my view, the appellants approach is overly strict,
does not represent a plain reading of s. 31, and undermines its purpose.
[39]
I reiterate the well-established public policy discussed
above that favours marriage as a social institution, which, in my view, is
reflected in s. 31 of the
Marriage Act
.
[40]
I also disagree with the appellants position that the
parties subjective intentions to comply with the law of Ontario are
irrelevant. Neither the English nor the French language version of s. 31 precludes
the assessment of the parties subjective intentions to comply nor have they
been excluded from judicial consideration. As this court confirmed in
Alspector
,
even the subjective intentions of one party are relevant. However, whether the
evidence of an intention to comply is credible or reliable is another question.
The issue of whether the parties or one party intended to conform with the law
is a question of mixed fact and law that involves issues of credibility and
reliability for a judge to determine.
[41]
Moreover, the curative provisions of s. 31 are not limited,
as the appellant suggests, to situations involving mere irregularity or
insufficiency in the issue of a marriage licence. The appellants proposed
interpretation omits the express curative provision in s. 31 for the absence
of the issue of a marriage licence
[3]
, which is what occurred here.
[42]
That said, I agree with the appellants position that
intended to be in compliance with this Act requires something more than the
condition that the parties have solemnized their marriage in good faith.
Otherwise, there would be no need to include the requirement of intended to be
in compliance in addition to the requirement that the marriage be solemnized
in good faith. As the author of
Nullity of Marriage
states at p. 20:
While failure to comply with prescribed
statutory formalities does not, as a rule, invalidate a marriage at least
where the parties acted in good faith there must always be it is submitted,
something which, at least in appearance, amounts to a proper marriage ceremony.
An informal consent marriage, even if it was contracted by the parties in good
faith and was followed by their cohabitation as man and wife, can never qualify
as a marriage. It is a non-marriage. [Footnote omitted.]
[43]
See also:
Dutch v. Dutch
(1977), 1 R.F.L. (2d) 177
(Ont. Co. Ct.), at pp. 187-89.
[44]
In my view, a marriage is intended to be in compliance
with this Act where there is an intention to create a formally binding legal marriage,
that is, one that would be recognized for civil, as opposed to only religious, purposes.
That intention will not be present where the parties know of the relevant
formal legal requirements and deliberately choose not to follow them, notwithstanding
that their marriage is recognized as a valid religious ceremony or was
solemnized in good faith. But that intention may be found where the parties believe
they are marrying for all purposes, any non-compliance was non-deliberate, and where
the parties subsequent behaviour confirms that they considered themselves, from
the time of the marriage ceremony, to have become legally married.
[45]
As the following review of the relevant case law in Ontario
demonstrates, this is the approach that has been followed uniformly for more
than fifty years by the courts that have considered the intention to comply provisions
of s. 31 and its predecessors. I disagree with the appellants submission that
there is any conflict in the approach taken by courts or that this approach has
led to divergent or unpredictable results.
[46]
I begin with a review of
Alspector
and
Debora
.
In my view,
Alspector
has not been overturned by
Debora
;
these cases can be read consistently with each other. The key factual distinction
between them is that in
Debora
, unlike in
Alspector
, there
was a finding of deliberate non-compliance with Ontario law.
[47]
Alspector
involved
circumstances where the parties were married in Ontario by a cantor in a Jewish
religious ceremony without a marriage licence. The husband made inquiries as to
whether a marriage licence was required and believed it was not because the
parties intended to live in Israel. The wife relied on the husbands advice
that a marriage licence was not required. This court accepted the wifes
subjective intention to comply with the law of Ontario to enter into a formally
valid marriage and held that her subjective intention was sufficient to satisfy
the intention to comply provision of the predecessor to s. 31 of the
Marriage
Act
.
[48]
In comparison,
Debora
involved materially
different factual circumstances and therefore is distinguishable from
Alspector
and the present case. The parties participated in a religious ceremony in 1987
and later went through a civil ceremony in 1994. The court interpreted
marriage in the definition of spouse under s. 1(1) of the
FLA
as
meaning a marriage under the
Marriage Act
. This court held that while
the 1994 ceremony was valid, the 1987 religious ceremony did not create a
formally valid marriage because the parties had deliberately not complied with
the law of Ontario. Although aware of the requirement, they intentionally did not
register their marriage following the 1987 ceremony so that the husband could
continue to receive a widowers pension. This court focused its analysis on the
meaning of good faith on the part of the person asserting a right under s.
1(1)(b) of the
FLA
and determined, citing
Harris v. Godkewitsch
(1983), 41 O.R. (2d) 779 (Ont. Prov. Ct.), at p. 781, that spouse under s. 1
should not be extended to cover a person who participated in a ceremony in
Ontario that was clearly and deliberately outside the
Marriage Act
,
notwithstanding the marriage was solemnized in good faith:
Debora
,
at pp. 762-63.
[49]
I turn next to consider what the appellant has described as
two conflicting lines of cases. In my view, there is no conflict. Rather, the
divergent results in these cases stem from their divergent facts. A review of
the caselaw reveals a consistent approach: marriages are deemed valid provided
there is some evidence of intent to comply with marriage law and absent deliberate
non-compliance.
[50]
I start with the cases where the courts declined to
validate marriages under s. 31 of the
Marriage Act
.
[51]
In
Harris
, the application judge found that the
applicant chose not to be married for the purposes of Ontario law but,
instead, to be committed personally and spiritually through the Jewish
ceremony because of a desire not to be in a position to make any property claims
against the respondent: at p. 780. The marriage was not deemed valid.
[52]
Kanafani v. Abdalla
,
2010 ONSC 3651, 89 R.F.L. (6th) 189, is similarly distinguishable from
Alspector
and the present case on its facts. In 2004, the parties were married in Toronto
under Sharia law by an Islamic religious leader. They never obtained a marriage
licence or registered the marriage. They subsequently attended before a judge
in the United Arab Emirates (UAE). The focus of the motion for summary
judgement was on the subsequent UAE ceremony, which the wife asserted resulted
in a valid civil marriage. The motion judge found there was no intention to
comply with Ontario law and concluded that on the undisputed facts the
religious marriage was not valid under the
Marriage Act
. She held that
the certificate issued by the judge in the UAE did not suggest a new valid
marriage ceremony had occurred. Her conclusion was supported by the wifes contradictory
assertions about whether the UAE ceremony created a new marriage or merely
registered the Toronto marriage.
[53]
Chhokar v. Bains
,
2012 ONSC 6602, involved a finding of deliberate non‑compliance. The
parties had participated in a Sikh religious marriage ceremony in Ontario. The
trial judge accepted the respondent husbands evidence that the applicant wife,
prior to the religious marriage ceremony, did not want to obtain a marriage
licence. He concluded that she knew of the need for a marriage licence and did
not intend to comply with the laws of Ontario. As a result, he declined to
validate the marriage under s. 31 of the
Marriage Act
.
[54]
In
Aden v. Mohamud
, 2019 ONSC 6493, the court
declined to deem the marriage valid pursuant to s. 31 of the
Marriage Act
because the parties did not intend to comply with the law of Ontario. The
parties participated in a religious marriage ceremony in 2007 without
registering the marriage. The husband later married another woman in 2014,
which was registered in Ontario. The court held that this arrangement was
inconsistent with a legal marriage in Ontario such that the marriage was not
valid pursuant to s. 31 of the
Marriage Act
. The court, at para. 22,
rejected the wifes stated belief that she assumed her marriage was legal on
the basis that had she truly believed that she was married according to the law
of Ontario, her marriage would have ended in 2014 when her husband informed her
of his intent to have more than one wife.
[55]
Moza and Thusu (Re)
,
2021 ONSC 1552, 54 R.F.L. (8th) 132, is the most recent reported decision to
consider s. 31 of the
Marriage Act
. The application judge refused to
validate the parties marriage celebrated in a religious ceremony in India
because she was not satisfied that there was evidence of the formal
requirements under Indian law nor of an intention to comply with Ontario law.
[56]
By contrast, the cases where courts have validated
marriages under s. 31 of the
Marriage Act
all involve findings that at
least one of the parties intended to comply with the law of Ontario.
[57]
The court in
Friedman v. Smookler
, [1964] 1 O.R. 577 (Ont. S.C.),
deemed a
marriage to be valid because the parties intended to comply with the Act.
Following the ceremony, the parties had lived together as man and wife.
Although they did not obtain a licence and the celebrant was not an authorized
marriage officer, the court held that it is enough that the persons to the
marriage act under a belief that a religious ceremony will be recognized as a
legal marriage.
[58]
Like the present case, in
Ayoub v. Osman
, 2006
CanLII 9309 (Ont. S.C.), the court considered whether the parties formal
religious marriage ceremony officiated by an Imam in Ontario produced a
formally valid marriage where no marriage licence had been obtained and the
marriage was not registered. The court validated the marriage under s. 31 of
the
Marriage Act
because the parties considered themselves formally
married to one another, lived together as husband and wife for almost 12 years,
and had two children.
[59]
The parties subjective intention to marry one
another was also an important factor in the courts decision to validate the
marriage in
Smith
.
In
Florida, the parties had participated in a marriage ceremony before a duly
authorized officer and obtained a marriage licence. However, they had misrepresented
the husbands name to the Florida court and marital officials. The application
judge applied s. 31 to validate the marriage. He concluded that although the
applicant knew that the respondent had misrepresented his name for employment
purposes, she did not understand that this misrepresentation would invalidate
their marriage. He found on the evidence that the parties intended to enter
into a legally binding marriage
and thereafter to be so considered in
accordance with the laws of all jurisdictions, including the Province of
Ontario: at para. 42. This finding was fact-specific. After the marriage
ceremony, the parties cohabited, lived together, and repeatedly represented to
the public and their families that they were married to one another.
[60]
In
Isse v. Said
, 2012 ONSC 1829, 19 R.F.L. (7th)
413, the parties participated in an Islamic wedding ceremony in Ontario
according to Sharia law. No marriage licence was issued and the marriage was
not registered under the law of Ontario. The court determined that the marriage
was valid under s. 31 of the
Marriage Act
because the ceremony was
solemnized in good faith and the parties intended to comply with the
Marriage
Act
. Importantly, the court accepted that the wife assumed that the
religious ceremony legalized the marriage and did not know that any further
steps were required.
[61]
Jama v. Basdeo
, 2020 ONSC 2922, is also factually similar to the present
case. The parties participated in a traditional Islamic wedding ceremony and
intended to be legally married. While there were witnesses to the ceremony, the
parties did not obtain a marriage licence and there was no evidence that the
officiant was authorized to solemnize marriages. The trial judge concluded that
both parties intended to comply with the law to enter into a valid marriage. In
particular, she accepted the wifes evidence that she was not aware that a
marriage licence was required in order to make the marriage legal and that had
she known, she would have obtained a licence. As a result, the trial judge
validated the marriage under s. 31 of the
Marriage Act.
Application of the
law to the facts
of this case
[62]
Each of the decisions that I have just reviewed turned on
the particular factual circumstances of each case. In each, it was crucial whether
there was evidence of an intention to comply or, conversely, of deliberate
non-compliance with the formal requirements of the law in Ontario
[4]
.
[63]
Here, the parties believed that the marriage ceremony
created a binding marriage in conformity with the laws of Tennessee and Ontario,
and their subsequent conduct shows they acted on that belief. That belief, as
the trial judge found, correctly in my view, indicated an intention to enter
into a valid, legally recognized marriage. His finding was grounded firmly in
the evidence. Unlike in some of the cases reviewed above, there was no evidence
in the present case that either party intended not to be legally married or was
deliberately not complying with the law of Ontario. Other than the failure to
obtain a marriage licence, the parties complied with all the other statutory
requirements for a valid marriage under Tennessee or Ontario law. They were
married by an Imam. There were witnesses present at the ceremony. They had the
capacity to enter into the marriage and consented to do so. Most important,
neither of them knew that a marriage licence was required to create a formally
valid marriage. In other words, they believed that they had entered into a
legally binding marriage that would be legally binding anywhere, including under
the laws of Ontario, where they intended to reside following the ceremony.
[64]
There is also no question that the parties complied with
all of the other provisions of s. 31 of the
Marriage Act
: they entered
into their marriage in good faith; they were married in a religious ceremony in
a mosque by an Imam which was consistent with their religious faith at the time
of the marriage; they had the capacity to enter into marriage and consented to
do so; and they lived as a married couple following the religious ceremony: the
respondent wore a ring and the parties indicated they were married as their
status on various legal documents, including income tax returns, hospital
records, birth records, and mortgage documents.
[65]
As a result, I see no error in the trial judges conclusion
that the provisions of s. 31 of the
Marriage Act
were met and that the
marriage was deemed valid. The onus is on the appellant to rebut the
presumption of a valid marriage:
Powell
, at p. 225. In my view, he has
failed to do so.
[66]
In sum, the parties intended to comply with whatever law
governs the solemnization of marriages in Tennessee that would be recognized in
Ontario. Denying the parties marriage would work an injustice on the
respondent who relied on the appellant and unjustly relieve the appellant of his
legal obligations in respect of the marriage that he voluntarily arranged, entered
into, and derived the benefit of for 18 years. As this court stated in
Alspector
,
the law will not permit him in a subsequent action to plead his own fraud upon
the bride in order to have the ceremony declared a nullity: at pp. 687-88. This
would run counter to the long‑standing presumption of the validity of
marriage and frustrate the socially important goal of avoiding the very circumstances
that s. 31 of the
Marriage Act
was intended to address.
Disposition
[67]
For these reasons, I would dismiss the appeal.
[68]
If the parties cannot agree on the disposition of costs, I would
permit them to submit brief written argument of no more than two pages, plus a
bill of costs, within ten days of the release of these reasons.
Released: September 24, 2021 D.B.
L.B. Roberts J.A.
I agree. David Brown
J.A.
I agree. B. Zarnett
J.A.
[1]
Now
called decision-making responsibility and parenting time.
[2]
The
curative provisions of s. 31 also may relieve against the circumstance where
the person who solemnized the marriage was not authorized to solemnize
marriages; however, this was not an issue raised on appeal.
[3]
The French language version of s. 31 also stipulates clearly that
its curative provisions apply in the absence of a licence, and not merely in
the circumstance of an irregularly issued licence, as follows: « Le
mariage est valable, même si le célébrant nétait pas autorisé à le célébrer et
même sil ny a pas eu
de publication de bans ni
de délivrance de
licence
,
ou sil sest glissé quelque irrégularité
dans cette
publication ou
cette délivrance
, quand les parties
à la célébration du mariage étaient de bonne foi, désiraient se conformer à la
présente loi, nétaient sous le coup daucun empêchement légal de contracter
mariage et vivent ensemble et cohabitent comme couple marié depuis le mariage. »
[Emphasis added].
[4]
The
appellant also relied on three judgments of courts outside of Ontario. None of
them is binding on this court. Furthermore, they are of little assistance in
interpreting Ontario statutes and are factually distinct. For example, in
Bussey v. Dwyer
, 2017 NLCA 68, the case
turned on the parties deliberate choice not to enter into a legal marriage but
exchange rings in a peculiar ceremony at their home
without an officiant,
a witnesses or a licence, and where they read out a bible verse to each other
used at weddings.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Khairzad v. Erroussa, 2021 ONCA
667
DATE: 20210927
DOCKET: C68805
Strathy C.J.O., Pepall and Pardu
JJ.A.
BETWEEN
Seyar Khairzad
Applicant (Appellant)
and
Ghizlane Erroussa
Respondent (Respondent)
James A. Brown, for the appellant
John V. Grant, for the respondent
Heard: September 16, 2021 by
video conference
On appeal from the order of Justice Lauren
Bale of the Superior Court of Justice, dated March 31, 2020, with reasons
reported at 2020 ONSC 1787.
REASONS FOR DECISION
[1]
The appellant, Seyar Khairsad, appeals from a March 31, 2020 order:
(i)
dismissing his motion
to change the consent decision-making and parenting time order made by Pazaratz
J. on August 11, 2017; and
(ii)
increasing the appellants
monthly child support from $179 to $359 based on an imputed annual income of
$40,000.
[2]
The appellant also brings a motion for leave to adduce fresh evidence on
his annual income for the years 2017, 2018, his employment status, and leasing
arrangements.
[3]
At the conclusion of their oral submissions, we advised the parties that
the appeal was dismissed with reasons to follow. These are those reasons.
Decision-Making Responsibility and Parenting Time
[4]
The parties separated prior to the birth of their daughter, born in
December 2016. She has always resided with the respondent. In 2017, the
appellant was charged with assault of the respondent and entered into a peace
bond. The motion judge found that the respondent is a victim of domestic
violence at the hand of the appellant.
[5]
The appellant submits that the motion judge erred by failing to award
joint decision-making responsibility (previously referred to as custody) to the
appellant and by refusing to increase the appellants parenting time
(previously referred to as access) to the parties daughter.
[6]
The motion judge declined to find a material change with respect to decision-making
responsibility. By all accounts, the parties daughter was thriving under the
primary care and decision-making authority of the respondent. The evolution of
the appellants increased role in his daughters life did not amount to a
change in circumstances warranting a change in the decision-making
responsibility order. Furthermore, even if there were a material change, a
joint decision-making arrangement would be unworkable. The motion judge noted
the history of abuse, the ongoing difficulties in communications, and the
appellants animosity and distrust of the respondent, all of which precluded any
such arrangement.
[7]
As for parenting time, before the motion judge, the respondent conceded
that there had been a material change of circumstances since the August 11, 2017
order due to the daughters age and stage of development. The motion judge
adjusted the appellants parenting time to consist of alternate weekends from
Friday at 4 p.m. to Sunday at 7 p.m., every Tuesday afternoon from 4 p.m. to 7 p.m.,
and Tuesdays from 9 a.m. to 7 p.m. during the months of July and August on
certain terms.
[8]
The appellant asks this court to vary the decision-making order and
invites us to adjust the parenting times contained in the order granted, saying
the order failed to reflect the principle of maximum contact consistent with
the best interests of the child.
[9]
An appeal court should only intervene in a parenting order or family
support decision where there is a material error, a serious misapprehension of
the evidence, or an error in law:
Hickey v. Hickey
, [1999] 2 S.C.R.
518, at para. 2;
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R.
1014, at para. 12.
[10]
We
see no such errors in the motion judges parental decision-making and parenting
time decision. She gave detailed and thoughtful reasons. She applied the
correct legal principles and her findings and conclusions were fully justified
on the record before her and anchored, as they ought to have been, in the best
interests of the child in this case. We see no basis on which to interfere.
Child Support
[11]
On
the issue of child support, the appellant is a painting contractor and was 38
years of age at the time of the hearing. The motion judge observed that the
2017 order was silent on the quantum of the appellants income but that a
monthly payment of $179 would correspond with an income of approximately $22,500
under the Child Support Guidelines. The 2017 order required the parties to
provide updated annual income disclosure but neither did.
[12]
On
September 24, 2019, Chappel J. had ordered the appellant to make financial
disclosure, but he failed to produce a sworn financial statement or any
documentary evidence on his 2017, 2018 and 2019 income as ordered. Based on the
failure to comply, the passage of time and the likelihood that the appellants
income had not remained static, the motion judge found a material change in
circumstances. She imputed an annual income of $40,000 to him based on a
variety of factors including the number of hours he worked each week, his
hourly rate, the availability of work, and collateral evidence of his lifestyle
such as his rental of a Maserati motor vehicle. This imputation resulted in an
order of monthly child support of $359.
[13]
Again,
we see no basis to interfere. Based on the record before her, the inferences
and conclusions drawn by the motion judge were reasonable.
Fresh
Evidence
[14]
We
also dismiss the request for leave to admit fresh evidence.
[15]
On
the issue of child support, the appellant failed to comply with both the 2017
and 2019 disclosure orders. It is not now open to him to seek to admit evidence
available to him at the time of the motion to achieve a better result on
appeal. As stated in
R.F. v. J.W
., 2021 ONCA 528, at para. 11, 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. In
any event the appellants tax returns did not reflect his earning capacity, for
the reasons indicated by the motion judge.
[16]
Although
the criteria described in
Palmer v. The Queen,
[1980] 1 S.C.R. 759,
are more flexible
where an appeal involves the best interests of a child (see for example
Goldman
v. Kudelya
, 2017 ONCA 300, [2017] W.D.F.L. 3127, at para. 25), the fresh
evidence on the appellants new lease arrangements could not possibly have
affected the parenting decision reached by the motion judge. We decline to
grant leave to admit that evidence.
[17]
For
these reasons, the appeal is dismissed as is the motion for leave to admit
fresh evidence.
[18]
The
parties were invited to make written submissions on costs. Having considered
the submissions made, the appellant is to pay the respondents costs of the
appeal fixed in the amount of $7,000 inclusive of disbursements and applicable
tax.
G.R. Strathy
C.J.O.
S.E. Pepall
J.A.
G. Pardu J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Narwhal International Limited v.
Teda International Realty Inc., 2021 ONCA 659
DATE: 20210927
DOCKET: C68786
Strathy C.J.O., Pepall and Pardu
JJ.A.
BETWEEN
Narwhal
International Limited
Applicant (Appellant)
and
Teda International Realty Inc.
Respondent (Respondent)
Gennady Tcherny, President of Narwal
International Limited, acting as agent for the appellant, with leave of the
Court
Stephanie Tassopoulos, for the
respondent
Heard: September 17, 2021 by video conference
On appeal from the order of Justice Breese
Davies of the Superior Court of Justice, dated January 7, 2021.
REASONS FOR DECISION
[1]
This appeal concerns a dispute about the renewal
term in a commercial lease.
[2]
In March 2019, the appellant tenant notified the
respondent landlord of its intention to renew the lease for a five-year period.
Protracted negotiations between the parties did not result in agreement on the
rent to be paid during the renewal period. The appellant commenced an
application for a declaration that it was entitled to renew the lease and for
an order setting the rent for the renewal period.
[3]
There were two principal issues before the
application judge. The first concerned which of two documents was actually the
agreement to lease executed by the parties. This was significant because the
renewal provisions in the two documents were different.
[4]
After reviewing the conflicting evidence
tendered by the parties, the application judge found that the document tendered
by the respondent was the agreement made between the parties. She gave cogent
reasons for her conclusion.
[5]
Unlike the document proffered by the appellant,
which provided that the rent on renewal would be determined by reference to
prevailing market rates for similar space, the document produced by the
respondent, and accepted by the application judge, simply stated that the net
rental rate for the five-year renewal period was to be discussed between
landlord and tenant.
[6]
The application judge noted that a right to
renew a lease on the same terms except for the rental rate does not create an
enforceable legal obligation, other than an obligation on the landlord to
negotiate in good faith: referring
inter alia
to
Godson v. P. Burns
& Co.
(1919), 46 D.L.R. 97 (S.C.C.);
Molson Canada 2005 v. Miller
Brewing Company
, 2013 ONSC 2758, 116 O.R. (3d) 108, at paras. 95-108.
[7]
The second issue was whether the landlord had
negotiated in good faith with respect to the rental rate for the renewal term.
[8]
After setting out the chronology of the renewal
discussions in considerable detail, the application judge found that [the
respondent] acted in good faith during its negotiations with [the appellant]
and ultimately made a reasonable offer to [the appellant] for the renewal. The
appellant rejected that offer, although it subsequently attempted to accept the
offer after it received notice of termination of the lease. Again, the
application judge gave detailed and thoughtful reasons for her finding of good
faith.
[9]
The application judge therefore dismissed the
appellants application.
[10]
In this appeal, the appellant challenges the
application judges findings on both central issues: the determination of which
of the two documents constituted the agreement to lease and whether the
respondent had engaged in good faith negotiations to renew the lease.
[11]
The appellant also seeks to introduce fresh
evidence on the appeal. In essence, that evidence challenges: (a) the
respondents evidence on the application concerning the appropriate market rent
for the premises; (b) the respondents conduct after the hearing of the
application; and (c) the conduct of the respondent and its counsel in related
proceedings.
[12]
We decline to admit the fresh evidence. While
some of it relates to events that occurred after the application had been heard
and was not available at the hearing, we are not satisfied that any of the
evidence is relevant to the issues to be determined on this appeal. In any
event, we are satisfied that even if the evidence were to be admitted, it would
not
have affected the outcome as it does not call
into question the application judges findings of fact on the central issues: see
R. v. Palmer
, [1980] 1 S.C.R. 759.
[13]
Turning to the appeal itself, the appellant
invites us to revisit the findings of fact made by the application judge. In
effect, it argues that the application judge erred in finding that the
agreement to lease was the document tendered by the respondent and in finding that
the respondent had negotiated in good faith.
[14]
Unfortunately, the appellant misunderstands the
function of an appellate court. It is not this Courts responsibility to
conduct a second trial. In the absence of a palpable and overriding error in
the application judges assessment of the evidence, an appellate court must
accept the judges findings of fact. A palpable and overriding error is an
obvious error that is sufficiently significant to vitiate the challenged
finding of fact:
Longo v. MacLaren Art Centre
, 2014 ONCA 526, [2014]
O.J. No. 3242, at para. 39. It has also been said that:
A palpable error is one which is clear to the
mind or plain to see, so obvious that it could be easily seen or known or
readily or plainly seen. An overriding error is one which had a sufficiently
decisive effect, such that it would justify intervention and review on appeal:
1632093
Ontario Inc. (Turn-Key Projects) v. York Condominium Corporation No. 74
,
2020 ONCA 843, 328 A.C.W.S. (3d) 66, at para. 1.
[15]
The application judge made no such error. She
gave thorough and cogent reasons for her findings of fact, some of which were
based on her assessment of the credibility of the respondents witness. Her
findings of fact are entitled to deference and are dispositive of this appeal.
[16]
The appeal is dismissed. We did not receive
submissions on costs. If costs are sought, they may be addressed by written
submissions. The respondent shall serve and file its submissions within 10 days
of the issuance of the reasons. The appellant shall have 10 days from receipt
of the respondents submissions to serve and file its submissions. The
submissions shall not exceed three (3) double-spaced pages, excluding cost
outlines. They shall be filed with the Registrar of this Court, and copied to
the opposing party, either by email or by ordinary mail.
G.R.
Strathy C.J.O.
S.E.
Pepall J.A.
G.
Pardu J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Ottawa-Carleton Standard
Condominium Corporation No. 671 v. Friend, 2021 ONCA 666
DATE: 20210927
DOCKET: C69072
Watt, Benotto and Trotter JJ.A.
BETWEEN
Ottawa-Carleton Standard
Condominium Corporation No. 671
Applicant (Respondent)
and
Anthony Marcus Friend and
Henriette Friend
Respondents (Appellants)
Samuel Zakhour, for the appellants
Cheryll Wood and David Lu, for the
respondent
Heard: September 22, 2021 by
video conference
On appeal from
the order of Justice Paul B. Kane of the Superior Court of Justice dated June
4, 2020.
REASONS FOR DECISION
[1]
The appellants are condominium owners. The
appellant, Mr. Friend, has a long-standing dispute with the condominium
corporations Board of Directors and employees, dating back to 2011. He has
refused to follow the condominiums by-laws and rules. He has interfered with contractors
attempting to carry out work in the building. He has engaged in a campaign of
harassment and rude and demeaning behaviour aimed at members of the Board of
Directors and employees of the condominium. He has physically accosted the
President of the Board.
[2]
In 2019, the respondent obtained an interim
injunction that restricted Mr. Friends ability to communicate with the people
he has harassed and/or accosted. He persisted in his behaviour. Consequently, the
respondent condominium corporation brought an application under s. 134(1) of
the
Condominium Act
, 1998
, S.O. 1998, c. 19, and r. 14.05(2) of
the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, seeking a
permanent injunction against Mr. Friend.
[3]
The application judge found that Mr. Friend was
in violation of s. 117 of the
Condominium Act
, which provides: No
person shall permit a condition to exist or carry on an activity in a unit or
in the common elements if the condition or the activity is likely to damage the
property or cause injury to an individual. The application judge held that
injury includes psychological harm.
[4]
The application judge further held that, Mr.
Friends persistent and ongoing breaches with aggression of the Act and the
Condominiums declaration and rules must be halted. He ordered that Mr. Friend
cease and desist in conduct that contravenes the Act and/or the Condominiums
declaration, by-laws and rules. He restricted Mr. Friends ability to
communicate with members of the condominium community, including their families.
A number of exceptions, however, were built into this prohibition.
[5]
The appellants challenge the legality and
appropriateness of this order. They also apply to adduce fresh evidence in the
form of Mr. Friends affidavit in which he purports to show that he was treated
unfairly at the hearing of the application. We admit the fresh evidence for
this limited purpose. It is not admissible, and is irrelevant, to the
substantive issues decided by the application judge.
[6]
The appellants advance a number of grounds of
appeal. They submit that the application judge had no jurisdiction to order a
permanent injunction because there was no underlying action to which it could
attach. We disagree. The application was properly brought under s. 134 of the
Condominium
Act
and provided the jurisdictional footing for the order that was made.
[7]
The appellants submit that the application judge
erred in failing to apply the proper test for a permanent injunction. More
specifically, the appellants submit that the trial judge failed to appreciate
that the test for obtaining a permanent injunction is different from the test
for an interlocutory injunction. While the trial judge did not specifically
advert to the test he applied in making the order, the order that he made
limiting communication between Mr. Friend and various members of the
condominium community was authorized by s. 134(3) of the
Condominium Act
,
which permits a judge to grant such other relief as is fair and equitable in
the circumstances.
[8]
The order was fair and equitable in the
circumstances, based on the findings that the application judge made about Mr.
Friends behaviour and its impact on those affected. Mr. Friends offensive
conduct continued after the interim injunction was in place. This, in itself,
amply justified the application judges order.
[9]
The appellants submit that the proceedings were
unfair because they were denied an adjournment. We disagree. The decision to
grant an adjournment is a discretionary one that must be afforded deference on
appeal. In this case, the application judge gave thorough reasons for refusing
an adjournment, noting that the request was, but one of a pattern of
adjournment requests by Mr. Friend.
[10]
We also disagree with the submission that the
proceeding was unfair because the application judge failed to consider Mr.
Friends position on contentious matters. Mr. Friend did not file an affidavit;
instead, he relied on a slide presentation and an affidavit filed in a related
lien action. As the application judge said, [m]uch of the materials filed by
Mr. Friend do not respond to the issues on this application and instead recite
his disputes with the Condominium dating back to 2011 and unrelated matters
such as the Condominiums 2019 Auditors Report.
[11]
Lastly, and although not pressed in oral
submissions, the appellants submit that the application judge should have
converted the proceeding to an action because there were facts in dispute.
Again we do not agree. The material facts were either admitted to by Mr. Friend
or simply not addressed. The application judges decision was reasonable.
[12]
Accordingly, the appeal is dismissed. We award
costs to the respondent in the amount of $12,500, inclusive of costs and
disbursements.
David Watt J.A.
M.L. Benotto J.A.
Gary Trotter J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Moses v. Moses, 2021 ONCA 662
DATE: 20210928
DOCKET: C69124
Strathy C.J.O., Lauwers and
Sossin JJ.A.
BETWEEN
Reuben
Moses
Applicant (Appellant)
and
Rosy
Moses, personally and in her capacity as the Estate Trustee of the primary and
secondary estates of Aby Reuben Moses, deceased, and Rachel Moses
Respondents (Respondents in Appeal)
Gregory M. Sidlofsky, for the appellant
Catherine Francis, for the respondent,
Rachel Moses
Ranjan Das, for the respondent, Rosy
Moses, personally and in her capacity as the Estate Trustee of the primary and
secondary estates of Aby Reuben Moses
Heard: September 3, 2021 by video conference
On appeal from the order of Justice Peter
J. Cavanagh of the Superior Court of Justice, dated January 25, 2021, with
reasons reported at 2021 ONSC 587, 64 E.T.R. (4th) 246.
REASONS FOR DECISION
[1]
The application judge dismissed the appellants application for a
declaration of invalidity of a will made by his late father in 2019, three
months before his death (the 2019 Will). He claimed that the 2019 Will was
invalid as a result of undue influence by his mother, the respondent Rosy Moses,
and by his sister, the respondent Rachel Moses.
[2]
In other proceedings, the appellant claims an interest in his fathers
property, based in part on proprietary estoppel.
[3]
The appellant advances two principal submissions. First, he submits that
the application judge erred in his interpretation of s. 23 of the
Estates Act
, which gives a party standing under a will
when making a claim to property affected by the will. He submits that his
civil action against the estate is such a claim. He contends that in rejecting
his submission, the application judge incorrectly relied on the decision of the
Saskatchewan Court of Appeal in
Adams Estate v. Wilson
,
2020 SKCA 38, 57 E.T.R. (4th) 1.
[4]
The appellants second submission is that the application judge erred by
putting an onus on him to establish the invalidity of the 1996 Will, an issue
that would be determined at a later date, if necessary.
[5]
The application judge found that the appellant had no standing to bring
the application to declare the will invalid, either under r. 75.06(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 or under
s. 23 of the
Estates Act
, R.S.O. 1990, c. E.21.
He was not a beneficiary under the 2019 Will and, even if the 2019 Will were to
be set aside on the ground of undue influence, he would not be affected by the
result, because there was an earlier will, made in 1996 (the 1996 Will),
under which the appellant would receive no share on the death of his father
the entire estate would go to his mother.
[6]
In coming to these conclusions, the application judge made findings of
fact concerning the provenance of the 1996 Will and the circumstances of its execution.
Those findings were based on evidence tendered by the respondents concerning
the discovery of the 1996 Will and its preparation and execution. Rachel Moses
swore an affidavit concerning her discovery of the 1996 Will, which had been in
the possession of her mother. Although the solicitor who prepared that will was
deceased, his former legal assistant swore an affidavit identifying her
signature as one of the two witnesses to the will and the signature of the
solicitor as the other witness. The assistant deposed that it was the
solicitors practice that two witnesses were always present when a client
executed a will.
[7]
The application judge noted that the appellant did not cross-examine
either Rachel Moses or the lawyers assistant. Nor did he provide affidavit
evidence that called into question any of the evidence the respondents had
adduced. The application judge found that the appellant presented no evidence
to support an inference that the 1996 Will was unauthentic or invalid. He found
that the appellant failed to satisfy the low threshold of presenting
sufficient evidence to support an inference that he appears to have a financial
interest in [his fathers] estate. He therefore found that the appellant did
not have standing under r. 75.06(1).
[8]
The application judge also found that the appellants civil action based
on proprietary estoppel did not give him standing to challenge the 2019 Will
pursuant to s. 23 of the
Estates Act
, where he
would otherwise have no standing to do so. The outcome of the civil action did
not depend on the validity of the 2019 Will.
[9]
We see no error in the application judges reasons. In the
circumstances, there was an onus on the appellant to adduce
some evidence
to
call into question the considerable body of evidence adduced by the respondent
to establish the validity of the 1996 Will. The conclusion that he failed to do
so is entitled to deference.
[10]
Nor
are we persuaded that the application judge erred in the interpretation or
application of s. 23 of the
Estates Act
. The
jurisdiction under that provision is discretionary and the appellant has
identified no error by the application judge in the exercise of his discretion.
[11]
In
the circumstances, we do not find it necessary to decide whether the decision
of the Saskatchewan Court of Appeal in
Adams Estate
reflects the law of Ontario.
[12]
At
the end of the day, as the application judge found, the appellant may pursue
his claims in his civil action against the estate, his mother, and the
companies in which his father had interests.
[13]
The
appeal is dismissed. We invited counsel to attempt to resolve the issue of
costs. As we have not heard from them, we award costs to the respondent, Rachel
Moses, in the amount of $15,000 and to the respondent, Rosy Moses, in the
amount of $5,000, both amounts inclusive of disbursements and all applicable
taxes.
G.R. Strathy C.J.O.
P. Lauwers J.A.
L. Sossin J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R.
v. Chen, 2021 ONCA 661
DATE: 20210928
DOCKET: C67135
Paciocco, Nordheimer and Coroza
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Qi Cong Chen
Appellant
Darren S. Sederoff and Robert Cutruzzola,
for the appellant
Alexia Bystrzycki, for the respondent
Heard: September 3, 2021 by
videoconference
On appeal from the sentence imposed on June
27, 2019 by Justice Nancy J. Spies of the Superior Court of Justice.
REASONS FOR DECISION
[1]
We grant leave to appeal and allow the appeal. Although we see no error
in the trial judges reasoning, a conditional sentence is a fit sentence. Based
on her reasoning we are confident that the trial judge would have imposed a
conditional sentence had the opportunity been available to her to do so.
[2]
The terms of the conditional sentence will be prepared and released as
soon as reasonably possible.
David M. Paciocco
J.A.
I.V.B.
Nordheimer J.A.
S. Coroza J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R
v. Daye, 2021 ONCA 671
DATE: 20210927
DOCKET: M52800 (C68657)
Paciocco
J.A. (Motion Judge)
BETWEEN
Her Majesty
The Queen
Respondent
and
Jamal Daye
Applicant/Appellant
Chris Sewrattan and Ashley Sewrattan,
for the applicant/appellant
Sarah Egan, for the respondent
Heard: September 27, 2021 by videoconference
ENDORSEMENT
[1]
On October 2, 2020, Mr. Jamal Daye, a young man with no prior criminal
record, received bail pending appeal, on consent, after he was convicted of
serious narcotics trafficking charges and sentenced to 5 years and 6 months of
imprisonment. On June 24, 2021 he was discovered by police in the bedroom of an
apartment in which a loaded handgun was found inside the pocket of a coat.
There is evidence that a medical sticker was found in the coat bearing his
name, and his mother advised the police that Mr. Daye had rented the apartment
for his music business. Another loaded handgun was found in an adjacent bedroom
but has not been otherwise linked to Mr. Daye. Weapons and breach charges were
laid against Mr. Daye, who now applies to be rereleased pending appeal. The
onus is on Mr. Daye and although he is presumed innocent of the new charges, he
is not presumed innocent of the original drug charges.
[2]
In resisting Mr. Dayes release, the Crown does not rely on the
primary or secondary grounds, but argues based on the tertiary ground that Mr.
Daye has failed to show that his detention is not necessary in the public
interest, given the need to preserve public safety and confidence in the
administration of justice. I am not satisfied that Mr. Dayes release is
required in the public interest because I am not persuaded that the interest in
reviewability should predominate over the interest in enforceability.
[3]
Mr. Daye is confident that his appeal will not be long delayed.
He urges that he is asking only for short-term bail release, and that a short
period of release lessens the public risk, if any, in his release. There is
some merit in that submission but the short period pending the appeal also
reduces the risk to his liberty in postponing reviewability, particularly given
that the bulk of his long sentence is yet to be served.
[4]
Mr. Daye also relies on the strength of his first ground of appeal,
given that there are solid grounds to believe that the trial judge erred in
denying exclusion of evidence under s. 24(2) of the
Charter
after finding a serious breach of Mr. Dayes right to
counsel based on what may have been an erroneous conclusion that the evidence
was not obtained in a manner that violated the
Charter
rights of Mr. Daye. Although Mr. Dayes appeal is far
from frivolous, the ultimate success of this, his strongest ground of appeal,
depends upon an ultimate conclusion that the evidence must be excluded pursuant
to s. 24(2). The seriousness of the offence and the absence of a causal
connection between the breach and the discovery of the evidence materially
reduce the prospect of that success, as does the fact that the police did not
seek to use Mr. Daye as a source of evidence during the right to counsel delay.
I agree with the Crown that although the grounds of appeal cannot be
discounted, the appeal is not so strong on its face as to tip the balance in
favour of reviewability, given the competing interests.
[5]
First, there is the seriousness of the original convictions, for which
Mr. Daye is no longer presumed innocent, and the pending firearms and breach
charges. Moreover, there is an obvious link between drug crimes and firearms
offences. The nature of the offences works strongly in favour of enforceability
and public protection.
[6]
So, too, does the nature of the alleged breach of bail release. It is
deeply troubling, not only that the alleged breach involves the commission of
an extremely serious and disturbing offence, but the firearms and breach
offences were alleged to have been committed in the presence of one of Mr.
Dayes sureties. This raises serious concern that if released, Mr. Daye may not
respect the terms of his release and engage in further serious and dangerous
criminal activity.
[7]
I appreciate that Mr. Dayes release plan is meant to address this and
that his mother and sister are appropriate sureties. Ultimately compliance
depends upon Mr. Dayes readiness to comply. I have sufficient concerns in this
regard that I am not persuaded that Mr. Dayes release pending appeal is
appropriate.
[8]
I also recognize that a justice of the peace concluded otherwise in
granting Mr. Daye release pending trial on his new charges, but I assess things
differently. Given the facts of this case, if there is going to be a breach,
there is reason to be concerned that the breach will be an extremely serious
one.
[9]
The public interest in ensuring public safety and public
confidence in the administration of justice require Mr. Dayes continued
detention pending appeal.
David M. Paciocco 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. G.B., 2021 ONCA 675
DATE: 20210928
DOCKET: C68235
Watt, Benotto and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
G.B.
Appellant
Mark Halfyard, for the appellant
Gregory Furmaniuk, for the respondent
Heard: September 24, 2021 by
video conference
On appeal from the convictions entered
on August 2, 2019 by Justice Jocelyn Speyer of the Superior Court of Justice.
REASONS
FOR DECISION
[1]
The appellant was convicted of sexual assault,
sexual interference, and invitation to sexual touching, all in relation to his
granddaughter. The appellant was sentenced to four years imprisonment. He
appeals his convictions.
[2]
The victim was 25 years old at the time of
trial. She testified about what happened to her between 2000 and 2004, when she
was 7 to 11 years old.
[3]
The victims parents were incapable of providing
a stable environment for her and her siblings. Consequently, the children often
stayed with the appellant and his wife. By all accounts, aside from the abuse, the
victim and the appellant shared a good relationship when she was a child. Since
then, the appellant has provided for her financially.
[4]
But there was another side to their
relationship. The victim described a number of sexual incidents that occurred
in the appellants home and in his car. The appellant licked the victims
vagina, rubbed his penis outside her vagina, put his penis in her mouth, and
penetrated her vagina. These incidents stopped when the victim started
menstruating at age 11 or 12.
[5]
The victim said that she came forward with her
allegations because: (a) she was aware of an incident where the appellant
propositioned and then sexually assaulted her brothers former girlfriend; and
(b) she was concerned that the appellant might be abusing her younger sister.
The victim went to the Childrens Aid Society, hoping it would result in her
sister being removed from the appellants home. The matter was referred to the
police.
[6]
The appellant testified and denied the
allegations. He said that the victim was very upset with him a week before she
made the allegations because he had refused to lend her money to purchase a new
car.
[7]
In thorough reasons for judgment, the trial
judge rejected the appellants evidence. She was satisfied beyond a reasonable
doubt that the appellant sexually abused the victim in the manner that she
described.
[8]
The appellant submits that the trial judge erred
in how she addressed the question of whether the victim had a motive to
fabricate the allegations, thereby requiring a new trial. We disagree.
[9]
The car loan motive was put in play by the
appellant. The appellant and the victim agreed that the appellant told her that,
if she could pay all of her own bills at her new accommodation, he would help
her buy a new car the following year. Their evidence, however, diverged as to
her reaction. The victim testified that the proposal made sense, was logical
and that she was fine with it. The appellant said the victim was pissed and
walked away from him.
[10]
The trial judge rejected the appellants
evidence on this issue. She said: While the defendant is under no obligation
to explain why the complainant would fabricate the allegations, the manner in
which he described the complainants reaction to his refusal of her request for
a loan appeared to me to be an effort to manufacture a motive for the
complainant to lie.
[11]
The trial judge also rejected the appellants
account of how he reacted upon hearing that the victim was pregnant when she
was 18. She said it was their biggest argument and she moved out and went to
live with her mother for a while. The appellant said he was happy to hear the
news and was welcoming of the child. The trial judge rejected the appellants
account concluding it was an effort on his part to portray himself in a
favourable light. In combination with his evidence on the car loan, the trial
judge rejected the appellants testimony denying the allegations.
[12]
The trial judge also addressed the issue of
motive when considering the victims evidence:
The complainant was an impressive witness. She
presented as forthright, and careful not to guess about things she did not
remember. She was clear and articulate. She frankly acknowledged when she could
not remember or did not know the answer to a question. Apart from the
allegations and a few other things, her evidence was substantially corroborated
by the evidence of the defendant, which confirms that she can reliably describe
her circumstances as a child. She presented in the same thoughtful and
deliberate manner in cross-examination as she did in her evidence in-chief.
She
did not appear to hold any grudge against the defendant, and readily
acknowledged all the good things he did for her. I find that it has been proven
that she had no motive to lie. The evidence establishes that she knew that if
she came forward her family, and in particular her children, would suffer as a
result
For the most part, she kept her emotions in check when she
testified, but could not hide her sadness when she talked about her loss of her
relationship with her grandmother, and the support she received from her
grandparents when things get rough for her. She seemed more upset by that than
by what her grandfather did to her, which makes sense, given her circumstances,
and the fact that she maintained a good relationship with him as a teenager and
young adult.
[Emphasis added.]
[13]
The appellant submits that the trial judge erred
in finding that there was a proven lack of motive, and by using this finding to
bolster her credibility. Relatedly, the appellant submits that the trial judge
erred in relying on the negative consequences to the victim as a result of
making the allegations as an indication that she had no motive to fabricate.
[14]
We are not troubled by the manner in which the
trial judge resolved the car loan issue. The appellant introduced this issue at
trial. There was nothing inappropriate in doing so, but the trial judge, in
turn, was required to address the issue. On her evaluation of the evidence, she
found that it was not a viable motive. It was open to the trial judge to make
this finding on the record before her. In doing so, she instructed herself that
the appellant had no onus to prove a motive. Her finding is entitled to
deference:
R. v. Barton
, 2019 SCC 33, [2019] 2 S.C.R. 579, at para.
132.
[15]
It would have been sufficient had the trial
judge left it at that. However, her finding is broader. As noted above, the
trial judge said: She did not appear to hold any grudge against the defendant,
and readily acknowledged all the good things he did for her. I find that it has
been proven that she had no motive to lie.
[16]
In the former sentence, the trial judge did not
find that the victim
did not
hold a grudge; she only held that it only
appeared
to look that way. This was a reasonable finding on the
evidence.
[17]
The trial judges more categorical finding
she had no motive to lie requires more scrutiny. If this was a reference to
the car loan, for the reasons already given, it was unobjectionable. However,
given that the trial judge went on to immediately comment on the consequences
of the victim coming forward, she had no motive to lie assumes greater
significance.
[18]
As this court has said in a number of recent
decisions, trial judges must approach an apparent lack of motive to fabricate
with great caution when assessing the credibility of a complainant: see
R.
v. S.S.S.
, 2021 ONCA 552;
R. v. Ignacio
, 2021 ONCA 69, 400 C.C.C.
(3d) 343;
R. v. Bartholomew
, 2019 ONCA 377, 375 C.C.C. (3d) 354. However,
to the extent that the trial judge may have strayed into forbidden territory,
we apply the curative proviso in s. 686(1)(b)(iii) of the
Criminal Code
,
R.S.C. 1985, c. C-46. She was careful not to impose a burden on the appellant.
Nor can it be said that this factor overwhelmed the trial judges assessment of
the victims credibility. It did not infect the rest of her careful reasons in
which she explained in great detail why she accepted the evidence of the victim
and found the appellant guilty beyond a reasonable doubt.
[19]
The appeal is dismissed.
David Watt J.A.
M.L. Benotto J.A.
Gary Trotter J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Li v. Li, 2021 ONCA 669
DATE: 20210929
DOCKET: C68703
Feldman, Paciocco and Coroza
JJ.A.
BETWEEN
Xiang
Li
Applicant (Respondent)
and
Xiang-E
Li
Respondent (Appellant)
Heng (Pandora) Du, for the appellant
Michael J. Stangarone and Stephen P.
Kirby, for the respondent
Heard: March 12, 2021 by video conference
On appeal from the order of Justice E.
Llana Nakonechny of the Superior Court of Justice, dated September 15, 2020,
with reasons reported at 2020 ONSC 5552.
Coroza J.A.:
I.
overview
[1]
The appellant appeals from the dismissal of her
motion (the Motion), in which she sought an order dismissing, on
jurisdictional grounds, the respondents application for relief arising from
the breakdown of their marriage (the Application). Before the motion judge,
the appellant argued: i) that Ontario lacked jurisdiction to hear the
Application and ii) in the alternative, that the city of Kunming, in the
province of Yunnan, Peoples Republic of China was the more appropriate forum
for the dispute. The motion judge rejected both arguments, concluding that Ontario
had jurisdiction and that the appellant had not met her burden of showing that
China was the clearly more appropriate forum for the case.
[2]
For the reasons that follow, I would not
interfere with the motion judges finding that Ontario has jurisdiction to hear
the dispute. However, I conclude that the motion judge erred in reaching the
conclusion that China was not the clearly more appropriate forum for
resolving the respondents property and support claims.
[3]
At its core, this litigation relates to assets
located in China and the respondents post-separation interest in them, if any.
The respondent purportedly waived his interest in the assets by entering into
three written agreements in China. These agreements have not been set aside.
Since these documents were executed and witnessed in China, the Chinese courts
are in a far better position to deal with their applicability. Respectfully,
the motion judge ignored this very important factor in analyzing the doctrine
of
forum non conveniens
.
[1]
Instead, the motion judge focused on the fact that the respondent was pursuing
a trust claim interest in a single property in Ontario: a property worth a
small fraction of the appellants overall assets. In my view, the failure to
consider the parties domestic agreements as central to the
forum non conveniens
analysis was an error in principle justifying intervention by this
court.
II.
background
[4]
In 2003, the appellant and the respondent met in
China. In 2012, they married in the city of Kunming, Yunnan Province, China.
[5]
The appellant is a Chinese citizen. She
previously held Canadian permanent resident status, until it expired in March
2019. This status was not renewed. The respondent is a Canadian citizen.
[6]
The appellant provided evidence during the Motion
demonstrating that, between the date of marriage in 2012 and the date of
divorce in 2018 (approximately 6 years), she was in Canada for a total of approximately
300 days (less than 10 months in total). She conceded during questioning that
some visits to Toronto, Ontario in 2015 may not have appeared in the evidence
filed by the parties.
[7]
Both parties were previously married and have
children from those marriages. They do not have any children together.
[8]
The parties do not agree on their date of
separation. The appellant claims that the parties separated in April 2016,
after a physical altercation in their home. For his part, the respondent claims
that the parties continued to reside together as a couple both in China and
Toronto until at least March 2018.
[9]
In March 2018, the parties obtained a divorce
certificate in China. As discussed in further detail below, the respondent
disputes the validity of this divorce.
(1)
The Parties Assets and Debts
[10]
The respondent claims that he and the appellant
contributed work and resources to a series of family companies that are located
in China. He suggests that the appellant leveraged assets from certain family
businesses to borrow funds to purchase real estate in her name alone.
[11]
The appellant states that she owned corporations
and real property in China before and during the marriage. She denies that the
respondent made any financial contributions to her assets.
[12]
The respondent claims that the parties shared
two matrimonial homes located in Toronto. In 2012, just prior to the marriage,
the appellant purchased a property at 220 Elmwood Avenue (the Elmwood
Property), in her name alone. She claims that she purchased the Elmwood
Property for her son to reside in while he attended school in Canada. In May
2016, the Elmwood Property was sold, and the proceeds were used to purchase
property at 33 Bevdale Road, Toronto (the Bevdale Property), also in the
appellants name alone. The respondent claims he found the Bevdale Property and
worked with a real estate agent to arrange the purchase. He states that the
parties were not separated at this time.
[13]
The appellant has a Royal Bank of Canada account
in Toronto, in her name alone, which she used to pay the expenses for the Elmwood
and Bevdale Properties. The respondent argues that he made contributions to
this account that were used to pay for the mortgage, taxes, utilities, and
other expenses for the Bevdale Property.
(2)
The Marital Assets Agreement, Letter of
Commitment, and Repayment Agreement
[14]
On March 11, 2014, the parties signed a Marital
Assets Agreement addressing five Chinese properties the appellant purchased in
her name alone. This Agreement confirms that the respondent has no entitlements
to the properties.
[15]
On May 12, 2015, the respondent also signed a
Letter of Commitment clarifying that he lacked any interest in 41 specified
investment properties. These properties are all located in China.
[16]
In 2019, after the divorce, the parties
negotiated the terms of a repayment agreement for a 2,000,000 RMB
[2]
loan made to the appellant by
the respondent, his mother, sister, and brother-in-law. The repayment amount is
6,000,000 RMB, which the appellant claims includes interest and an equitable
voluntary payment by her to the respondent, representing his monetary
interest in their relationship. The respondent argues that the repayment
agreement is unrelated to any division of marital property. The Marital Assets
Agreement, Letter of Commitment, and loan repayment agreement were all executed
and witnessed in China, in the Chinese language and in Chinese currency.
(3)
The Divorce Agreement and the Supplementary
Agreement
[17]
On March 26, 2018, the parties applied for a
divorce in Kunming. They attended together at the Kunming City Ministry of
Civil Affairs Marriage Registry and brought a handwritten document stating
their intention to divorce as well as their agreement that i) there will be no
disputes in relation to the children and ii) all issues related to
property, debts, and liabilities had been resolved through private negotiation.
[18]
The registrar required a typed document, so the
respondent typed a document with the same terms as the handwritten document
(the Divorce Agreement). Both parties signed the document, added their
fingerprints, and obtained a divorce certificate.
[19]
The appellant claims this divorce certificate is
valid and reflects the parties agreement. The respondent states that the
appellant misled him, assuring him that this was not a real divorce.
[20]
The appellant states that on March 26, 2018, the
parties signed a Supplementary Agreement to the Divorce Agreement. In this
document, the respondent waived his rights to any of the appellants assets. It
states that all property in either partys name belongs to the appellant, except
for a car and a debt owing by the respondent, which he would retain.
[21]
The appellant argues that the Supplementary
Agreement reflects the parties negotiations and the fact that the respondent
made no contributions to her corporations or real estate.
[22]
The respondent asserts that he does not recall
executing the Supplementary Agreement. He claims he was unaware of the
Supplementary Agreements existence until December 2019. He admits that the
signature on the document resembles his but claims the appellant would ask him
to sign blank documents in case his signature was needed while he was absent.
The respondent contests the validity of the divorce obtained in China as well
as the Supplementary Agreement.
III.
procedural history
(1)
The Application
[23]
In February 2020, the respondent commenced an
Application for various relief, including: i) a declaration that the Chinese
divorce not be recognized or enforced in Ontario; ii) a declaration setting
aside the Supplementary Agreement; and iii) a declaration that Ontario has
jurisdiction to determine the outstanding property and support issues between
the parties. The outstanding property and support issues included claims for
equalization, spousal support, and the respondents claim of a resulting and/or
constructive trust over the Bevdale Property, based on the allegation that the
appellant was unjustly enriched by his contributions to the Bevdale Property.
[24]
The appellant refused to attorn to the
jurisdiction of the court. Instead, she brought a motion for an order: i)
dismissing the respondents Application and ii) declaring that the city of Kunming,
in Yunnan Province, China, is the more appropriate forum to determine any
outstanding issues between the parties arising from the breakdown of their
marriage.
(2)
The motion judges reasons
[25]
In her reasons, the motion judge framed the
issues on the Motion as: i) whether an Ontario court had jurisdiction to
determine the respondents property and spousal support claims and ii) if the
court had jurisdiction, whether Ontario was the appropriate forum to determine
the issues.
(a)
The motion judge finds Ontario has jurisdiction
[26]
The motion judge noted that she was not asked to
determine the validity of the Chinese divorce. She acknowledged that there is a
presumption in favour of recognizing the validity of foreign divorces, and that
it is rare for a Canadian court to refuse to recognize a divorce properly
obtained under the laws of another jurisdiction. While the divorces validity
would impact the respondents spousal support claim, it would not impact the
equalization and trust claims made under s. 15 of the
Family Law Act
, R.S.O. 1990, c. F.3 (
FLA
), which the motion judge
considered next. In considering these claims, the motion judge recognized that,
absent a statutory rule, an Ontario court may take jurisdiction
simpliciter
over the case if there is a real and substantial connection between
the forum and the subject matter or the parties to the dispute:
Club Resorts Ltd. v. Van Breda
, 2012 SCC 17, [2012] 1 S.C.R. 572.
[27]
The motion judge concluded that Ontario had
jurisdiction to hear the respondents equalization and property division
claims. In her view, the following factors provided Ontario with a real and
substantial connection to the dispute:
·
The respondent is a Canadian citizen who
primarily resided in Canada during the marriage and since separation (on either
separation date put forward by the parties);
·
The respondent claims a beneficial interest in
an Ontario property. The parties and their children resided in the Elmwood and
Bevdale Properties as their family homes during the marriage;
·
The appellant regularly visited Ontario each
year and obtained permanent resident status. In her application for this
status, she expressed a desire to make Canada her home;
·
There may be unfairness to the respondent if
Ontario does not assume jurisdiction. Expert evidence, adduced by the
respondent yet untested by cross-examination, suggested that the respondent is out
of time to make his claim for property division in China; and
·
Although there are relevant documents and
witnesses in both China and Ontario, the documents relevant to the trust claim
would primarily be in Ontario, as would some evidence relevant to determining
the date of separation.
(b)
The motion judge finds Ontario is the more
appropriate forum
[28]
The motion judge then went on to address the
appellants argument that if the court found that Ontario had jurisdiction, it
should nevertheless
decline to exercise jurisdiction on
grounds of
forum non conveniens
because China was clearly the more
appropriate forum. The motion judge disagreed and referenced the following
considerations:
·
All the witnesses and evidence relating to the
respondents trust claim would be in Ontario, except for the appellants evidence;
·
The natural forum for a claim to an interest
in an Ontario property is Ontario;
·
The appellant would be able to present her case
in Ontario without significant difficulty. While Chinese documents and currency
values would need to be translated and converted for purposes of a claim in
Ontario, the parties were able to do this for purposes of the Motion and the
proceeding unfolded without disruption;
·
If the respondent is successful in asking an
Ontario court not to recognize or enforce the Chinese divorce, he could then
proceed with his spousal support claim. Certain relevant documents and
witnesses would be in Ontario as the respondent spent more time here than in
China; and
·
If the court declined jurisdiction, the
respondent may be out of time to pursue a claim for division of marital
property in China, as demonstrated by the conflicting expert evidence. This
would represent the loss of a legitimate juridical advantage.
[29]
Accordingly, the motion judge dismissed the
Motion, permitting the respondent to proceed with his claims in Ontario.
IV.
GROUNDS OF APPEAL
[30]
The appellant raises the following issues on
appeal in her factum:
1.
Is there a real and substantial connection
between the parties, the matrimonial claims being litigated, and Ontario?
2.
Is Yunnan Province, China the more appropriate
forum to determine the claims raised in the respondents Application?
3.
Should this court strike out all or part of the respondents
Application, leaving only the trust claims concerning the Bevdale Property to
proceed in Ontario
?
V.
THE LEGAL FRAMEWORK
[31]
Both parties agree that in the absence of a
statutory rule, the common law conflicts rule of Canadian private international
law the real and substantial connection test determines whether
jurisdiction exists in Ontario's courts. It is not disputed that the motion
judge properly referenced
Van Breda
and identified that a real and
substantial connection must be established primarily on the basis of objective
factors that connect the legal situation or the subject matter of the
litigation with the forum. The parties also agree that the motion judge
properly recognized that, even when an Ontario court assumes jurisdiction, if
the defendant (or respondent in the Application) establishes that another forum
is clearly more appropriate for disposing of the litigation, then the court can
decline to exercise jurisdiction on the grounds of
forum non conveniens
: see
Van
Breda
,
at para.
108.
VI.
DISCUSSION
(1)
Is there a real and substantial connection
between the parties, the matrimonial claims being litigated, and Ontario?
[32]
The appellant argues that the motion judge erred
in ignoring or misapprehending the facts in concluding that there was a real
and substantial connection between this matter and Ontario.
[33]
In her factum, the appellant contends that the
material before the motion judge suggests that the respondent worked in China
and that his affidavit did not establish that he lived in Canada. She, on the
other hand, does not live in or carry on business in Ontario; the appellants
business is based entirely in China, and the respondents employment and
business activities during the material times were entirely in China.
Furthermore, the appellant argues that her only connection to Ontario is a
single encumbered piece of real property (the Bevdale Property) and a bank
account; by contrast, the appellant owns many assets and owes significant debts
in China.
[34]
Absent palpable and overriding error or an
extricable error of law warranting correctness review, deference ought to be
afforded to the motion judge. In my view, the appellant has not identified any
extricable errors of law or palpable and overriding error in the motion judges
analysis on the question of whether Ontario has jurisdiction.
[35]
The motion judge found that the respondent was a
Canadian citizen and that he resided primarily in Canada during the marriage
and post separation. I do not accept the appellants submission that the motion
judge misapprehended the evidence on this point and that there was not a
shred of evidence that the respondent lived primarily in Canada. The
respondent presented proof of Canadian citizenship and the respondents
passport and drivers licence all indicated that he lived at the Elmwood and
Bevdale Properties. Furthermore, there was evidence before the motion judge
that he made payments towards the carrying costs of maintaining the properties
in Ontario. In my view, the motion judge did not err in finding that the
respondent resided primarily in Canada.
[36]
In
Wang v. Lin
, 2013 ONCA 33, 358
D.L.R. (4th) 452, this court accepted that in the context of marriage breakdown
the presumptive connecting factors are necessarily different from those
identified in
Van Breda
, which was a tort case. This court noted that
the list of presumptive connecting factors is not closed and the location of
the real home or ordinary residence should be a presumptive connecting
factor:
Wang
,
at paras. 46-47; see also
Knowles v. Lindstrom
, 2014 ONCA 116, 118 O.R. (3d) 763, at para. 27, leave to
appeal refused, [2014] S.C.C.A. No. 161. Therefore, the respondents ordinary
place of residence was a significant factor to consider in determining
jurisdiction.
[37]
Furthermore, the motion judge noted that part of
the respondents claim is an assertion that he has an equitable interest in the
Bevdale Property. The location of that property is in Ontario. This court has
held that the location of a property is also a presumptive connecting factor
sufficient to establish jurisdiction
simpliciter
: Knowles
,
at paras. 21, 24.
[38]
As this court explained in
Knowles
, a single presumptive connecting factor, in the absence of any
rebuttal of that presumption by the appellant, is sufficient to establish
jurisdiction under the
Van
Breda
analysis:
Knowles
,
at para. 24. In this case, the motion judge identified
that the appellant was a Canadian citizen, ordinarily resident in Canada, and
that he was advancing a claim on property located in Ontario.
[39]
I would defer to the motion judges conclusion
that there was a sufficient connection to Ontario to establish jurisdiction
simpliciter
.
(2)
Is Yunnan Province, China the more appropriate
forum to determine the claims raised in the respondents Application?
[40]
After finding that the Ontario court had
jurisdiction, the motion judge then considered the appellants argument that
she should decline to exercise that jurisdiction under the
forum non conveniens
doctrine because China was clearly
more appropriate for determining the issues in the case. The burden was on the
appellant to show why jurisdiction should not be exercised:
Van Breda
, at para. 103.
[41]
The motion judges conclusion on the
forum non conveniens
issue is properly viewed as an exercise in judicial discretion and
this court will defer to that assessment, absent an error in principle, a
material misapprehension of the evidence, or if, in the circumstances, the
exercise of that discretion is unreasonable:
Knowles
,
at para. 40.
[42]
In essence, the doctrine focuses on the
circumstances of the case, and its purpose is to ensure that both parties are
treated fairly and that the process for resolving their litigation is
efficient:
Van Breda
, at para. 105. The factors that come into play in considering the
question of
forum non conveniens
depend on the context and may include
the locations of parties and witnesses, the cost of transferring the case to
another place, the impact of a transfer on the case or a related case, the
possibility of conflicting judgments, problems relating to recognition or
enforcement of judgments, and the relative strengths of the connections of the
parties:
Van Breda
, at para. 110.
[43]
Loss of juridical advantage to one or the other
of the parties is also a relevant consideration:
Knowles
, at para. 43. Even then, however, comity and an attitude of respect
for the courts and legal systems of other countries may be in order:
Van Breda
, at para. 112. A court must not lean too instinctively in favour of
its own jurisdiction:
Van
Breda
, at para. 112.
[44]
In my view, the motion judge erred in principle
in her analysis on the issue of
forum non conveniens
. I find this for
several reasons.
[45]
First, the motion judge ignored a very important
factor the existence of three signed agreements waiving the respondents
entitlement to the assets and properties in China. The Divorce Agreement, dated
March 26, 2018 (translated), says, the [appellant and respondent] acknowledged
that issues pertaining to assets, financial claims and debts have been resolved
on their own through negotiations. The appellant claims that several key
agreements have come out of the parties private negotiations, including:
·
The Supplementary Agreement to the Divorce
Agreement, dated March 26, 2018, which states that the respondent
will move out and waive rights to any property or assets (English
translation). It further stipulates that [a]ll corporation or companys
shares [sic] and personal assets under either the respondent or appellants
name belong to the appellant, including the real estate property in Canada
purchased by the appellant before the marriage (English translation).
·
The Marital Assets Agreement, dated March 11,
2014, which states that the five properties in China being purchased are in the
appellants name and the parties agree that she alone owns them and the
respondent has no interest in them.
·
The Letter of Commitment, dated May 12, 2015,
which states that the respondent makes the sincere promise to forego ownership
in 41 properties he co-owned with the appellant (English translation).
[46]
As this court stated recently in
Krebs v. Cote
, 2021 ONCA 467, 459 D.L.R. (4th) 730, at para. 19, [p]arties
should be encouraged to enter agreements to define their rights and
obligations. Jurisprudential shoals upon which an agreement may founder
unnecessarily do not advance that goal.
[47]
To this end, under Ontario law, there is a high
bar to set aside a domestic contract that complies with the enforceability
requirements of s. 55(1) of the
FLA
: namely, that it is made in
writing, signed by the parties and witnessed.
[48]
In this case, to proceed with his claims for
equalization or an interest in the properties covered by the agreements, the
respondent would first have to seek to set those agreements aside. The
respondent would also have to address the appellants position that there was a
loan repayment agreement executed in 2019 that settled some of the matrimonial
claims. In Ontario, of course, a claim for equalization or support under the
FLA
would engage the factors set out at s. 56(4) of the Act for setting aside
a domestic agreement.
[49]
Section 56(4) of the
FLA
provides that,
A court may, on application, set aside a
domestic contract or a provision in it,
(a) if a party failed to disclose to the other
significant assets, or significant debts or other liabilities, existing when
the domestic contract was made;
(b) if a party did not understand the nature
or consequences of the domestic contract; or
(c) otherwise in accordance with the law of
contract.
[50]
There was also evidence before the motion judge
that similar provisions exist in China to set aside unfair contracts. The
opinion letter tendered by the appellant on the Motion states that, according
to Article 54 of the Contract Law of Peoples Republic of China, a valid
contract can be set aside where there is a significant misunderstanding, or
when one party uses fraudulent or coercive means or takes advantage of the
other party while they are in a vulnerable state, not unlike Ontario.
[51]
In this way, the preliminary question of whether
the agreements could be set aside, was in my view central to assessing the more
appropriate forum. Respectfully, the motion judge erred in considering the
respondents claims in the Bevdale Property and his potential entitlements to
share in some way (whether by way of equalization or a direct property
interest) in the appellants Chinese properties without considering the
question of setting aside the divorce and/or the agreements about property. With
the agreements as the proper focus, and given that the agreements were all
executed and witnessed in China, in the Chinese language, it becomes clear that
China is the most appropriate forum for the dispute.
[52]
Second, the motion judges reasons state that
the natural forum for the claim to the Bevdale Property is here in Ontario. As
set out above, the location of the property is a factor that carries
considerable weight on the jurisdiction inquiry. However, the motion judges
focus on the Bevdale Property overwhelmed her analysis of
forum non conveniens
. In this case, the far more valuable property interests are in
China and are governed by contracts in China; there are multiple agreements
between the parties that are, as mentioned, written in the Chinese language and
in Chinese currency. These agreements concern multi-million-dollar business
interests and properties there. In contrast, the Bevdale Property is worth
considerably less. The Bevdale Property should not have been the focal point of
the analysis and it certainly was not the natural forum for the division of
property claim viewed as a whole.
[53]
Third, the motion judge held that the respondent
was not claiming any property interest in properties or corporations located in
China, only in the monetary payment that would occur after the equalization
calculation based on properties or corporations in China. However, this factor
assumes that an equalization payment would be the only remedy under Chinese
law. There was no evidence that equalization rather than distribution of
properties would be the remedy in China and the motion judge engaged in
speculation that this would be the case.
[54]
Finally, the motion judge erred in her analysis
in terms of the respondents loss of a legitimate juridical advantage. The motion
judge identified the juridical advantage as the respondents ability to pursue
his claim for property division in Ontario because he may be out of time in
China. On the Motion, the respondent produced an opinion from a lawyer stating
that, in China, where a man and woman are divorced by joint divorce and the
parties have a change of mind over the issue of property division, they have
one year from the date of the divorce to request to modify or revoke the
property division agreement. The respondents legal opinion concludes that,
based on this rule, litigation concerning division of property by joint divorce
needs to be filed within one year.
[55]
For her part, the appellant disagreed that the
respondent was out of time in China. She also produced an expert opinion that
stated that the respondent could seek redress in a Chinese court to amend or
void the Supplementary Agreement if he could demonstrate that he was under a
serious misunderstanding, or there was an appearance of unfairness, or that he
was defrauded, coerced or taken advantage of while in a vulnerable state that
caused him to erroneously express his intention. Faced with this conflicting
evidence, the motion judge nevertheless held that if Ontario declined
jurisdiction, the respondent could lose a legitimate juridical advantage
because he was out of time in China.
[56]
I acknowledge that there is some support for the
respondents position that an expired limitation period in the other
jurisdiction would make Ontario the more juridically advantageous forum for him
as plaintiff, and that a juridical advantage to a plaintiff in Ontario weighs
against staying the proceedings: see
Garcia v. Tahoe Resources Inc.
, 2017
BCCA 39, 407 D.L.R. (4th) 651, at para. 91, leave to appeal refused, [2017]
S.C.C.A. No. 94.
[57]
However, some courts have ruled that the
plaintiffs failure to bring a claim within the time limit militates against
attaching any weight to the juridical advantage factor because, in some
circumstances, a plaintiff could successfully oppose a defendants
forum non conveniens
application in one jurisdiction by simply allowing the limitation
period to expire in the other jurisdiction:
Tahoe
,
at para. 91. It seems, then, that the weight attached to the juridical
advantage factor when considering the expiration of a limitation period in
another jurisdiction is a case-specific inquiry that turns on the facts:
Tahoe
,
at para. 92.
[58]
In this case, the motion judge held that the limitation
period weighed in the respondents favour. There was no case-specific inquiry in
reaching that conclusion. As noted, this case involves the
potential
expiry of a limitation period; the
respondents evidence on this point does not lead to this conclusion with any
certainty. The motion judge did not resolve an inconsistency between the facts
of the case and the facts relied upon by the respondents expert opinion. The
opinion regarding the one-year time limit concerned parties who change their
mind over property division. The respondents evidence, however, was that he
was misled in terms of the Divorce Agreement and was not aware of the existence
of a Supplementary Agreement. He did not argue that he had changed his mind
about the agreements. On that evidence, it becomes less clear that the
respondent is, in fact, out of time in China.
[59]
Furthermore, the respondent testified during
questioning that he has never thought of going to court in China to deal with
property division. This fact does not help the respondent claim the juridical
advantage of an Ontario action: see
Hurst v. Société Nationale de L'Amiante
, 2008 ONCA 573, 93 O.R. (3d) 338, at paras. 51-52.
[60]
In summary, the motion judge erred in principle
in her analysis under
forum non conveniens
. In my view, the appellant has
demonstrated that the balance tips heavily in favour of China as the clearly
more appropriate forum for resolving the parties property issues and the
motion judge should have declined to exercise jurisdiction. Accordingly, I
would allow this ground of appeal.
(3)
Should this court strike out all or part of the
respondents Application, leaving only the trust claims concerning the Bevdale
Property to proceed in Ontario?
[61]
The appellant also argued that this court should
consider severing the respondents trust claim over the Bevdale Property,
allowing it to proceed in Ontario while striking the remainder of the claims.
[62]
As I have already decided that China is the more
appropriate forum to hear the claims arising from the parties marital
breakdown, this issue is now moot.
[63]
However, I do make the following observations.
Severing the specific claims in relation to the Bevdale Property appears to be
contrary to some of the factors identified by the Supreme Court of Canada as
relevant to the
forum
non conveniens
analysis in
Van Breda
, at paras. 105, 110, including a desire to avoid a multiplicity of
legal proceedings and avoiding conflicting decisions in different courts.
[64]
Severance of the trust claim is also potentially
problematic because this court has made clear that claims of unjust enrichment
are rarely appropriate to address financial issues after the breakdown of a
marriage and a court would, in all likelihood, find that equalization of all
net family properties under the legislation would provide a full remedy to any
unfairness that would otherwise arise from different contributions to family
assets:
McNamee v.
McNamee
, 2011 ONCA 533, 106 O.R. (3d)
401, at para. 66;
Martin
v. Sansome
,
2014 ONCA 14, 118 O.R. (3d) 522,
at para. 64.
VII.
CONCLUSION
[65]
For these reasons, I would allow the appeal and
stay the respondents Application.
[66]
I would award the appellant her costs of the
appeal in the agreed amount of $13,000 inclusive of disbursements and
applicable taxes.
Released: September 29, 2021 K.F.
S.
Coroza J.A.
I
agree. K. Feldman J.A.
I
agree. David M. Paciocco J.A.
[1]
I note that in a recent Superior Court decision,
Kore Meals
LLC v.
Freshii Development LLC
, 2021
ONSC 2896, 156 O.R. (3d) 311, E.M. Morgan J. observed that the world of
videoconference hearings may have implications for the relevance of
forum non conveniens
.
I leave that issue for another day. In the present case,
where the competing forums involve different languages and different time zones,
the choice of forum remains relevant.
[2]
The evidence before the motion judge was that CAD$1 equals
approximately 5.07 RMB.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Collingwood Prime Realty
Holdings Corp. 2021 ONCA 665
DATE: 20210929
DOCKET:
C69445
Watt, Benotto and Trotter JJ.A.
BETWEEN
Her
Majesty the Queen
Appellant
and
Collingwood Prime Realty Holdings
Corp. & Issa El-Hinn
Respondent
Rick Visca, Holly Akin and Erryl
Taggart, for the appellant
Melanie Webb
,
for the respondent
Heard: September 21, 2021 by video conference
On
appeal from the judgment of Justice David E. Harris of the Superior Court of
Justice, dated May 12, 2020 with reasons reported at 2020 ONSC 2953, allowing
the appeal from the sentences imposed on August 21, 2018 and September 12, 2018
by His Worship Justice of the Peace Mangesh S. Duggal.
REASONS FOR DECISION
[1]
The Crown appeals the decision of the summary conviction appeal judge
which reduced the sentence imposed at first instance on a conviction under the
Canadian Environmental Protection Act
.
[2]
A brief overview of the facts is necessary.
Facts
[3]
The respondent Collingwood Property Holdings Corp (the
corporation) was the owner of property in Collingwood. The respondent Issa
El-Hinn (El-Hinn) was the sole director and operating mind of the
corporation. The respondents were given a written warning by Environmental and
Climate Change Canada (ECCC) to remove transformers containing hazardous
toxins. Ten months later the transformers were still there. The ECCC officers
issued a Notice of Intent to issue an Environmental Compliance Order (NOI),
to which the corporation did not respond. The ECCC officers then issued an
Environmental Protection Compliance Order (EPCO) pursuant to s. 235(1) of the
Canadian Environmental Protection Act
(
CEPA
), requiring the removal of the equipment and an
electronic report. The equipment was not removed nor was the report filed by
their respective deadlines. Over a year later, the ECCC officers executed a
search warrant on the property and found one of the transformers was still in
use. The equipment was eventually removed, four years after the initial
inspection. El-Hinn and the corporation were jointly charged in an 11-count
information and plead guilty.
The sentence
[4]
The sentencing judge imposed separate fines amounting to $220,000
and a custodial term of 45 intermittent days on El-Hinn pursuant to s.
275(2)(b)(i) of
CEPA
. He also fined the
corporation $40,000 for count 1, $10,000 for count 2, $1,250 each for counts
3-10 amounting to $10,000 for those counts, and $140,000 for count 11 ($200,000
in total).
[5]
The sentencing judge considered mitigating and aggravating
factors. Mitigating factors were that the El-Hinn was a first offender, the
transformers were eventually removed, El-Hinn was of otherwise good character,
and the guilty pleas merited some leniency. Aggravating factors included the
quantity and hazardous nature of the toxins, the large passage of time in
regulatory compliance despite having financial capacity and having been issued
an order to comply, cost avoidance, and great potential harm of the toxins. The
sentencing judge noted the purposes of sentencing under the
CEPA
are to preserve the environment, to deter
violations of the
Act
, to denounce damage or
risk of damage to the environment and human health, and to reinforce the
polluter pays principle for environmental restoration. The lack of actual
injury was not found to be a mitigating factor, as under
CEPA
potential for harm is the relevant factor to consider in sentencing. The
sentencing justice relied on
R. v. Sinclair
(2009), 45 C.E.L.R. (3d)
222 (Ont. C.J.) finding that though in
Sinclair
actual harm to the environment was deliberately inflicted, El-Hinns moral
culpability is similar despite no actual environmental damage. This is due to
El-Hinns sustained non-compliance with warnings and orders.
Summary Conviction Appeal Court
[6]
The appellate judge allowed El-Hinn and the corporations appeal
against both the fines and term of incarceration. He eliminated the term of
incarceration and reduced the fines. He did so on the basis that there was an
error in principle by the sentencing judge in finding parity with
Sinclair
. The appellate judge found that the moral
responsibility of each Sinclair and El-Hinn were not similar. The sentencing
judges finding was therefore found to amount to an error in principle, and
deference was lost. The appellate judge reasoned that Sinclair had a much more
blameworthy state of mind than did El-Hinn, as Sinclair was knowingly and
intentionally polluting the environment. The harm in
Sinclair
was not caused by delay or negligence, but rather was caused by
deliberate and calculated acts of pollution. El-Hinn and the company had a
lower degree of culpability, as they were passively negligent. Further, unlike
Sinclair, El-Hinn and the company also were not attempting to profit at the expense
of the environment, which demonstrates a lower degree of moral culpability. Finally,
the appellate judge found that
Sinclair
also
should have been distinguished because there was actual harm to the
environment, whereas in the case at hand there was not.
[7]
The appellate judge found that a jail sentence should only be imposed if
it is necessary to achieve sentencing principles (s. 287.1(1) of
CEPA
incorporates the restraint principle under s. 718.2
of the
Criminal Code)
.
[1]
The appellate judge determined that while the proper test is the potential harm
to the environment, s. 718.2(a)(iii.1) of the
Criminal
Code
requires a court to take into account harm to the victim in
sentencing. Actual harm to the environment is not present in this case. The
appellate judge found that these factors, plus the COVID-19 crisis weakening
the public interest in jail sentence, militates against custody for El-Hinn. He
found that fines are enough to fulfil sentencing objectives, especially as El-Hinns
culpability was lower than that determined by the sentencing judge.
[8]
The appellate judge reduced the fines to $150,000 for the corporation
and $170,000 for El-Hinn. In doing so, he determined that counts 1 through 10
should be dealt with as the same charge.
Crown appeal
[9]
The Crown appeals arguing that the original sentence should be
restored as there was no error in principle.
Analysis
[10]
We allow the appeal in part.
[11]
We agree with the appellate judge that there was an error in
principle in comparing the case to
Sinclair
where there were
deliberate
actions to harm the environment which are not analogous to the situation here.
Having found otherwise, the sentencing judge erred in principle and the
appellate judge did not owe the decision deference. We agree that the
incarceration of El-Hinn is not proportional and should be eliminated.
[12]
We
do not agree with the appellate judges reduction of the fines. It was not an
error for the sentencing judge to impose separate fines for each count.
Concurrent sentences apply only to incarceration. In this regard we restore the
sentencing judges determination.
[13]
The appeal is allowed with respect to the fines but dismissed
with respect to the incarceration.
David
Watt J.A.
M.L.
Benotto J.A.
Gary
Trotter J.A.
[1]
See also:
Ontario (Labour) v. New Mex Canada Inc.
2019
ONCA 30, 144 O.R. (3d) 673 released after the sentencing decision at first
instance.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
R. v. Manickam, 2021 ONCA 668
DATE: 20210929
DOCKET:
C66892
Tulloch, Nordheimer and Jamal JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kumaraguruparan Manickam
Appellant
Richard Litkowski, for the appellant
Jeremy D. Tatum, for the respondent
Heard: April 7, 2021 by video conference
On appeal from the conviction entered on
October 15, 2018, by Justice Susan C. MacLean of the Ontario
Court of Justice, and from the sentence imposed on April 29, 2019.
Tulloch J.A.:
A.
Overview
[1]
The appellant was charged with and convicted of
two counts of fraud over $5,000 and one count of uttering forged document. He
was sentenced to 18 months in jail, 3 years probation, and a standalone
restitution order.
[2]
The appellant appeals his conviction and, in the
alternative, appeals his sentence.
B.
factual background
[3]
The appellant was a small business owner. He
owned, at various times, a gift store, a restaurant, a convenience store, a
video store, and a grocery store.
[4]
He financed his restaurant business with private
loans at a very high interest rate. By May 2013, he was still indebted to his
private lenders and had accumulated substantial credit card debt. He was hoping
to obtain loans from banks with lower interest rates.
[5]
The appellant testified that he met a man named
Arul in January 2013. Arul introduced the appellant to a man named Ramesh. The
appellant and Ramesh agreed to an arrangement where Ramesh would assist the
appellant in obtaining a loan from a bank. Ramesh would get a 15 percent commission
on any loan he obtained.
[6]
The appellant did not know Aruls or Rameshs
last name.
[7]
Ramesh told the appellant that, in order to
obtain a loan, he had to build up a transaction history to show the banks that
he had an active business. He instructed the appellant to deposit cheques from
companies, withdraw cash after the cheques were deposited, and then redeposit
some of the money back into the account to create a transaction history.
[8]
The fraudulent scheme began with mainly two business
accounts at Toronto Dominion Bank (TD): the Gurushoth Inc. account, which
was used for his legitimate business, and the Twin Bird account, which was
opened by the appellant in May 2013 to trick the bank. The appellant admitted
that he knew Twin Bird was not a real business when the account was opened.
[9]
Between June 12 and June 18, 2013, the appellant
deposited cheques from Ambigai Janitorial Services (a fake business) to his TD
bank accounts. All the cheques were fraudulent. Most were cheques deposited in
the two TD business accounts, but some were deposited to his personal account
and to pay the balance on his credit cards. His TD accounts were blocked on
June 17, 2013 and frozen after June 20, 2013.
[10]
In April 2013, the appellant opened two Royal
Bank of Canada (RBC) business accounts for Twin Bird and two personal accounts.
The appellant repeated the TD scheme with his RBC business accounts. Between
September 19, 2013 and September 23, 2013, the appellant deposited 18 cheques
in his RBC business accounts, all of which were fraudulent.
[11]
The appellant also made tens of thousands of
dollars worth of purchases at Costco using his TD and RBC accounts and made
thousands of dollars of withdrawals at a racetrack and casino.
[12]
As a result of this scheme, there was a combined
loss to both banks of over $250,000.
C.
Reasons for Conviction
[13]
The main issue at trial was whether the
appellant had the
mens rea
for the offences. He did not dispute that
he opened fake business accounts and deposited counterfeit cheques. The core of
his defence was that he trusted Ramesh and had no questions about the scheme
until he was contacted by the police. He was the dupe of an unscrupulous
fraudster who took advantage of him. He did what he was told to do by Ramesh
and did not suspect that anything was amiss.
[14]
The Crown argued that this defence was not
credible. The appellants involvement went beyond simply depositing cheques and
included activity that would seem suspicious to anyone. It defied belief that
the appellant did not appreciate the suspicious nature of the scheme. Instead,
he feigned ignorance in an attempt to evade criminal liability. At a minimum,
even if the appellants evidence is accepted, he was wilfully blind.
[15]
The trial judge did not believe the appellant,
nor was she left with a reasonable doubt by his evidence. She found that the
actus
reus
for fraud was met: the opening of the Twin Bird accounts was a dishonest
act and the depositing of cheques for an illegitimate business created a risk
of deprivation for the banks which materialized.
[16]
The trial judge also found that the appellant
was, at the very least, wilfully blind to the fraud. There were numerous instances
during the months-long scheme that raised the appellants suspicion. These
instances included:
1.)
He was given several large cheques. His evidence
was that he never questioned where the money came from and assumed it was
legitimate, even though they came from a man whose last name and address he did
not know;
2.)
He drove to several branches around Oshawa and
Scarborough to deposit cheques in the same day;
3.)
He was using some of the money from Ramesh to
pay off his credit card debt;
4.)
He bought lottery tickets at the casino,
purportedly to show the bank that his businesses were legitimate;
5.)
His TD Bank accounts were blocked and later
frozen, including an account associated with his legitimate business. He
immediately stopped using the accounts; and
6.)
He continued the same behaviour with his RBC accounts,
even though his TD accounts were already frozen.
D.
Analysis
[17]
The appellant appeals his conviction on the
following grounds:
1.)
The trial judge erred in her analysis of wilful blindness, and did
not provide any legal analysis of the appellants liability as a party under s.
21(1)(b) or (c) of the
Criminal Code
;
2.)
The trial judge erred in her approach to
assessing the appellants credibility and reliability; and
3.)
The trial judge erred by failing to explain how
she used the similar fact evidence in her analysis.
[18]
The appellant also seeks leave to appeal his
sentence, on the basis that the sentencing judge erred by failing to apply the
principle of restraint, thereby imposing a sentence that was harsh and
excessive in the circumstances.
(1)
The Trial Judges Analysis of Wilful Blindness
[19]
The appellant submits that the trial judge erred
in finding that the appellant was, at the very least, wilfully blind to the
fraudulent scheme and argues that the evidence only supported a finding of recklessness.
He states that his evidence was clear that he had no idea anything illegal was
happening and that, when he first learned of it, he cut ties with Ramesh.
[20]
In addition, he submits that the trial judge
found him to be a party to the offence under s. 21 of the
Criminal Code
,
even though she never conducted an analysis under s. 21. Recklessness, he
argues, cannot ground party liability.
[21]
Wilful blindness is a substitute for knowledge
where knowledge is a component of the
mens rea
:
R. v. Briscoe
,
2010 SCC 13, [2010] 1 S.C.R. 411, at para. 21. Wilful blindness imputes
knowledge to an accused whose suspicion is aroused to the point where he or she
sees the need for further inquiries, but
deliberately
chooses
not to make those inquiries:
Briscoe
, at para.
21 (emphasis in original). It is a state of deliberate ignorance.
[22]
In my view, there is no basis to interfere with
the trial judges finding that the appellant was wilfully blind. His testimony
that he had no suspicions about the legality of Rameshs scheme was wholly
rejected by the trial judge. This finding was well supported by the record.
[23]
For example, the appellant was asked whether he
thought it unusual that he deposited cheques at multiple banks on the same day:
Appellant: [Ramesh] told me thats the way to
do it and it is good. That is why I followed him.
Q: Im sure he told you that, but didnt you
think that was a little bit unusual?
A:
I thought its a bit
unusual
, but when he told me this is the way you do it, then I followed
him.
Q: So, you didnt ask any more questions?
A: No.
[Emphasis added.]
[24]
Additionally, in June 2013, the appellants TD
bank accounts were blocked. When he asked Ramesh about it, he was told that it did
not matter. The appellant stopped using his accounts but did not call the bank
because he thought Ramesh was handling that. The trial judge concluded that
he remained in a state of deliberate ignorance by not making inquiries after
his TD bank accounts were blocked.
[25]
These are just a few examples of instances where
the trial judge concluded that the appellants suspicions were raised. She
found that the appellant had a handy excuse in the form of Ramesh
whose
whereabouts and identity is a complete mystery to all, that he insulated
himself with a wall of deliberate ignorance, and that he had a readymade
mantra for court.
[26]
The trial judge ultimately concluded that the
appellant was wilfully blind:
I agree with the Crowns submissions that the
very fact that Ramesh was giving Mr. Manickam reassurances, about the different
aspects of the scheme, shows his suspicions were, in fact, raised and in
between the TD scheme and the RBC scheme, Mr. Manickam had two months to
make inquiries about the TD account and even though he was unable to pay his
loans or pay his bills, and was not receiving any more statements from the
bank, he did nothing to make any inquiries.
[27]
There is no palpable and overriding error in the
trial judges factual findings that 1) the appellant had suspicions about the
scheme, and 2) he did not make any inquiries beyond Ramesh. These findings,
which were made after an extensive review of the evidence, support the
conclusion that the appellant was wilfully blind.
[28]
Although the trial judge referred to the
appellant as being a party to the fraud, she also concluded that all of the
elements of fraud had been met respecting the appellant. While her language was
confusing, I think it is clear from her reasons as a whole that she ultimately
concluded that he actually committed the offences and not that he aided or
abetted someone in committing the offences. I would also note that s. 21(1)(a)
of the
Code
defines party as including a person who actually commits
the offence.
(2)
The Trial Judges Assessment of Credibility and
Reliability
[29]
The appellant argues that the trial judge
rejected the appellants testimony because it did not match what she would have
done in the circumstances. He argues that she did this because she commented,
in multiple instances, that no reasonable person would have done what the
appellant had done. For example, she stated that a reasonable person would
contact their bank once they learned that their accounts had been blocked.
[30]
There is no basis to interfere with the trial
judges assessment of the appellants credibility. Her ultimate conclusion was
that the appellants testimony was not believable and that she was not left in
reasonable doubt by it:
R. v. W.(D.)
, [1991] 1 S.C.R. 742. This
finding was supported by numerous references to the appellants testimony and
the record as a whole. Her conclusion that a reasonable person would have had
suspicions was only one factor in concluding that he was not credible on this
issue.
[31]
The trial judges use of the term reasonable
person at multiple points in her reasons when evaluating the appellants
credibility was unfortunate. The language of reasonable person should be
avoided when determining whether someone was wilfully blind, as it suggests an
objective fault standard. Wilful blindness and criminal negligence are distinct
concepts:
Briscoe
, at para. 24.
[32]
Read fairly, however, the trial judges reasons
show that she did not err. She simply did not find the appellants denials
credible. The appellant had numerous good reasons to be suspicious, and it was
simply not plausible that he did not have any suspicions at all. In referencing
what a reasonable person would have thought, she was, in effect, concluding
that his testimony was not in harmony with the way things can and do happen
and was highly implausible: see e.g.,
R. v. Kiss
, 2018 ONCA 184,
at paras. 28-34;
Faryna v. Chorny
, [1952] 2 D.L.R. 354 (B.C.C.A.).
(3)
The Trial Judges Use of Similar Fact Evidence
[33]
Mid-trial, the Crown made a similar fact
application in relation to the TD and RBC allegations, to permit the facts to
be used across counts. The Crown submitted that the similar fact evidence was
probative in four ways:
1.)
The totality of the conduct demonstrates fraudulent intent;
2.)
The use of the business account in the name of
Twin Bird Construction with TD bank and the subsequent use of an account with
the same business name at RBC shows fraudulent intent;
3.)
The issue of the identity of the person making
the transactions; and
4.)
The conduct after posting the cheques in the TD allegations
demonstrate a clear wilful blindness as to the nature of the cheques.
[34]
The defence conceded that the application should
be granted, and the trial judge accepted the concession and allowed the
application. She did not include any analysis on what use, if any, she made of
the similar fact evidence.
[35]
On appeal, the appellant argues that the trial
judge erred because her reasons fail to explain how she used the similar fact
evidence. He argues that the lack of discussion does not allow him to
understand the ways in which his guilt was decided. He says that this error can
only be remedied with a new trial. He does not argue that the evidence was not
admissible as similar fact evidence.
[36]
I disagree. The trial judges reasons were
extensive. They spanned almost 100 pages in the court transcript. The judgment
canvassed the evidence in detail and clearly laid out the basis for conviction.
Read as a whole, the reasons communicate that she disbelieved the appellants
testimony, that she was not left in a reasonable doubt by it, and that the
Crown had met its onus to prove that the appellant committed the
actus reus
and
mens rea
for the charged offences.
[37]
The primary issue at trial was whether the
mens
rea
was proven. The trial judge gave detailed reasons for why she did not
believe that the appellant was not suspicious of the fraudulent scheme he
participated in.
[38]
A trial judge does not need to discuss every
piece of evidence in their reasons. There was ample evidence in the record and
in her reasons that supported the conviction, even without considering the
similar fact evidence. It was not an error that the trial judge did not refer
to other evidence that also could have supported a finding of guilt.
(4)
The Appropriateness of the Sentence Imposed
[39]
The appellant also seeks leave to appeal his
sentence, and if leave is granted, he appeals the sentence on the basis that
the trial judge erred in failing to apply the principle of restraint, and as a
result, imposed an excessive and harsh sentence.
[40]
For this court to intervene with the sentence
imposed, the appellant must establish that the sentence is demonstrably unfit,
or that the sentencing judge made an error in principle that had an impact on
the sentence. For the appellant to establish that the sentencing judge
committed an error in principle, he must either show that the sentencing judge
committed an error in law, failed to consider a relevant factor, or erroneously
took into consideration an aggravating or mitigating factor:
R. v. Friesen
,
2020 SCC 9, 444 D.L.R. (4th) 1;
R. v. Lacasse
, 2015 SCC 64, [2015] 3
S.C.R. 1089.
[41]
At the sentencing hearing, the Crown sought a
sentence of 30 months of incarceration to be served in the penitentiary, while
the defence submitted that a sentence of 9 months of incarceration was
appropriate. After considering the submissions of the parties, the sentencing
judge imposed a sentence of 18 months of incarceration followed by 3 years of
probation and a stand-alone restitution order.
[42]
The appellant argues that the sentencing judge
failed to give effect to the principle of restraint, as the appellant was a
first-time offender and had never been sentenced to any period of incarceration
before. In my view, a fair reading of the sentencing judges reasons for
sentence indicates otherwise.
[43]
The sentencing judge specifically referred to
the fact the appellant was a first-time offender and that while the offence
calls for a penitentiary sentence, she would not impose such a sentence. In the
reasons, the sentencing judge stated:
This gentleman comes to me as a first
offender. That is one of the most significant reasons why Im not putting you
in the penitentiary today, sir, because we try to avoid putting first offenders
in the penitentiary. We try to avoid jail, at all, but the extent of his fraud,
and the aggravating factors, in my view, require there be a significant jail
sentence.
[44]
I see no error in the sentencing judges
reasoning and weighing of the factors under s. 718.2(e) of the
Criminal
Code
. It is clear from the reasons for sentence that the trial judge
considered all sanctions other than incarceration and found that due to the
seriousness of the fraud and the significant loss that resulted, incarceration
was necessary to adequately address the principles of deterrence and
denunciation. She specifically turned her mind to the principle of restraint
and reminded herself of her obligation on sentencing to impose the shortest
available sentence that is proportionate to the gravity of the offence and
degree of responsibility of the offender.
[45]
The sentencing judge also considered reference
letters from the appellants family and friends, as well as the impact that
incarceration would have on his family, his existing business, and more
specifically, his wife and 20-year-old son.
[46]
The appellants offence was serious and
premediated. His moral blameworthiness was high. He committed a premediated
fraud purely for his personal gain, and this fraud resulted in a combined loss
of over $250,000 to two banks. In the circumstances, the decision of the sentencing
judge is owed a high degree of deference.
E.
Disposition
[47]
For the foregoing reasons, the appeal from
conviction is dismissed. Leave to appeal the sentence is granted, but the
sentence appeal is denied.
Released: September 29, 2021 M.T.
M.
Tulloch J.A.
I
agree. I.V.B. Nordheimer J.A.
I
agree. M. Jamal J.A.
|
WARNING
Prohibitions under the
Child, Youth and
Family Services Act
, 2017, S.O. 2017, c.14, Sched. 1 apply to this
decision:
Prohibition re identifying child
87(8)
No
person shall publish or make public information that has the effect of
identifying a child who is a witness at or a participant in a hearing or the
subject of a proceeding, or the childs parent or foster parent or a member of
the childs family.
Prohibition re identifying person
charged
87(9)
The
court may make an order prohibiting the publication of information that has the
effect of identifying a person charged with an offence under this Part.
Transcript
87(10)
No
person except a party or a partys lawyer shall be given a copy of a transcript
of the hearing, unless the court orders otherwise.
Offences re publication
142 (3)
A
person who contravenes subsection 87 (8) or 134 (11) (publication of
identifying information) or an order prohibiting publication made under clause
87
(7) (c) or subsection 87 (9), and a
director, officer or employee of a corporation who authorizes, permits or
concurs in such a contravention by the corporation, is guilty of an offence and
on conviction is liable to a fine of not more than $10,000 or to imprisonment
for a term of not more than three years, or to both.
COURT OF APPEAL FOR ONTARIO
CITATION: M.L. v. B.T., 2021 ONCA 683
DATE: 20211004
DOCKET: M52822 (C69821)
Paciocco
J.A.
BETWEEN
M.L.
and D.L.
Appellants/Applicants
and
B.T., D.C.
and Dilico Anishinabek Family Care
Respondents/Respondents
Jessica Gagn
é
, for the
appellants/applicants, M.L. and D.L.
Edward R. Van Voort, for the
respondent, D.C.
Katherine Hensel, for the respondent,
Dilico Anishinabek Family Care
Heard: September 29, 2021 by
videoconference
ENDORSEMENT
OVERVIEW
[1]
This is a custody dispute between the
applicants, M.L. and D.L., and the respondent, Dilico Anishinabek Family Care (Dilico).
The custody dispute concerns J.T., a child in need of protection, whom Dilico placed
in the applicants care more than six years ago, eight days after J.T.s birth.
Dilico intends to terminate the placement so that J.T. can be placed with her
mother, D.C.s, family, in the Berens River First Nation in Manitoba. In
proposing this placement, Dilico is attempting to ensure that J.T.s best
interests are served by preserving her links to her Indigenous culture, family,
and community. However, D.L. and M.L believe that it is in J.T.s best
interests that she remains in their care. Accordingly, they launched a custody
application pursuant to the
Childrens Law Reform Act
, R.S.O. 1990, c.
C.12.
[2]
On September 7, 2021, Newton J. of the Ontario
Superior Court of Justice released an appeal decision that sets aside the applicants
custody application and paves the way for Dilico to remove J.T. from the
applicants care, and to pursue their intended placement of J.T with her
mothers family.
[3]
The applicants now bring a motion before me to
stay the appeal judges decision pending the final determination of their
appeal. Dilico does not oppose a conditional stay that would require J.T. to
continue to reside with the applicants pending that determination, but requests
that the conditional stay maintain their role as the legal guardian of J.T. The
applicants ask for supplementary relief as well, which Dilico does not oppose.
D.C. did not participate in this motion. J.T.s father, B.T., was served with
the applicants custody application, but has not responded.
[4]
For the reasons that follow, I am ordering a
stay of the appeal decision, an order that will assure that J.T. is not removed
from the applicants care pending the final determination of the appeal.
However, I am also imposing conditions in J.T.s best interests that will
satisfy some of Dilicos concerns. Finally, I make additional orders for
associated relief, described below.
MATERIAL FACTS
[5]
J.T., an Indigenous child, was born in Thunder
Bay in late 2015. Her case was referred to Dilico at the time of her birth. J.T.
was apprehended by Dilico with the consent of her mother, D.C., and her father,
B.T, when she was one day old. When J.T. was eight days old, she was placed in
the care of Dilico pursuant to a short temporary care agreement signed between
Dilico and J.T.s parents. Dilico then placed J.T. in the care the applicants,
M.L. and D.L., while maintaining contact with her biological family.
[6]
Under s. 80 of the
Child, Youth and Family
Services Act
, 2017, S.O. 2017, c. 14, Sched 1, (
CYFSA
) childrens
aid societies are obligated to make reasonable efforts to pursue a plan of
customary care for Indigenous children. After a child is found to be in need of
protection and placed into extended care pursuant to s. 101(3) of the
CYFSA
, this can be accomplished through a plan for customary care, an
adoption, or a custody order under subsection 116(1):
CYFSA
, s.
112(3). Dilico did not pursue these mechanisms, however, choosing instead to
develop a plan of customary care for J.T. outside of the court system.
[7]
When J.T. was four months old, Dilico executed the
first of a series of six-month customary care agreements. These short term customary
care agreements were executed by D.C., as well as the band to which D.C.
belongs, the Berens River First Nation in Manitoba. J.T. is now registered as a
member of Berens River First Nation.
[8]
Each of the customary care agreements executed
by the parties have the same terms. Specifically, the customary care agreements
provide that Dilico is the legal guardian of J.T. during the duration of the
agreements. In addition, they provide that Dilico is entitled to assume the
duties of parent of the child, and to have the rights and responsibilities as
parents of the child for the purposes of the childs care.
[9]
Dilico submits that its long-term plan was to
use these customary care agreements as a mechanism for working towards
reunification of J.T. with her Indigenous family and community. It now proposes
a permanency plan for J.T. to live with D.C.s aunt, R.C, in the Berens River
First Nations.
[10]
M.L. and D.L., who evidently care deeply for J.T.,
believe that it is in J.T.s best interest to remain with them. In June 2017,
they instituted custody proceedings under the
Childrens Law Reform Act
,
R.S.O. 1990, c. C.12, which Dilico and D.C. opposed. Specifically, Dilico took the
position that as foster parents within the meaning of s. 2 of the
CYFSA
,
the applicants are prohibited by
CYFSA
, s. 102, and
Family Law
Rules
, O. Reg. 114/99,s. 7(4) from applying for or obtaining custody of
J.T. Dilico brought a motion to strike the custody application on this basis.
[11]
The applicants submitted, in response, that
they are not foster parents, but care providers as defined in
An Act
respecting First Nations, Inuit and Métis children, youth and families
,
S.C. 2019, c. 24, s. 1. They contended further that the customary care
agreements are invalid. Their objections to the validity of the agreements include
the claim that the
CYFSA
does not provide for out-of-court
customary care agreements. They also maintained that Dilicos customary care
plan is not in J.T.s best interests as required by the
CYFSA
and
argue that it is in her best interest to remain with them. The applicants asked
for the dismissal of Dilicos motion, and for interim custody.
[12]
On March 3, 2020, a judge of the Ontario Court
of Justice agreed with the applicants and dismissed Dilicos motion. She ruled that
the applicants are entitled to continue their custody application, and awarded
them interim custody, subject to these material terms:
4. A Childrens lawyer shall be appointed for [J.T.] or a
social work investigation requested.
5. [Dilico] shall facilitate services for the child, but shall
not make decisions about the child without the consent of her caregivers or
order of the court.
6. The mother D.C. and the father B.T. shall be entitled to
supervised access.
7. If R.C. becomes a party, she is entitled to access.
8. The access exercised by D.C., B.T. and R.C. shall be on the
following conditions:
a. The access of the parents and great aunt shall not, in
combination, exceed 48 hours per month.
b. There shall not be any overnight access at this time.
c. All access shall be in Thunder Bay.
d. No other individuals other than supervisors, the [Office of the
Childrens Lawyer] or an agreed third party shall attend the access visits.
e. The parents and great aunt shall propose a schedule for the next
two months which may be agreed by the Applicants or the matter of the schedule
can be addressed with the court.
f. R.C. shall refrain from having the child refer to her as mother
or mom.
9. The current customary care agreement and the Alternative
Care Agreement shall be stayed pending further order of the court. No other
customary care agreements shall be signed regarding [J.T.] and no other
proceedings shall be commenced without leave of the court.
[13]
Dilico appealed the motion judges order to the
Ontario Superior Court of Justice. The Association of Native Child and Family
Services Agencies of Ontario, and the Nishnawbe Aski Nation were granted
intervenor status and took legal positions that buttressed Dilicos legal
position.
[14]
On September 7, 2021, the appeal judge allowed
the appeal, agreeing with Dilico that: (1) the motion judge erred in concluding
that Out-of-Court Customary Care Agreements are not creations of the
CYFSA
,
which must be given priority to court-ordered options; (2) the motion judge
committed palpable and overriding error in finding that the applicants were not
foster parents within the meaning of s. 2 of the
CYFSA
, and in
exercising discretion to permit them to apply for custody contrary to the
spirit of the legislation; and (3) erred in not deferring to Dilicos placement
decision. He set aside the motion judges decision, struck the applicants
application for custody, and prohibited the applicants from being parties in a
case involving the custody of or access to J.T.
THE ISSUES
[15]
The applicants now bring this motion pursuant to
Rule 63.02(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194,
to stay the judges decision pending the final determination of their
intended appeal. Dilico does not oppose a conditional stay that will require
that J.T. reside with the applicants pending appeal. Responsibly, Dilico
recognizes that it would not be in J.T.s best interests to remove her from the
applicants residence and care, only to have to return her if the applicants
ultimately succeed on appeal. They contend, however, that the
status
quo
includes their authority as J.T.s legal guardian, which is
not being respected. They also contend that this authority is required to
maintain J.T.s ties to her Indigenous family, culture and community. They
request that the order of this court preserves their guardianship, including their
decision-making authority. The applicants oppose this request, arguing that Dilicos
guardianship derives from an invalid customary care agreement and should not be
maintained by this court pending the final determination of the appeal.
[16]
The applicants also seek orders for the
admission of fresh evidence, the representation of J.T. on appeal by the Office
of the Childrens Lawyer, and leave to file an extended factum.
ANALYSIS
[17]
I am persuaded that a stay of the appeal judges
decision pending the final determination of an appeal from that decision is in
the interests of justice. The three factors required for consideration of such
a stay, recently described by this court in
UD Trading Group Holding PTE.
Limited v. TransAsia Private Capital Limited
, 2021 ONCA 279, at para. 29,
each point in that direction.
[18]
First, a preliminary assessment of the merits of
the case reveals that there are serious issues to be tried. Dilico agrees that
this is so. Indeed, this appeal will raise important questions about the proper
evaluation of the best interests in the placement of Indigenous children who
have been apprehended, and it will invite close consideration of the effect of
out-of-court customary care agreements.
[19]
Second, D.L. and M.L. have a tremendous
emotional investment in their relationship with J.T. and will suffer
irreparable harm if they lose their caregiving role without further and final
determination of the serious questions I have identified. More importantly, all
indications are that J.T. is being extremely well cared for and has closely
bonded with D.L. and M.L. I agree entirely with the responsible and sensitive
recognition by Dilico that it is not in her best interests to terminate her
placement with D.L. and M.L., given that such outcome could be reversed as the
result of this legal action. J.T. requires a stable interim care placement pending
final determination of what her ultimate placement will be.
[20]
Third, I am persuaded that based on the harms I
have identified, D.L. and M.L., and J.T., will suffer greater harm if I refuse
to grant a stay, than Dilico, D.C., other members of J.T.s family or her
Indigenous community will experience if I order a stay.
[21]
Having said that, the law is clear that as an
Indigenous child, J.T.s best interests require that attention is paid to specific
considerations, which affect both the irreparable harm and greater harm
considerations discussed above. Subsection 74(3) of the
CYFSA
obligates
courts, when determining the best interests of Indigenous children, to
consider the importance
of preserving the childs cultural identity and
connection to community. The preamble to the
CYFSA
makes clear how
important it is in the spirit of reconciliation to care for Indigenous
children in accordance with their distinct cultures, heritages and traditions.
Section 10 of
An Act respecting First Nations, Inuit and Métis children,
youth and families
removes any doubt that an ongoing relationship between
the family and the childs Indigenous community is of central concern. Specifically,
s. 10 provides:
10(1) The best interests of the
child must be a primary consideration in the making of decisions or the taking
of actions in the context of the provision of child and family services in
relation to an Indigenous child, and, in the case of decisions or actions
related to child apprehension, the best interests of the child must be the
paramount consideration.
(2) When the factors referred to in
subsection (3) are being considered, primary consideration must be given to the
childs physical, emotional and psychological safety, security and well-being,
as well as the importance, for that child, of having an ongoing relationship
with his or her family and with the Indigenous group, community or people to
which he or she belongs and of preserving the childs connections to his or her
culture.
[22]
I do not disregard the fresh evidence confirming
D.L.s Indigenous status, proof that was not available before the appeal judge.
However, I agree with Dilico that the stay I order must make meaningful
provision that enables Dilico to take reasonable steps to nurture J.T.s
connection to her Indigenous culture, her family and her community, pending the
final determination of the appeal. I therefore impose conditions on the stay I
am ordering, and in recognition that this may not be adequate, I will also be
ordering that this appeal be expedited.
DISPOSITION
[23]
The Order of Newton J. of the Ontario Superior
Court of Justice dated September 7, 2021, Court File No. FS-20-0062-00AP, is
stayed pending appeal. The following conditions apply:
1. The
most recent customary care agreement and the alternative care agreement shall remain
in effect pending further order of the court. However, any authority that Dilico
had as guardian to determine J.T.s custody placement is suspended, and J.T. shall
not be removed from the physical care or control of D.L. and M.L. pending the
final determination of this appeal. The obligation of D.L. and M.L. to
participate with Dilico in developing a Plan of Care for the child in care is
also suspended.
2. The
mother D.C. and the father B.T. and R.C. shall be entitled to supervised access
to J.T., in Thunder Bay, on the following conditions:
a. The
access of the parents and great aunt shall not, in combination, exceed 48 hours
per month.
b. There shall not be any overnight access at this time.
c.
No other individuals, other than supervisors, the Office of the
Childrens Lawyer or an agreed third party shall attend the access visits.
d.
R.C. shall refrain from having the child refer to her as mother or
mom.
[24]
I am not prejudging the contested validity of the
recent customary care agreement and the alternative care agreement by ordering
that they be in effect pending the appeal. These agreements, the terms of which
have been agreed to by the applicants, provide a mechanism for ensuring that J.T.
continues to receive services, and that her needs as an Indigenous child are
attended to pending the completion of the appeal.
[25]
As indicated, I am also ordering that this
appeal be expedited. It is in J.T.s interest to have this matter resolved urgently
and there is no impediment to having an appeal proceed quickly. The applicants
are requesting a second appeal and the bulk of the required documentation and
argument is already available.
[26]
The applicants request for an order admitting
fresh evidence is premature. That motion must be brought before the panel
hearing the appeal.
[27]
If intervenors are permitted to participate in
the appeal, the applicant shall be permitted to file a factum exceeding 30
pages, not to exceed 45 pages.
[28]
Pursuant to s. 89(3.1) of the
Courts of
Justice Act
, R.S.O 1990, c. C.43, the Office of the Childrens Lawyer may
act as legal representative for J.T.
[29]
Within 10 days of the release of this decision,
the parties may provide costs submissions in writing not to exceed 3 pages,
supported by bills of costs.
David
M. Paciocco J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: 2460907 Ontario Inc. v. 1521476
Ontario Inc., 2021 ONCA 682
DATE: 20211006
DOCKET: C69130
Lauwers, Harvison Young and
Sossin JJ.A.
BETWEEN
2460907
Ontario Inc.
Plaintiff/Appellant
and
1521476 Ontario Inc.
Defendant/Respondent
Paul Starkman and Calvin Zhang, for the
appellants
Elliot Birnboim and Michael Crampton,
for the respondent
Heard: September 27, 2021 by video conference
On appeal from the order of Justice M.G.
Ellies of the Superior Court of Justice, dated January 26, 2021
striking the appellants claim, with reasons reported at
2021 ONSC 634.
REASONS FOR DECISION
[1]
The appellant 2460907 Ontario Inc. (246) appeals from an order
striking its claim under r.
21.01(1)(b)
of
the
Rules of Civil Procedure
, R.R.O. 1990,
Reg. 194,
for pure
economic loss arising from the respondent 1521476 Ontario Inc.s (152)
exercise of re-entry against 152s tenant, 2456787 Ontario Inc. (245).
[2]
The underlying facts are straightforward. 152
had entered into a lease with 245. The lease was subsequently amended to allow
for renovations, for which 152 was to obtain a building permit. The building
permit was delayed. 245 was unable to afford the rent, stopped paying it, and
asked 152 to waive or reduce the rent, a request 152 refused. 245 then wrote to
152 advising that a new restaurant to be located in the premises would be
operated by 246 and requested that the original lease and the amending
agreement both be changed to reflect that the tenant would now be 246. 152
responded by re-entering the premises and distraining the chattels of 245. 245
commenced an action for wrongful distraint, to which 246 was not a party.
[3]
Over a year later, 246 commenced its own action
against 152 for pure economic loss damages for the profits it was going to earn
by operating a restaurant in the premises formerly occupied by 245. 246 claimed
to have possessory or proprietary interest in the property. 152 brought a motion
under r. 21.01(1)(b) of the
Rules of Civil Procedure
, R.R.O. 1990,
Reg. 194 and was successful.
[4]
The motion judge found that, as a third party,
246 did not have possessory or proprietary interests in the premises. 152 had not
consented to an assignment of the lease and refused to enter into any new
agreement with 246, and 246 could therefore not have acquired possessory or
proprietary interest in the property. The motion judge also denied 246 the
opportunity to amend its claim because (1) it had already been given that
opportunity and (2) no amount of amendment would save 246s claim.
[5]
The appellant argues that the trial judge incorrectly applied the
test set out
under r. 21.01(1)(b) by not accepting the facts
pleaded in the statement of claim as true, and that he erred in his
consideration of its tort claim for pure economic loss. Both arguments must
fail.
[6]
First, we see no error in the motion judges
finding that 152 did not consent to the assignment of the lease and that 246
therefore had no possessory or proprietary interest in the property. This
finding was well grounded in the record before the motion judge and was open to
him. The motion judge was aware that 152 failed or refused to allow 246 to
occupy the premises. The precise mechanism through which 246 did not obtain
possessory or proprietary interest is not vital.
[7]
Second, there is no merit to the appellants
argument that 152 owed it a duty of care arising from its possessory or
proprietary interest in 152s property. Without such an interest there could
not be an entitlement on the part of 246 to claim possessory or proprietary
interest in 152s property and thus a duty of care that could entitle it to economic
loss. This was not a case like
Canadian National
Railway Co. v. Norsk Pacific Steamship Co.
, [1992]
1 S.C.R. 1021, which remains the leading case on relational economic loss and
upon which the appellant relied. In that case, a barge owned by Norsk Pacific
Steamship collided with a bridge owned by Public Works Canada. Although CN did
not have any leasehold estate or interest in the bridge, it was,
pursuant
to a contract
with Public Works Canada, its primary user. Nothing about
this case is analogous to
Norsk.
246 did not have any relationship
with 152, contractual or otherwise, that would entitle it to claim possessory
or proprietary interest in 152s property.
[8]
Given the motion judges finding that 152 had
not consented to any assignment of the lease, there was nothing to ground the
necessary finding of proximity. As the Supreme Court of Canada stressed in
1688782
Ontario Inc. v. Maple Leaf Foods Inc.
, 2020 SCC 35, 450 D.L.R. (4th) 181,
at para. 21,
per
Brown and Martin JJ. writing for the majority, it is
proximity and not a template of how a loss factually occurred, that remains a
controlling concept and a foundation of the modern law of negligence: see
also,
Norsk
, at
p.1152.
[9]
The motion judges decision to not allow 246 to
amend its claim further is owed deference.
[10]
Appeal is dismissed with costs in the amount of
$5,000, as agreed by the parties, awarded to the respondent.
P.
Lauwers J.A.
A.
Harvison Young J.A.
L.
Sossin J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Gordon Dunk Farms Limited v. HFH
Inc., 2021 ONCA 681
DATE: 20211006
DOCKET: C68594
Strathy C.J.O., Feldman and van
Rensburg JJ.A.
BETWEEN
Gordon Dunk Farms Limited
Plaintiff
(Appellant)
and
HFH Inc., Franken Concrete
Forming (2011), McNeil Engineering & Construction Inc.
and Township of Guelph Eramosa
Defendants
(
Respondents
)
Daniel Zacks and Gregory Brimblecombe,
for the appellant
Peter W. Kryworuk and Jacob R.W. Damstra,
for the respondent HFH Inc.
James A LeBer and Eric A.F. Grigg, for the respondent McNeil
Engineering & Construction Inc.
No one appearing for the respondent Franken Concrete
Forming (2011)
Heard: May 21, 2021 by video conference
On appeal from the judgment of Justice Gordon
D. Lemon of the Superior Court of Justice, dated July 21, 2020, with reasons at
2020 ONSC 4426.
Feldman J.A.:
A.
Introduction
[1]
The appellant, Gordon Dunk Farms Ltd., suffered
a loss when its hog barn collapsed on May 6, 2014. The two principals of the
appellant, Gordon Dunk and his son Floyd Dunk, are knowledgeable hog farmers,
who had the barn constructed 1.5 years earlier by the three respondents. McNeil
Engineering & Construction Inc. (McNeil) designed the barn, HFH Inc. (HFH)
oversaw its construction, and Franken Concrete Forming (2011) (Franken) undertook
the concrete work. Floyd Dunks son and brother were in the barn when it
collapsed and were lucky to survive.
[2]
The appellant had insurance that covered part,
but not all, of the loss. The insurer paid the appellant for the covered loss
and retained a lawyer to sue the respondents to pursue the subrogated claim.
The same lawyer was also retained to recover the balance of the loss on behalf
of the appellant directly. That lawyer did not commence the action until May
24, 2016.
[3]
All parties brought motions for summary judgment
to determine whether the action was brought within time or was statute barred.
The issue before the motion judge was when the appellant knew or ought to have
known that it had a claim against the respondents. Shortly after the barn
collapsed, the insurance adjuster retained an expert to examine the barn and
report on the cause of the collapse. The motion judge found that the principals
knew they had a claim, within the meaning of the
Limitations Act
,
2002
, S.O. 2002, c. 24, Sched. B. (the Act), before they received the final
expert report on May 21, 2014.
[1]
The action was therefore statute barred.
[4]
For the reasons that follow, I would dismiss the
appeal.
B.
Background Facts
[5]
In 2011, the appellant decided to build a new
hog barn on its property. The principals engaged the respondent McNeil to
prepare the design, and the respondent HFH as contractor to oversee the
construction, based on the McNeil drawings. They also engaged the respondent Franken
to do the concrete work. The barn was completed in 2013.
[6]
The barn was a rectangular one-story building
300 feet long and 60 feet wide. The pigs lived on concrete floor panels above
an eight-foot deep tank. Walls running the length of the tank supported the
floor panels and formed channels referred to as raceways. The pigs manure
fell through the floor panels and accumulated in the raceways. A propeller in
the tank would agitate the manure and cause it to flow through the raceways
toward an exit to be pumped out. During construction, Floyd Dunk, who is
knowledgeable about barn construction, was aware that there was no lateral
bracing between the raceway walls, but trusted the engineer with respect to
what was required.
[7]
When the barn collapsed, the appellant was aware
that the raceway walls had collapsed. The insurance adjuster retained two
engineering firms to prepare preliminary reports, R.J. Burnside &
Associates Limited (Burnside) and Brown & Beattie Building Science
Engineering (Brown). They both attended on May 8 and provided their preliminary
reports that same day.
[8]
Burnside provided a preliminary view on
causation, which was that agitation of the manure moved one raceway wall over,
which generated a manure surge that toppled the adjacent walls in a cascading
effect. Burnside subsequently discovered a conflict of interest and had no
further involvement. Brown did not provide a causation opinion until its final
report, delivered on May 21. Its preliminary conclusion in the May 21 report,
based on the information available, was that manure agitation and pumping
caused different levels of manure on either side of the raceway walls,
resulting in uneven force on the walls, causing them to collapse.
[9]
In their cross-examinations, both Gordon and
Floyd Dunk acknowledged that with their experience and understanding of barn
construction and operation, they believed they understood or knew the cause of
the barn collapse, but because they are not engineers, they were speculating
regarding the cause of the collapse (my paraphrase).
Floyd
Dunk testified that he did not see Browns final report of May 21, 2014 until shortly
before his cross-examination on February 26, 2019.
[10]
The action was commenced on May 24, 2016. The
respondents delivered their statements of defence that included a limitations
defence, and moved for summary judgment. The appellant resisted the
respondents motions and brought its own cross-motion for summary judgment to
determine the timeliness of the action.
C.
The Motion Judges findings
[11]
The motion judge dismissed the respondents summary
judgment motions based on the record before him. He found the limitation issue
to be a triable issue that could not be determined on summary judgment. He then
adjourned the appellants summary judgment motion pending cross-examinations or
a mini-trial. In dismissing the respondents motions, he came to the following
conclusions:
I cannot find that the plaintiff knew all of
the facts and was attempting to extend the limitation period by relying on an
expert report. Rather, the documents are consistent with the affidavit evidence
that, prior to the May 21 report, the plaintiff was unable to determine what
had occurred at the bottom of the various walls. As can be seen from the
highlighted sections of the documents, the information to that point was
uncertain. The fact that those observations confirmed what was already
suspected does not move the limitation period backwards.
The documents support that the plaintiff had
hired an independent witness to, literally and figuratively, get to the bottom
of the cause. Until the debris from the collapse was removed, the walls were
observed, and the report was provided, the time could not begin to run. Until
then, it appears that the cause could not be confirmed. The short period of
time between the collapse and the report was reasonable in the circumstances.
[12]
Following the cross-examinations, the motion
judge returned to consider whether he could now decide the limitation issue on
the appellants motion. He found that he could, and that the additional evidence
changed his mind about whether the Dunks knew the cause of the collapse before
they received the May 21 Brown report.
[13]
Gordon Dunk testified that one side of the barn
collapsed first, and then the walls fell like dominos, which indicated that the
raceway wall between the empty raceway and the full one on one side had
collapsed causing the full collapse of the barn. Floyd Dunk agreed that it was
probably obvious that the cause of the collapse was the lack of lateral
supports, but he had no proof. In a statement he gave to the insurance adjuster
on May 13, his opinion was that [h]ad the configuration of the walls been
different this collapse would not have occurred.
[14]
The motion judge rejected the position that the
principals of the appellant were speculating about the cause of the barn
collapse. He found that either they were not telling the truth now, or they
ought to have known the cause at the time. They were experienced in the building
of exactly this kind of barn.
[2]
Also, the barn was of simple construction, the collapse was not a complicated
process, and the principals observed what occurred. Although they called it
theories or speculation, they certainly had all the information they needed to
found their cause of action, the what, the who and the how behind this
claim.
[15]
The motion judge concluded that the directing
minds of the appellant either ought to have known or did know the necessary
facts by May 12, when they met with the insurance adjuster to discuss the
situation. He also found that the May 21 Brown report contained no new
information that the Dunks did not already know. Finally, he observed that
while much time was spent on the knowledge of the appellants counsel, what the
lawyer knew and when he knew it were not determinative; it is the knowledge of
the appellant that is. The motion judges conclusion was that, by May 12, 2014,
the appellant knew:
1)
the barn collapsed with significant damage to it
and the livestock;
2)
the cause of the collapse was insufficient
lateral bracing of the raceway walls;
3)
the three respondents were responsible for the
design and construction of the barn; and
4)
the uninsured losses and subrogated claims would
not be paid without legal action.
[16]
Because the action was commenced on May 24,
2016, more than two years after the appellant knew about the claim within the
meaning of the Act, the action was statute barred.
D.
Issues
[17]
The appellant raises two issues on this appeal:
1)
Did the motion judge err by failing to treat
each of the appellants 20 pleaded acts or omissions as separate claims, and
conduct individual discoverability analyses for each?
2)
Did the motion judge err by failing to rule on
the appellants motion regarding the timeliness of its action as against the respondent,
Franken, who did not defend the motion?
[18]
The answer to both questions is no.
[19]
I will also address a third issue that arises
from the reasons of the motion judge regarding the proper interpretation of s. 14
of the Act.
E.
Analysis
(1)
Did the motion judge err by failing to treat
each of the appellants 20 pleaded acts or omissions as separate claims, and conduct
individual discoverability analyses for each?
a)
The Appellants New Argument on Appeal
[20]
The appellant pleaded that its damages were
caused by the negligence or breach of contract of the respondents. It then
pleaded nine specific failures by the respondent HFH, six specific failures by
the respondent McNeil, and five specific failures by the respondent Franken. I
will set out a few examples:
·
HFH failed to construct the barn according to
the design, failed to ensure the raceway walls were appropriately braced, and failed
to ensure the barn was constructed to safely operate.
·
McNeil failed to adequately design the barn,
designed a manure storage system that it knew or ought to have known was unsafe,
and failed to adequately inspect the ongoing construction.
·
Franken failed to construct the concrete
portions of the barn safely, failed to use proper construction practices, and failed
to provide adequate lateral bracing for the raceway walls.
[21]
The appellant concedes that some of the claims
it alleges are statute barred because it was clear from the cross-examinations
that Gordon Dunk knew about the deficient lateral bracing and inadequate design
of the raceway system days after the collapse. However, the appellant alleges there
is no evidence that its principals knew about other deficiencies in the design,
construction, and inspection of the construction by the respondents before
receiving the May 21 Brown report, and therefore, the claims based on those
failures by the respondents are not statute barred.
[22]
The appellants position is that the report
identified causal findings for the first time, including an issue with the
height of the raceway walls, the fact that the concrete floor panels did not
include any mechanical anchorage to the raceway walls, and that the raceway
walls failed at their connection to the concrete floor slab. These facts gave
rise to a number of separate claims by the appellant not tethered to the
failure to brace the walls. The motion judge did not separately consider
whether those claims were also statute barred.
[23]
To summarize, the appellant submits that it
required the May 21 Brown report in order to discover a number of the acts or
omissions that each of the respondents committed that caused or contributed to
the collapse of the barn, and that each of these acts or omissions constitutes
the basis for a separate claim that requires a separate discoverability
analysis.
[24]
This issue was not raised before the motion
judge. He did not address it in his reasons. The respondents HFH and McNeil
submit that the court should therefore not entertain the argument on the
appeal. While the court will not, in most cases, entertain an argument on
appeal that was not raised at the original hearing, it can do so where the
record is sufficient and the issue is one of law:
Becker v. Toronto (City)
,
2020 ONCA 607, 452 D.L.R. (4th) 679, at paras. 39-40;
Svia Homes Limited v.
Northbridge General Insurance Corporation
, 2020 ONCA 684, 7 C.C.L.I. (6th)
1, at paras. 23-28. In this case, the issue is the proper interpretation and
application of the Act, and the record below is complete. In these
circumstances, in my view, it is appropriate to address the issue on this
appeal.
b)
Meaning of a Claim
[25]
The context for the appellants argument is ss.
4, 5(1) and (2), and the definition of claim in s. 1 of the Act, which state:
1 In this Act,
claim means
a claim to remedy an injury, loss or damage that occurred as a result of an act
or omission;
4 Unless this Act provides
otherwise, a proceeding shall not be commenced in respect of a claim after the
second anniversary of the day on which the claim was discovered.
5 (1) A claim is discovered on the
earlier of,
(a) the day on which the
person with the claim first knew,
(i) that the injury, loss or
damage had occurred,
(ii) that the injury, loss
or damage was caused by or contributed to by an act or omission,
(iii) that the act or
omission was that of the person against whom the claim is made, and
(iv) that, having regard to
the nature of the injury, loss or damage, a proceeding would be an appropriate
means to seek to remedy it; and
(b) the day on which a
reasonable person with the abilities and in the circumstances of the person
with the claim first ought to have known of the matters referred to in clause
(a).
(2) A person with a claim shall
be presumed to have known of the matters referred to in clause (1) (a) on the
day the act or omission on which the claim is based took place, unless the
contrary is proved.
[26]
The meaning of claim in the Act was explained
by this court in
Kaynes v. BP p.l.c.
, 2021 ONCA 36, 456 D.L.R. (4th)
247, and confirmed most recently by the Supreme Court of Canada in
Grant
Thornton LLP v. New Brunswick
, 2021 SCC 31, in respect of the New
Brunswick
Limitation of Actions Act
, S.N.B. 2009, c. L-8.5 (the N.B.
Act). In
Kaynes
, the court explained that while the Act no longer
refers specifically to a cause of action, instead it sets out universal
criteria for the commencement of the limitation period in respect of a claim:
at paras. 50-58. A claim is pursued in a court proceeding to obtain a remedy
for a loss that the defendant caused the plaintiff to suffer by its act or
omission. To obtain a remedy in a court proceeding, a person must assert a
cause of action.
[27]
In
Grant Thornton
, Moldaver J. rejected
the argument that there was a meaningful distinction between claim and cause
of action in the context of the N.B. Act (which is similar but not identical
to the Ontario Act), stating at para. 37:
I recognize that the distinction between
claim and cause of action could be meaningful in some circumstances; but in
my view, it is not so here. In fact, the
LAA
s own wording
shows
that the use of claim does not rule out a shared meaning with cause of
action. Section 1(1) defines a claim as a claim to remedy the injury, loss or
damage that occurred as a result of an act or omission. In short, s. 1(1)
indicates that the legislatures use of the term claim focuses on a set of
facts giving rise to a remedy, which is the same meaning that Grant Thornton attributes
to the term cause of action.
c)
Discoverability of a Claim
[28]
Because a claim is for a legal remedy in a court
proceeding, one can have a claim for the same remedy based on one or more acts
or omissions that may have caused the loss. In pleading parlance, different
acts or omissions may constitute particulars of the claim. However, the claim,
as defined, is for the remedy itself in this case, damages for negligence and
breach of contract.
[29]
As the Supreme Court of Canada released its decision
in
Grant Thornton
following the oral argument of this appeal,
the court sought and received further written submissions from the parties on
the effect of that decision on the issues to be decided on this appeal.
[30]
In
Grant Thornton
, the issue was
whether a plaintiff with a negligence claim must have discovered every
constituent element of that claim, including knowledge of a duty of care and a
breach of the standard of care, before the limitation period would begin to run.
In rejecting that position, Moldaver J. articulated the test for the degree of
knowledge required under the N.B. Act to trigger the commencement of the
limitation period, at para. 42:
[A] claim is discovered when a plaintiff has
knowledge, actual or constructive, of the material facts upon which a plausible
inference of liability on the defendants part can be drawn.
[31]
Moldaver J. emphasized that the plausible
inference of liability standard makes it clear that certainty is not required.
Of course, one will not know for certain if a defendant is liable for a loss until
the verdict is delivered following a trial or summary judgment motion.
[32]
The issue that the appellant raises here is:
what is the significance of the act or omission that is referred to in ss. 5(1)(a)(ii)
and (iii) of the Act? Is the appellant correct that a separate limitation
period begins to run in respect of each act or omission committed by the
defendant as part of its negligent conduct contributing to the loss, thereby
requiring a separate discoverability analysis for each such act or omission? Or
does the plaintiff only have to know that the defendants involvement in the
loss means that it must have committed one or more negligent acts or omissions
that caused or contributed to the loss?
[33]
In my view, the limitations jurisprudence of
this court, effectively confirmed by the Supreme Court in
Grant Thornton
,
establishes that the appellants position has been rejected: see, e.g.,
McSween
v. Louis
(2000), 132 O.R. (3d) 304 (C.A.);
Lawless v. Anderson
,
2011 ONCA 102, 276 O.A.C. 75;
Dale v. Frank
, 2017 ONCA 32, 136 O.R.
(3d) 315, leave to appeal to S.C.C. refused, 37494 (October 12, 2017); and
Morrison
v. Barzo
, 2018 ONCA 979, 144 O.R. (3d) 600.
[34]
A plaintiff need not know the exact act or
omission by the defendant that caused the loss in order to start the limitation
period running. What it needs to know is that an incident occurred that
resulted in a loss (s. 5(1)(a)(i)), that the defendant did or failed to do something
to cause that loss (s. 5(1)(a)(ii) and (iii)), and that, having regard to the
nature of the injury, loss, or damage, a court proceeding is an appropriate
means to seek a remedy (s. 5(1)(a)(iv)).
[35]
The damages and injury caused by a car accident
provide an instructive example. The defendants car slams into the plaintiffs
car. The plaintiff knows the defendant was driving, but may not know whether
the defendant fell asleep at the wheel, neglected to get the brakes of the car
serviced, was distracted by a phone call, was drunk, or was just careless. The
plaintiff will plead all of those allegations as part of its negligence claim. In
discovery, the true facts will likely be disclosed. It is also possible that
the actual cause or causes of the accident may not be revealed until trial. But
the action must be commenced within two years of when the plaintiff knows or
ought to know that the defendant committed some act or omission that caused the
loss or damage.
[36]
And what is meant by knows is that the
plaintiff has the evidentiary basis to believe that the defendant did an act or
made an omission that caused a loss for which a court proceeding is appropriate
to obtain a remedy the basis of a plausible inference of liability, in the
words of Moldaver J. Of course, at trial, it may turn out that the defendant was
not responsible for the loss, either because they owed no duty of care, they
met the standard of care, or they did not commit the act or omission that was
alleged.
[37]
It is possible that there may be circumstances
where a plaintiff learns later about another act or omission that was not
apparent from the circumstances of the loss and that gives rise to a new claim.
That is what occurred in
Kaynes
, where the investor knew early on that
the companys financial disclosure was misleading and negligent, and therefore
had to commence its negligent misrepresentation action. But it only learned
much later that the company had knowingly and fraudulently made the misleading
claims, and therefore the investor had more time to allege fraud.
d)
Application to this Case
[38]
Applying these principles to the pleading and
the appellants knowledge in this case, all of the allegations that are made as
separate acts or omissions come under three categories: faulty design, faulty
construction, and faulty inspection during construction. The pleading describes
particulars or details of failures within each of those categories of
responsibility. The motion judge found, based on the record, that Gordon and Floyd
Dunk knew shortly after the collapse that the three respondents were
responsible for these aspects of the development and delivery of the barn, and
that the barn collapsed because of the failure of one or more of those aspects
of the planning and erection of the barn. That finding is sufficient to meet
the plausible inference of liability test for identifying the required acts
or omissions of these respondents.
[39]
The motion judge determined, based on the
evidence from the appellants principals themselves, that they knew they had a
claim for negligence and breach of contract by May 12, 2014, because they knew
sufficient facts to be able to infer that negligent design, construction, and/or
inspection during the construction of the barn were the cause of the collapse. I
see no basis to interfere with his analysis or his conclusion.
[40]
I would not give effect to this ground of
appeal.
(2)
Did the motion judge err by failing to rule on
the appellants motion regarding the timeliness of its action as against the respondent,
Franken, who did not defend the motion?
[41]
The respondent Franken defended the appellants
action but not the summary judgment motion. I am satisfied, based on the
reasons of the motion judge, that his failure to find that the action is
statute barred as against Franken as well as the other two respondents was an
oversight on his part. At para. 6 of his reasons, the motion judge noted that
Franken took no position on the motion but all parties agreed that the result
of this motion would likely be binding on Franken in any event. That, of
course, includes agreement by the appellant.
[42]
The findings by the motion judge applied to the
appellants knowledge with respect to the involvement of each of the three respondents.
As a result, the action is statute barred against all three, including Franken.
(3)
The motion judges error with respect to the
meaning and effect of s. 14 of the Act
[43]
Section 14 of the Act allows a person who is a potential
defendant in an action to put the potential plaintiff on notice that the
potential plaintiff may have a claim against the person, the potential
defendant. The purpose is to give a potential defendant the ability to start
the two-year limitation period running so that it can have certainty about when
the action will become statute barred. It is not an admission of liability. The
section allows the court to take the notice into account if a limitation issue
arises in respect of an action after it is commenced. Section 14 reads:
14 (1) A person against whom another
person may have a claim may serve a notice of possible claim on the other
person.
(2) A notice of possible claim
shall be in writing and signed by the person issuing it or that persons
lawyer, and shall,
(a) describe the injury, loss
or damage that the issuing person suspects may have occurred;
(b) identify the act or
omission giving rise to the injury, loss or damage;
(c) indicate the extent to
which the issuing person suspects that the injury, loss or damage may have been
caused by the issuing person;
(d) state that any claim that
the other person has could be extinguished because of the expiry of a limitation
period; and
(e) state the issuing
persons name and address for service.
(3) The fact that a notice of
possible claim has been served on a person may be considered by a court in
determining when the limitation period in respect of the persons claim began
to run.
(4) Subsection (3) does not
apply to a person who is not represented by a litigation guardian in relation
to the claim and who, when served with the notice,
(a) is a minor; or
(b) is incapable of
commencing a proceeding because of his or her physical, mental or psychological
condition.
(5) A notice of possible claim
is not an acknowledgment for the purpose of section 13.
(6) A notice of possible claim
is not an admission of the validity of the claim.
[44]
In this case, the appellants insurance adjuster
sent letters to the three respondents on behalf of the appellant, the potential
plaintiff, to put them on notice of the barn collapse and of their potential
liability as defendants, and recommended that they refer the letter to their
liability insurers and have them contact the appellants adjuster for further
details.
[45]
The motion judge took these letters into account
to support his finding that the appellant knew sufficient facts to commence the
action when those letters were sent. While the motion judge was entitled to do
that as a matter of inference, he was in error by referring to s. 14 and
relying on s. 14(3) as his authority for doing so. Section 14 had no
application to the facts of this case, where it was the potential plaintiff
putting the potential defendants on notice and not the other way around.
[46]
Although the motion judge erred in law by
purporting to rely on the wrong section of the Act, it had no effect on the
outcome of the motion because the motion judge was entitled to draw an
inference, without any authority or direction from the Act, where the notice
was from the potential plaintiff to the potential defendants.
F.
Conclusion
[47]
For the above reasons, I would dismiss the
appeal with costs to the respondents HFH and McNeil in the agreed amount of $15,000
each, inclusive of disbursements and HST.
Released: October 6, 2021 G.R.S.
K. Feldman J.A.
I agree. Strathy C.J.O.
I agree. K. van Rensburg J.A.
[1]
The parties agreed that, in 2016, May 21-23 was a long weekend, and
that if the limitation period commenced on May 21, 2014, the claim was issued in
time.
[2]
The Dunks had a similar barn built in 1992, and Gordon Dunk confirmed
[s]o we had lots of experience with raceway barns.
|
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. D.B., 2021 ONCA 679
DATE: 20211006
DOCKET: C68523
MacPherson, Roberts and Miller
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
D.B.
Appellant
Michael A. Crystal, for the appellant
Natalya Odorico, for the respondent
Heard: September 28, 2021 by
video conference
On appeal from the conviction entered on
September 4, 2019 by Justice Martin S. James of the Superior Court of Justice.
REASONS FOR DECISION
[1]
The appellant appeals his convictions for two
counts of touching his stepdaughter, A.G., for a sexual purpose, contrary to s.
151 of the
Criminal Code
, when she was between 10 and 14 years of age,
during the period 1996 to 2002. The appellant disputes all allegations. He did
not testify at trial.
[2]
The appellant submits the trial judge
misapprehended important evidence that supported the defence, failed to
reconcile material inconsistencies in the evidence, unevenly scrutinized the
Crown and defence evidence, and failed to provide adequate reasons. He asks for
a new trial.
[3]
We do not agree that the trial judge made any
reversible error.
[4]
At the end of the four-day judge-alone trial, the trial judge gave
detailed oral reasons in which he thoroughly reviewed the relevant evidence in
accordance with the parties submissions and the applicable legal principles.
As the trial judge was required to do, he focused his analysis on the material
inconsistencies in the trial evidence. As appellants counsel fairly
acknowledged, the trial judge was not obliged to reconcile every inconsistency.
The trial judge did not unfairly scrutinize the evidence but explained,
correctly in our view, why the identified inconsistencies in A.G.s evidence
did not detract from her credibility or reliability as a witness.
[5]
In particular, we are not persuaded by the appellants principal submissions
on appeal that the trial judge erred in his assessment of the evidence
concerning a letter that A.G. wrote and left for her mother, L.G., to find in
2001 when she was 14 years old in which she alleged that the appellant had
sexually abused her. The letter was not put into evidence; A.G. and L.G.
testified about their recollections of its contents.
[6]
First, that the trial judge indicated that the letter was found in
A.G.s desk drawer, which is where A.G. said she left it, rather than in her
dresser drawer, as her mother testified, is of no moment. The trial judge was
alive to the defence theory that A.G. made false allegations and wanted her
mother to find the letter so that the appellant would be removed from their
home. And this is exactly what ensued: the mother found and read the letter,
confronted the appellant, and the appellant left the house until the mother
permitted him several weeks later to return.
[7]
Further, we do not accept that the trial judge applied inappropriate
stereotyping to the mothers emotional reaction in reading A.G.s allegations.
The trial judge determined that the mother could not remember the same details
about the letters contents that A.G. was able to recount because, in part, she
was startled and overwhelmed by them. The trial judges assessment was
reasonable and reflected the mothers evidence that she was devastated by the
letter that contained allegations about her partner sexually abusing her
daughter.
[8]
In their essence, the appellants submissions amount to a request that
this court redo the trial judges findings of fact and reweigh the trial
evidence. That is not the function of this court. We see no error that warrants
appellate intervention.
Disposition
[9]
For these reasons, we dismiss the appeal.
J.C. MacPherson
J.A.
L.B.
Roberts J.A.
B.W.
Miller J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Rowe, 2021 ONCA 684
DATE: 20211006
DOCKET: C67618
Fairburn A.C.J.O., van Rensburg
and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Lance Rowe
Respondent
Tom Lemon and Bari Crackower, for the
appellant
Marianne Salih and Jeffery Couse, for
the respondent
Heard: March 25, 2021 by video
conference
On appeal from the acquittals entered by
Justice Peter Bawden of the Superior Court of Justice, sitting with a jury, on
October 16, 2019.
Fairburn A.C.J.O.:
A.
Overview
[1]
The respondent was tried by a judge and jury on
a two-count indictment: (1) possession of cocaine for the purpose of
trafficking; and (2) possession of the proceeds of crime. He was acquitted on
both counts.
[2]
The charges arose from an alleged drug
transaction that was said to have taken place inside a vehicle that the
respondent was driving. Britany Simpson was in the front passenger seat. The
respondent parked the car in a parking lot and an unknown man entered the back seat
of the car. According to the Crown, the unknown male bought cocaine from the
respondent and exited the car. The respondent was then arrested by police who
had been watching the vehicle from afar.
[3]
Ms. Simpson was detained by police upon the
respondents vehicle being searched. The search revealed cash and cocaine. Ms.
Simpson was then arrested as well. A few hours later, after Ms. Simpson was
informed that she was being unconditionally released, she provided a
videorecorded statement to the police. She explained what she had witnessed,
including that the respondent had weighed a white powdery substance and given it
to the unknown male in the back seat in exchange for a handful of $20 bills.
Ms. Simpson recanted that statement at trial, instead maintaining during her trial
testimony that the respondent and the unknown male did nothing but conversate.
[4]
Unsuccessful in the effort to refresh Ms.
Simpsons memory with the use of her prior statement, the Crown successfully applied
to cross-examine her pursuant to s. 9(2) of the
Canada Evidence Act
,
R.S.C., 1985, c. C-5 (
CEA
). Ms. Simpson refused to adopt the
statement, claiming instead that she had lied to the police, simply telling
them what she thought they had wanted to hear.
[5]
In the face of her full recantation, the Crown
applied to have the statement admitted for the truth of its contents under the
principled exception to the rule against hearsay. That application was
dismissed. In accordance with that ruling, the trial judge instructed the jury
that, while they could consider Ms. Simpsons prior police statement for
purposes of determining her credibility, they could not consider the statement
for the truth of its contents.
[6]
This Crown appeal rests on what are said to be numerous
errors in the trial judges hearsay ruling. I agree. The hearsay ruling
contains multiple errors that resulted in the erroneous exclusion of this
critical evidence. A new trial is required.
B.
Background Circumstances Informing the Admissibility of the Hearsay
Statement
(1)
The Arrest and
Search
[7]
The respondent
was being investigated for drug trafficking. The police obtained two search
warrants: one for the respondents car and one for his residential address. The
warrants were to be executed on March 27, 2018, the same day that the police
planned to arrest the respondent.
[8]
The police were
waiting at a location where they knew the respondent would arrive. When he
arrived, Ms. Simpson was seated in the front passenger seat of his car. The
police saw another vehicle pull into the parking lot a short time later.
An unknown male got out of the second vehicle and entered the back seat
of the respondents car. While the police could not see exactly what took place
within the car, it appeared to one officer that the man in the back seat and
the respondent exchanged items. The unknown male then left the respondents
car, returned to his own vehicle, and drove away.
[9]
The respondent was then arrested by the police
and Ms. Simpson was detained. During the vehicle search, a plastic bag containing
202 grams of cocaine was located on the rear floorboards behind the passenger seat.
As well, $300 in $20 bills was found inside a compartment in the front console
area of the car. Ms. Simpson was then arrested.
(2)
Britany Simpsons
Videorecorded Statement
[10]
The respondent was arrested just after
1:00 p.m. Ms. Simpson was arrested a short time later. A few hours after that, around
4:00 p.m., the police decided to release Ms. Simpson without charges. Before
leaving the police station, she provided a videorecorded statement about what
she witnessed in the respondents car. Ms. Simpson confirmed at trial that,
prior to giving her statement: (1) the police told her that she was being
unconditionally released; and (2) the police had offered her the opportunity to
speak to a lawyer but she had declined to do so.
[11]
In her videorecorded
statement, Ms. Simpson provided significant details about what she saw during
the transaction.
Some highlights from Ms.
Simpsons statement include:
(1) The respondent and the unknown male in the
back seat didnt discuss how much grams or anything like that
[the
respondent] took the
bag out of the back seat.
(2) The clear plastic bag contained a powder
that was white and soft, but it wasnt a liquid.
(3) The respondent retrieved the bag from just
behind me.
(4) The man in the back seat put [a] scale
down in between the arm rest.
(5) The respondent had a scoop and poured
out some of the powder onto the scale, but Im not too sure how much.
(6) When the men finished
doing the
exchange
[the respondent] put the bag
underneath his seat.
(7) The unknown male then asked [the
respondent] if he had any weed. He said no he didnt sell weed and then
the
gentleman in the back seat gave him money.
(8) I saw them counting
He was counting the
money
It was in twenties.
(9) The respondent then put [the money] in
the front console, described as the compartment in his car like in the little
console. Like theres like a little pocket.
[12]
Ms. Simpsons videorecorded statement
demonstrated that she was an eyewitness to a cocaine transaction that took
place inches away from her. And, importantly, her statement aligned with what
was found during the search of the vehicle: (1) a clear plastic bag containing
202 grams of cocaine was located on the floor in the back of the vehicle, just
behind the passenger seat; and (2) $300 in $20 bills were located in a
compartment in the front console of the car.
[13]
As I will now explain, by the time of the trial,
Ms. Simpson testified that she only saw the respondent and unknown male
conversate. In other words, unlike what she told the police, she did not see
them engage in a cocaine transaction.
(3)
Britany Simpsons Trial Evidence and the Rulings that Followed
[14]
Ms. Simpson was called as a Crown witness at
trial. While her testimony was consistent with much of what she had previously told
the police, it was inconsistent with respect to anything involving the
respondents culpability. For instance, while she testified that the unknown
male entered the back seat of the car, she said that the respondent and unknown
male did nothing more than talk or, as she put it, conversate. Not a hint of
white power, a scoop, a plastic bag, a scale, or money was mentioned.
[15]
While Ms. Simpson was given the opportunity to
refresh her memory with a transcript produced from her prior videorecorded
statement, she said that it was of no assistance. Accordingly, the Crown
applied pursuant to s. 9(2) of the
CEA
to cross-examine Ms. Simpson on her prior inconsistent
statement. That application was successful. The cross-examination was not.
[16]
The trial judge noted in his s. 9(2) ruling that
Ms. Simpson acknowledged that she had not been threatened or induced to make the
videorecorded statement. I share that view. The trial judge also noted that
there was nothing oppressive about the interview. From having read the
transcript of that interview, I also share that view. The trial judge further noted
that much of what Ms. Simpson said was corroborated by information obtained by
police through other aspects of the investigation. I share that view as well.
[17]
The trial judge then went on to explain in his
s. 9(2) ruling what he thought was motivating Ms. Simpsons recantation:
Having viewed the video and heard the evidence
of Ms. Simpson in the presence of the jury and in a
voir dire
I do not believe she lacks memory due to the trauma of the
arrest or that she fabricated evidence because she believed the police wanted
her to implicate Mr. Rowe
.
Based on all the
evidence I believe that it is most likely that Ms. Simpson is trying to assist
Mr. Rowe at this trial by giving false evidence
.
[Emphasis added.]
[18]
Having concluded that Ms. Simpson was most
likely lying, the trial judge permitted the Crown to cross-examine Ms. Simpson
on her prior statement pursuant to s. 9(2) of the
CEA
. While Ms. Simpson
acknowledged that she had said the things reflected in her police statement,
she disavowed their truth.
[19]
Contrary to what she had told the police, Ms. Simpson
maintained that she had not seen cocaine in the car that day. Instead, she
claimed that she told the police what she assumed they wanted to hear. She
said she did that because she was concerned about being late to pick up her
children and about the police possibly having to cut off some jewelry she was
wearing. Even so, she acknowledged that: (1) before giving the statement, she knew
she was being released without charges; (2) no one told her that her release
was conditional upon giving a statement; (3) no one promised her anything in
return for the statement; and (4) no one shared any details about the
investigation with her.
[20]
Following her recantation, the trial Crown
signaled the desire to bring an application to have Ms. Simpsons statement
admitted for the truth of its contents under the principled exception to the rule
against hearsay. The trial judge immediately commented that any such
application would be dodgy in nature. He seems to have been of the view that
the Crown had enough evidence without Ms. Simpsons statement being admitted
for its truth:
[The Crown] do[es]nt by
any stretch need in the larger context of [its] case to introduce the statement
for the purposes of its truth it seems to me because frankly [it] already ha[s]
quite a powerful case
and
theres no risk at
all that any trier of fact is going to look at Ms. Simpson and think that she
was the one who was in the possession of the cocaine in the car. [Emphasis
added.]
[21]
Despite the trial judges express reservations,
the trial Crown informed the court the following day that she intended to
pursue the hearsay application. The Crowns concern was that the defence would
suggest that the cocaine found in the vehicle belonged to someone other than
the respondent and that he had no knowledge of its presence in the vehicle. If
admitted for the truth of its contents, Ms. Simpsons statement an eyewitness
account of the respondent selling the cocaine would offer powerful evidence
rebutting that anticipated defence position.
[22]
The trial judge said that he would hear the
matter at the end of the Crowns case. Therefore, the Crown proceeded to call its
last three witnesses.
[23]
Later that day, when the Crown reached the end
of her case, the trial judge said: [B]efore you close your case I think you
want to quickly for the record make submissions as to why I should admit the
statement of Britany Simpson for the truth of its contents. The transcript
does not reveal that the Crown simply wanted to put something on the record.
Rather, the record demonstrates that the Crown wanted to pursue the hearsay application
in earnest.
[24]
In any event, the trial Crown then offered the
trial judge a copy of the decision in
R. v. Bradshaw
, 2017 SCC 35, [2017] 1 S.C.R. 865
. The
trial judge declined the offer, saying that he did he did not wish to hear submissions
on the law. Instead, he wanted to hear the Crown address what factually
makes out reliability in the circumstances of the case.
[25]
The Crown first addressed procedural reliability,
explaining that a statement being videorecorded is a procedural safeguard for
reliability, and that Ms. Simpsons statement had been videorecorded. The trial
judge interjected, suggesting that a videorecording was not present in this
case because the Crown was not in a position today to present the jury with
the video. The Crown confirmed that, if admitted into evidence, the videorecording
would need to be edited for some prejudicial information in advance of playing
it for the jury. It became clear that there would be no pause in the trial to
permit the editing to take place.
[26]
The trial judge then asked a couple more
questions, which the Crown answered. The Crown then said, I can continue my
submissions or answer any other questions arising from that. The trial judge
cut her off
,
saying, I think I have your submissions. He dismissed the
application for reasons to follow, adding that if the defence evidence awakens
[the] issue in a way which is presently utterly unforeseeable then the Crown
could revisit the ruling.
(4)
The Defence Case:
The Respondent and Sade Levene
[27]
The respondent testified exactly as the trial
Crown had anticipated, claiming that many other drivers used the car, including
his brother, cousin, girlfriend, ex-girlfriend, and roommate. Accordingly, he
accepted that cocaine was found in the car, but claimed to have no knowledge of
its existence, the inference being that someone else must have left it there.
[28]
Following the respondents in-chief testimony,
the trial Crown requested permission to make submissions on how the evidence
that [the respondent] has given makes the hearsay evidence
highly probative
in the sense that Ms. Simpsons statement placed the drugs squarely in his
hands moments before his arrest. The trial judge answered, Surely that hasnt
changed. You didnt really think he was going to stand up and say anything
other than he didnt know? The Crown then said she was having a hard time
understanding why that is not sufficiently material or probative to overcome
any prejudice but acknowledged that she would have to await the written
ruling. That ruling was released about a month following the trial.
[29]
At the end of the respondents evidence, the
defence called Ms. Levene to the stand. She was the respondents former
girlfriend and, essentially, took full responsibility for the cash and cocaine
that was found in the car.
[30]
Ms. Levene said that she had used the
respondents car to go to the bank during the morning of the day that the
respondent was arrested. She had taken out $300 in $20 bills, which she placed
in the compartment of the vehicle where the gear stick is located. She also
said that she met up with her then boyfriend after her attendance at the bank.
She said that he asked her to hold onto a plastic bag for the day. She
identified the bag that contained the cocaine as the one that her then
boyfriend had given to her. She said that she had placed that bag on the floor
in the backseat kind of under the passenger seat.
[31]
In other words, she placed both the cash and the
bag in the locations where they were later found by the police.
C.
The Erroneous
Approach to the Admissibility Inquiry
(1)
Overview
[32]
Hearsay is an out-of-court statement relied upon
for the truth of its contents. Hearsay statements are presumptively
inadmissible:
R. v. Khelawon
, 2006 SCC 57, [2006] 2 S.C.R. 787, at
para. 2.
[33]
The primary rationale underlying the rule
against hearsay is rooted in concerns over the inability to test the
reliability of out-of-court statements. Absent the declarant being present in
court and available for contemporaneous cross-examination, concerns over
reliability prevail. These concerns include whether the statement is accurately
recorded and whether the declarant accurately and honestly perceived, recalled,
and narrated the events:
Khelawon
, at para. 2.
[34]
Accordingly, the presumption against the admissibility
of hearsay evidence is directed at improving the courts truth-seeking
function:
Khelawon
, at para. 2. However, there are times (like this
case) when the exclusion of hearsay statements will directly undermine the
courts fact-finding process; where the exclusion of hearsay statements, rather
than their admission, will impede accurate fact finding:
Khelawon
, at
para. 2;
Bradshaw
, at para. 22.
[35]
Accordingly, trial judges perform an important
gatekeeping function when considering whether the presumption against admission
has been rebutted. In making that determination, judges focus upon whether the
twin criteria of necessity and threshold reliability have been met on a balance
of probabilities:
Bradshaw
, at para. 23, referring to
Khelawon
,
at para. 47. Even where that burden has been met, trial judges retain a
residual discretion to nonetheless exclude the statements if their prejudicial
effect outweighs their probative value:
Khelawon
, at para. 3.
(2)
The Erroneous
Approach to Necessity
[36]
The trial judges assessment of necessity was as
follows:
I will assume for
present purposes that necessity is made out although I have reservations on the
point
. It is true that the Crown has been
deprived of the fulsome description of a drug transaction which appears in Ms.
Simpsons statement to police.
There is, however,
reliable evidence from other sources which would permit the jury to infer that
a drug transaction took place without considering Ms. Simpsons statement for
the truth of its contents
. [Emphasis added.]
[37]
The appellant argues that the trial judge erred in
his necessity analysis. In particular, the appellant argues that, even though
the trial judge said that he was prepared to assume necessity had been made
out, read in context, he did not accept that fact. As a result, his expressed
reservations about necessity infected the balance of his decision.
[38]
The respondent maintains that, even if the trial
judge was wrong about how he expressed his reservations, it had no effect on
the result, since his reasoning must ultimately be taken at its highest. The
fact that the trial judge said that he was prepared to assume that necessity had
been made out should be accepted by this court and provide a full answer to
this objection on appeal.
[39]
I start with the observation that the trial
judges expressed reservation about whether necessity had been made out appears
to rest on his view of the overall strength of the Crowns case. The trial
judge saw the Crowns case as a strong one and equated that view with a lack of
necessity. As in the passage just quoted, the trial judge emphasized that
without considering Ms. Simpsons statement for the truth of its contents,
the jury had reliable evidence from other sources that would permit the
inference that a drug transaction took place. Later in his reasons, the trial
judge put the point succinctly: the Crown
hardly needs
the statement to make out its case (emphasis added).
[40]
In my view, the trial judge erred by approaching
necessity from the perspective of what he thought the Crown needed to make out
its case. Every participant in a criminal trial operates within their own zone
of responsibility. That is how fair trials that lead to just verdicts are best
achieved. It was for the Crown, not the trial judge, to determine what evidence
was necessary to prosecute the matter; it was for the trial judge to adjudicate
upon any admissibility issues that might have arisen from the Crowns decisions
in that regard.
[41]
Under the principled exception to the rule
against hearsay, necessity is not measured by the overall strength of the case
of the party seeking admission of the statement for the truth of its contents.
That is, [t]he criterion of necessity [
] does not have the sense of
necessary to the prosecutions case:
R. v. Smith
, [1992] 2 S.C.R.
915, at p. 933.
[42]
Rather, necessity is measured by availability.
Sometimes a hearsay statement becomes unavailable because a witness goes
missing, dies, or is otherwise unavailable to testify. And sometimes a
statement becomes unavailable because a witness is present and available to
testify, but refuses to do so or, as in this case, recants the earlier
statement. In the case of a recantation, the recanting witness holds the prior
statement, and thus the relevant evidence, hostage:
R. v. B. (K.G.)
,
[1993] 1 S.C.R. 740, at p. 799. In these circumstances, necessity arises from the
unavailability of the testimony that would otherwise reflect the content of the
prior relevant statement:
Khelawon
, at para. 78.
[43]
Accordingly, [w]here a witness recants from a
prior statement, necessity is established:
R. v. Youvarajah
, 2013 SCC
41, [2013] 2 S.C.R. 720, at para. 22. It is that simple. The focus then turns
to threshold reliability.
[44]
While I accept that the trial judge did as he stated that he assume[d]
for present purposes that necessity [was] made out the erroneous observations
he made about the fact that, in his view, the Crown hardly needed Ms.
Simpsons statement bled into his analysis regarding the exercise of his
residual discretion. I will come back to this point later in these reasons.
(3)
The Erroneous Approach to Threshold Reliability
(a)
Overview
[45]
Threshold reliability can be shown by
demonstrating that there are: (1) adequate substitutes in place to test the
truth of the statement (procedural reliability); or (2) sufficient
circumstantial or evidentiary guarantees that the statement is inherently
trustworthy (substantive reliability):
Bradshaw
, at para. 27;
Khelawon
,
at paras. 61-63; and
Youvarajah
, at para. 30. Procedural and
substantive reliability do not exist in mutually exclusive silos, but rather work
in tandem to overcome hearsay dangers:
Bradshaw
, at para. 32;
R.
v. Devine
, 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 22. Therefore,
strength in one area, such as substantive reliability, can be compensated for
by procedural reliability and the opposite is also true.
[46]
The appellant maintains that the trial judge
erred in his approach to both procedural and substantive reliability. I agree.
I will address each in turn.
(b)
Procedural Reliability
[47]
Because hearsay evidence is not given by a
witness in court under oath or affirmation, and is not subjected to the typical
rigours of contemporaneous cross-examination, procedural reliability focuses
upon whether there exist adequate substitutes for testing the statement:
Bradshaw
,
at para. 28;
Khelawon
, at para. 63.
[48]
Over time, courts have come to recognize three ways
of rationally evaluating the truth and accuracy of hearsay statements from a
procedural perspective: (1) the availability of the declarant to be
cross-examined before the trier of fact; (2) the presence of an oath or solemn
affirmation after a caution about the consequences arising from being
untruthful; and (3) videotaping or recording the statement in its entirety:
B.
(K.G.)
,
at pp. 795-96;
Youvarajah
,
at para. 29.
[49]
The trial judge was of the view that the one
and only procedural safeguard present in this case was that Ms. Simpsons statement
was videorecorded, yet, in his view, that videorecording was not available to
be played for the trier of fact. Accordingly, the trial judge formed the view
that the statement contained no procedural safeguards.
[50]
The appellant argues that the trial judge erred in
numerous respects when he arrived at this conclusion.
(i)
The
Failure to Acknowledge the Availability of the Declarant for Cross-Examination
[51]
First, the appellant maintains that the trial
judge erred by failing to appreciate the single most significant procedural
safeguard that was present: Ms. Simpsons availability for cross-examination.
[52]
While the respondent acknowledges that the trial
judge overlooked the fact that Ms. Simpson was available for cross-examination,
he claims that no harm was caused by this oversight because it would not have
resulted in admissibility in any event. The respondent maintains that, because
Ms. Simpson had lost her memory of what happened while she was seated in the
car that day, a cross-examination on the statement to undermine its truth would
have been useless. Accordingly, the respondent contends that, in the
circumstances of this case, the procedural safeguard typically attaching to the
availability of the declarant to be cross-examined was no procedural safeguard
at all.
[53]
I start with the observation that the
availability of the declarant for cross-examination is widely considered the
most important of the three procedural safeguards:
R. v. U. (F.J.)
, [1995]
3 S.C.R. 764, at para. 39. The status of the declarant as a witness who can be
cross-examined on a prior inconsistent out-of-court statement has been
described as the most powerful factor favouring admissibility:
R. v.
Couture
,
2007 SCC 28, [2007] 2 S.C.R. 517, at para. 95. The importance of the
declarants participation in court before the trier of fact was again
reinforced in
Youv
arajah
,
at para. 35, where this factor was
described as the most important factor supporting the admissibility of a prior
inconsistent statement of a non-accused witness for the truth of its contents.
Indeed, as more recently noted in
Bradshaw
, at para. 28, Some
safeguards imposed at trial,
such as cross-examination of
a recanting witness before the trier of fact
, may provide a satisfactory
basis for testing the evidence (emphasis added).
[54]
The trial judge erred by failing to take this
fundamental procedural safeguard into account during the admissibility
analysis.
[55]
Respectfully, I do not agree with the
respondents suggestion that Ms. Simpson had no memory of the events in
question and, therefore, could not have been cross-examined effectively. Ms.
Simpson had a memory of that day, it just did not accord with her police
statement. The juxtaposition was significant. In her police statement, she
recounted in fine detail the cocaine trafficking that took place in her
immediate presence. In her trial testimony, she explained that she had never
seen the respondent in possession of cocaine and, on the day in question, only
saw and listened to the respondent and unknown male conversate. That is not a
lack of memory; it is an entirely different version of events.
(ii)
The
Overemphasis on the Lack of Oath and Caution
[56]
Second, the appellant claims that the trial
judge overemphasized the fact that the statement was not provided under oath or
solemn affirmation, nor with any caution about the importance of telling the
truth and the consequences of lying. The trial judge said:
The
interview proceeded without any reference to the necessity of
telling the truth. Ms. Simpson was not sworn. She was not provided with any
form of caution regarding the potential consequences of being untruthful. There
was no attempt to adopt any form of solemnity which would bring home to Ms.
Simpson the necessity of providing a truthful statement.
[57]
In my view, the trial judge placed undue
emphasis on the factors relating to whether Ms. Simpson understood that she
should tell the truth. While the trial judge is right that Ms. Simpson was not sworn
or asked to affirm, nor was she cautioned about failing to tell the truth, these
were not particularly concerning features of this case.
[58]
While it would have been preferable for the
police to have specifically brought the solemnity of the moment home to Ms.
Simpson, it is difficult to imagine that she did not appreciate the need to
tell the truth. The statement forming the subject of the admissibility inquiry
was not made in a random location to a random member of the public. She was in
a police station, while on video, speaking to police officers. She had been
arrested earlier in the day and agreed that she had been told that she was
going to be released without charges. In these circumstances, whether she was
told it or not, it is highly unlikely that Ms. Simpson would not have
appreciated the solemnity of the occasion and the need to tell the truth.
[59]
In any event, the
oath or affirmation was the least necessary of the procedural safeguards. To
this end, I would echo the suggestion by Moldaver J.A. (as he then was)
that, when an out-of-court statement is videorecorded and the
declarant is available for cross-examination, the oath has very little burden
to shoulder in the threshold reliability assessment:
R. v. Trieu
(2005)
, 74 O.R. (3d) 481 (C.A.), at
para. 78. The situation described in
Trieu
is precisely the one here,
with Ms. Simpson available for cross-examination and her recanted statement
having been videorecorded.
(iii)
The
Treatment of the Statement as if it was not Captured on Video
[60]
This takes us to the appellants third alleged
error in the trial judges procedural reliability analysis: treating Ms.
Simpsons statement as if it was not videorecorded. As before, the trial judge
formed the view that the one and only procedural safeguard in this case would
have been that Ms. Simpsons recanted statement had been videorecorded. Yet, in
the trial judges view, because the videorecording required some editing, it had
to be removed as a factor pointing toward procedural reliability:
The Crown is not able to play the video to the
jury because of inadmissible utterances which have not been vetted from the
digital file. Thus, if the statement were to be admitted, the jury would only
hear the Crown read a transcript of the statement and would be deprived of its
one and only procedural safeguard.
[61]
The appellant argues that the trial judge erred
by neutralizing the force of this procedural safeguard the fact that the
statement was videorecorded simply on the basis that the videorecording required
some editing. Further, the appellant argues that, even if the court was not
prepared to give the Crown time to make the necessary edits, an accurate
transcript of that videorecording existed and could have acted as an adequate
substitute for the videorecording.
[62]
The respondent does not dispute that the
statement was videorecorded. Ultimately, though, the respondent emphasizes that
failing to have the videorecording in a ready-to-play state means that the trial
Crown must bear the sole responsibility for the trial judges treatment of the
videorecording as non-existent, thus removing it from the procedural
reliability calculus.
[63]
The fact is that the videorecording was an
important procedural safeguard attaching to Ms. Simpsons statement. As Lamer C.J.
described in
B. (K.G.)
, videotaping is a powerful tool in respect of
reliability because it essentially places the trier of fact in the same room as
the declarant and the interviewer. As a result, the experience of being in the
room with the witness and the interviewing officer is recreated as fully as
possible for the viewer
In a very real sense, the evidence ceases to be
hearsay in this important respect, since the hearsay declarant is brought
before the trier of fact: at p. 793. Of course, when the declarant is a
recanting witness, such as Ms. Simpson, not only is the declarant before the
trier of fact on video, but she is also before the trier of fact in the witness
stand.
[64]
Accordingly, the importance of the
videorecording to the determination of procedural reliability in this case cannot
be denied. The question is whether the trial judge erred by treating Ms.
Simpsons statement as if it had not been videorecorded only because it was not
in a ready-to-play state at the very moment of the admissibility
voir dire
.
[65]
Context is important to understanding this
issue.
[66]
The appellant does not dispute that there were some
prejudicial portions of the videorecording that would have required editing before
the videorecording could be played for the jury. The need for those edits arose
from the fact that Ms. Simpson told the police that the respondent went to the
parking lot where he was subsequently arrested because he had told her that he
needed to attend at a probation/parole appointment.
[67]
Therefore, the need for edits was clear. What is
not clear is how long that editing exercise would have taken. The reason it is
not clear is that the trial Crown was essentially cut off from making
submissions on this point at the
voir dire
.
[68]
After the trial Crown submitted that the
existence of the videorecording provided an important procedural safeguard, the
trial judge announced that it was not present in this case because the trial
Crown was not in a position today to present the jury with the video. The
Crown responded that treating the matter as if there was no videorecording was:
putting
the Crown in a difficult situation. I feel like if there was more
time then I could rely on the availability of an edited video statement but it
sounds as if given the timeline that the court would like us to follow Im effectively
stuck with
a written transcript which is still a
record of the statement.
[69]
Clearly, the trial judge was of the view that
the Crown should have been better prepared. As he said in his ruling, released nearly
a month following the trial, the Crown did not meet with Ms. Simpson prior to
trial and had seemingly not anticipated that she would deviate from the
statement which she made to police. In the trial judges view, [t]hat
possibility should have been anticipated.
[70]
No one can dispute the central importance of
moving trials along in an organized and efficient manner. Every party to the
proceeding, including the court, is obliged to tackle the culture of
complacency towards delay, a culture that was addressed in
R. v. Jordan
,
2016 SCC 27, [2016] 1 S.C.R. 631, at para. 40, and
R. v. Cody
, 2017
SCC 31, [2017] 1 S.C.R. 659, at para. 37. In order to achieve this laudable
goal, it is necessary that the parties come to court organized and prepared to
efficiently move the case forward.
[71]
At the same time, it is not a rule of efficiency
at all costs, including fairness.
[72]
It is difficult to know what facts the trial
judge relied upon to conclude that the Crown had fallen short by failing to
anticipate that Ms. Simpson would recant. While he implied that the failure of
anticipation arose from the failure to meet with the witness ahead of time, the
record does not reveal why the Crown did not meet with Ms. Simpson.
[73]
The court is not always privy to the things that
motivate decisions around trial preparation. Speculation on these points can be
a stranger to the truth. There are all manner of legitimate reasons why counsel
may choose to meet or not meet with a witness ahead of trial and all manner of legitimate
reasons why a witness may choose to meet or not meet with counsel ahead of
trial.
[74]
While the trial judge is to be commended for his
concern over moving this jury trial forward in an efficient manner, his summary
removal of the videorecording from the procedural reliability analysis, simply
because he thought that the Crown should have anticipated the possibility of
a recantation, was an error.
[75]
Eight court days had been set aside for the
trial, although the jury was told that it was likely to conclude in five or six
days. By all accounts, the Crown had moved the prosecution forward efficiently.
With the exception of the hearsay
voir dire
, the case for the Crown
was complete by the afternoon of the fourth day of trial. Rather than cut off
the Crowns submissions about the importance of the existence of the
videorecording, the trial judge should have explored how long it would have
taken the Crown to produce the edited version of the video. The record reveals
no reason to believe that this could not have been accomplished in very short
order.
[76]
With those meaningful inquiries having been
made, the trial judge would have been in a better position to properly
adjudicate upon the matter. If the editing exercise would have taken too long,
particularly in the context of a jury trial, then the trial judge would have
had to turn his mind to the existence of the transcript of the videorecorded statement
as an alternative procedural safeguard. That transcript could have been edited
in very short order, or the Crown could have read from the statement, simply
leaving out the references to the prejudicial information.
[77]
Yet the trial judges reasons suggest that he
considered the transcript to be meaningless in the admissibility inquiry. While
not as strong a procedural safeguard as the videorecording, the transcript,
representing an accurate recording of that statement, was in fact also an
important procedural safeguard that should have been considered in the
admissibility analysis. Even if he had been right about treating the statement
as if it had not been videorecorded, the trial judge erred by underestimating the
procedural value of the transcript of Ms. Simpsons statement.
(c)
Substantive Reliability
[78]
There is a critical distinction to be made
between threshold and ultimate reliability. At the threshold stage, it is for
the trial judge to determine whether there exist sufficient indicia of
reliability so as to afford the trier of fact a satisfactory basis for
evaluating the truth of the statement:
R. v. Baldree
, 2013 SCC 35,
[2013] 2 S.C.R. 520, at para. 83, citing
R. v. Hawkins
, [1996] 3
S.C.R. 1043, at para. 75;
Khelawon
, at para. 88. However, whether the
statement is actually true remains within the exclusive jurisdiction of the
trier of fact and, in a criminal trial involving a jury, it is
constitutionally imperative that this be so:
Khelawon
, at para. 50.
[79]
The trial judge reviewed the evidence that
corroborated Ms. Simpsons statement, of which there was a significant amount.
In particular, the cash and cocaine found in the respondents vehicle, and the
location of those items, accorded almost exactly with what she said in her
statement. For instance, the twenty-dollar bills that she said that she saw the
unknown male give to the respondent were found exactly where she said they had
been placed by the respondent. As well, the plastic bag containing the white,
powdery substance that she described was found near where she said it had been
taken from. Coupled with the fact that Ms. Simpson acknowledged at trial that
the police had not shared any investigative details with her, the corroboration
arising from the search was nothing short of striking in nature.
[80]
Even so, the trial judge concluded that the
Crown had failed to establish substantive reliability. His reasoning is
captured in the following passage:
Although this is compelling corroboration of
Ms. Simpson's statement, I cannot find that it meets the standard set out
in
Bradshaw
. The standard for substantive reliability is high.
Given the circumstances of this case,
I find that it is
reasonably possible that Ms. Simpson fabricated her statement either to ensure
her own release or to cover for her involvement in the drug transaction. I
cannot say that the corroborative evidence is so strong that the only likely
explanation for the hearsay statement is that Ms. Simpson was telling the truth
.
[Emphasis added]
[81]
The trial judge then concluded that the substantive
reliability of the statement is insufficient to outweigh the
complete lack of procedural guarantees of reliability
(emphasis added).
[82]
I start with the observation previously made, that
procedural and substantive reliability work together to overcome hearsay
dangers. They exist in a symbiotic relationship, with strength in one area
compensating for weakness in another:
Bradshaw
, at para. 32;
Devine
,
at para. 22.
[83]
For the reasons already set out, contrary to the
trial judges suggestion that there was a complete lack of procedural
guarantees of reliability, there were strong indicators of procedural
reliability, the most important one being Ms. Simpsons availability for
cross-examination. Therefore, as a starting point, it was erroneous to conclude
that the substantive reliability of the statement was insufficient to
outweigh the complete lack of procedural guarantees of reliability. To the
contrary, the substantive reliability of the statement simply added to the
procedural guarantees present in this case, all pointing toward the admission
of Ms. Simpsons statement.
[84]
Second, I would note that the trial judge seems
to have been proposing an alternative explanation for Ms. Simpsons statement, that
she was fabricating to ensure her own release or to cover for her involvement
in the drug transaction. While
Bradshaw
, at para. 48, instructs that when
considering substantive reliability, the trial judge must
identify
alternative, even speculative, explanations for the hearsay statement, the
trial judges suggestion that Ms. Simpson was fabricating does not sit
comfortably with the s. 9(2)
CEA
ruling provided during the
trial proper.
[85]
In the s. 9(2) ruling, as previously reviewed,
the trial judge concluded that Ms. Simpson was likely trying to assist the respondent
by giving false evidence at trial (by recanting her statement). Yet the
hearsay ruling reveals a conclusion that it was reasonably possible that Ms.
Simpson fabricated her statement either to ensure her own release or to cover
for her involvement in the drug transaction. It is somewhat difficult to
reconcile these different conclusions, particularly in light of the trial
judges comment that his findings on the principled exception to some degree
incorporate [his] findings on the [s.] 9(2) [application].
[86]
Third, corroborative evidence can be of
assistance in establishing substantive reliability if it shows that [the]
alternative explanations are unavailable:
Bradshaw
, at para. 48. Ms.
Simpson clearly admitted that the police did not share any details with her about
what was found in the car nor the locations of such findings within the car.
Therefore, considering the correspondence between what she told the police and
what was found in the respondents car, it is difficult to determine how the
corroborative evidence arising from the search did not meet the
Bradshaw
threshold.
[87]
In my view, absent the errors in the procedural
and substantive reliability analysis, Ms. Simpsons recanted statement would
have been found admissible.
(4)
The Erroneous Exercise
of Residual Discretion
[88]
Finally, the trial judge held that, even if he
was wrong in his conclusion about threshold reliability, he would nevertheless
exercise [his] residual discretion to exclude the statement in order to
maintain a fair trial.
[89]
The appellant claims that the trial judge erred here as well because
he went on, not to measure the probative value of the statement against its
prejudicial effect, but instead to return to the concept of measuring the strength
of the Crowns case and then concluding that the evidence was simply
unnecessary. As noted previously, in this part of his reasons, the trial judge
said,
The Crown case
might be stronger if the hearsay statement was admitted for its truth, but the
Crown hardly needs the statement to make out its ca
se.
[90]
For the reasons already articulated under the
necessity analysis, the trial judge should not have entered this arena. The
question to be resolved under the residual discretion prong was not whether the
trial judge thought that the Crown had enough evidence to prove the elements of
the offence, but whether the statement that formed the subject of the
admissibility
voir dire
was probative of an issue in dispute (it was)
and whether the prejudicial impact of admitting that statement outweighed its
probative value.
[91]
As for the statements prejudicial impact, the respondent
emphasizes that the trial judge was properly concerned with the fact that
admitting the statement for the truth of its contents could lead to an element
of reasoning prejudice because it would trigger the need for an unnecessarily
complex jury instruction.
[92]
While I do not discount that the jury would have
had to have been instructed on how to approach the statement had it been
admitted for a hearsay purpose, the reality is that the jury already knew about
the existence of the statement because of the s. 9(2)
CEA
ruling.
Therefore, the jury already needed, and in fact had received, a decisive legal
instruction about how to deal with the prior inconsistent statement they heard
about during Ms. Simpsons cross-examination by the trial Crown. That
instruction required that the jury be told that the statement could be used solely
for evaluating Ms. Simpsons credibility and the weight the jury would give her
evidence.
[93]
In contrast, had the statement been admitted for
the truth of its contents, then the instruction would have changed to reflect
the fact that it was also part of the substantive evidence left for the jurys consideration
while engaged in their fact-finding function.
[94]
While there is a significant legal difference
between the instruction that the jury received, arising from the s. 9(2)
cross-examination, and the instruction that the jury would have had to have received
if the statement had gone the final distance and been admitted for the truth of
its contents, there is little difference in the degree of complexity between
those instructions. Both are well within the grasp of 12 intelligent members of
the community to understand.
[95]
In my view, the trial judge erred by failing to
come to grips with the necessary balancing exercise he was called upon to complete
under his residual discretion: weighing the probative value of the statement
against its prejudicial effect.
[96]
The probative value of the statement was high. It
was the only evidence of an actual hand-to-hand exchange of cocaine for money. According
to Ms. Simpsons statement, she was an eyewitness to that transaction.
[97]
At one point during submissions, the defence counsel
at trial described the statement as highly toxic. I do not agree. A more
accurate descriptor is that the statement was highly probative. Just because evidence
is highly probative, does not mean it is toxic or prejudicial in any sense.
[98]
By excluding Ms. Simpsons hearsay statement,
the truth-seeking function of the trial was undermined. By keeping that account
from the jurys consideration, the jury was left to deliberate only on Ms. Simpsons
exculpatory account of what went on in the car that day: a conversation between
the respondent and the unknown male in the back seat. To return to
Khelawon
,
at para. 2, and
Bradshaw
, at para. 22, having regard to the minimal
dangers presented by the statement, its exclusion served to impede accurate
fact finding.
D.
Conclusion
[99]
I am satisfied that the appellant has
established that the erroneous ruling might reasonably be thought
to have
had a material bearing on the acquittal[s]:
R. v. Graveline
, 2006 SCC
16, [2006] 1 S.C.R. 609, at para. 14.
[100]
I would set aside the acquittals and order a new trial.
Released: October 6, 2021 JMF
Fairburn
A.C.J.O.
I
agree. K. van Rensburg J.A.
I agree
Grant Huscroft J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Salvatore v. Tommasini, 2021 ONCA 691
DATE: 20211006
DOCKET: C68972
Benotto, Brown and Harvison
Young JJ.A.
BETWEEN
Alberino Albert Salvatore, 2232465 Ontario Limited,
and Sprint Mechanical Inc.
Plaintiffs
(Appellants)
and
David
Tommasini, Anna Rucchetto, Four Seasons Aviation Ltd.,
and Sky Ship
Capital Corp.
Defendants
(Respondents)
Alan G. McConnell, for the appellants
Stephen Dale Denis, for the respondents
Heard: September 8, 2021 by video conference
On
appeal from the judgment of Justice Edward M. Morgan of the Superior Court of
Justice, dated December 9, 2020, with reasons reported at 2020 ONSC 7619.
REASONS FOR DECISION
INTRODUCTION
[1]
The
appellants,
Alberino
Albert Salvatore, 2232465 Ontario Limited, and Sprint Mechanical Inc.,
appeal the order of the motion judge granting summary judgment dismissing their
action against the respondents
David Tommasini, Anna
Rucchetto, Four Seasons Aviation Ltd., and Sky Ship Capital Corp.
[2]
The appellants and some of the respondents entered into a series of
documents regarding the acquisition and operation of a helicopter: a June 24,
2016 Letter of Intent (the LOI); an LOI amending agreement dated July 15,
2016 (the July Letter Agreement); a September 14, 2016 Aircraft Management
Agreement (the AMA); and a September 14, 2016 AMA amending agreement (the September
Letter Agreement).
[3]
In the action, the appellants alleged that the agreements contained a
binding obligation on the part of the respondents to pay for one-half of the
acquisition cost of the helicopter (the Buy-in Claim). As well, the
appellants alleged that the respondents breached other provisions in the documents
causing damage to the appellants.
[4]
The motion judge granted summary judgment dismissing the action. The
appellants appeal. At the hearing, we dismissed the appeal with reasons to
follow. These are those reasons.
THE MAIN GROUNDS OF APPEAL
[5]
The appellants advance two main grounds of appeal: (i) the motion judge
erred in finding that the respondents were not subject to an enforceable
promise to pay the appellant half of the acquisition cost of the helicopter;
and (ii) the motion judge erred in dismissing the action in its entirety,
instead of permitting some of the claims to proceed to trial.
The Buy-in Claim
[6]
Article 14.13 of the AMA the so-called entire agreement clause provided,
in part, that [t]his Agreement and the matters referred to herein constitute
the entire agreement between Owner and Operator regarding the subject matter
hereof. The clause went on to state that the AMA superseded and cancelled all
prior agreements with respect to or in connection with the subject matter of
this Agreement.
[7]
We accept the appellants submission that the motion judge erred in law
by holding that art. 14.13 of the AMA expressly cancelled the LOI and July
Letter Agreement. In reaching that conclusion, the motion judge failed to interpret
art. 14.13 within the context of the entire AMA, contrary to the general
principles of contract interpretation: Geoff R. Hall,
Canadian
Contractual Interpretation Law
, 3rd ed. (Toronto: LexisNexis, 2016),
§2.2.1.
[8]
One recital to the AMA specifically stated:
AND WHEREAS the principals of the Operator, David Tommasini and
Anna [Rucchetto], have agreed to acquire, and the principal of the Owner,
Albert Salvatore, have agreed to convey, a direct or indirect 50% interest in
the Owner, or the successor owner of the Aircraft, as the case may be (the
Buy-in)
.
[9]
Accordingly, by its terms the AMA recognized the existence of a Buy-in
arrangement amongst some of the parties outside of the four corners of the AMA.
When art. 14.13 is read in that context, it is clear that the subject matter
of the AMA dealt with the operation of the helicopter, not the Buy-in
obligations that existed between the parties.
[10]
However,
in our view that error in law was of no consequence. We see no reversible error
in the motion judges conclusion, at paras. 21 and 22, that the LOI and July
Letter Agreement lacked sufficient material facts to characterize them as legal
contracts, especially given
the absence of the fundamental
business terms on which the co-ownership of the Sikorsky and the jointly owned
business of the parties in operating the helicopter would be built.
[11]
When the Buy-in and Owners Agreement sections of the LOI are read
together, they provide: (i) the respondents agreed to pay 50% of the
helicopters acquisition costs after one year, termed the Buy-in Amount; (ii)
upon receipt of the Buy-in Amount, Albert Salvatore would convey to the
respondents a one half-interest in the entity that owned the helicopter, termed
the Buyer; (iii) while the legal form and structure of the ownership of the
helicopter had not yet been settled, the end result is that the ownership and
operation of the Aircraft is to be as a separate stand-alone business, directly
or indirectly owned and controlled by Albert and David/Anna, each as to 50%;
(iv) the LOI referred to the entity that owned the helicopter as the Owner;
and (v) Albert and David/Anna shall enter into a definitive agreement in
respect of the Owner (which will be the form of a Partnership Agreement,
Shareholders Agreement or some other form, depending on the final structure of
the Aircraft ownership).
[12]
In other words, the LOI contemplated a quid pro quo under which
the respondents would, after one year, pay 50% of the acquisition costs of the
helicopter in return for which they would receive a one-half interest in the
entity that ultimately owned the helicopter and operated the stand-alone helicopter
business. The rights and obligations of those with an interest in the Owner
were to be set out in a definitive Owners Agreement.
[13]
In his reasons, the motion judge observed, at para. 23, that
[o]n its face, the LOI made any further business dealings
with respect to the helicopter conditional on the negotiation of what it dubbed
a definitive agreement settling all material aspects of the separate
stand-alone business of owning and operating it. In our view, that was an
accurate interpretation of the LOI.
[14]
In the result, the parties never entered into an Owners Agreement.
In the absence of such an agreement, there was no certainty about what bundle
of ownership rights and obligations the respondents would receive or be subject
to upon their payment of the Buy-in Amount. Put colloquially, the parties never
agreed on the quid that the respondents would receive in return for their
quo namely, their payment of the Buy-in Amount. In those circumstances, we
see no reversible error in the motion judges conclusion that there was no
genuine issue requiring a trial with respect to the appellants Buy-in Claim
and breach of the duty of good faith claim.
The AMA and Internal Cost Claims
[15]
In
their statement of claim, the appellants also alleged two other types of breach
of contract. First, the appellants pleaded that the respondents failed to
reimburse them for the respondents costs associated with the importation,
registration and adding the Helicopter to the Four Seasons AOC: Statement of
Claim, para. 31 (the Internal Cost Claim). Second, the appellants alleged
that the respondents had breached certain provisions of the AMA, including one
dealing with a short form lease: Statement of Claim, paras. 38, 41 and 47 (the
AMA Claims). In para. 50 of their statement of claim, the appellants pleaded
that, as a result of these breaches, they had suffered damages estimated at
$225,000 in respect of costs of finding a replacement aircraft on a temporary
basis and eventually a new hangar facility, pilot and maintenance for the
helicopter, as well as an estimated $300,000.00 in future lost profits from
the Venture.
[16]
In
granting summary judgment, the motion judge dismissed the action in its
entirety, including the AMA and Internal Cost Claims. However, the motion
judges reasons did not address those claims. They should have. Nonetheless,
that omission does not alter the result in this case.
[17]
This
was a summary judgment motion. The respondents notice of motion clearly sought
the dismissal of the entire action. In response to such a request for relief,
the appellants were obliged to put their best foot forward. Yet, the appellants
failed to adduce any evidence particularizing or supporting their pleaded AMA
and Internal Cost Claims.
[18]
In
his affidavit filed on behalf of the appellants, Mr. Ian Bergeron made the general
statement that [t]he refusal to pay the Buy-in was followed by further
breaches of the agreement between the parties by the defendants, resulting in
damages being suffered by the plaintiffs as detailed in the pleadings herein.
Mr. Bergeron did not specify the damages suffered or adduce any evidence to
support or quantify such damages. As a result, there was no evidence before the
motion judge that would have permitted him to conclude that there was a genuine
issue requiring trial regarding any damages suffered by the appellants in
respect of their AMA and Internal Cost Claims. Accordingly, we see no error in
the motion judges dismissal of the action as a whole.
DISPOSITION
[19]
For
the reasons set out above, the appeal is dismissed.
[20]
In accordance with the agreement of the parties, the respondents
are entitled to their partial indemnity costs of the appeal fixed in the amount
of $43,663.20, inclusive of disbursements and applicable taxes. The parties
have agreed that the appellants shall pay those costs of the appeal, together
with the costs awarded below, on or before December 8, 2021.
M.L.
Benotto J.A.
David
Brown J.A.
Harvison
Young J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
R. v. Da Silva, 2021 ONCA 693
DATE: 20211006
DOCKET: M52666
(C69670)
Miller
J.A. (Motion Judge)
BETWEEN
Her
Majesty the Queen
Responding Party
and
Gabriel
Da Silva
Applicant
Breana Vandebeek, for the applicant
Michelle Campbell, for the responding
party
Heard: October 4, 2021 by video conference
ENDORSEMENT
[1]
The applicant was convicted of sexual assault
and failing to comply with a court order. He has received a custodial sentence
of three years.
[2]
The complainant was a 70-year-old personal
support worker who had attended at the applicants home to assist the applicant
with physiotherapy exercises and showering. The applicant had been injured in a
workplace accident.
[3]
In order to succeed on an application for bail
pending appeal, the applicant must establish, per s. 679(3) of the
Criminal
Code
, R.S.C. 1985, c. C-46, that: a) the appeal is not frivolous; b)
the applicant will surrender himself into custody in accordance with the terms
of the release order; and c) the applicants detention is not necessary in the
public interest. The applicant has the burden of establishing that each
criterion is satisfied on a balance of probabilities:
R. v. Oland
,
2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19;
R. v. Ruthowsky
, 2018
ONCA 552, at para. 3.
[4]
The Crown contests the application on the first
and third grounds, arguing that the appeal is borderline frivolous, and that
detention is necessary in the public interest.
[5]
For the reasons that follow, I dismiss the
application on the basis that the applicant has not established that his
detention is not necessary in the public interest.
Analysis
[6]
Establishing that detention is not necessary in
the public interest turns on two considerations: public safety and public
confidence in the administration of justice:
Oland
, at paras. 23, 26. Public
safety and public confidence are not to be treated as separate silos:
Oland
,
at para. 27. In this case, either public safety or public confidence
considerations are sufficient to justify the applicants continued detention.
A.
Public Safety
[7]
Public safety justifies continued detention if
the convicted individual is substantially likely to commit another offence or interfere
with the administration of justice, and thereby endanger the safety of the
public; and if detention is necessary for public safety:
R. v. Morales,
[1992] 3 S.C.R. 711, at p. 737;
R v. Stojanovski
, 2020 ONCA 285
at para. 18;
R v. T.S.D.
, 2020 ONCA 733 at para. 47.
[8]
The applicant poses a sufficiently serious risk
to public safety to justify his continued detention. He has a track record of
failing to comply with court orders, notwithstanding that there were no
incidents while he was on bail pending trial on these charges. The applicants
charge for disobeying a court order arises out of a peace bond he entered for a
previous sexual assault charge. There is a substantial likelihood that the
applicant will commit another sexual crime or fail to abide by the terms of a
release order, thereby endangering the safety of the public; continued detention
is necessary in these circumstances.
B.
Public Confidence
[9]
Public confidence involves a balancing of the
public interest in the reviewability of judgments against the public interest
in enforcement. Factors to be considered are the strength of the grounds of
appeal, the seriousness of the offences, the circumstances of their commission,
and the sentence imposed:
Oland
, at paras. 24-25, 37-39.
[10]
The seriousness of the crime, particularly when
the victim was vulnerable, plays an important role in assessing the strength of
the enforceability interest:
T.S.D.
, at para. 52. The applicant has
been convicted of a very serious offence: sexual assault of an elderly woman
who was alone in his home in order to provide him personal care. It was a gross
violation. It was not an aberration for the applicant, but the most violent and
intrusive episode in a 30 year career of offending against the physical
integrity of particularly vulnerable women.
[11]
These are factors weighing strongly in favour of
immediate enforceability of the judgment.
[12]
With respect to the strength of the applicants
appeal, the grounds of appeal uneven scrutiny and misapprehension of evidence
do not clearly surpass the not frivolous standard, and therefore do not weigh
strongly in favour of the reviewability interest. The trial judge convicted the
applicant on the basis of factual findings for which the trial judge gave
detailed reasons. The applicant is, for the most part, challenging findings on
which the trial judge will be given the highest deference on appeal:
R. v.
C.L.,
2018 ONCA 470, at para. 24. The claimed misapprehensions of evidence
largely relate to inconsistencies in the complainants evidence. The trial
judge, however, was alive to these inconsistencies which he characterized as minor
and either reconciled them in his reasons or found them to be
inconsequential. He found that the complainant was at times confused and her reliability,
that is, her accuracy on some points, was suspect. Nevertheless, the trial
judge found that her evidence on the core of the allegations the sexual
assault was consistent and reliable and I accept her evidence.
[13]
The uneven scrutiny argument is, in general, a
difficult ground on which to succeed:
R. v. Jones
, 2018 CarswellOnt
11703, at para 8. The trial judge gave reasons for believing the complainants
evidence. He also gave reasons for disbelieving the applicant, whom he
characterized as a remarkably poor witness, particularly inconsistencies
between the applicants police statement and his evidence at trial as to the
nature and extent of his disability at the time of the incident. The trial
judge found that at trial the applicant was overstating the degree of his
disability and did not believe him. Neither was the trial judge persuaded by
the applicants evidence that it was the complainant who was the aggressor, and
initiated sex with him in the hope that the applicant would reward her with a
generous tip. The trial judge gave the lengthy and careful reasons for
believing or not believing the witnesses at this trial. Given the trial judges
approach to the evidence and the deferential standard of review, this ground of
appeal does not clearly surpass the not frivolous standard.
[14]
At the hearing of this application, counsel for
the applicant suggested that an ineffective assistance of counsel argument
might also be raised in the future. In support, she provided an email exchange
said to have taken place between the applicant and his counsel during trial,
relating to whether the applicant should lead evidence as to his physical
disability.
[15]
Whether the applicant actually chooses to pursue
this ground of appeal in the future, he has not yet done so. The proffered
email is not in evidence on this motion, and I do not consider this potential
ground of appeal in the analysis of the present motion.
[16]
The reviewability interest is related to the
strength of the grounds of appeal. I have already indicated that I believe
these grounds to be extremely weak. I conclude that the public interest in the
immediate enforcement of the applicants sentence outweighs the interest in
releasing him pending an appeal of his conviction on the grounds stated,
notwithstanding the absence of a flight risk. It is unlikely that the applicant
will have fully served his sentence before the appeal is heard. The applicant
can seek to have the appeal heard on an expedited basis.
Conclusion
[17]
The application is dismissed.
B.W.
Miller J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Knight v. Knight-Kerr, 2021 ONCA
686
DATE: 20211007
DOCKET: C69063
Feldman, Paciocco and Nordheimer
JJ.A.
BETWEEN
Randal Allan Knight
Applicant
(Appellant)
and
Mary Lynne Isobel Louise Knight-Kerr
Respondent
(Respondent)
Lorrie Stojni-Kassik and Emily F.
Metcalfe, for the appellant
Mary Lynne Isobel Louise Knight-Kerr, acting
in person
Heard: September 2, 2021 by video conference
On appeal from the order of Justice
Russell M. Raikes of the Superior Court of Justice, dated January 4, 2021, with
reasons reported at 2021 ONSC 55.
Feldman J.A.:
A.
Background
[1]
The parties married on March 14, 2009, after
signing a domestic contract, the Family Agreement, that the wife prepared.
Neither party had the assistance of a lawyer. They separated in July 2017.
[2]
The wife brought the original matrimonial home
into the marriage. The parties lived in that home for a few years, then sold it
and purchased a second home, where they lived at the date of separation. The Family
Agreement contains the following provision regarding the treatment of the
matrimonial home on marriage break-up:
Louise will receive the first $45,000
(repayment of the original house deposit). This continues forward should they
move to another location. Randy and Louise shall benefit equally from the
remainder of house profits.
[3]
In this action to determine equalization of net
family property (NFP), the husband denied that he had signed the Family
Agreement and claimed that the wife forged his signature. That claim was
rejected by the trial judge. The other issue that took significant time at
trial was custody of the family dog, which was awarded to the husband. Neither
of those findings is challenged on the appeal.
[4]
The sole issue raised by the husband on the
appeal is the calculation of the NFP in respect of the treatment of the two
homes, and the interpretation and application of the Family Agreement provision
regarding the $45,000.
B.
The Trial Judges Decision
[5]
The trial judge found that the husband did sign
the Family Agreement, and that it was a valid and binding domestic contract.
The trial judge then dealt with equalization, including the wifes entitlement
to the $45,000 pursuant to the Family Agreement. He did so by reference to the
form of the NFP statement and what should be included in each Part of the form.
[6]
With respect to the value of assets owned on the
valuation date, under Part 4(a): Land, the trial judge found that the second
home, known as the Jackson property, was purchased in 2012 for $250,000 and
sold in 2018 for $572,000. At paras. 87-88, he stated:
[87] The first $45,000 should be deducted
pursuant to the terms of the Family Agreement. Those funds belong to the
Respondent [wife] and come off the top of the sale proceeds. The net amount is
$527,000. That amount is divided equally: $263,500 each.
[88] For equalization purposes, Part 4(a)
should show the following: Applicant [husband] $263,500, Respondent [wife]
$308,500. In order to ensure that the $45,000 is neutral and not counted in her
net family property, a corresponding exclusion is necessary in Part 7 (see
below) pursuant to s. 4(2) item 6 of the
Family Law Act
.
[7]
In other words, because the parties agreed that
the wife was entitled to $45,000 more than the husband out of the valuation-date
value of the matrimonial home, his share of the value of the Jackson property
is $263,500, while hers is $308,500. At the same time, the $45,000 is shown as
an exclusion from the wifes NFP because, pursuant to the Family Agreement, the
$45,000 deposit belongs exclusively to her and is not shared with the husband.
The wife receives that amount over and above any equalization payment. That is
the correct way to account for an exclusion on an NFP statement.
[8]
The next relevant section of the NFP form is Part
6: Property, Debts, and Other Liabilities on Date of Marriage. On the wifes
side of the ledger, the trial judge included the value of the first home, known
as the Kroeger property, of $250,000, and deducted the mortgage of $157,715,
noting there was no dispute regarding these figures. He thereby included the
full amount of the equity in the Kroeger property at the date of marriage,
namely $92,285, as a deduction on the wifes side of the ledger.
[9]
The last part of the NFP form is Part 7: Value
of Property Excluded under Subs. 4(2) of Family Law Act. With respect to
exclusions, the trial judge stated:
The Family Agreement applies at this stage.
First, the Respondent [wife] is entitled to exclude $45,000 representing her
deposit from the Kroeger Crescent home.
[10]
By applying the inclusions, deductions, and the
exclusion as part of the overall calculation, the trial judge found that the
husband owed the wife an equalization payment of $43,547. He concluded, at
para. 149, that from the sale proceeds of the Jackson property that were (and
still are) being held in trust:
Based on my findings above, the Respondent
[wife] is entitled to $45,000 from the sale of the home per the Family
Agreement less $19,000 already received ($26,000), $43,547 for equalization,
and prejudgment interest on both amounts. Those amounts should be paid to her
from funds held in trust. The balance of any monies held in trust, regardless
where and by whom held, should be divided equally between the parties.
[11]
The trial judge added at the conclusion of his
reasons that, if there was an arithmetic error, the parties should notify the
trial coordinator to schedule a remote hearing with the trial judge to deal
with it.
C.
Issue
[12]
The appellants position on this appeal is that
the trial judge erred in his approach to the equalization payment by double
counting the respondent wifes $45,000 deposit in the Kroeger property.
Specifically, he argues that the trial judge gave the wife the benefit of the
$45,000 both as part of the equity she brought into the marriage that entitled
her to a marriage-date deduction, and then again in satisfaction of the Family
Agreement, and possibly yet again in the overall effect of the final order. He
submits this constituted an error by the trial judge in interpreting the Family
Agreement and/or in applying it to the equalization of net family properties under
the
Family Law Act
, R.S.O. 1990, c. F.3 (the
FLA
).
D.
Analysis
[13]
The Family Agreement must be interpreted in the
legislative context of Part I of the
FLA
, which deals with family
property on marriage breakdown.
(1)
Division of Family Property under the
FLA
[14]
Under s. 4(1) of the
FLA
, net
family property is defined as:
the value of all the property,
except property described in subsection (2), that a spouse owns on the
valuation date, after deducting,
(a) the spouses debts and
other liabilities, and
(b) the value of property,
other than a matrimonial home, that the spouse owned on the date of the
marriage, after deducting the spouses debts and other liabilities, other than
debts or liabilities related directly to the acquisition or significant
improvement of a matrimonial home, calculated as of the date of marriage.
[15]
Section 5(1) then provides that on marriage
breakdown, the spouse whose net family property is the lesser of the two net
family properties is entitled to one-half the difference between them. This is
also referred to as the equalization of net family properties.
[16]
The matrimonial home is given special treatment
under the
FLA
in the calculation of net family property. In accordance
with the definition of net family property in s. 4(1)(b), while a spouse can
ordinarily deduct the value of property that they brought into the marriage in
calculating the NFP, deductions connected to the matrimonial home are not
allowed.
[17]
Section 18 defines the matrimonial home as:
18(1) Every property in which a
person has an interest and that is or, if the spouses have separated, was at
the time of separation ordinarily occupied by the person and his or her spouse
as their family residence is their matrimonial home.
[18]
The effect of these sections, read together, is
that where a person brings a property into the marriage that becomes and remains
the couples matrimonial home on the date of separation, the spouse who brought
the property into the marriage may not deduct the marriage-date value of that
property from their net family property to be equalized. But if the original
property is no longer a matrimonial home within the definition in s. 18 at the
date of separation for example, if it was sold during the marriage then the
value of the original property on the date of marriage is a deduction for the spouse
who brought it into the marriage.
[19]
However, s. 2(10) of the
FLA
allows the
parties to agree to different arrangements, subject to ss. 52(1) and (2), by
entering into a marriage contract.
[20]
In this case, by their Family Agreement, the
parties agreed to specific treatment of $45,000 representing the deposit that
the wife paid to purchase the Kroeger property, which became the parties
matrimonial home. The Family Agreement specified that the wife would preserve
her entitlement to this $45,000 from the sale proceeds of whatever home they
were living in in the event of marriage breakdown, whether the parties still
lived in the Kroeger property or had moved to another home.
(2)
Application to this Case
[21]
The issue raised by the appellant husband is
whether the trial judge erred in his interpretation of the Family Agreement
and/or in applying it to the equalization of net family properties under the
FLA
.
[22]
The trial judge did not discuss the possible
interpretations of the $45,000 provision of the Family Agreement in his
reasons. The wife was unrepresented at trial. The NFP statement filed by the
husband was based on his main position that he had not signed the Family
Agreement, and therefore he did not include any treatment of the $45,000 in his
NFP. During closing submissions, counsel for the husband (not appeal counsel) and
the trial judge had a brief colloquy regarding the treatment of the $45,000 in
the event he found that the husband had in fact signed the Family Agreement,
but there was no detailed discussion of alternative treatments to take into
account the combined effect of the Family Agreement and the
FLA
.
[23]
In order to give effect to the Family Agreement,
the trial judge treated the first $45,000 of the proceeds of sale of the
Jackson property as an exclusion from the wifes net family property under s.
4(2), and ordered that $45,000 be paid to the wife out of those proceeds. Item
6 of s. 4(2) provides:
4(2) The value of the following
property that a spouse owns on the valuation date does not form part of the
spouses net family property:
6. Property that the
spouses have agreed by a domestic contract is not to be included in the
spouses net family property.
[24]
I see no error in the trial judges approach to
the treatment of the $45,000 as agreed by the parties. The proceeds of the
Jackson property were jointly owned on the valuation date and the Family
Agreement provides that $45,000 of the proceeds of the sale are to be treated
as belonging to the wife. The
FLA
provides that that amount is
an exclusion from her net family property.
[25]
Because the parties had sold the Kroeger
property, it was no longer their matrimonial home at the date of separation,
and therefore its marriage date value was deductible by the wife. However, the trial
judge allowed the wife to deduct the full marriage-date value of the Kroeger
property in the amount of $92,285, which included the value of the $45,000
deposit. In other words, he allowed an excluded property (the $45,000 deposit)
to also be deducted. This was an error because the same property cannot be both
an exclusion and a marriage-date deduction. The effect of this error was to
double count the $45,000 in the wifes favour.
[26]
The appellant has argued, in the alternative,
that the trial judges error was allowing the wife any deduction for her equity
in the Kroeger property. He says the Family Agreement should be interpreted to
mean that, while under the
FLA
the wife would have been entitled to
deduct her entire date of marriage equity in the first home as it was no longer
the matrimonial home at the valuation date, the effect of the Family Agreement
was that she gave up that benefit.
[27]
I would not give effect to this argument. While
it represents one possible interpretation of the agreement, other reasonable
interpretations are that the word profits in the clause benefit equally from
the remainder of the house profits refers to proceeds of the sale of the house
over and above the existing equity, or it could be referring only to profits in
a subsequent house if they bought one. In addition, there is no language in the
Family Agreement that suggests that the parties intended to contract out of the
FLA
other than preserving for the wife her original deposit of $45,000
on the Kroeger property.
[28]
In my view, the only error made by the trial
judge occurred at the intersection of the effect of the contract and the operation
of the net family property provisions of the
FLA
. That is, having
correctly characterized the agreement between the parties as an agreement to
exclude the wifes $45,000, when considering the appropriate amount to include as
the wifes marriage-date deduction, it was necessary not to again count the
same $45,000 deposit that was part of the value of the Kroeger property.
[29]
I would allow the appeal to the extent that I
would subtract $45,000 from the wifes date of marriage deduction of $92,285, representing
her equity in the Kroeger property, and then recalculate the equalization
payment owed by the husband to the wife.
[30]
The result is that instead of owing the wife an
equalization payment of $43,547, the husband owes the wife an equalization
payment of $38,924.
E.
Conclusion
[31]
I would change para. 4 of the order dated
January 4, 2021, to read as follows:
4. The Applicant, Randal Allan Knight,
shall pay to the Respondent $38,924 for equalization.
[32]
I would dismiss the rest of the appeal, leaving
the remainder of the order in full force and effect.
[33]
The husbands success on the appeal has been
extremely limited: he has succeeded in reducing his payment to the respondent
by $4,623 in total. In addition, the husband could have avoided the appeal
process by accepting the invitation of the trial judge to bring any arithmetic
errors to his attention for correction. I would therefore not make any order
for the costs of the appeal.
Released: October 7, 2021 K.F.
K. Feldman J.A.
I agree. David M. Paciocco J.A.
I agree. I.V.B. N
ordheimer J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Davies, 2021 ONCA 695
DATE: 20211007
DOCKET: C69192
Fairburn A.C.J.O., Doherty and
Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Colton Davies
Appellant
Jessica Zita, for the appellant
Kristen Pollock, for the respondent
Heard and released orally:
October 5, 2021 by video conference
On appeal from the sentence imposed by
Justice Amanda J. Camara of the Ontario Court of Justice on December 4, 2020.
REASONS FOR DECISION
[1]
The appellant pleaded guilty to 14 offences
committed over a 9-month period, ranging from possession of property over
$5,000 (namely stolen motor vehicles), to operating those vehicles while
prohibited, to failing to stop for the police, to drug trafficking and firearm
offences.
[2]
He entered guilty pleas knowing that, together,
the provincial and federal Crowns would request a total sentence of 46 months
less time served. On his behalf, duty counsel requested a sentence of 30
months.
[3]
The appellant was sentenced immediately
following the conclusion of submissions. He received a global sentence of 46
months less 672 days of presentence custody, leaving a remainder of 708 days to
serve.
[4]
The appellant argues that the sentencing judge
erred in arriving upon this sentence.
[5]
First, he argues that the sentencing judge
failed to take into account certain mitigating factors. In oral submissions,
the appellant has focused upon what is described as a failure to provide
sufficient mitigation arising from the appellants guilty pleas. We do not
agree. The sentencing judge specifically acknowledged the guilty pleas as a
factor in mitigation. There is no specific mathematical formula that applies to
mitigation arising from a guilty plea and there is nothing to suggest that the
guilty pleas were not taken into account when arriving upon the ultimate sentence.
Further, in light of the seriousness of the offences and the appellants lengthy
criminal record, the Crown position on sentence clearly took the guilty pleas
into account.
[6]
Although not advanced in oral submissions, the
appellant also contends that the sentence was not properly individualized. This
submission seems to be related to what is said to be a decision by the trial
judge not to make an order for counselling. As no submissions were made or
evidence led as to what counselling would have been appropriate, this ground of
appeal is without support.
[7]
Third, the appellant argues that the reasons for
sentence are insufficient. We do not agree. The reasons, which were delivered
in the immediate wake of submissions, must be read within that wider context.
They adequately explain the decision arrived upon and are amenable to review.
[8]
Leave to appeal from sentence is granted, but
the appeal is dismissed.
Fairburn A.C.J.O.
Doherty J.A.
David Watt 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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or
(9) or 486.6(1) or (2) of the
Criminal Code
shall continue. These sections of the
Criminal
Code
provide:
486.5 (1) Unless
an order is made under section 486.4, on application of the prosecutor in
respect of a victim or a witness, or on application of a victim or a witness, a
judge or justice may make an order directing that any information that could
identify the victim or witness shall not be published in any document or
broadcast or transmitted in any way if the judge or justice is of the opinion that
the order is in the interest of the proper administration of justice.
(2) On
application of the prosecutor in respect of a justice system participant who is
involved in proceedings in respect of an offence referred to in subsection (2.1),
or on application of such a justice system participant, a judge or justice may
make an order directing that any information that could identify the justice
system participant shall not be published in any document or broadcast or
transmitted in any way if the judge or justice is satisfied that the order is in
the interest of the proper administration of justice.
(2.1)
The offences for the purposes of subsection (2) are
(a)
an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a
serious offence committed for the benefit of, at the direction of, or in
association with, a criminal organization;
(b) a
terrorism offence;
(c)
an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security
of Information Act
; or
(d)
an offence under subsection 21(1) or section 23 of the
Security of
Information Act
that is committed in relation to an offence referred to in
paragraph (c).
(3) An
order made under this section does not apply in respect of the disclosure of
information in the course of the administration of justice if it is not the
purpose of the disclosure to make the information known in the community.
(4) An applicant for an order
shall
(a)
apply in writing to the presiding judge or justice or, if the judge or justice
has not been determined, to a judge of a superior court of criminal
jurisdiction in the judicial district where the proceedings will take place;
and
(b)
provide notice of the application to the prosecutor, the accused and any other
person affected by the order that the judge or justice specifies.
(5) An
applicant for an order shall set out the grounds on which the applicant relies
to establish that the order is necessary for the proper administration of
justice.
(6) The
judge or justice may hold a hearing to determine whether an order should be
made, and the hearing may be in private.
(7) In
determining whether to make an order, the judge or justice shall consider
(a)
the right to a fair and public hearing;
(b)
whether there is a real and substantial risk that the victim, witness or
justice system participant would suffer harm if their identity were disclosed;
(c)
whether the victim, witness or justice system participant needs the order for
their security or to protect them from intimidation or retaliation;
(d)
societys interest in encouraging the reporting of offences and the
participation of victims, witnesses and justice system participants in the
criminal justice process;
(e)
whether effective alternatives are available to protect the identity of the
victim, witness or justice system participant;
(f)
the salutary and deleterious effects of the proposed order;
(g)
the impact of the proposed order on the freedom of
expression
of those affected by it; and
(h)
any other factor that the judge or justice considers relevant.
(8) An
order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice
refuses to make an order, no person shall publish in any document or broadcast
or transmit in any way
(a)
the contents of an application;
(b)
any evidence taken, information given or submissions made at a hearing under
subsection (6); or
(c)
any other information that could identify the person to whom the application
relates as a victim, witness or justice system participant in the proceedings.
2005, c. 32, s. 15; 2015, c.
13, s. 19
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. Gregson, 2021 ONCA 685
DATE: 20211007
DOCKET: C55241 & C62290
Watt, Benotto and Harvison Young
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kevin Gregson
Appellant
Michael Lacy and Bryan Badali, for the
appellant
Alexander Alvaro, for the respondent
Heard: May 18, 2021 by video conference
On appeal
from the conviction entered and the sentence imposed on March 13, 2012 by
Justice Douglas J.A. Rutherford of the Superior Court of Justice.
Harvison Young J.A.
:
[1]
The appellant Kevin Gregson was convicted of the first degree murder of
a police officer and robbery. The sole issue on appeal is whether this court
should quash the convictions and order a new trial on the basis that his
counsel at trial, Craig Fleming, breached the duty of loyalty owed to his
client. In essence, the appellant argues that Mr. Fleming was acting as
amicus curiae
rather than as defence counsel acting in
the interests of the appellant, that he undermined the appellants defence, and
that his conduct effectively deprived the appellant of counsel at trial. The
appellant points to a number of instances that illustrate this. The appellant
argues that Mr. Flemings conduct prior to the trial went beyond mere
ineffective assistance of counsel and, for that reason, the appellant does not
have to show that Mr. Flemings conduct could have affected the verdict in the
case.
[2]
For the following reasons, I would dismiss the appeal. While a number of
Mr. Flemings actions were misguided and inadvisable, Mr. Fleming cannot be
said to have breached his duty of loyalty to his client according to the
applicable law. At its highest, this may have been a case of ineffective
assistance of counsel. However, an appeal based on ineffective assistance could
not have succeeded because Mr. Flemings actions cannot be said to have had any
effect on the verdict.
A.
Background facts
(1)
The Offence
[3]
It is common ground that the appellant is guilty of at least
manslaughter. It is also common ground that he was a difficult client. As will
be discussed below, Mr. Fleming agreed to take on the case after the trial
judge acceded to the appellants former lawyers request to be removed from the
record a few weeks before the start of the trial.
[4]
There is no doubt about what happened on the night of December 28, 2009
and the early morning hours of December 29, 2009. Mr. Gregsons life had been
coming apart. A few years earlier, he had been suspended with pay from his job
as an RCMP officer as a result of a number of incidents. In November 2009, the
final decision was that the appellant either resign or be discharged, and the
appellant learned that his pay had stopped and that he had been overpaid for a
few months and owed money to the RCMP, so financial concerns were added to his
stressors. In early December, the discharge order came into effect. He had been
preoccupied, even obsessed, with getting his job back. He had also been accused
of sexual assault on December 28. This distressed him even more as he believed
that this accusation would ruin his reputation and any chance he had of
clearing himself with the RCMP.
[5]
According to the appellant, in the evening of December 28, he decided to
kill himself, so he cut his own throat, passed out, and then woke up. After
that, he decided to steal a car, find a police officer, take their gun, and go
home and shoot himself. He obtained a car by threatening a young couple with what
appeared to be a gun. After driving around and not finding a police officer, he
went home, had a snack, washed his clothes, and then decided to go to the
Ottawa Civic Hospital where he knew there were often police cars and officers.
He was wearing two bulletproof vests and carried handcuffs, a BB gun, and two
knives. His evidence at trial was that he did not want to die when he
confronted a police officer as he wanted to be able to die in his sweet spot
on his couch at home.
[6]
Constable Czapnik was in his squad car doing paperwork outside the
Ottawa Civic Hospital at around 4:30 a.m. on December 29. Four paramedics saw a
vehicle pull up and Mr. Gregson get out of the car and approach the police car
with something in his hand. Constable Czapnik exited his vehicle and an
altercation ensued. The paramedics rushed to help and saw the appellant
straddling the officer with his right hand going up and down, making short,
little punches. One of the paramedics pulled the appellant off the officer and
the appellants arm came up holding a knife. Another paramedic managed to stomp
or kick the knife out of Mr. Gregsons hand. Despite immediate medical
assistance, the officer succumbed to his injuries a short time later. He had
suffered a number of wounds, including lacerations that cut his left-side
jugular vein, vagus nerve, and carotid artery.
[7]
According to the appellants evidence at trial, when he got to the
hospital and saw a police car, he approached, pointed his BB gun, opened his door,
and told Constable Czapnik to get out. The appellant then ordered him to get
on his knees and to put his hands up. Constable Czapnik complied initially but
then attempted to pull his gun from his holster, at which point the appellant
threw down his gun, jumped on him, and tried to get his gun. The officer
punched the appellant in the head, and the appellant just reacted and stated
that I stabbed him because he hit me in the head and I reacted. The appellant
said he remembered stabbing the officer only twice, although the officer
received more than two stab injuries. He attributed his reaction to training
and instinct, stating that he did not intend to kill the officer.
[8]
The appellant was arrested at the scene. He was eager to talk and made
several spontaneous statements, including Im the one who car jacked two
people earlier today, and I came here looking for a fight. You city cops are
tough. He told one paramedic that he had tried to cut his own jugular veins earlier
that day but they had clotted too quickly, and stated to another that [i]t
didnt have to end this way, all he had to do was give me his gun. When a
nurse at the hospital asked if he knew why he was there, he said [b]ecause I
killed a cop.
[9]
The appellant spoke to counsel while at the hospital and again at the
police station. While he was in the cells at the police station, he asked
whether the incident had been in the news and what the maximum penalty was for
manslaughter. In a videotaped police interview on December 29, 2009, he told
officers that he had hydrocephalus and colloid cysts which made him more
aggressive. While he admitted to killing the officer, he was not prepared to
call it murder. In short, the only issue for trial was
mens
rea
and whether there was any basis for an argument of diminished
capacity.
[10]
Three forensic psychiatric assessments were completed for the
appellant in 2010-2011 after the incident. None found a basis for a defence of
not criminally responsible due to mental disorder. The appellants defence
counsel obtained one of these assessments from Dr. Bradford, dated September
10, 2011. Dr. Bradford concluded that the appellant was not psychotic prior to,
during, or subsequent to the incident, and the conditions he suffered from
would not affect his ability to appreciate the nature and quality of his
actions or that they were wrong. Dr. Bradford did however also conclude that
the appellant suffered from colloid cysts and that they caused persistent
personality disturbance and could have had other psychiatric manifestations.
After reviewing Dr. Bradfords 2011 report, Dr. Sinclair, the appellants
treating neurosurgeon, rejected Dr. Bradfords diagnosis of colloid cysts based
on the appellants brain imaging studies and stated that Dr. Bradfords
contention that the appellants personality abnormalities were related to
colloid cysts was not plausible. An expert in diagnostic neuroradiology called
by the Crown, Dr. Kingstone, also testified at trial that the appellant did not
have colloid cysts.
[11]
The appellant did have an episode of hydrocephalus in 2006, as a
result of which a shunt was surgically inserted to drain the fluid from his
brain. Dr. Sinclair testified at the trial, opining that the appellant had
atypical type 3 perivascular spaces in his brain, also called Virchow-Robin
spaces, but that the appellants medical condition would not have impaired his
ability to think clearly or make decisions on December 29, 2009.
[12]
The
defence did not call Dr. Bradford at trial, having concluded that his opinions
were not favourable to the appellant. It is clear that there was no expert
evidence that could have supported an NCR defence, and that no diminished
capacity defence could have succeeded. The reports also diagnosed narcissistic personality
disorder with antisocial features. While this would not have supported a
diminished capacity defence, it does tend to confirm what was already clear
from the record: the appellant was a difficult person and client, and thought
he knew best.
(2)
Mr. Flemings conduct
[13]
The appellant introduces fresh evidence on
appeal with the consent of the respondent. This fresh evidence outlines the
allegedly objectionable aspects of Mr. Flemings conduct, prior to the trial
proper, that the appellant relies on to demonstrate a breach of the duty of
loyalty. At the time that Mr. Fleming was retained by the appellant, he was a
staff lawyer working for Legal Aid Ontario (LAO). After the appellants
former lawyer had been removed from the record, it was difficult to find a
lawyer willing to take the case at such short notice, and LAO proposed that one
of their staff, Mr. Fleming, could represent the appellant and take the trial
without much delay.
[14]
Mr. Flemings unusual conduct in the course of this case forms the
basis for the appellants breach of loyalty claim, and four particular
instances will be discussed further below. Some points on the chronology of
events leading up to the trial will place Mr. Flemings conduct in context and highlight
the particular conduct that the appellant points to:
·
October 17, 2011: The appellants former counsel sought to be
removed and was removed from the record due to a violent outburst from the
appellant. Prior to this, the appellants counsel and Crown had reached a
substantial level of agreement on possible evidentiary issues to be addressed
in the course of pre-trial motions.
·
October 26, 2011: Before the court, the Crown brought up the
status of agreements regarding the resolution of pre-trial motions. Mr. Gregson
said no agreements were reached on pre-trial motions. Mr. Gregson also said he
was willing to have an LAO practitioner assigned, saying [l]ets just have Mr.
Fleming.
·
October 29, 2011: Mr. Fleming met with Mr. Gregson for the first
time.
·
November 1, 2011: Mr. Fleming was formally placed on the record
as counsel for the appellant. The appellant now apparently consented to the
admissibility of almost all controversial evidence. In the following weeks, Mr.
Fleming drafted written instructions for Mr. Gregson to sign.
·
December 16, 2011: Mr. Fleming sent the appellants draft
instructions to the Crown for review.
·
January 18, 2012: The appellant suddenly reversed his
instructions and wanted to contest everything he previously consented to. He wanted
to wage war with the Crown. Mr. Fleming wrote to the Crown about Mr.
Gregsons significant volte-face the next day, saying I cannot allow any
failure to respect his instructions to open an appeal door.
·
January 20, 2012: Mr. Fleming wrote to Dr. Bradford seeking an
additional opinion on diminished capacity and non-insane automatism as a result
of the appellants change in instructions.
·
January 26, 2012: During an appearance at court, it was revealed
that the appellant reversed his instructions again, now conceding everything
except the voluntariness and admissibility of his videotaped confession. Mr.
Fleming and Crown counsel went through the proposed agreements and admissions.
Mr. Fleming then consulted Mr. Gregson, and the appellant did not object to the
positions discussed by counsel.
·
January 27, 2012: Mr. Fleming wrote to Dr. Bradford seeking an
additional opinion on operating mind. In his letter, Mr. Fleming stated that
[i]t would be of great assistance to be able to provide Mr. Gregson with your
conclusive explanation that he had an operating mind.
·
February 7, 2012: Mr. Fleming wrote an email to the Crown
regarding operating mind and voluntariness, stating that he was quite openly
passing the buck to Mr. Justice Rutherford to provide a decision, so that the
Court of Appeal cannot criticize my failure to do so, by awarding Gregson a new
kick
based on my alleged incompetence, or his obstinacy.
·
February 8-9, 2012: The evidence for the
voir
dire
on the voluntariness of the videotaped confession was heard.
·
February 13, 2012: Mr. Fleming wrote to the Crown asking to speak
with Dr. Sinclair in the presence of Crown counsel. Mr. Fleming mentioned
consulting with a neurologist who suggested that atypical type 3 Virchow-Robin
spaces could result in symptomatic problems of a psychological order. Mr.
Fleming needed that comfort of Dr. Sinclair being able to say clearly that he
did not observe any such psychological deficits in Mr. Gregson and the
comfort
that Dr. Sinclair had in fact turned his mind to the rare diagnostic
possibility of psychological trauma, and had specifically discounted this. Mr.
Fleming expressed his belief that Dr. Sinclair is best-positioned and
well-qualified to close this particular door. Mr. Fleming also said [f]inally,
my aim is to make sure this trial does not take any longer than necessary. Mr.
Fleming noted that he did not anticipate that he would receive any supporting
expert opinions for diminished capacity or automatism and that he would likely
be unable to make these arguments.
·
February 15, 2012: Mr. Fleming sent a draft factum on
voluntariness to the Crown and suggested that he go first and concede
admissibility of all, to avert possible problems with Mr. Gregson.
·
February 21, 2012: Counsel provided submissions on voluntariness,
and the confession was declared to be admissible.
·
February 27, 2012: The trial proper began with jury selection.
·
March 13, 2012: The jury returned guilty verdicts for first
degree murder and robbery.
(3)
Investigation after trial
[15]
A
limited s. 684 appointment under the
Criminal Code
,
R.S.C. 1985, c. C-46, was made to determine whether there was merit to an
appeal of the murder conviction and whether an application should be made for a
full s. 684 appointment. Ms. Apple Newton-Smith, then Mr. Gregsons appellate
counsel, reviewed the trial record and, in March 2015, communicated to Mr.
Fleming that there were concerns with respect to his representation of the
appellant and the appearance that he was not advocating for the appellants
interests. She referred to some of the appellants correspondence with the
Crown and Dr. Bradford and Mr. Flemings factum on voluntariness.
In the fresh evidence before this court, there is a summary of Mr.
Flemings responses explaining his conduct and his work on the case.
[16]
LAO
engaged Mr. Philip Campbell to advise on whether effective and ethical legal
services were provided to the appellant by Mr. Fleming. In a report dated
October 28, 2015, Mr. Campbell provided a thorough review of the circumstances
of the case, the impugned conduct and correspondence, and Mr. Flemings
explanations. Mr. Campbell believed that there is no reasonable possibility
that an allegation of [ineffective assistance of counsel], in its usual form,
could succeed on an appeal by Mr. Gregson
. However, Mr.
Campbell also observed that an accused is entitled to a lawyer who is loyal to
the interests of the accused and if the appellant could establish that Mr.
Fleming was indifferent to or actively advocating against his interests, there
would be a miscarriage of justice, even if it could not be established that a
lawyer vigorously defending his interests could have achieved a different
result.
[17]
After
Mr. Campbells report, it came to light that Mr. Fleming had lied about being
an RCMP officer when he first met the appellant. He had also lied when he
explained his February 13, 2012 letter to the Crown in response to Ms.
Newton-Smiths concerns. He had said that he had consulted his daughter, who
was a neurosurgeon. It turned out that Mr. Fleming does not have a daughter.
Mr. Fleming was cross-examined by appellate counsel in 2019 on his
conduct of the trial. He has retired since the trial. He now suffers from
cognitive deficits, as a result of which his memory of the events is extremely
limited.
B.
Issues on appeal
[18]
The appellant claims that Mr. Fleming did not
act with undivided loyalty such that the appellant did not have a lawyer
looking after his interests. He insists that this is not a claim of ineffective
assistance of counsel in the ordinary sense, but a claim of denial of counsel
altogether. He compares this case to
R. v. Al-Enzi
, 2014 ONCA 569, 121
O.R. (3d) 583, where this court held that a trial judges denial of a severance
or mistrial produced a miscarriage of justice for Mr. Al-Enzi, whose counsel
withdrew in the middle of trial, because while an
amicus
was appointed
an
amicus
was not an adequate substitute for defence counsel. The
appellant asserts that Mr. Fleming viewed himself as
amicus
and Mr.
Flemings conduct similarly deprived him of counsel, implicated the integrity
of the administration of justice, compromised the appearance of fairness, and
resulted in a miscarriage of justice. He argues that the verdict cannot be
allowed to stand regardless of the strength of the Crowns case, the absence of
prejudice, or the inevitability of the verdict.
[19]
The appellant points to four particular
instances which he says illustrate a breach of Mr. Flemings duty to his client:
1.
Mr. Fleming lied to gain the appellants trust
so that the appellant would retain him;
2.
Mr. Fleming represented to the appellant that he
would contest the voluntariness of certain admissions and statements, but he
knew and communicated to Crown counsel that this argument would not succeed
without advising the appellant about the legal merits;
3.
Mr. Fleming misunderstood his role and
improperly shared defence trial strategy and the weaknesses of defence
arguments with Crown counsel; and
4.
Mr. Fleming lied about having consulted with his
own expert with respect to diminished capacity, which was the one possible
defence the appellant might have had at trial.
[20]
The respondent takes the position that, whatever
Mr. Flemings failings as counsel, he was not motivated by a desire to sell
out his client and acted at all times with his best interests in mind, even if
some of his actions were inadvisable or misguided. The record, including the
fresh evidence filed on this appeal, indicates that Mr. Fleming was doing his
best for Mr. Gregson in very difficult circumstances.
C.
Discussion
(1)
The duty
of loyalty
[21]
Despite the appellants broad framing of the
appeal as a general miscarriage of justice issue, properly understood, the
appellants argument is that Mr. Fleming breached his duty of loyalty to the
appellant.
[22]
The duty of loyalty owed by a lawyer to their
client is undoubtedly a foundational principle in the adversarial system. As
explained in
R. v. Neil
, 2002 SCC 70, [2002] 3 S.C.R. 631, at para.
12, [u]nless a litigant is assured of the undivided loyalty of the lawyer,
neither the public nor the litigant will have confidence that the legal system,
which may appear to them to be a hostile and hideously complicated environment,
is a reliable and trustworthy means of resolving their disputes and
controversies. The principle of the duty of loyalty endures because it is
essential to the integrity of the administration of justice: at para. 12. It
consists of several dimensions, including a duty not to disclose confidential
information, a duty to avoid conflicting interests, a duty of commitment to the
clients cause or zealous representation, and a duty of candour with the client
on matters relevant to the retainer: at paras. 18-19.
[23]
That said, the duty is not unlimited. Lord Reids
remarks in
Rondel v. Worsley
, [1969] 1 A.C. 191 (U.K. H.L.), at pp.
227-28, accepted by this court in
R. v. Samra
(1998), 129 C.C.C. (3d)
144 (C.A.), at para. 64, illustrate this point:
Every counsel has
a duty to his client fearlessly to raise every issue, advance every argument,
and ask every question, however distasteful, which he thinks will help his
client's case.
But, as an officer of the court concerned
in the administration of justice, he has an overriding duty to the court, to
the standards of his profession, and to the public, which may and often does
lead to a conflict with his client's wishes or with what the client thinks are
his personal interests
. Counsel must not mislead the court, he must not
lend himself to casting aspersions on the other party or witnesses for which
there is no sufficient basis in the information in his possession, he must not
withhold authorities or documents which may tell against his clients but which
the law or the standards of his profession require him to produce. And by so
acting he may well incur the displeasure or worse of his client so that if the
case is lost, his client would or might seek legal redress if that were open to
him. [Emphasis added.]
[24]
Allan C. Hutchinson, in his textbook
Legal
Ethics and Professional Responsibility
, 2nd ed. (Toronto: Irwin Law,
2006), at pp. 106-7, similarly explains that there are limits to lawyers
obligations to place their clients interests ahead of all others. One of the
primary constraints is a lawyers duty to the courts.
[25]
It is also useful to remember that the concepts
of ineffective assistance and disloyalty cannot be conflated. A breach of the
duty of loyalty does not occur whenever a clients interests are damaged by a
lawyers actions. A lawyer acting with intent to further a clients interests
sometimes can, by incompetence, damage those interests. Such a lawyer has not
breached the duty of loyalty. Otherwise, every incompetent act would be an act
of disloyalty.
[26]
The existing test for whether there has been a breach of loyalty
owed by a lawyer to their client, when raised for the first time on appeal, may
be stated as follows. First, there must have been an actual conflict of
interest between the respective interests represented by counsel and, second, as
a result of that conflict, there must have been some impairment of counsels
ability to represent the interests of the appellant:
R. v. W.(W.)
(1995), 100 C.C.C. (3d) 225 (Ont. C.A.), at p. 237;
Neil
, at para. 39;
and
R. v. Silvini
(1991), 68 C.C.C. (3d) 251 (Ont. C.A.), at pp.
258-59.
[27]
As the Supreme Court accepted in
Neil
,
a conflict is a substantial risk that the lawyer's representation of the
client would be materially and adversely affected by the lawyer's own interests
or by the lawyer's duties to another current client, a former client, or a
third person: at para. 31. Where the allegation of a conflict of interest is
raised for the first time on appeal, the court must be concerned with actual
conflicts of interest, not just potential or possible conflicts, and whether
counsels representation was in fact compromised in such a way as to result in
a miscarriage of justice:
W.(W.)
, at pp. 238-39.
[28]
This court noted in
Samra
that the
problem of conflict of interest has usually arisen because counsel has been
retained to act for a client opposed in interest to the former client: at para.
19. In the context of joint representation of co-accused, an actual conflict
exists when a course of conduct dictated by the best interest of one accused
would, if followed, be inconsistent with the best interests of the co-accused:
W.(W.)
,
at p. 239.
[29]
In
Samra
, the appellant alleged that a
miscarriage of justice had occurred when the appointed
amicus
, who had
formerly been the appellants defence counsel for the same matter, had
disclosed confidential information when he clarified something the appellants
new counsel had said. This court noted that this was the only time an actual
conflict of interest might have arisen and where possibly confidential
information was disclosed, but even so, there was no adverse effect on the
appellants defence as a result of that conflict. As such, while it was not
necessary to decide whether an actual conflict existed, this court doubted, at
para. 63, that there was a conflict:
It is not unusual
that counsel may find themselves in a conflict between their duty to the client
and their duty to the court. It has never been suggested that when such a
conflict arises counsel is always disqualified from continuing to act in the
case.
[30]
If the two-part test is satisfied, the court may
order a new trial:
Neil
, at para. 40.
(2)
Did Mr. Fleming breach his duty of loyalty to
the appellant?
[31]
In my view, Mr. Fleming did not breach his duty
of loyalty to the appellant. At the outset, it is important to emphasize the
circumstances that form the context of Mr. Flemings actions. Mr. Fleming, a
staff lawyer for LAO, agreed to represent an accused on the eve of trial in a
notorious murder of a police officer. The Crown case was strong. The only, and
faint, hope was that some aspect of diminished capacity could result in a
verdict of manslaughter. The accused was not likely to be (and was not in fact)
a sympathetic witness; he insisted on testifying, and it would have been
obvious that he would not be helping his cause. Mr. Fleming was in an
unenviable position.
[32]
That said, Mr. Fleming was not in a position of
conflict. While he clearly understood that his obligation to his client had to
be tempered by his duty to the administration of justice and he made some
decisions which were not advisable, these cannot be understood as arising from
any conflicting loyalty. The appellant points to Mr. Flemings statements and
conduct and asks this court to infer that Mr. Fleming believed he was a friend
to the court and was preoccupied with trial expediency, saving LAO the expense
of another lawyer, and avoiding an appeal. While Mr. Fleming may have been
concerned with some of these considerations, he was not, however, placed in a position
where he had to choose between the appellants best interests and his own best
interests or the best interests of some other entity or client. Nor did he make
any choices that preferred other interests over the appellants interests as a
result of a conflict of interest. There were no actual conflicts that impaired
Mr. Flemings representation of the appellant. This becomes apparent when
considering the examples the appellant relies on as breaches of the lawyers
duty of loyalty.
[33]
The first basis relied on by the appellant as
illustrating divided loyalty is what he refers to as the foundational lie.
When he first met with the appellant, Mr. Fleming told him that he had been a
member of the RCMP and that he had killed two people in the course of duty. As
the fresh evidence indicates, this was not true. Mr. Fleming was never a member
of the RCMP. In his affidavit, the appellant states that this contributed to
his confidence in Mr. Fleming as they shared an experience. For reasons that are
difficult to understand, Mr. Fleming had previously told his former law partner
the same fabrication. Whatever motivated Mr. Fleming to tell this story, the
fact that it was not a fabrication communicated only to the appellant tends to
undermine any suggestion that it can be explained by divided loyalties on the
part of Mr. Fleming.
[34]
Obviously, the fabrication of ones biographical
details in any situation is unethical and should not be condoned. This lie,
however, was not foundational and cannot be understood to have essentially
undermined the entire relationship as the appellant argues.
[35]
While the appellant says that the lie helped him
feel comfortable with Mr. Fleming, he does not say that he would not otherwise
have retained him.
[36]
Moreover, according to the law in Canada as set
out above, even if such a lie were foundational to the relationship it would
not constitute a breach of loyalty unless it was occasioned by a conflict and
it impaired counsels representation: see
Neil
at para. 39. As Mr.
Fleming had not actually taken any actions as counsel at the time of that
conversation, there could be no impairment of his representation at that point.
The only inference that can reasonably be drawn from the record is that he was
concerned to develop a rapport with the appellant so that he could retain some
control and prevent his client from losing his temper, changing instructions,
and possibly firing him mid-trial, a situation Mr. Fleming understood would not
be in the interests of the appellant or the administration of justice. While
his means for effecting this were not laudable, they do not indicate disloyalty
on the part of Mr. Fleming.
[37]
Second, the circumstances around the somewhat
bizarre factum submitted by Mr. Fleming on the voluntariness
voir dire
further illustrate the same pattern: a misguided attempt to provide the best
defence possible for the appellant in the face of a very strong Crown case and
no evidence to support the appellants assertion that he did not have an
operating mind when he made the statements as a result of his personal and
medical circumstances as well as the blow to his head delivered by the officer.
[38]
When the appellant was insisting on pressing
this argument in the voluntariness
voir dire
, Mr. Fleming wrote two
additional letters to Dr. Bradford seeking input as to whether, in his view,
the appellants condition could provide the basis for any limited capacity
defence. His suggestion that he meet with Dr. Sinclair, the Crown expert, to
see if there might be anything there before the trial was strange and unusual
as well but it was clearly motivated by his wish to do all he could. The report
from Dr. Bradford did not support an NCR defence but did leave a very small
crack open for an argument that he might have had some sort of diminished
capacity. However, the basis for such an argument was directly addressed and
answered by Dr. Sinclairs report. In the end, Mr. Fleming did not obtain a
response from Dr. Bradford before the
voir dire
,
and no meeting with Dr. Sinclair ever
took place.
[39]
Mr. Flemings explanation for his voluntariness
factum was that the appellants statements were going to be admitted no matter
what. Mr. Fleming, facing that reality, was concerned that if he simply
conceded, the appellant would be furious, discharge him, and that would derail
matters, presumably in a way that would not help the appellant. While this was
questionable, there is no basis to suggest that it was borne out of disloyalty.
It was a function of Mr. Flemings manner of dealing with his client: build a
respectful relationship and allow him to determine how his defence would be
conducted.
[40]
Third, Mr. Flemings communications with the
Crown in which he sent the written instructions he wanted his client to sign
was unquestionably misguided and wrong. However, his explanations for this do
not support a finding that it was driven by disloyalty to his client. Again,
Mr. Fleming had a volatile client who was not taking his advice. He believed,
rightly or wrongly, that the best he could do for him in the circumstances was
to keep him calm with a view to preventing him from further instruction
reversals and from ending up without a lawyer mid-trial. In addition, he
expressed the view, in an email he sent to Mr. Delmar Doucette seeking advice
with his instructions, that the documents were not, in substance, different
from the admissions that the appellants former lawyer had filed when she was
counsel on the agreement of Mr. Gregson.
[41]
Mr. Doucette subsequently advised Mr. Fleming
that the communication of a clients instructions was never acceptable and
should not have been attempted. In retrospect, Mr. Fleming acknowledged to Mr.
Campbell that it had been an error for him to attempt to share the instructions
with the Crown. It was not done as a result of any conflict on Mr. Flemings
part.
[42]
Fourth, the appellant raises Mr. Flemings letter
to the Crown dated February 13, 2012, in which Mr. Fleming claimed to have
spoken with a consultant and raised the possibility of speaking with Dr.
Sinclair. Mr. Fleming subsequently told Mr. Campbell that the consultant was
his daughter, a neurosurgery resident in the United States. Mr. Fleming claimed
she had agreed with Dr. Sinclairs report that the usual manifestations of the
appellants conditions, if any, were impairments of balance, sight and hearing.
She had added that there were possibilities of psychological brain function
impairment and suggested that he ask someone such as Dr. Sinclair.
[43]
The fresh evidence indicates that Mr. Fleming
does not have a daughter or any child or step-child who is a neurosurgeon.
There is no way of knowing who, if anyone, Mr. Fleming spoke to or why he would
have made this up. That said, there is again an absence of any conflict on his
part that could provide a motive for him to lie. It is clear that he was trying
to find support for some sort of limited capacity defence. The problem was that
the evidence simply did not support it. In fact, the contemporaneous evidence
shows that he was trying his best for his client and was personally discouraged
by the prospects for his client. Mr. Campbell included his notes taken from his
interview with François Dulude, a lawyer who had assisted Mr. Fleming during
the trial. Mr. Dulude recalled that Mr. Fleming was discouraged by the lack of
evidence that could support any diminished capacity defence and that Mr.
Fleming worked hard on the case. Mr. Doucette, who Mr. Fleming consulted on the
subject of drafting instructions, also expressed the view that Mr. Fleming, while
seeing the case as largely hopeless, never threw in the towel. These
observations do not support the suggestion that Mr. Fleming was in any sort of
conflict.
[44]
In sum, the evidence on the conduct on the part
of Mr. Fleming that the appellant points to does not reveal any actual conflict
of interest that could ground a finding of a breach of the duty of loyalty,
pursuant to the test in
Neil
. Given the difficult circumstances in
which Mr. Fleming was acting, there were reasonable explanations for his at
times misguided conduct, including that he was trying to pursue any possible
defence available to the appellant and to seek concessions or favours from the
Crown. In my view, Mr. Fleming was not acting out of divided loyalty, but was
committed to his clients cause. As a result, the appellants sole ground of
appeal on the breach of the duty of loyalty cannot succeed.
[45]
As the appeal from conviction is dismissed, it
will not be necessary to address the sentence appeal, given the minimum
sentence for first degree murder.
D.
Disposition
[46]
I would dismiss the appeal.
Released: October 7, 2021 D.W.
A. Harvison Young J.A.
I agree David Watt J.A.
I agree M.L. Benotto J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Lawlor, 2021 ONCA 692
DATE: 20211007
DOCKET: C63960
Fairburn A.C.J.O., Doherty and
Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Linda Lawlor
Appellant
Amit Thakore, for the appellant
Andrew Hotke, for the respondent
Heard and released orally:
October 4, 2021 by video conference
On appeal from the conviction entered by
Justice B.A. Allen of the Superior Court of Justice on June 30, 2016 and the
sentence imposed on June 30, 2017.
REASONS FOR DECISION
[1]
After a trial by judge alone, the appellant was
convicted of one count of fraud over $5,000. She received a conditional
sentence of two years, less a day and was ordered to pay a fine in lieu of
forfeiture of $603,437. The appellant was given 20 years to pay the fine and,
in default, a three-year penitentiary sentence.
[2]
The appellant appeals conviction and, if leave
is granted, appeals from the fine in lieu of forfeiture portion of her
sentence.
Background
[3]
The appellant and a co-accused were charged with
several offences relating to transactions involving eight different properties
owned by the co-accuseds elderly father. At the conclusion of the preliminary
inquiry, the presiding judge indicated the co-accused would be committed for
trial with respect to each of the eight properties. The appellant, however,
would be committed for trial only in respect of the property on St. Clair
Avenue.
[4]
The appellant and the co-accused eventually
proceeded to trial in the Superior Court on a single-count indictment, alleging
fraud over $5,000. The timeframe in the indictment captured all eight
transactions, but the indictment contained no particulars and made no reference
to any specific property.
[5]
The trial proceeded. The Crown led evidence in
respect of all eight transactions. No one objected. The co-accused testified.
The appellant did not.
[6]
It would appear that counsel and the trial judge
proceeded on the basis that all of the evidence was admissible against both the
appellant and the co-accused, and that the allegation against the appellant encompassed
all eight properties.
[7]
The case against the appellant on the St. Clair
Avenue property was straightforward. She accessed the land titles system using
a personal security licence (PSL) she had initially obtained while working as
a legal assistant in a law firm. The appellant transferred ownership of the St.
Clair Avenue property from the co-accuseds elderly father to the co-accused
and another person. The co-accused had the same last name as his father. The
father had no knowledge of the transfer until years later.
[8]
Within about a month of the fraudulent transfer
of the property, a mortgage in the amount of about $355,000 was placed on the
St. Clair Avenue property. A second mortgage in the amount of about $250,000
was placed on the property a year later. Proceeds from those mortgages went
into a corporate bank account controlled by the appellant and two others.
[9]
The trial judge was satisfied the appellant knew
she had no authority to transfer the St. Clair Avenue property from the true
owner to her co-accused and another party. That transfer clearly put the
fathers economic interests at risk, resulting in deprivation.
[10]
The trial judge was also satisfied the appellant
appreciated the consequences to the economic interests of the father brought
about by the dishonest transfer of the ownership of the St. Clair Avenue
property: see Reasons for Judgment, at paras. 173-79.
The Conviction Appeal
[11]
In her reasons for judgment, the trial judge proceeded
on the basis that the appellant could be convicted if the Crown proved her
fraudulent involvement in any of the transactions. On the evidence, the
appellant had some involvement in properties on Harwood Avenue and Ruden
Crescent, as well as the St. Clair Avenue property. In reference to 200 Harwood
Avenue, the trial judge described the appellants involvement as minimal. The
trial judge indicated the appellant had a more significant connection with the
Ruden Crescent property. However, the trial judge expressly indicated her conviction
of the appellant rested on the appellants involvement with the St. Clair
Avenue property and the trial judges conclusion that her involvement
established her guilt on a charge of fraud over $5,000 beyond a reasonable
doubt.
[12]
After the trial judge released her reasons
convicting the appellant, the appellant, represented by new counsel, sought a
mistrial on the basis that the trial judge had misunderstood the nature of the
charge against the appellant. Counsel argued that the appellants lawyer, the
trial judge, and the Crown had mistakenly proceeded on the basis that the
appellant could be convicted based on her involvement with any of the
properties. In fact, argued the accused on the mistrial motion, while the case
against the co-accused related to all properties, the appellant could only be convicted
in respect of the St. Clair Avenue property. In advancing this submission, the
appellant relied on the terms of the committal for trial.
[13]
On the motion for a mistrial, counsel argued
that a mistrial was the only appropriate remedy, specifically rejecting the
Crown suggestion that the evidence could be reopened to allow the defence to
call any evidence it may not have called because of the misunderstanding as to
the nature of the charge against the appellant.
[14]
The trial judge dismissed the motion for a
mistrial.
[15]
The appellant renews the arguments that were
rejected by the trial judge. She contends the misapprehension of the scope of
the evidence led to the admission of evidence that was inadmissible against her.
The appellant also submits that the misapprehension of the nature of the charge
caused her to lose the right to make properly informed decisions as to the
conduct of her defence.
[16]
We reject those submissions for three reasons.
First, it is clear the conviction rested on the trial judges finding in
respect of the St. Clair Avenue property. The evidence in respect of that
property was overwhelming. The appellant transferred ownership with no
authority and within a month found herself in possession of the proceeds of a substantial
mortgage placed on the property. No explanation was ever offered.
[17]
Not only did the trial judge make it clear that
the conviction rested on the evidence relating to the St. Clair Avenue
property, she also made it clear the evidence in respect of the other
properties could not support a conviction.
[18]
Second, the limited evidence of the appellants
involvement in transactions involving two of the other properties, particularly
the Ruden Crescent property, was admissible to show the existence of the
relationship between the appellant and the co-accused, specifically in relation
to transactions involving the property of the co-accuseds elderly father.
There is nothing in the reasons to suggest that the trial judge misused the
evidence in respect of the appellants involvement in the other properties.
[19]
Third, while the appellant submits the
misunderstanding as to the nature of the charge deprived her of the right to
make certain informed choices, she offers no specifics, either in the affidavit
filed on the mistrial application, or in her former trial lawyers affidavit in
support of that position. The appellant argues that counsels advice to her
during the trial was guided by this misunderstanding. However, the appellant,
as is her right, has refused to waive client-solicitor privilege, thereby
making it impossible to evaluate the legitimacy of this claim.
[20]
The St. Clair Avenue property was clearly the
focus of the Crowns allegation against the appellant. The appellant chose not
to testify. We see no basis upon which to conclude that choice may have been
different had she understood the allegations in respect of the St. Clair Avenue
property were not just the central thrust of the Crowns case, but were in fact
the entirety of the Crowns case.
[21]
We also see no merit in the argument the trial
judge failed to allow the defence to reopen the evidence. The defence at trial
did not seek to reopen the evidence. To the contrary, the defence indicated
reopening the evidence would not assist. Even after the trial judge made her
ruling denying the mistrial, she left open the possibility of a defence motion
to reopen the evidence. The defence made no such motion.
[22]
Finally, nothing has been put before this court
to suggest what additional evidence may have been led, had the evidence been
reopened, that could possibly have made any difference to the outcome of the
charge as it related to the St. Clair Avenue property.
[23]
The conviction appeal is dismissed.
The Sentence Appeal
[24]
The appellant had control over funds obtained as
a result of the fraudulent mortgages placed on the St. Clair Avenue property
and deposited into the corporate account. Two other individuals also had
signing authority over that account. The charges against both were withdrawn in
the Provincial Court.
[25]
We reject the submission that the appellant had
less than total control over the funds in the account. The fact that others had
signing authority does not diminish the appellants control over the funds.
[26]
The appellant argues that the fine in lieu of
forfeiture should have been limited to the amount that could actually be traced
into the appellants pocket. The quantum of a fine in lieu of forfeiture is not
limited to the amount of the benefit actually obtained. Once the sentencing court
decides a fine in lieu of forfeiture should be imposed, the amount of the fine
is equal to the value of the property over which the offender has the
requisite control: see
R. v. Piccinini
, 2015 ONCA 446, at para. 18.
[27]
Given the factual finding by the trial judge
that the co-accused had no control over the funds generated by the fraudulent
mortgages placed on the St. Clair Avenue property, the appellant could not look
to the co-accused to pay some part of the fine ordered in lieu of forfeiture:
see
R. v. Dieckmann
, 2017 ONCA 575, at para. 100.
[28]
Leave to appeal sentence is granted, but the appeal
is dismissed.
Fairburn A.C.J.O.
Doherty J.A.
David Watt J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Mustard, 2021 ONCA 696
DATE: 20211007
DOCKET: C68896
Fairburn A.C.J.O., Doherty and
Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Charles Mustard
Appellant
Jeff Carolin and Taufiq Hashmani, for
the appellant
Benita Wassenaar, for the respondent
Heard and released orally:
October 5, 2021 by video conference
On appeal from the order of Justice W.
Low of the Superior Court of Justice, dismissing an application for
certiorari
,
dated November 13, 2020.
REASONS FOR DECISION
[1]
We agree with
the application judge that there was a basis in the evidence upon which the
provincial court judge could come to the conclusion that a properly instructed
jury could convict on a charge of first degree murder: see Reasons of
application judge, dated November 13, 2020, at pp. 8-12.
[2]
Consequently,
certiorari
was properly refused and the appeal is dismissed.
Fairburn A.C.J.O.
Doherty J.A.
David Watt J.A.
|
COURT
OF APPEAL FOR ONTARIO
CITATION: R. v. Stephens, 2021 ONCA 699
DATE: 20211007
DOCKET: M52798 (C58723)
Rouleau,
Benotto and Zarnett JJ.A.
BETWEEN
Her
Majesty the Queen
Respondent/Responding Party
and
William Russel Stephens
Appellant/Moving Party
William
Russel Stephens, acting in person
Nicole
Rivers, for the respondent
Heard and released
orally: October 5, 2021 by video conference
REASONS
FOR DECISION
[1]
The moving party seeks a stay pending his leave to
appeal application to the Supreme Court of Canada. The moving party abandoned
his motion for leave to appeal from the summary conviction appeal court judges
dismissal of his appeal. A subsequent application to our court to reopen the
leave was denied. There is therefore, in our view, nothing that can be stayed.
[2]
Accordingly, the motion is dismissed.
Paul
Rouleau J.A.
M.L.
Benotto J.A.
B.
Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Smith v. GCAT Group Inc., 2021
ONCA 700
DATE: 20211007
DOCKET: C68067
Hourigan, Huscroft and Coroza
JJ.A.
BETWEEN
Henry Smith and Susyn Smith
Plaintiffs (Appellants)
and
GCAT Group Inc., Danial
Hadizadeh and Akbar Hadizadeh
Defendants (Respondents)
Richard Macklin and Lucinda Bendu, for
the appellants
Pavle Masic, for the respondents
Heard: October 6, 2021 by
video conference
On appeal from the order of Justice Robert
F. Goldstein of the Superior Court of Justice, dated January 24, 2020.
REASONS FOR DECISION
[1]
The motion judge dismissed the appellants claim against the respondents
for breach of contract, alleging that the respondents supplied inferior
synthetic limestone rather than the Italian limestone for which they had
contracted. The appellants claim, which commenced in 2012, was dismissed under
r. 60.12(b) because the appellants failed to comply with interlocutory orders requiring
them to permit the respondents to inspect the limestone at the centre of the
dispute.
[2]
The appellants argue that they should have been permitted a final
opportunity to provide access to the respondents to inspect the limestone.
[3]
There is no merit in the appellants position.
[4]
Rule 60.12(b) is designed to facilitate compliance with interlocutory orders,
and among other things provides that the motion judge has the discretion to
dismiss a proceeding. It is no light thing to dismiss a proceeding, but there
was ample basis for the motion judge to do so in this case.
[5]
The respondents first sought to inspect the limestone in 2017 and
brought a motion to permit inspection in 2018. Testing was ordered by Master
Jolley but did not take place. The appellants brought a motion to vary the
Masters order but this was rejected by the Master, who described it as
smacking of an attempt to appeal my order after the appeal period had
expired, and full indemnity costs were awarded against the appellants. The
appellants appealed this order and the appeal judge found that the appeal was entirely
devoid of merit and completely frivolous. He inferred that the appellants
had appealed in order to avoid implementing the inspection order. Following
this appeal, the appellants refused to pay costs unless the respondents signed
a satisfaction piece, a requirement that had not existed in the Rules for
over thirty years. The appellants continued to advance the argument that the
respondents had lost their right to inspect the limestone, an argument that had
been rejected by both the Master and the appeal judge. The motion judge
inferred that the appellants continued to play games.
[6]
The motion judge carefully reviewed the history of the action. He found that
no matter how many times the [appellants] are told they must permit an
inspection, they will not do so. The motion judge drew the inference that the
appellants have no case and they must know it. In these circumstances,
dismissal of the action under r. 60.12(b) was amply justified. The motion judge
was not required to provide the appellants with yet another opportunity to
disobey a court order before dismissing the action.
[7]
The appellants blame their former lawyer for pursuing what they describe
as a stubborn litigation strategy. They seek leave to file fresh evidence
demonstrating that he gave erroneous advice on which they relied.
[8]
There is no basis to set aside the motion judges order because of the
appellants complaint about their counsels strategy and we do not admit the
fresh evidence that purports to demonstrate counsels failings. It is supported
only by a self-interested affidavit filed by one of the appellants, which
indicates that he was not aware of the litigation strategy his counsel pursued.
There is ample evidence in the record to the contrary. In any event, the
appellants may pursue a negligence action against their lawyer if they think he
provided erroneous advice: see
Oz Merchandising Inc. v. Canadian
Professional Soccer League Inc.
, 2021 ONCA 520 at para. 44.
[9]
In summary, the motion judge applied the relevant law and made no error
in doing so. His decision to dismiss the appellants action is entitled to
deference.
[10]
Leave
to introduce the fresh evidence is denied. The appeal is dismissed.
[11]
The
respondents are entitled to costs for the appeal, including the fresh evidence
motion, fixed at $13,000 all inclusive.
C.W. Hourigan
J.A.
Grant Huscroft
J.A.
S. Coroza J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Lalonde v. Agha, 2021 ONCA 704
DATE: 20211008
DOCKET: C68482
Brown, Roberts and Zarnett JJ.A.
BETWEEN
Sophie Lalonde
Applicant
(Respondent)
and
Samer Agha
Respondent
(Appellant)
Robert J.M. Ballance, for the appellant
Michelle DiCarlo, for the respondent
Heard: June 29, 2021 by video
conference
On appeal
from the order of Justice Kirk W. Munroe of the Superior Court of Justice dated
June 3, 2020, with reasons reported at 2020 ONSC 3486.
COSTS ENDORSEMENT
[1]
On September 24, 2021, we dismissed the
appellants appeal. As the appellant concedes, the respondent was successful
and is entitled to her costs of the appeal.
[2]
We do not agree that this is one
of those exceptional cases that merits an award of full indemnity costs. The
respondent is entitled to her costs of the appeal in the amount of $5,000,
inclusive of all disbursements and applicable taxes.
David Brown J.A.
L.B.
Roberts J.A.
B. Zarnett
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Morris, 2021 ONCA 680
DATE: 20211008
DOCKET: C65766
Fairburn A.C.J.O., Doherty,
Juriansz, Tulloch and Paciocco JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Kevin Morris
Respondent
Roger Shallow, for the appellant
Faisal Mirza and Gail D. Smith, for the
respondent
Nana Yanful, Johnathan Shime and Roger
Rowe, for the interveners Black Legal Action Centre and Canadian Association of
Black Lawyers
Caitlyn E. Kasper and Douglas Varrette,
for the intervener Aboriginal Legal Services
Nader R. Hasan and Geetha
Philipupillai, for the intervener the David Asper Centre for Constitutional
Rights
Emily Lam and Marianne Salih, for the
intervener Criminal Lawyers Association
Annamaria Enenajor, for the intervener
Urban Alliance on Race Relations
Anil K. Kapoor and Victoria M. Cichalewska,
for the intervener Canadian Civil Liberties Association
Taufiq Hashmani, for the intervener
Canadian Muslim Lawyers Association
Saman Wickramasinghe and Zach Kerbel,
for the interveners South Asian Legal Clinic of Ontario, Chinese and Southeast
Asian Legal Clinic, and Colour of Poverty/Colour of Change
Heard: February 11, 2021 by
video conference
On appeal from the sentence imposed on
July 19, 2018 by Justice Shaun S. Nakatsuru of the Superior Court of Justice, with
reasons reported at 2018 ONSC 5186, 422 C.R.R. (2d) 154.
By the Court:
introduction
[1]
It is beyond doubt that anti-Black racism,
including both overt and systemic anti-Black racism, has been, and continues to
be, a reality in Canadian society, and in particular in the Greater Toronto Area.
That reality is reflected in many social institutions, most notably the
criminal justice system. It is equally clear that anti-Black racism can have a
profound and insidious impact on those who must endure it on a daily basis: see
R. v. Le
, 2019 SCC 34, [2019] 2 S.C.R. 692, at paras. 89-97;
R. v.
Theriault
,
2021 ONCA 517, at para. 212, leave to appeal to S.C.C. requested, 39768 (July
19, 2021);
R. v. Parks
(1993), 15 O.R. (3d) 324 (C.A.), at p. 342,
leave to appeal refused, [1993] S.C.C.A. No. 481; see also Ontario Human Rights
Commission,
A Collective Impact: Interim report on the inquiry into racial
profiling and racial discrimination of Black persons by the Toronto Police
Service
(Toronto: Government of Ontario, 2018), at p. 19;
Ontario
Association of Childrens Aid Societies,
One Vision One
Voice: Changing the Child Welfare System for African Canadians
(Toronto: Ontario Association of Childrens Aid Societies, 2016), at p. 29
. Anti-Black racism must be acknowledged, confronted, mitigated and,
ultimately, erased. This appeal requires the court to consider how trial judges
should take evidence of anti-Black racism into account on sentencing.
overview
[2]
On
June 28, 2017, a jury found the appellant, Kevin Morris, guilty of possession
of a loaded prohibited/restricted handgun, contrary to s. 95 of the
Criminal
Code
, R.S.C. 1985, c. C-46, carrying
a concealed weapon, contrary to s. 90 of the
Criminal Code
, and two other related-gun charges under ss. 91 and
92 of the
Criminal Code
. The trial judge stayed the charge arising under s. 91 and entered
convictions on the other charges. All of the charges arose out of Mr. Morriss possession
of a loaded .38 calibre Smith & Wesson handgun. Except for the purposes of fixing
the sentence on each charge, there is no need in these reasons to examine the
charges separately.
[3]
In July 2018, the trial judge sentenced Mr.
Morris to 1 day in jail to be followed by 18 months probation.
0F
[1]
In imposing sentence, the trial judge concluded the respondent
should receive a sentence of 15 months plus probation for 18 months. Following
deductions for breaches of the
Canadian Charter of Rights and Freedoms
(3 months) and pretrial custody (243 days at a rate of 1.5:1), Mr. Morris was
left with a net sentence of 1 day plus 18 months probation.
[4]
The Crown seeks leave to appeal the sentence
imposed. The Crown contends the sentence is manifestly unfit and the trial
judge made several material errors in his reasons, particularly in his
treatment of the evidence led by Mr. Morris concerning the impact of overt and institutional
anti-Black racism. The Crown argues that the decisions of this court in
R.
v. Borde
(2003), 63 O.R. (3d) 417 (C.A.), and
R. v. Hamilton
(2004), 72 O.R. (3d) 1 (C.A.), remain good law. These cases acknowledge that an
offenders personal circumstances, including those tied to overt and
institutional racism and its multi-faceted effects, can be relevant in
determining an appropriate sentence. Their ultimate impact on the sentencing
process will, as with other facts relevant to sentencing, depend on the specifics
of the individual case.
[5]
Crown counsel acknowledges the reality of overt
and institutional racism and its negative impact, particularly within the
criminal justice system. Crown counsel accepts that the courts, and in
particular trial judges, must frankly acknowledge that reality and take it into
account within the sentencing scheme set out by Parliament.
[6]
The Crown maintains, however, that the trial
judge allowed his consideration of the impact of overt and institutional racism
on Mr. Morris to overwhelm all other considerations relevant to fashioning a
fit sentence. The result, says the Crown, is a sentence that fails to reflect
the seriousness of the offences and falls well below the range of appropriate
sentences established in decisions from this court and the Supreme Court of
Canada.
[7]
The Crown submits a fit sentence is three years.
The Crown accepts, however, in light of the passage of time and subsequent
events, that the incarceration of Mr. Morris at this time would be
inappropriate.
1F
[2]
The Crown asks the court to vary the sentence to three years and
permanently stay the imposition of that sentence.
[8]
Counsel for Mr. Morris submit the trial judge
properly admitted, considered, and assessed the detailed and cogent evidence of
longstanding overt and institutional systemic anti-Black racism and how that
racism negatively affected Mr. Morris. Counsel do not equate the sentencing of Black
offenders with the sentencing of Indigenous offenders. They do contend,
however, that the use of social context evidence in fashioning the appropriate
sentence, a requirement when sentencing Indigenous offenders, should also play
a prominent role in determining the appropriate sentence for Black offenders.
[9]
Counsel for Mr. Morris do not ask the court to
overrule
Borde
or
Hamilton
.
They submit the court can build on the
dicta
in those cases. Counsel
argue the trial judge in this case had a wealth of information, combined with
the insight of experts, allowing him to much more fully understand the pervasive
impact of racism on Mr. Morris throughout his life and its relevance in determining
the appropriate sentence for him. Counsel contend the methodology employed by
the trial judge sits comfortably with the
dicta
in
Borde
and
Hamilton
and reflects the powerful picture painted by the evidence led by
the defence on sentencing. Lastly, counsel for Mr. Morris remind the court that
it must defer to the trial judges factual findings, absent a determination those
findings are unreasonable. Counsel submit the appeal should be dismissed.
[10]
Several parties intervened. By and large, they
support the approach taken by the trial judge on sentencing. There are some
differences in the positions taken by the interveners. Most notably, Aboriginal
Legal Services takes the position that the detailed
Gladue
jurisprudence developed in reference to the application to Indigenous offenders
of the restraint principle in s. 718.2(e) of the
Criminal Code
, cannot
be applied to non-Indigenous offenders: see
R. v. Gladue
, [1999] 1
S.C.R. 688.
[11]
For the reasons set out below, we would allow
the appeal and vary the sentence to one of two years, less a day, to be
followed by probation on the terms imposed by the trial judge. We would
permanently stay that sentence.
[12]
This appeal raises important questions of
general application in sentencing, as well as specific issues relating to this
case. Our reasons are long. We will begin with a point-form summary of what we regard
as the principal conclusions in respect of the broader issues. We will then
outline the evidence at trial, the proceedings on a motion to stay the charges,
and the evidence led on sentencing by counsel for Mr. Morris. Finally, we will turn
to the arguments made on the appeal.
principal
conclusions
[13]
For the reasons set out below, we come to the
following conclusions:
·
The trial judges task in sentencing is to
impose a just sentence tailored to the individual offender and the specific
offence in accordance with the principles and objectives laid out in Part XXIII
of the
Criminal
Code
;
·
Social context evidence relating to the
offenders life experiences may be used where relevant to mitigate the
offenders degree of responsibility for the offence and/or to assist in the
blending of the principles and objectives of sentencing to achieve a sentence
which best serves the purposes of sentencing as described in s. 718;
·
The gravity or seriousness of an offence is
determined by its normative wrongfulness and the harm posed or caused by that
conduct in the circumstances in which the conduct occurred. Accordingly, unlike
when assessing the offenders degree of personal responsibility, an offenders
experience with anti-Black racism does not impact on the seriousness or gravity
of the offence;
·
Courts may acquire relevant social context
evidence through the proper application of judicial notice or as social context
evidence describing the existence, causes and impact of anti-Black racism in
Canadian society, and the specific effect of anti-Black racism on the offender;
·
Consistent with the rules of admissibility, a
generous gateway for the admission of objective and balanced social context
evidence should be provided;
·
The
Gladue
methodology does not apply to
Black offenders. However, that jurisprudence can, in some respects, inform the
approach to be taken when assessing the impact of anti-Black racism on
sentencing.
the evidence at
trial
[14]
On December 13, 2014, shortly after midnight, a
man contacted the police, claiming that about 20 minutes earlier he had been
the victim of a home invasion robbery. He described the robbers as four Black
men.
[15]
Two plainclothes officers in separate unmarked
vehicles responded to the police radio call reporting the robbery. They saw
four Black men walking together in a parking lot in the immediate vicinity of
the robbery. Two of the men went to one vehicle parked in the lot and Mr.
Morris and the fourth man walked toward a second vehicle. One of the officers used
his vehicle to block the path of the vehicle Mr. Morris was walking toward. This
officer identified himself as a police officer and told the two men to stop. Mr.
Morris fled, the other individual remained.
[16]
The officer in the other unmarked vehicle moved
his vehicle quickly across the parking lot in an effort to cut Mr. Morris off. According
to the officers evidence, he had stopped his vehicle when Mr. Morris ran into
it and fell to the ground. Mr. Morris got up quickly and fled. He scaled a high
fence and ran into the parking lot of an adjacent No Frills grocery store.
[17]
By the time Mr. Morris was running across the No
Frills parking lot, uniformed police officers were in pursuit. Officer Faduck
quickly gained ground on Mr. Morris. He identified himself as a police officer
and told Mr. Morris to stop. Mr. Morris kept running.
[18]
As Officer Faduck followed Mr. Morris, it
appeared to him that Mr. Morris was trying to remove his jacket as he ran.
Officer Faduck saw Mr. Morris duck into a stairwell. When he re-emerged from
the stairwell, he was no longer wearing his jacket.
[19]
Officer Faduck continued his pursuit. Shortly
afterward, he caught up to, and tackled Mr. Morris, and placed him under arrest
for robbery.
[20]
After Mr. Morris was arrested, Officer Faduck
went back to the stairwell. He found a jacket in a puddle on the ground. In the
jacket he found a loaded .38 calibre Smith & Wesson handgun. Mr. Morris was
taken into custody. As it turned out, there was no evidence to charge Mr.
Morris or any of his three companions with the robbery.
[21]
Mr. Morris testified at trial. He told a very
different story. According to him, he and three friends were walking across a
parking lot. Mr. Morris moved toward the edge of the parking lot, looking for a
place to urinate. Suddenly, a vehicle approached him, moving very quickly
across the parking lot toward him. The vehicle struck Mr. Morris and knocked
him to the ground. Mr. Morris saw someone getting out of the car. He got up and
ran, fearing that he was about to be attacked. Mr. Morris had been stabbed and
seriously injured about 22 months earlier. According to Mr. Morris, the person
getting out of the vehicle that struck him did not identify himself as a police
officer and Mr. Morris had no reason to think he was a police officer.
[22]
Mr. Morris testified that he ran across the
parking lot, scaled the fence and ran into the No Frills parking lot.
Initially, he did not see anyone behind him.
[23]
Mr. Morris indicated, that as he ran, he heard
the person chasing him say something and he looked around. He realized it was a
uniformed police officer chasing him, so he stopped. The officer tackled him
and struck him several times.
[24]
Mr. Morris indicated he was wearing an expensive
new jacket that night. According to him, the jacket caught on the fence when he
was climbing over it. He last saw it hanging on the fence. Mr. Morris denied ducking
into the stairwell of the No Frills parking lot. He also denied throwing his
jacket into a puddle in the stairwell. Mr. Morris insisted he never had
possession of a gun. It was implicit in Mr. Morriss testimony that the police took
the jacket from the fence, placed it in the stairwell and planted the gun in
the pocket of the jacket.
[25]
The jurys verdicts make it clear the jury was
satisfied beyond a reasonable doubt Mr. Morris had possession of the loaded
handgun and was lying when he testified he did not leave his jacket in the
stairwell and did not have possession of the gun found in the jacket.
the stay
application
[26]
At the outset of his trial, the respondent
brought a motion for a stay of proceedings alleging several
Charter
violations. The trial judge dismissed the motion:
R. v. Morris
, 2017 ONSC
4298, 387 C.R.R. (2d) 154. The trial judges ruling is not challenged on
appeal. Some of the trial judges findings are, however, relevant to the
sentencing proceedings.
[27]
The trial judge made detailed findings of fact,
including the following:
·
the two plainclothes officers, who initially
approached Mr. Morris in their vehicles, were engaged in a lawful investigation
of the robbery;
·
the plainclothes officers identified themselves
as police officers, but the trial judge was not satisfied Mr. Morris necessarily
heard and understood what they said before he ran;
·
Officer Faduck identified himself as a police
officer when he was chasing Mr. Morris. Officer Faduck was in uniform. Mr.
Morris heard and understood Officer Faduck, but kept running and did not stop until
Officer Faduck tackled and arrested him; and
·
Mr. Morris removed his jacket as he was running
and threw it in the stairwell.
[28]
The trial judge held that the police had grounds
to detain Mr. Morris for investigative purposes. However, Mr. Morris was not detained
prior to his arrest by Officer Faduck. Officer Faduck had reasonable and
probable grounds to arrest Mr. Morris.
[29]
The trial judge found that the vehicle driven by
one of the plainclothes officers struck Mr. Morris and ran over his left foot,
causing an injury that required medical attention. The trial judge rejected the
officers evidence that Mr. Morris ran into the vehicle after the vehicle had
stopped. The trial judge concluded that, while the officer was engaged in a
lawful attempt to stop a fleeing suspect and did not intend to hit Mr. Morris
with his vehicle, he was driving quickly, aggressively and, in all of the
circumstances, very careless[ly]. The trial judge held that when the officer
struck Mr. Morris with his vehicle, he violated Mr. Morriss rights under s. 7
of the
Charter
.
[30]
The trial judge rejected Mr. Morriss claim the
police used excessive force in the course of his arrest and confinement. The
trial judge found Mr. Morris was not credible on these issues.
[31]
The trial judge also accepted, again contrary to
Mr. Morriss evidence, that Mr. Morris was advised of his right to counsel and
given access to counsel in a timely fashion. The trial judge did, however, find
a violation of s. 10(b) of the
Charter
based on certain questions
which the officers put to Mr. Morris before he had a chance to exercise his
right to counsel. The trial judge described the questions as relatively innocuous
and the breach as far from
egregious. He also noted the Crown did not seek
to rely on any of the statements made by Mr. Morris.
[32]
In dismissing the motion for a stay of
proceedings, the trial judge described the
Charter
breaches as
relatively minor. He further indicated that if Mr. Morris was convicted,
those breaches could potentially be taken into account on sentencing. The trial
judge did just that when he imposed sentence, reducing what would otherwise
have been a sentence of 15 months to 12 months.
the evidence on
sentencing
[33]
Mr. Morris was almost 23 years old when he committed
these offences. He was 26 at the time of sentencing.
[34]
Mr. Morris did not have a criminal record at the
time of sentencing. According to information provided by Mr. Morris, he had
been charged with offences in the past, and on one occasion, spent a couple of
weeks in a correctional facility for young offenders. It does not appear that
Mr. Morris spent any appreciable time in custody on adult charges until he was arrested
on the charges related to the home invasion in April 2017.
[35]
Mr. Morris had been attacked and stabbed by an
acquaintance in February 2013. It is not clear what motivated the stabbing. Mr.
Morris suffered serious internal injuries requiring surgery. Those injuries
have resulted in ongoing medical problems which have interfered with Mr. Morriss
ability to obtain employment, and caused him problems while incarcerated after
April 2017. The stabbing has also had a negative effect on Mr. Morriss mental health.
[36]
Mr. Morriss family doctor sent him for a
psychiatric consultation in January 2014, about 10 months after Mr. Morris was
stabbed and about 11 months before he committed these offences. The consultation
report included the following:
Mr. Morris is a 22-year-old gentleman with a
history of a traumatic event which included severe stab wounds approximately
one year ago. The exact circumstances around this event are unknown as Mr. Morris
mentioned that it was a robbery at the time. He does suffer from symptoms of
post-traumatic stress disorder after this event, including flashbacks,
nightmares, re-experiencing the event, and always feeling very hypervigilant
and on edge. He feels extremely socially isolated as a result and essentially
is nonfunctional. He is not working, unable to go to school, and stays home all
day by himself.
[37]
The psychiatrist recommended a medication regime
and follow-up psychotherapy. Mr. Morris did not take the medication and did not
return to the psychiatrist for psychotherapy.
[38]
In a statement to the court at sentencing, Mr.
Morris apologized to his mother and promised her he would change and make
something out of his life.
The Social
Context Evidence
[39]
Counsel for Mr. Morris tendered two reports at
sentencing. The first, entitled Expert Report on Crime, Criminal Justice and
the Experience of Black Canadians in Toronto, Ontario, describes and analyzes
the research that has been done on the existence, causes, and impact of anti-Black
racism in Canadian society, especially in the Toronto area. The report provides
an historical and social account of the Black experience in Canada. It draws a
connection between the long history in Canada of overtly racist attitudes and
social practices and present day institutional and systemic discrimination
against Black people. The report explains how systemic discrimination in many
social institutions marginalizes Black people in communities marked by poverty,
diminished economic and employment opportunities, and a strong and aggressive
police presence. These factors combine to leave many in the Black community
with the reasonable perception that Canadian society, and in particular the criminal
justice system, is racist and unfair.
[40]
The authors conclude:
It is our opinion that the social
circumstances of Black Canadians in general, and of Black male Torontonians in
particular, should be viewed as criminogenic. Elevated levels of offending in
the types of crimes that typically come to the attention of the police (street
crimes as opposed to white-collar and corporate crimes), combined with
discrimination in the justice system itself have resulted in the gross over-representation
of Black Canadians in our provincial and federal correctional systems. Whereas
no one individual should be completely absolved of their own responsibility
when it comes to offending behaviour, the social realities that have produced
or contributed to such behaviour can be acknowledged, and serve to guide
judicial decision making.
[41]
At the sentencing proceedings, the Crown argued
that this report was inadmissible as the trial judge could properly take
judicial notice of the existence of overt and systemic anti-Black racism in
Canadian society and the criminal justice system in particular. The trial judge
rejected the Crowns arguments and admitted the report. On appeal, the Crown
takes no issue with the admissibility of this report. We agree with the Crowns
concession.
[42]
We accept, as did the trial judge, that the
trial judge could have taken judicial notice of many of the historical and
social facts referred to in the report: see e.g.,
Le
, at paras. 82-88;
Theriault
, at paras. 212-18;
R. v. Anderson
, 2021 NSCA 62 (
Anderson
(NSCA)
)
, at para. 111; and
R. v. Jackson
, 2018 ONSC 2527, 46 C.R. (7th) 167, at paras. 81-92.
Even though much of the report could have been the subject of judicial notice,
the admission of the report as a whole had value for sentencing purposes. The
report gave the trial judge the benefit of a scholarly, comprehensive, and
compelling description of the widespread and pernicious effect of anti-Black
racism. As the trial judge observed, it helped him understand how Mr. Morris
ended up where he did.
[43]
The report bears reading and re-reading by those
called upon to prosecute, defend, and sentence Black offenders, particularly
young Black offenders. The report is easily accessible as the trial judge
helpfully attached a copy as an appendix to his reasons for sentence.
[44]
The second report, a Social History of Kevin
Morris (the Sibblis Report), was prepared by Camisha Sibblis, a clinical social
worker and PhD candidate with a research focus on education and social work.
Ms. Sibblis, who also co-authored the first report, has had extensive clinical
experience, much of it involving assessments of young persons, often Black
youth, for various social agencies. In addition, Ms. Sibblis conducts anti-Black
racism workshops aimed at educating participants on the manner in which
systemic anti-Black racism impacts on Black youth in various contexts, including
in the educational system.
[45]
Ms. Sibblis was asked to review Mr. Morriss
social history and trajectory with a view to providing an analysis of the
impact of systemic racism on his experiences in and out of the justice system. As
we understand the Sibblis Report, it is intended to bring the more general social
context information provided in the first report home to the specific
circumstances of Mr. Morriss life experiences. In effect, the Sibblis Report
sought to demonstrate how the negative consequences of anti-Black racism, identified
and described in the first report, were very much a reality for Mr. Morris.
[46]
The Sibblis Report provides a biography of Mr.
Morris and his mother, Esta Reid. Ms. Reid arrived in Canada from Jamaica in
1978. Mr. Morris was born in January 1992. Although Mr. Morriss father did not
live with Mr. Morris and his mother, Mr. Morris saw him regularly and had a
close relationship with him. Unfortunately, his father died when Mr. Morris was
seven years old. Ms. Reid had to assume all the parental obligations, while at
the same time becoming the sole provider for the family. Ms. Reid worked a
variety of jobs, many of which involved long hours.
[47]
There is a very strong bond between Mr. Morris
and his mother. He loves her very much and she has done everything she can to
provide for Mr. Morris.
[48]
The Sibblis Report traces Mr. Morriss
experiences with the educational system and refers to his interactions with the
Childrens Aid Society. The report describes the injuries suffered by Mr.
Morris when he was stabbed in 2013 and the ongoing medical problems he has
suffered. The report sets out Mr. Morriss experiences within the community in
which he grew up and how he has come to perceive that community as a
threatening and unsafe place. The report also summarizes Mr. Morriss perceptions
of how he has been treated by the police and correctional authorities.
[49]
In her report, Ms. Sibblis writes:
Under the weight of anti-Black racism, Mr.
Morris had little option than to live his life as best he could having been
influenced by the streets. His overall social circumstances, while not excusing
his behaviour, have undeniably contributed to Mr. Morris being involved with
the justice system today.
Mr. Morris has also lived, and continues to
live, in constant fear. He fears the police, other community members, friends
and foes alike, rivals, unknown dangers, life, death. He fears fellow inmates.
He fears for his mothers safety. Mr. Morris fears both freedom and incarceration.
Mr. Morriss imagination for what he could become was significantly limited by
fear, anxiety, and actual threats; it is not positively fostered as his
suffering was not sufficiently tended to.
At this time, it would be appropriate to
provide him with the support and treatment he ought to have received long ago.
Early intervention might well have changed Mr. Morriss trajectory and it
appears as though anti-Black racism was a contributing factor in this omission.
Since Mr. Morris shows empathy, and has many redeeming qualities, it is a
reasonable expectation that he will respond well to mental health treatment.
[50]
The persons contacted by Ms. Sibblis described Mr.
Morris as a person with many positive personal characteristics, notably a
strong sense of empathy. However, in Ms. Sibbliss opinion, those
characteristics have been largely submerged in a lifetime of negative experiences,
many of which are tied, in part at least, to institutional or overt racism.
According to Ms. Sibblis, the combined impact of those events have left Mr.
Morris physically and emotionally damaged, unable to obtain meaningful
employment, in constant fear for his physical safety from both people in his
community and the police, and without hope for the future.
[51]
In preparing her report, Ms. Sibblis interviewed
Mr. Morris, his mother, his pastor, and a family friend. She received a supporting
letter from a social worker and childhood friend. Ms. Sibblis obtained extensive
documentation from various schools and educational programs Mr. Morris had attended,
as well as some medical records. We do not understand the Crown to question the
admissibility of the documentation gathered by Ms. Sibblis, or to suggest that
the trial judge could not rely on the factual content of that documentation if
the trial judge concluded it was reliable.
[52]
A great deal of the information relied on by Ms.
Sibblis, particularly about Mr. Morriss interactions with the police and
correctional authorities, came exclusively from Mr. Morris. In parts of her
report, Ms. Sibblis refers to these as Mr. Morriss perceptions, but in other
parts of her report she treats them as established facts.
[53]
At trial, the Crown took issue with the Sibblis
Report, arguing Ms. Sibblis was not qualified to give the opinions contained in
the report and that much of the information in the report was unreliable. The
Crown asked the trial judge to conduct a
voir dire
to determine
whether Ms. Sibblis was qualified to give the opinions contained in her report.
[54]
The trial judge declined to hold a
voir dire
.
He admitted the Sibblis Report, noting it was similar to the report he received
in
Jackson
and to the Impact of Race and Cultural Assessments (IRCAs)
received in criminal courts in Nova Scotia: see
Anderson (NSCA)
, at
paras. 104-10. The trial judge was anxious to have whatever information he
could about Mr. Morris. He made it clear he was not bound by any opinion Ms.
Sibblis might give, and would make his own independent evaluation of the relevance
and reliability of any information in the report. The trial judge also
permitted the Crown to cross-examine Ms. Sibblis, both to ensure procedural
fairness and to enhance the trial judges ability to accurately assess the
reliability of the contents of the report. Her evidence added little to her
report.
[55]
On appeal, the Crown accepts that the Sibblis
Report was properly admissible to the extent that it provided biographical
information and documents relevant to that information. We also do not
understand the Crown to suggest that the report was not admissible insofar as
it spoke to Mr. Morriss background, character, and circumstances. The Crown
argues that Ms. Sibblis offered various opinions she was not qualified to give.
We will address that argument below.
the arguments
A.
the relevance of evidence of anti-black racism on sentencing
[56]
A sentencing judge has a specific and
focused task. A sentencing judge must impose a sentence tailored to the
individual offender and the specific offence. While evidence relating to the
impact of anti-Black racism on an offender will sometimes be an important consideration
on sentencing, the trial judges task is not primarily aimed at holding the
criminal justice system accountable for systemic failures. Rather, the
sentencing judge must determine a fit sentence governed by the fundamental tenets
of criminal responsibility, including free will, and the purposes, principles
and objectives of sentencing laid down in Part XXIII of the
Criminal Code
:
R. v. Nur
, 2015 SCC 15, [2015] 1
S.C.R. 773 (
Nur (SCC)
),
at para. 43, affg 2013 ONCA 677, 117 O.R. (3d) 401 (
Nur (ONCA)
);
R. v. Nasogaluak
, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 39-45;
Hamilton
, at paras. 2, 87; see also Michael C. Plaxton,
Nagging Doubts About the Use of Race (and Racism) in Sentencing (2003) 8 C.R.
(6th) 299, at pp. 306-7.
(i)
The Statutory Framework
[57]
The comprehensive
statutory
scheme governing sentencing first
appeared in the
Criminal Code
in 1996:
An Act to amend the
Criminal Code (sentencing) and other Acts in consequence thereof
, S.C.
1995, c. 22. Section 718 identifies the fundamental purpose of sentencing as
being:
to protect society and to
contribute, along with crime prevention initiatives, to respect for the law and
the maintenance of a just, peaceful and safe society by imposing just sanctions
.
[58]
Section 718 recognizes that just sanctions will
have one or more of the objectives identified in ss. 718(a)-(f). Those
objectives will not necessarily point toward the same sentencing disposition. The
individualization of the sentencing process requires sentencing judges to
prioritize and blend the different objectives of sentencing so as to properly
reflect the seriousness of the offence and the responsibility of the offender. The
objectives identified in s. 718 are:
(a) to denounce unlawful conduct and
the harm done to victims or to the community that is caused by unlawful
conduct;
(b) to deter the offender and other
persons from committing offences;
(c) to separate offenders from
society, where necessary;
(d) to assist in rehabilitating
offenders;
(e) to provide reparations for harm
done to victims or to the community; and
(f) to promote a sense of
responsibility in offenders, and acknowledgment of the harm done to victims or
to the community.
[59]
The search for a just sanction which reflects a
proper blending of the objectives of sentencing is guided by the loadstar of
proportionality. This fundamental principle of sentencing is laid down in s.
718.1:
A sentence must be proportionate to
the gravity of the offence and the degree of responsibility of the offender.
[60]
Additional guiding principles are found in ss. 718.2(b)-(e):
(b) a sentence should be similar to
sentences imposed on similar offenders for similar offences committed in
similar circumstances [
the parity principle
];
(c) where consecutive sentences are
imposed, the combined sentence should not be unduly long or harsh [
the totality principle
];
(d) an offender should not be
deprived of liberty, if less restrictive sanctions may be appropriate in the
circumstances [
the restraint principle
];
and
(e) all available sanctions, other
than imprisonment, that are reasonable in the circumstances and consistent with
the harm done to victims or to the community should be considered for all
offenders, with particular attention to the circumstances of Aboriginal
offenders [
the restraint principle as
applied to incarceration
].
(ii)
The Proportionality Principle
[61]
Proportionality is the fundamental and
overarching principle of sentencing. The other sentencing principles set out in
s. 718.2 must be taken into account and blended in a manner which produces a
sentence that is proportionate to the gravity of the offence and the degree of
responsibility of the offender. A sentence which does not comply with the
proportionality principle is an unfit sentence:
R. v. Ipeelee
, 2012
SCC 13, [2012] 1 S.C.R. 433, at para. 37.
[62]
Proportionality measured by reference to both
the offence and the offender has been an integral part of sentencing in Canada since
long before the enactment of s. 718.1: see
R. v. M. (C.A.)
, [1996] 1
S.C.R. 500, at para. 40. Under the statutory scheme, proportionality is
central:
R. v. Friesen
, 2020 SCC 9, 391 C.C.C. (3d) 309, at para.
30; see also
Hamilton
, at para. 89.
[63]
Jurisprudence from the Supreme Court of Canada postdating
the enactment of s. 718.1 repeatedly confirms the paramount role of
proportionality in sentencing. As explained in
Ipeelee
, at para. 37:
The fundamental principle of sentencing (i.e.,
proportionality) is intimately tied to the fundamental purpose of sentencing
the maintenance of a just, peaceful and safe society through the imposition of
just sanctions. Whatever weight a judge may wish to accord to the various
objectives and other principles listed in the
Code
, the resulting
sentence must respect the fundamental principle of proportionality. Proportionality
is the
sine qua non
of a just sanction. First, the principle ensures
that a sentence reflects the gravity of the offence. This is closely tied to
the objective of denunciation. It promotes justice for victims and ensures
public confidence in the justice system
.
Second, the principle of proportionality
ensures that a sentence does not exceed what is appropriate, given the moral
blameworthiness of the offender. In this sense, the principle serves a limiting
or restraining function and ensures justice for the offender. In the Canadian
criminal justice system, a just sanction is one that reflects both perspectives
on proportionality and does not elevate one at the expense of the other.
[64]
In
Nur (SCC)
, at para. 43, McLachlin
C.J. drew a straight line from proportionality to the imposition of a just
sentence under s. 718:
It is no surprise, in view of the constraints
on sentencing, that imposing a proportionate sentence is a highly individualized
exercise, tailored to the gravity of the offence, the blameworthiness of the
offender, and the harm caused by the crime
. Only if this is so can the public
be satisfied that the offender deserved the punishment he received and feel a
confidence in the fairness and rationality of the system
. [Citations and quotation
marks omitted.]
[65]
In
Nasogaluak
,
at para. 42, LeBel J. described the duality
of proportionality. On the one hand, it looks to the offenders culpability and
responsibility. On the other, proportionality is measured by reference to the
seriousness of the crime. LeBel J. said:
It [proportionality] requires that a sentence
not
exceed
what is just and appropriate, given the moral
blameworthiness of the offender and the gravity of the offence. In this sense,
the principle serves a limiting or restraining function. However, the
rights-based, protective angle of proportionality is counter-balanced by its
alignment with the just desserts philosophy of sentencing, which seeks to
ensure that offenders are held responsible for their actions and that the sentence
properly reflects and condemns their role in the offence and the harm they
caused
. [Citations omitted; emphasis in original.]
[66]
In
R. v. Lacasse
, 2015 SCC 64, [2015] 3
S.C.R. 1089, at para. 12, the majority said:
[P]roportionality is the cardinal principle
that must guide appellate courts in considering the fitness of a sentence
imposed on an offender. The more serious the crime and its consequences, or the
greater the offenders degree of responsibility, the heavier the sentence will
be. In other words, the severity of a sentence depends not only on the
seriousness of the crimes consequences, but also on the moral blameworthiness
of the offender. Determining a proportionate sentence is a delicate task.
(a)
Proportionality: The Gravity of the Offence
[67]
An assessment of the gravity or seriousness of the
offence is one part of the proportionality analysis. The seriousness of the
offence is reflected in the essential elements of the offence; the more
blameworthy the required
mens rea
, and the more harmful the prohibited
conduct, the more serious the crime. The gravity of the offence is also
reflected in the applicable penalty provision. In addition, the specific circumstances
surrounding the commission of the offence can make the crime more or less serious.
Parliament has identified some of the features which aggravate the seriousness of
an offence in s. 718.2(a): see
Hamilton
, at para. 90;
Ipeelee
,
at paras. 53-55.
[68]
As described in
Friesen
, at paras.
75-76, the gravity of an offence takes into account the normative wrongfulness
of the conduct and the harm posed or caused by the conduct. Gun crimes
involving the possession of loaded, concealed firearms in public places pose a
real and immediate danger to the public, especially anyone who interacts with
the gun holder. When the person with the gun is confronted by the police, who
are engaged in the lawful execution of their duties, the risk increases dramatically.
It increases yet again when the gun holder flees, and still again when the gun
holder discards the weapon in a public place. A person who carries a concealed,
loaded handgun in public undermines the communitys sense of safety and
security. Carrying a concealed, loaded handgun in a public place in Canada is
antithetical to the Canadian concept of a free and ordered society: see
Nur
(ONCA)
, at paras. 82, 206;
R. v. Felawka
, [1993] 4 S.C.R. 199, at
pp. 214-15.
[69]
The seriousness or gravity of an offence affects
the ordering and weighing of the various objectives of sentencing identified in
s. 718. Generally speaking, the more serious the offence, the stronger the need
to denounce the unlawful conduct and deter the offender and others from further
offending. Parliament has drawn the connection between the seriousness of the
offence, and denunciation and deterrence by identifying various categories of
serious crimes (e.g., crimes against children, the police, and vulnerable
persons) for which primary consideration must be given to the objectives of
denunciation and deterrence:
Criminal Code
, ss. 718.01, 718.02,
718.03, 718.04.
[70]
When the gravity of the offence demands an
emphasis on the objectives of denunciation and deterrence, the proportionality
principle will most often require a disposition that includes imprisonment.
Wagner J. (as he then was) observed in
Lacasse
, at para. 6:
[A]s in all cases in which general or specific
deterrence and denunciation must be emphasized, the courts have very few
options other than imprisonment for meeting these objectives, which are
essential to the maintenance of a just, peaceful and law
‑
abiding society.
[71]
Apart from the specific provisions in the
Criminal
Code
, Canadian courts have long recognized that the gravity of certain kinds
of offences requires sentences emphasizing denunciation and general deterrence.
Gun crimes involving the unlawful possession of loaded handguns in public
places fall squarely within that category. McLachlin C.J., in
Nur (SCC)
,
at para. 82, observed that a three-year sentence may be appropriate for the
vast majority of offences under s. 95: see also
Nur (ONCA)
, at para.
206;
R. v. Mansingh
, 2017 ONCA 68, at para. 24;
R. v. Marshall
,
2015 ONCA 692, 340 O.A.C. 201, at paras. 47-49; and
R. v. Danvers
(2005), 199 C.C.C. (3d) 490 (Ont. C.A.), at para. 77.
[72]
The trial judge acknowledged that deterrence and
denunciation were the most important objectives when sentencing Mr. Morris. He
accepted that those objectives required a significant jail term.
[73]
The trial judge went on, however, to hold that
systemic racism and its effects:
must surely have some impact upon the
application of general deterrence and denunciation. It can impact upon on [
sic
]
how we characterize the seriousness of the offence.
[74]
The trial judge indicated that if systemic
racism effectively limited the choices available to an offender, general
deterrence and denunciation should have a less significant role in sentencing.
[75]
With respect, we do not agree that the gravity
or seriousness of Mr. Morriss offences is diminished by evidence which sheds
light on why he chose to commit those crimes. We do agree with the trial judge
that an offenders life experiences can certainly influence the choices made by
the offender, and can explain, to some degree at least, why an offender made a
choice to commit a particular crime in the specified circumstances. Those life
experiences can include societal disadvantages flowing from systemic anti-Black
racism in society and the criminal justice system.
[76]
Evidence that an offenders choices were limited
or influenced by his disadvantaged circumstances, however, speaks to the
offenders moral responsibility for his acts and not to the seriousness of the
crimes. Possession of a loaded, concealed handgun in public is made no less serious,
dangerous, and harmful to the community by evidence that the offenders
possession of the loaded handgun can be explained by factors, including
systemic anti-Black racism, which will mitigate, to some extent, the offenders
responsibility: see
Hamilton
, at paras. 134-39;
R. v. Hazell
,
2020 ONCJ 358, at paras. 30-32; see also Dale E. Ives, Inequality, Crime and
Sentencing:
Borde
,
Hamilton
and the Relevance of Social
Disadvantage in Canadian Sentencing Law (2004) 30 Queen's L.J. 114, at p. 149.
[77]
It is important to preserve the distinction
between factors relevant to the seriousness or gravity of the crime on the one
hand, and factors relevant to the offenders degree of responsibility on the
other. Unless the distinction is maintained, the proportionality principle may
be misapplied. A sentence, like the sentence imposed here, which wrongly
discounts the seriousness of the offence to reflect factors which are actually
relevant to the offenders degree of responsibility, will almost inevitably
produce a sentence that does not adequately reflect the seriousness of the
offence and, therefore, fails to achieve the requisite proportionality.
[78]
Nothing in the social context evidence adduced
on Mr. Morriss behalf detracted from the seriousness of his crimes, or the
need to denounce that criminal conduct and deter others from committing similar
crimes. Mr. Morriss own experiences in his community, as related to Ms.
Sibblis, strongly make the case for the very real and deep harm caused to
everyone in the community by persons who, like Mr. Morris, choose to engage in dangerous
criminal conduct that inevitably compromises the security of the entire community.
[79]
The social context evidence can, however,
provide a basis upon which a trial judge concludes that the fundamental purpose
of sentencing, as outlined in s. 718, is better served by a sentence which,
while recognizing the seriousness of the offence, gives less weight to the
specific deterrence of the offender and greater weight to the rehabilitation of
the offender through a sentence that addresses the societal disadvantages
caused to the offender by factors such as systemic racism.
[80]
Blending the various objectives of sentencing is
the essence of the sentencing process. There is seldom one and only one fit
sentence. As long as the sentence imposed complies with the proportionality requirement
in s. 718.1, trial judges are given considerable discretion to decide how best
to blend the various legitimate objectives of sentencing. If trial judges operate
within that band of discretion, the different weight assigned to different
objectives may produce different but nonetheless equally fit sentences.
[81]
In the present case, the social context evidence
provided a basis upon which the trial judge could give added weight to the
objective of rehabilitation and less weight to the objective of specific
deterrence. By doing so, the trial judge would not diminish the seriousness of
the crime, but would recognize that the ultimate sentence imposed must be
tailored to the specific offender and the potential rehabilitation of that
offender. As long as the sentence ultimately imposed remains proportionate to
the offence and the offender, the actual sentence imposed would be a fit
sentence.
[82]
In a somewhat related submission, some of the
interveners argue that because society as a whole is complicit in the anti-Black
racism the trial judge found played a role in Mr. Morriss commission of the
offences, the court loses much, or at least some, of its moral authority to
denounce the offenders conduct through the sentence imposed. If this
submission were to be accepted, the objectives of denunciation and deterrence,
always viewed as paramount objectives when sentencing for serious gun crimes,
would be tempered in cases involving Black offenders by a countervailing
objective requiring that the sentence imposed acknowledge the offenders status
as a victim of societys racism.
[83]
On the interveners submission, the allocation
of responsibility for the offenders crime, as between society at large and the
offender, would become an objective of sentencing to be calibrated along with
denunciation, deterrence, and rehabilitation. There is no such objective
identified in s. 718 of the
Criminal Code
. Nor are we aware of any
appellate jurisprudence recognizing the allocation of societal fault as an
objective of sentencing.
2F
[3]
Allocating
moral responsibility for crimes as between society at large and the individual
offender should play no role in fixing the appropriate sentence in gun-related
crimes:
Hamilton
, at paras. 2, 148.
[84]
If societys complicity in institutional racism
means denunciation and general deterrence should play a lesser role in
sentencing for serious crimes, it will follow that Black offenders who commit those
serious crimes, such as gun crimes, will receive shorter jail sentences than other
similarly situated non-Black offenders.
[85]
As pointed out in the Expert Report on Crime,
Criminal Justice and the Experience of Black Canadians in Toronto, Ontario, Black
communities experience a disproportionate share of serious violent crime in the
Toronto area. Black youth in particular report higher levels of both violent
victimization and violent offending than youth from other racial groups. Law-abiding
members of those communities are the victims of overt and systemic anti-Black
racism. They are also the victims, both direct and indirect, of the harm caused
by gun-related crimes in their communities. Are these law-abiding members of
the community to be told that the message of denunciation and deterrence, which
applies to gun crimes committed in other communities, is to be muted in gun
crimes committed against them in their community so the court can acknowledge
the reality of anti-Black racism, a reality that those members of the community
know only too well? We strongly doubt that more lenient sentences for the
perpetrators of gun crimes will be seen by the law-abiding members of the
community as a positive step towards social equality. Any failure to
unequivocally and firmly denounce serious gun crimes, like those committed by
Mr. Morris, through the punishment imposed, implies tolerance of those crimes when
committed by certain offenders in certain communities.
[86]
Although we reject the claim that societal
complicity in anti-Black racism diminishes the need to denounce and deter
serious criminal conduct, we accept wholeheartedly that sentencing judges must
acknowledge societal complicity in systemic racism and be alert to the
possibility that the sentencing process itself may foster that complicity. A
frank acknowledgement of the existence of, and harm caused by, systemic
anti-Black racism, combined with a careful consideration of the kind of
evidence adduced in this case, will go some distance toward disassociating the
sentencing process from societys complicity in anti-Black racism.
(b)
Proportionality: The Offenders Degree of Responsibility
[87]
While we do not agree that evidence of the
impact of anti-Black racism on an offender can diminish the seriousness of the
offence, or that systemic inequalities diminish the courts authority, or
indeed, its obligation to denounce serious criminal conduct, we do accept that
evidence of anti-Black racism and its impact on the specific offender can be an
important consideration when determining the appropriate sentence.
[88]
Sentencing judges have always taken into account
an offenders background and life experiences when gauging the offenders moral
responsibility for the crime and when choosing from among available sanctions.
Over 40 years ago, the Appeal Division of the Nova Scotia Supreme Court in
R.
v. Bartkow
(1978), 24 N.S.R. (2d) 518 (App. Div.), at p. 522, put it this
way when describing the purposes of a presentence report:
Their function is to supply a picture of the
accused as a person in society - his background, family, education, employment
record, his physical and mental health, his associates and social activities,
and his potentialities and motivations.
[89]
In
Gladue
, at para. 69, and
Ipeelee
,
at paras. 75-77, the court accepted that background and systemic factors
should be taken into account when sentencing all offenders. These factors take
on added significance in respect of Indigenous offenders, given their unique history
and circumstances: see also
R. v. Anderson
, 2014 SCC 41, [2014] 2
S.C.R. 167 (
Anderson (SCC)
), at paras. 21, 23-24;
R. v. F.H.L.
,
2018 ONCA 83, 360 C.C.C. (3d) 189, at paras. 31-32;
R. v. Brown
, 2020
ONCA 657, 152 O.R. (3d) 650, at paras. 50-51.
[90]
In
Gladue
and
Ipeelee
, the
systemic and background factors relevant to sentencing included the systemic discrimination,
both historical and ongoing, suffered by Indigenous persons, especially in the
criminal justice system. The experience of Black people in Canada is also marked
by discrimination. Black people share with Indigenous peoples many of the same
disadvantages flowing from that discrimination. The reports filed on Mr.
Morriss sentencing speak eloquently to the historical roots of that
discrimination and its pernicious ongoing effect on many aspects of the
day-to-day lives of Black people in Canada.
[91]
There can be no doubt that evidence on
sentencing, describing the existence and effect of anti-Black racism in the
offenders community and the impact of that racism on the offenders
circumstances and life choices is part of the offenders background and
circumstances. The evidence is not only admissible, it is, in many cases,
essential to the obtaining of an accurate picture of the offender as a person
and a part of society.
[92]
This court has recognized that systemic and
background factors, including those attributable to anti-Black racism, may be
relevant when sentencing Black offenders. In
Borde
, at para. 32,
Rosenberg J.A. for the court said:
[T]he principles that are generally applicable
to all offenders, including African Canadians, are sufficiently broad and
flexible to enable a sentencing court in appropriate cases to consider
both the systemic and background factors that may have played a
role in the commission of the offence
. [Emphasis added.]
[93]
In
Hamilton
, this court followed
Borde
,
holding at para. 135:
Reference to factors that may have played a
role in the commission of the offence encompasses a broad range of potential
considerations.
Those factors include any explanation for
the offender's commission of the crime. If racial and gender bias suffered by
the offender helps explain why the offender committed the crime, then those
factors can be said to have played a role in the commission of the offence
.
[Emphasis added; quoting
Borde
, at para. 32.]
[94]
Hamilton
goes on
to explain at para. 141 how disadvantaged circumstances, including those connected
to racism, can mitigate to some degree the personal responsibility of the
offender. The court quoted with approval the observation of Durno J. in
R.
v. G.B.
, [2003] O.J. No. 3218 (S.C.), at para. 45:
The offenders [
sic
] background is
always a relevant factor on sentencing. A sentence must be appropriate for both
the offence and the offender. A person with a disadvantaged background, who had
been subjected to systemic prejudices or racism, or was exposed to physical,
sexual or emotional abuse, may receive a lower sentence than someone from a
stable and peaceful background, where the offence is in some way linked to the
background or systemic factors. The relevant factors in one persons background
will be case specific. A single factor will rarely be determinative.
[95]
Borde
was
recently followed by this court in
R. v. Rage
, 2018 ONCA 211, at
paras. 13-14, and has been applied in other jurisdictions: see e.g.,
R. v.
Gabriel
, 2017 NSSC 90, 37 C.R. (7th) 206, at para. 50 (citing
R. v.
X
, 2014 NSPC 95, 353 N.S.R. (2d) 130).
[96]
Some of the interveners submit that
Hamilton
,
at para. 137, wrongly requires a direct
causal link between the offence and the negative effects of anti-Black racism
on the offender before anti-Black racism can be seen as mitigating personal
responsibility. We agree that the concept of causation, as it is used in the
substantive criminal law, plays no role when considering the impact of an
offenders background or circumstances on sentencing. As one counsel put it, a
young offender does not have to show a causal connection between age and the
offence before age will be treated as a mitigating factor.
[97]
There must, however, be some connection between
the overt and systemic racism identified in the community and the circumstances
or events that are said to explain or mitigate the criminal conduct in issue. Racism
may have impacted on the offender in a way that bears on the offenders moral
culpability for the crime, or it may be relevant in some other way to a determination
of the appropriate sentence. Absent some connection, mitigation of sentence
based simply on the existence of overt or institutional racism in the community
becomes a discount based on the offenders colour. Everyone agrees there can be
no such discount: see e.g.,
F.H.L.
, at paras. 45-49;
R. v. Elvira
,
2018 ONSC 7008, at paras. 21-25;
R. v. Ferguson
, 2018 BCSC 1523, 420
C.R.R. (2d) 22, at paras. 126-29; and
R. v. Biya
, 2018 ONSC 6887, at
para. 36, revd on other grounds, 2021 ONCA 171.
[98]
Borde
and
Hamilton
both described the connection between anti-Black racism and factors relevant to
the determination of a fit sentence in broad terms. Similar language appears in
Gladue
and
Ipeelee
in respect of the relevance of background
and systemic factors. The evidence may be relevant to sentencing in more than
one way.
[99]
The social context evidence may offer an
explanation for the commission of the offence which mitigates the offenders
personal responsibility and culpability for the offence. Mr. Morriss strong
and ever-present fear of many people around him in his community, including the
police, was offered as an explanation for his possession of a loaded gun. The
information in both reports supported the inference that Mr. Morriss fears
were real, justified and existed, in part, as a result of systemic racism that
played a role in shaping his perception of his community, his relationship with
others in the community, and his relationship with the police.
[100]
It was open to the trial judge to find that the evidence of anti-Black
racism was connected to, or played a role in, Mr. Morriss strong fear for his
personal safety in the community. That state of mind offered a mitigating explanation
for Mr. Morriss possession of the loaded, concealed handgun. Looked at in this
way, evidence of anti-Black racism, which played a role in generating the fear
that helps explain why Mr. Morris had a loaded gun, is akin, for the purposes
of sentencing, to evidence that Mr. Morris had been terrorized by somebody in
the community and had armed himself because he genuinely feared that person. In
either scenario, the offender offers an explanation for possessing a loaded gun,
which, to some extent, ameliorates the offenders moral responsibility for that
choice: see
R. v. Boussoulas
, 2015 ONSC 1536, at paras. 6-7, 20, affd
2018 ONCA 222, 407 C.R.R. (2d) 44.
[101]
It must be stressed, however, that Mr. Morriss genuine fear,
regardless of its cause, is only a limited mitigating factor. He still chose to
arm himself in public with a concealed, loaded, deadly weapon. As indicated
above, Mr. Morriss reasons for choosing to arm himself do not detract from the
seriousness of the crime he committed. Even if his conduct is made somewhat
less blameworthy by the explanation offered for possessing the loaded handgun,
Mr. Morriss conduct still put members of the community, and police officers
engaged in the lawful execution of their duties, at real risk.
(c)
Proportionality: Blending the Objectives of
Sentencing
[102]
Social context evidence can also be relevant on sentencing even if it
does not tend to mitigate the offenders moral culpability. As indicated
earlier, social context evidence can provide valuable insight, both with
respect to the need to deter the offender from future conduct, and the
rehabilitative prospects of the offender. Evidence about an offenders
background and circumstances allows the sentencing judge to more accurately
assess how sometimes competing objectives of sentencing, such as rehabilitation
and denunciation, can best be blended to produce a sentence that accords with
the proportionality principle and serves the fundamental purpose of sentencing
articulated in s. 718.
[103]
For example, evidence that an offender has had frequent and
confrontational contact with the police may mean one thing in one community,
but quite another in a community in which the influences of anti-Black racism
have shaped a confrontational and adversarial relationship between the police and
members of the community, especially young Black men. By understanding the
social milieu in which the offender interacted with the police, the sentencing judge
is better able to fashion a sentence that, to the extent possible, realistically
addresses the needs and potential of the offender, as well as the seriousness
of the offence.
[104]
Mr. Morriss educational and employment history provides a further example
of how social context evidence can assist in fashioning a fit sentence.
Considered without the social context evidence, Mr. Morriss educational and
employment achievements are meagre and his future prospects seem bleak. Without
any context, a sentencing judge could well conclude Mr. Morris had little
interest in either education or employment, and consequently his rehabilitative
prospects were dim. However, when Mr. Morriss educational and employment
background is considered in the context of the information provided by the
Sibblis Report, a sentencing judge could determine that Mr. Morriss
trajectory, as it relates to education and employment, is more reflective of the
institutional biases and systemic inadequacies faced by Mr. Morris than any
lack of potential or interest on Mr. Morriss part. By placing Mr. Morriss
educational and employment history in the proper social context, a sentencing
judge is better able to decide how those parts of Mr. Morriss background might
be addressed in a positive way that benefits Mr. Morris and ultimately the
community.
[105]
A proper understanding of how anti-Black racism has impacted on
various aspects of an offenders life will assist the sentencing judge in
fashioning a sentence which includes terms that enhance the offenders
rehabilitation by addressing, in a direct and positive way, the negative impact
of systemic racism. The counselling term in the probation order made by the
trial judge in this case had that potential. The detailed terms of the
conditional sentence imposed in
Anderson (NSCA)
, at paras. 72-73, also
serve that purpose.
[106]
I
n summary, social context evidence, which
helps explain how the offender came to commit the offence, or which allows for
a more informed and accurate assessment of the offenders background, character
and potential when choosing from among available sanctions, is relevant and
admissible on sentencing.
Acknowledging
the reality of anti-Black racism and its impact on offenders like Mr. Morris
during the sentencing process enhances the legitimacy of the criminal justice
system in the eyes of the community and, in particular, those in the community
who have good reason to see the criminal justice system as racist and unjust. A
sentencing process which frankly acknowledges and addresses the realities of
the offenders life takes one important step toward the goal of equal justice
for all.
[107]
We see nothing new in the approach to sentencing described above. It
reflects the individualized offence and offender-specific approach to
sentencing that has always held sway in Canadian courts. The sentencing
process, as it exists, can properly and fairly take into account anti-Black
racism and its impact on the offenders responsibility, and the selection of an
appropriate sanction in all the circumstances. What is new is the kind of
information provided in reports like the two filed in this case and a judicial
willingness to receive, understand, and act on that evidence.
(iii)
The Parity Principle
[108]
The parity principle in s. 718.2(b) requires that to the extent
offenders and their offences are similar, their sentences should be similar.
Parity aims at substantive equality. If there are material differences between
the circumstances of the offence or the offender, those differences must be
reflected in the sentences imposed. A sentence which takes those differences
into account does not offend the parity principle, but instead properly
recognizes the relationship between that principle and the fundamental
principle of proportionality:
Friesen
, at paras. 32-33;
Ipeelee
,
at para. 79.
[109]
The trial judge ultimately determined, based on the social context
evidence and his findings with respect to the impact of anti-Black racism on Mr.
Morriss circumstances and his moral culpability, that a sentence well below
the range established for the offences, even when committed by a young first
offender, was appropriate. Sentences below the established range are not
necessarily unfit: see
Friesen
, at para. 38;
R. v. Suter
, 2018
SCC 34, [2018] 2 S.C.R. 496, at para. 4.
[110]
The fitness of Mr. Morriss sentence does not ultimately depend on a
comparison of that sentence with those imposed in other gun crime cases. The
fitness of the sentence turns on whether the trial judge erred in holding that the
social context evidence both diminished the seriousness of the offences, and mitigated
Mr. Morriss personal responsibility to the degree that a sentence well below
the sentences normally imposed for the offences was justified in the
circumstances.
(iv)
The Restraint Principle
[111]
Under the statutory regime created by Part XXIII, imprisonment is a
sanction of last resort. This principle finds expression in ss. 718.2(d) and
(e):
(d) an offender should not be
deprived of liberty, if less restrictive sanctions may be appropriate in the
circumstances; and
(e) all available sanctions, other
than imprisonment, that are reasonable in the circumstances and consistent with
the harm done to victims or to the community should be considered for all
offenders, with particular attention to the circumstances of Aboriginal
offenders.
[112]
Both provisions are remedial in nature and apply to all offenders:
Gladue
,
at paras. 36, 45-48. They are intended to remedy the acknowledged overuse of incarceration
as a criminal sanction in Canada:
Gladue
, at para. 57. The restraint principle
operates both when deciding whether incarceration is an appropriate disposition
and, if it is, when fixing the length of that incarceration:
Gladue
,
at paras. 79, 93. The restraint principle, however, operates within the
boundaries set by the fundamental principle of proportionality. As stated by
Moldaver J. in
Suter
, at para. 56, the fundamental principle of
proportionality must prevail in every case.
[113]
Although the restraint principle applies when sentencing all
offenders, s. 718.2(e) applies with particular attention to the circumstances
of Aboriginal offenders. Not surprisingly, given this language, the courts
have interpreted s. 718.2(e) as signalling Parliaments direction that a different
approach should be taken when applying the restraint principle to the
sentencing of Indigenous offenders. That approach was first laid down in
Gladue
and further developed in
Ipeelee
. None of the parties take exception
to the methodology developed in those cases, as applied to Indigenous offenders.
Some of the interveners, however, submit this court should extend that approach
to the sentencing of Black offenders.
[114]
Indigenous offenders were singled out in s. 718.2(e) for two reasons.
First, the problems associated with over-incarceration exist with devasting
force in Indigenous communities:
Gladue
, at paras. 58-65;
Ipeelee
,
at paras. 56-58. Second, for many Indigenous offenders and their communities, some
of the principles and objectives underlying sentencing in Part XXIII do not
represent Indigenous values or reflect the unique experiences and perspectives
held by many Indigenous communities. In short, what amounts to a just
sentence from a non-Aboriginal vantage point will not necessarily be seen as a just
sentence from the very different historical and cultural vantage point of the Indigenous
offender and community:
Gladue
, at paras. 70-74, 77.
[115]
The unique circumstances of Indigenous offenders, which require
special consideration when addressing the restraint principle, include both the
systemic and background factors which played a role in bringing the offender
before the court, and the unique Indigenous perspective as to how best to
achieve a just sentence which protects the community:
Gladue
, at
paras. 66, 93.
[116]
In
Ipeelee
, at para. 73, the court acknowledged that
systemic and background factors, including institutional biases and
discrimination, could play a role in determining the Indigenous offenders
degree of moral responsibility for the crime. In addition, the unique cultural
and historical factors, which shaped Indigenous attitudes toward crime and
punishment, could have an effect on the selection of the sanction which best achieves
the purpose of sentencing as laid down in s. 718. Addressing the significance
of cultural and historical differences, LeBel J. observed, at para. 74:
The second set of circumstances
the types of sanctions which may be appropriate
bears not on the degree of culpability of the
offender, but on the effectiveness of the sentence itself. As Cory and
Iacobucci JJ. point out, at para. 73 of
Gladue
:
What is important to recognize is that,
for many if not most aboriginal offenders, the current concepts of sentencing
are inappropriate because they have frequently not responded to the needs,
experiences, and perspectives of aboriginal people or aboriginal communities. As
the [Royal Commission on Aboriginal Peoples] indicates, at p. 309 [of its
report,
Bridging the Cultural Divide: A Report on Aboriginal People and
Criminal Justice in Canada
(Ottawa, 1996)], the crushing failure of the
Canadian criminal justice system
vis-à-vis
Aboriginal peoples is due
to the fundamentally different world views of Aboriginal and non-Aboriginal
people with respect to such elemental issues as the substantive content of
justice and the process of achieving justice. The
Gladue
principles
direct sentencing judges to abandon the presumption that all offenders and all
communities share the same values when it comes to sentencing and to recognize
that, given these fundamentally different world views, different or alternative
sanctions may more effectively achieve the objectives of sentencing in a
particular community.
[117]
Counsel for some of the interveners argue that the circumstances of Indigenous
offenders, which justify a different approach to sentencing, apply with equal
force to Black offenders. They point out that over-incarceration of Black
offenders is a well-documented phenomenon in the Canadian justice system. Counsel
submit that the negative impact of long-term and widespread discrimination
against Indigenous people is not unlike the impact of anti-Black racism on the Black
community. Both communities share educational, economic, and social disadvantages.
Perhaps most significantly, they share a very negative experience with and a
profound distrust of the criminal justice system.
[118]
We do not agree that this court should equate Indigenous offenders
and Black offenders for the purposes of s. 718.2(e). We come to that conclusion
for two reasons.
[119]
Sentencing policy falls to be set, first and foremost, by
Parliament. Parliament chose to specifically single out one group Aboriginal
offenders in the context of the operation of the restraint principle in
sentencing, especially as applied to imprisonment. As said in
Gladue
,
at para. 37:
Rather, the logical meaning to be derived from
the special reference to the circumstances of aboriginal offenders, juxtaposed
as it is against a general direction to consider the circumstances for all
offenders, is that sentencing judges should pay particular attention to the
circumstances of aboriginal offenders because those circumstances are unique,
and different from those of non-aboriginal offenders. The fact that the
reference to aboriginal offenders is contained in s. 718.2(e), in particular,
dealing with restraint in the use of imprisonment, suggests that there is
something different about aboriginal offenders which may specifically make
imprisonment a less appropriate or less useful sanction. [Emphasis omitted.]
[120]
Similarly, in
Ipeelee
, the court, at para. 59, read the
reference to Aboriginal offenders in s. 718.2(e) as indicating their
circumstances were unique and materially different from those of non-Aboriginal
offenders.
[121]
The language of s. 718.2(e) could not be clearer. Aboriginal
offenders have been singled out for the purposes of the application of the
restraint principle described in s. 718.2(e). It does not fall to the court to effectively
amend that language to include other identifiable groups.
[122]
In any event, the rationale offered in
Gladue
and
Ipeelee
for applying the restraint principle differently in respect of Indigenous
offenders does not apply to Black offenders. Although there can be no doubt
that the impact of anti-Black racism on a specific offender may mitigate that
offenders responsibility for the crime, just as with Indigenous offenders,
there is no basis to conclude that Black offenders, or Black communities, share
a fundamentally different view of justice, or what constitutes a just
sentence in any given situation. The Indigenous offenders culture and
historical relationship with non-Indigenous Canada is truly unique. That
uniqueness explains the very specific and exclusive reference to Aboriginal
offenders in s. 718.2(e).
[123]
Although we would not equate Black offenders with Indigenous
offenders, for the purposes of s. 718.2(e), the
Gladue
/
Ipeelee
jurisprudence can inform the sentencing of Black offenders in several respects:
see
Borde
, at para. 30. Just as with the discrimination suffered by Indigenous
offenders, courts should take judicial notice of the existence of anti-Black
racism in Canada and its potential impact on individual offenders. Courts
should admit evidence on sentencing directed at the existence of anti-Black
racism in the offenders community, and the impact of that racism on the offenders
background and circumstances. Similarly, in considering the restraint
principle, courts should bear in mind well-established over-incarceration of
Black offenders, particularly young male offenders. Finally, as with Indigenous
offenders, the discrimination suffered by Black offenders and its effect on
their background, character, and circumstances may, in a given case, play a
role in fixing the offenders moral responsibility for the crime, and/or blending
the various objectives of sentencing to arrive at an appropriate sanction in
the circumstances.
[124]
The restraint principle plays a specific and important role in
sentencing for serious crimes like crimes involving the unlawful possession of
loaded handguns. Because of the seriousness of crimes involving the possession
of loaded handguns, some term of imprisonment will usually be required to
reflect the seriousness of the crime.
[125]
The requirement of a sentence of imprisonment does not, however, end
the operation of the restraint principle. That principle requires the court, if
it determines that a sentence of less than two years imprisonment would be
appropriate, to consider whether the term of imprisonment could be served in
the community under a conditional sentence:
Criminal Code
, s. 742.1.
The restraint principle favours conditional sentences over-incarceration if a
conditional sentence is consistent with the proportionality principle: see
R.
v. R.N.S.
, 2000 SCC 7, [2000] 1 S.C.R. 149, at para. 21.
[126]
After
Nur
struck down the mandatory minimum, a conditional sentence
is statutorily available for offences under s. 95. As persuasively laid out in
Anderson
(NSCA)
, a carefully fashioned conditional sentence that is responsive,
both to the needs of denunciation and deterrence and the rehabilitative
potential of the offender, can, in some situations, be a fit sentence for a s.
95 offence: see also
R. v. Shunmuganathan
, 2016 ONCJ 519;
R. v.
Dalton
,
2018 ONSC 544
.
[127]
A conditional sentence, like that described in
Anderson (NSCA)
,
at paras. 126-41, can only be available if counsel provides the court with the
information needed to warrant the imposition of a conditional sentence. Not
only must the information speak to the offenders circumstances, it must include
proposed terms which will meaningfully address the need for deterrence,
denunciation, and ongoing supervision of the offender. The information provided
by counsel on sentence must give the sentencing judge reason to believe the
offender is committed to the terms of the proposed conditional sentence.
[128]
Counsels efforts alone will of course not be enough. The resources
needed by counsel to properly put forward this kind of information must be available,
as must the resources needed to effectively implement a conditional sentence
tailored to the needs of the offender like the sentence in
Anderson (NSCA)
.
The proposed federal legislation, combined with commitments made in the governments
2020 economic statement, suggest the previous government intended to make the
necessary resources available. Hopefully, that commitment will be renewed and
acted upon in the immediate future: see Bill C-22,
An Act to amend the
Criminal Code and the Controlled Drugs and Substances Act
, 2nd Sess., 43rd
Parl., 2021; see also Canada,
Supporting Canadians and Fighting COVID-19:
Fall Economic Statement 2020
(Ottawa: Department of Finance, 2020), at p.
85.
3F
[4]
[129]
The use of conditional sentences when sentencing young Black
offenders, in appropriate cases, also carries the added advantage of
addressing, at least as it relates to the offender before the court, the ongoing
systemic problem of the over-incarceration of young Black offenders.
[130]
Restraint also operates in another way. Even if the sentencing judge
decides incarceration is necessary, there is still a question of how long the
sentence should be. A sentence of more than two years excludes the possibility
of probation:
Criminal Code
, s. 731. If the sentencing judge determines
that the range of sentence for the particular offence and offender includes a
two-year sentence and that probation would assist the offenders
rehabilitation, the restraint principle favours imposing a sentence of no more
than two years, even if a somewhat longer period of incarceration would also fall
within the appropriate range.
[131]
As indicated in
R. v.
Smickle
, 2013 ONCA 678, 304
C.C.C. (3d) 371, at para. 30, additional reasons, 2014 ONCA 49, 306 C.C.C. (3d)
351, sentences at or just below the two-year mark may be appropriate for some
s. 95 offences. When the sentencing judge determines that an appropriate
sentence is in that range, counsel and the sentencing judge must fully explore
various options which could eliminate or reduce the offenders period of actual
incarceration while still giving effect to the proportionality principle.
B.
The Admissibility of the Report and Evidence of Ms. Sibblis
[132]
We have already summarized the substance of Ms. Sibbliss report and
her testimony (see paras. 44-52). The Crowns complaint with respect to the
admissibility of Ms. Sibbliss report and testimony is a relatively narrow one.
Counsel submits that, although Ms. Sibblis was tendered as an expert witness,
she was not properly qualified at the sentencing proceeding. Neither her areas
of expertise, nor the specific subject matters on which she was qualified to
give opinion evidence were identified. Consequently, argues the Crown, her report
and testimony roam over a wide variety of subjects, some of which required that
she be properly qualified as an expert. For example, the Crown argues that Ms.
Sibblis was not properly qualified to give opinion evidence, either about Mr.
Morriss state of mind, or any mental disorder he may have suffered from at the
relevant time.
[133]
The Crowns argument should be considered in the context of the
applicable evidentiary provisions in Part XXIII of the
Criminal Code
. Those provisions swing the evidentiary door
open
on sentencing. The rules of evidence are relaxed to facilitate the production
of any information that could help the sentencing judge arrive at a fit
sentence. Given the highly individualized nature of the sentencing inquiry, the
concept of relevance captures a broad band of information: see
Criminal
Code
, ss. 723, 726.1.
[134]
Information that sheds light on the offenders background,
character, and circumstances, or helps explain why the offender committed the
offence, is relevant on sentencing and potentially admissible. Much of the
information provided by Ms. Sibblis goes to the appellants background,
character, and circumstances. She tells Mr. Morriss life story as a young Black
man growing up and living in Toronto.
[135]
The biographical information tracing Mr. Morriss life experiences
laid out in the Sibblis Report was clearly admissible on sentencing. That
information included primary source documents and statements from Mr. Morris
and others close to him, including his mother. Although much of the information
was hearsay, the trial judge could rely on that information if he concluded it
was credible and trustworthy:
R. v. Gardiner
, [1982] 2 S.C.R. 368, at p.
414. No particular expertise was required for Ms. Sibblis to chronicle Mr.
Morriss background history and circumstances. To the extent that the Sibblis
Report chronicles Mr. Morriss life, it is not unlike a presentence report,
although it is much more thorough and detailed than most presentence reports.
[136]
The Sibblis Report does go on to connect Mr. Morriss disadvantaged
upbringing and circumstances to overt and systemic anti-Black racism. Ms.
Sibblis offers her assessment of the impact of that connection on the choices
Mr. Morris has made throughout his life, and on his outlook for the future. The
disadvantages suffered by Mr. Morris are part of his background and character
and are relevant to determining the appropriate sentence. Ms. Sibbliss opinion
that anti-Black racism plays a role in the existence and impact of those
disadvantages is also relevant to determining the fit sentence. An explanation
for a disadvantage or circumstance which played a role in the offenders
commission of the offence can shed light on how that disadvantage should be
taken into account on sentencing.
[137]
The parts of the Sibblis Report that draw a connection between
systemic factors and Mr. Morriss commission of the offences have much in
common with
Gladue
reports. The Sibblis Report is helpful for some of
the same reasons that
Gladue
reports have proven to be helpful when
sentencing Indigenous offenders. As with
Gladue
reports, the Sibblis
Report places Mr. Morriss history and circumstances in a social context which
enhances the sentencing judges understanding of Mr. Morris. A better
understanding of the offender is always a good thing on sentence.
[138]
A report very similar to the Sibblis Report was admitted without
objection in
Jackson
. Similar reports (IRCAs) are regularly admitted
in Nova Scotia criminal courts. In
Anderson (NSCA)
, the Nova Scotia
Court of Appeal strongly endorses the use of IRCAs in sentencing, especially for
young Black offenders. As the court in
Anderson (NSCA)
notes, at para. 83, the federal government has
recently endorsed the use of IRCAs and proposes to provide funding for them.
[139]
We accept that, in some respects, offering an opinion that draws the
connection between an offenders lived experiences and the impact of anti-Black
racism will require expertise. Ms. Sibbliss academic and clinical experiences provided
that expertise. She was competent to offer an opinion as to the connection
between anti-Black racism and Mr. Morriss involvement in the criminal justice
system.
[140]
Parts of the Sibblis Report and her evidence arguably offered
opinions with respect to matters that went beyond Ms. Sibbliss apparent expertise.
Some of her comments about the extent and effect of Mr. Morriss physical
injuries suffered in 2013, as well as her opinions about Mr. Morriss mental state
and his specific state of mind, arguably required expertise beyond that which
is self-evident from a review of Ms. Sibbliss credentials.
[141]
Even if Ms. Sibblis was not qualified to offer certain opinions
about Mr. Morriss mental state, or the extent of his physical injuries, the
Crown was not prejudiced by the opinions she gave. The trial judge had ample
evidence, apart from Ms. Sibbliss opinion, to support the conclusion that Mr.
Morris had significant emotional difficulties. The trial judge was entitled to
accept the psychiatric report prepared 11 months before the offences. That
report suggested a diagnosis of post-traumatic stress disorder (PTSD). The
Sibblis Report provided information from Mr. Morris about his mental state in
the ensuing period. According to him, he continued to experience the same intense
and ongoing fears, and sense of hopelessness he had related to the psychiatrist.
The trial judge could accept Mr. Morriss statements, as reported by Ms. Sibblis.
Those statements supported the continuing applicability of the psychiatric
diagnosis.
[142]
Similarly, apart from Ms. Sibbliss opinions about Mr. Morriss
physical injuries and their ongoing effect, the documentation established the
seriousness of those injuries. It was open to the trial judge to conclude those
injuries continued to present serious problems for Mr. Morris.
[143]
It would have been better had counsel specifically identified for
the trial judge the areas of Ms. Sibbliss report with respect to which the
Crown maintained there were legitimate doubts as to her qualifications to offer
the opinions contained in the report. After hearing argument on the contested
areas of the report, the trial judge could have determined the areas in which Ms.
Sibblis was entitled to give expert opinion evidence. In doing so, the trial
judge would have set the parameters of her testimony and identified the parts
of her report, if any, that went beyond her expertise and would not be
considered by the trial judge.
This approach would have served the same purpose
as a formal
voir dire
, but in a more expeditious manner, well-suited
to the introduction of evidence on sentencing.
[144]
We would add one further observation with respect to reports like
the Sibblis Report. Persons authoring presentence reports and
Gladue
reports are required to present an objective and balanced picture of the
offender for the court:
R. v. Lawson
, 2012 BCCA 508, 294 C.C.C. (3d)
369, at para. 28. Persons preparing social context reports are under the same
obligation. Ms. Sibblis acknowledged this obligation.
[145]
To maintain that objectivity, the report cannot purport to speak for
the offender or advocate on the offenders behalf. A social context report must
also distinguish between facts and an offenders perceptions and beliefs as
stated to the author. Both perceptions and facts are important, but they are
not the same thing. For example, an offenders assertion he was mistreated by
the police and correctional authorities and subject to unreasonable bail terms
cannot be presented as facts in the report. This caution is especially
important when the offender, like Mr. Morris, has been found by the judge and
the jury to have made serious false allegations of police misconduct while
under oath.
[146]
A properly prepared social context report must also carefully
consider the information available in the primary source documents collected.
Any claim that a particular event or incident is explained by institutional
bias can only be objectively assessed by reference to the actual events as
revealed in reliable primary source documents such as medical records. For
example, the Sibblis Report suggests that the failure to follow-up on Mr.
Morriss diagnosed psychiatric issues may have been a reflection of systemic
racism. The medical records, however, indicate that the psychiatrist did
prescribe medication and follow-up psychotherapy. Mr. Morris chose not to take
the medication or go back to the psychiatrist for the psychotherapy.
[147]
Reports like the Sibblis Report are not commonly used in Ontario. We
agree with the Nova Scotia Court of Appeal in
Anderson (NSCA)
that the
reports can be of great assistance to a sentencing judge. Hopefully, their
preparation can be adequately funded and they will become a common feature of
sentencing in Ontario in appropriate cases. We are confident that with more
experience in preparing these reports, and added guidance from the courts,
authors of these reports will appreciate the need to present an objective
assessment, while avoiding appearing to take on the role of advocate for the
offender.
C.
The Alleged Errors in the Trial Judges Reasons
[148]
The Crown submits that the 12-month sentence imposed by the trial
judge is demonstrably unfit and that the trial judge made errors in principle
that had a material impact on the sentence. The Crown contends that either
error justifies appellate intervention:
Friesen
, at paras. 25-26. As we
are satisfied there were errors in principle, we will address the fitness of
sentence from that perspective.
(i)
The Trial Judges Treatment of the Seriousness
of the Offences
[149]
As indicated earlier (paras. 75-78), the trial judge erred in
holding that systemic racism and its impact on Mr. Morris could mitigate the
seriousness of the offences committed by Mr. Morris and, in doing so, reduce
the significance of the objectives of denunciation and general deterrence in the
fixing of an appropriate sentence. The seriousness of Mr. Morriss crimes is not
diminished by evidence which speaks to his reason for committing the crimes. Specifically,
the explanation offered by counsel and accepted by the trial judge for Mr.
Morriss possession of the gun, his flight from the police, and his disposal of
the gun, while possibly relevant to his degree of personal responsibility, in
no way reduced the seriousness of the offences, or the need to denounce in no
uncertain terms Mr. Morriss criminal conduct.
[150]
Although
Mr. Morris was convicted of four gun-related charges, when considering the
seriousness of his conduct, it is appropriate to focus on the s. 95 charge, the
most serious of the four charges. That section prohibits the possession of a
loaded restricted/prohibited firearm.
[151]
Section 95 criminalizes a broad range of conduct. Mr. Morriss actions
fall at the true crime end of the spectrum of the conduct prohibited by s.
95. As this court and, more importantly, the Supreme Court of Canada have
indicated, crimes like those committed by Mr. Morris call for denunciatory
sentences. In most cases, penitentiary terms will be required. In some situations,
where there are strong mitigating factors, sentences at or near the maximum
reformatory sentence (two years, less a day), may be imposed: see
Smickle
,
at para. 30;
Nur (ONCA)
, at paras. 6, 17-23 and 206; and
Nur (SCC)
,
at para. 82.
[152]
The trial judge imposed a sentence that was far below the range described
in cases like
Nur
and
Smickle
. In doing so, he erred in
principle by deprecating the seriousness of the offences committed by Mr.
Morris and the need to unequivocally denounce the criminal conduct engaged in
by Mr. Morris through the sentence imposed on him.
[153]
At the same time, the trial judges reasons overstate the impact of
Mr. Morriss circumstances on
his ability to choose
whether or not to arm
himself with a loaded, concealed handgun. There is no evidence from Mr. Morris about
how he came to carry around a loaded, concealed handgun. In fact, Mr. Morris
insisted under oath he did no such thing. Absent any evidence from Mr. Morris as
to why he came to arm himself, it simply cannot be assumed that he was armed
because
he thought he had little choice in the matter.
[154]
The evidence does, however, offer an explanation, rooted in the
social context evidence, that explains why Mr. Morris made such a bad and
dangerous choice. That explanation points to circumstances, many of which were
not only beyond Mr. Morriss control, but were in fact imposed on him as a
consequence of systemic and overt anti-Black racism in various social
institutions.
(ii)
Other Alleged Errors
[155]
The errors described above (paras. 149-54) had a material impact on
the sentence imposed and are sufficient to warrant appellate intervention. We will,
however, address some of the other aspects of the trial judges reasons.
(a)
The Finding of Remorse
[156]
The trial judge accepted that Mr. Morris was remorseful. There was
evidence that Mr. Morris was sorry for the pain he had caused his mother,
regretted the mess he had made of his life, and wanted to change.
[157]
Remorse can offer meaningful mitigation when accompanied by an
acceptance of responsibility for ones crimes. A combination of remorse and an
acceptance of responsibility offers good reason to hope the offender will not
reoffend. The trial judge appears to have appreciated that remorse offers
meaningful mitigation only when accompanied by an acceptance of responsibility.
[158]
Nothing in this record is capable of supporting a finding that Mr.
Morris took any responsibility for his crimes at any time in these proceedings.
4F
[5]
Mr. Morris denied committing the offences at trial. He falsely
accused the police of planting the firearm and other serious misconduct, both
in his evidence on the stay motion and in his evidence before the jury. He said
nothing on sentencing to resile from the false evidence he gave at trial.
[159]
Mr. Morris, of course, cannot be punished on sentencing for denying
the allegations or falsely accusing the police of serious misconduct. However,
both are relevant when considering whether Mr. Morris took any responsibility
for his actions. Nothing in the Sibblis Report, or in Mr. Morriss statement at
sentencing, suggests he was prepared to take responsibility for anything. A
refusal to acknowledge, much less take responsibility for, criminal conduct, did
not augur well for Mr. Morriss rehabilitative potential and raises real
concerns about the risk that he will reoffend.
[160]
The trial judge appreciated that the sentence he imposed was a
lenient one. He did not consider whether Mr. Morriss failure to take any responsibility
for his criminal conduct rendered a lenient sentence inappropriate in the
circumstances.
(b)
The Trial Judges Treatment of Mr. Morriss
Reasons for Possession of the Handgun
[161]
The trial judge was satisfied that Mr. Morris had the loaded
handgun, at least in part, because of his precarious mental state. On the trial
judges findings, Mr. Morris constantly feared for his life in his community.
He felt helpless and saw nothing positive in his future.
[162]
The trial judge also accepted there was no evidence Mr. Morris had
the loaded gun for any specific criminal purpose. We take this to mean there
was no evidence Mr. Morris was involved in criminal activity and used the gun
as a tool of that trade.
[163]
Both findings were open to the trial judge. With respect to Mr.
Morriss mental state, the trial judge had Mr. Morriss description of his
state of mind, as provided to Ms. Sibblis, the psychiatric report from January
2014, and undisputed evidence concerning specific traumatic events, including
two prior stabbings. With respect to the conclusion there was no basis to find
he had the gun for an ulterior criminal purpose, the trial judge relied on the
character evidence offered on behalf of Mr. Morris at sentencing. Mr. Morris also
had no criminal record.
[164]
Both factors identified by the trial judge offered some mitigation
of Mr. Morriss personal culpability and blameworthiness. The trial judge
recognized this mitigation, but also concluded that Mr. Morriss reasons for
possessing a loaded, concealed handgun lessened the need to denounce Mr.
Morriss conduct.
[165]
The trial judge erred in holding that Mr. Morriss explanation for
possessing the loaded, concealed handgun rendered denunciation less important. Mr.
Morriss explanation in no way diminished the dangerousness of his conduct, or
the harm it caused to the community.
[166]
The explanation accepted by the trial judge for Mr. Morriss
possession of the loaded handgun had to be taken into account, along with other
mitigating factors, when assessing the personal culpability component of the
proportionality inquiry. The social context evidence accepted by the trial
judge put Mr. Morriss choice to carry a loaded, concealed handgun in a light
that reduced his personal culpability. That same evidence offered valuable
insights into Mr. Morriss background and character and, in particular, his
potential for rehabilitation that had to be taken into account when blending
the various objectives of sentencing.
(c)
The Flight from the Police and the Disposal of
the Gun
[167]
In his reasons on the motion to stay the proceedings (summarized
above, at paras. 26-32), the trial judge found that he was not satisfied Mr.
Morris knew the plainclothes officers, who initially attempted to stop him,
were police officers. The trial judge was, however, satisfied that Mr. Morris
knew the uniformed officer chasing him across the No Frills parking lot was a
police officer. Mr. Morris did not stop, but on the trial judges findings
continued to run until he was caught and tackled by the police officer. The
trial judge further held that Mr. Morris disposed of the loaded handgun in the
stairwell of the parking lot while running from the uniformed police officer.
[168]
The trial judge declined to treat Mr. Morriss flight from the
police or the disposal of the loaded handgun in a public area as aggravating
factors on sentence. He described both as reflexive and impulsive reactions
to the confrontation with the police. On the trial judges reasoning, that reaction
was explained in part by Mr. Morriss fears and distrust of the police. His
fear and mistrust were in turn the product of the systemic anti-Black racism
engrained in the policing of communities like the one Mr. Morris had grown up in.
[169]
The trial judge made his findings as to why Mr. Morris ran in the
absence of any such evidence from Mr. Morris. Mr. Morris had falsely denied
running from the uniformed officer, claiming he had stopped as soon as he saw
that it was a police officer.
[170]
On the trial judges findings, Mr. Morriss flight from the
plainclothes officers cannot be treated as an aggravating factor. However, his
decision to continue to run once he knew he was being chased by a police
officer does increase the seriousness of the offence. This is so for two
reasons. First, fleeing from the police while in possession of a loaded handgun
increases the risk of a confrontation, during which the weapon may be discharged
deliberately, or even accidentally. Either substantially increases the risk to
the public. Second, Mr. Morriss decision to run while armed with a loaded
handgun endangered the safety of the police officers who were engaged in the
lawful execution of their duty. Doing so aggravates the seriousness of the offence.
[171]
We would also hold that the trial judge made an unreasonable finding
of fact when he concluded Mr. Morriss flight and disposal of the gun was an impulsive
reaction caused by his fear of the police and a concern he would not be treated
fairly. The trial judges analysis ignores that Mr. Morris was in the act of
committing a serious crime when confronted by the police. He had to know that
if caught with a loaded gun, he would be arrested and incarcerated. Mr. Morris chose
to run and attempted to dispose of the weapon out of the sight of the police
before he was apprehended. The only reasonable inference is that Mr. Morris ran
and disposed of the gun in an effort to avoid being caught and charged with a
serious crime.
[172]
The trial judge also made an error in concluding the disposal of the
handgun in a public place was not a weighty aggravating factor in this case.
The trial judge discounted the significance of that factor because the place
where the gun was thrown was not easily accessible to a passerby or innocents.
On the evidence, Mr. Morris threw the gun away in a public stairwell located in
a parking lot of a grocery store. The stairwell was readily accessible by the
public, even if it was not used a great deal. In any event, leaving a loaded
firearm anywhere in a public space is clearly a significant aggravating factor.
(d)
The Mitigation for the Breach of Mr. Morriss
Charter
Rights
[173]
The trial judge reduced the sentence by three months on account of
the breach of Mr. Morriss rights under ss. 7 and 10(b) of the
Charter
.
Those breaches are described above (see paras. 28-32). The trial judge was
particularly concerned with the breach of s. 7, which involved one of the plainclothes
officers driving over Mr. Morriss foot in his attempt to detain Mr. Morris. The
trial judge did not invoke s. 24(1) of the
Charter
, but relied on the
principle that state misconduct can mitigate sentence.
[174]
All parties agree that a trial judge can reduce a sentence to take
into account state misconduct relating to the circumstances of the offence or
the offender:
Nasogaluak
, at paras. 3, 47. Excessive use of force in
the course of detaining or arresting an individual, even if the arrest or
detention is for a different offence than the offence ultimately prosecuted, can
constitute state misconduct relating to the circumstances of the offence or
offender.
[175]
The trial judge was satisfied the officers excessive use of force
was sufficiently serious to warrant a reduction in the sentence. In addressing
the seriousness of the misconduct, the trial judge relied, not only on the
physical consequences suffered by Mr. Morris, but on the negative impact the aggressive
police conduct had on the perception of the police within the community. The
trial judge concluded that some mitigation of the sentence would recognize the
reality of that perception.
[176]
The trial judge properly identified the
principle laid down in
Nasogaluak
.
On the findings he made, it was open to him to invoke the principle from
Nasogaluak
in crafting a fit sentence. This court
must defer to those findings.
D.
The Appropriate Sentence
[177]
As the trial judge acknowledged, the seriousness of Mr. Morriss
crimes required a significant term of imprisonment. The possession of a loaded,
concealed handgun in a public place, the flight from the police, and the
disposal of the loaded weapon in a public place were all aggravating factors. As
indicated earlier, we see no reason to depart from the range fixed in cases
like
Nur
and
Smickle
. In most cases, at the true crime end
of the spectrum, a penitentiary sentence will be necessary for a s. 95 offence.
In some cases, sentences at or near a maximum reformatory sentence will be
appropriate.
[178]
There are mitigating factors in this case favouring a sentence at
the low end of the range. More importantly, Mr. Morris was a young first
offender at the time of sentencing. He has strong emotional support from his
mother and others who are close to him. As revealed in the Sibblis Report, Mr.
Morris has many positive features, and rehabilitative potential.
[179]
The moral blameworthiness of Mr. Morriss
conduct is mitigated by his mental and physical health issues, as well as his
educational and economic disadvantages. All of those factors are influenced by
the systemic anti-Black racism Mr. Morris has experienced. The factors can only
properly be understood, for the purposes of determining the appropriate
sentence, by having regard to that context.
The three-month deduction in the sentence to take account of state
misconduct during the attempt to detain and arrest Mr. Morris can also be viewed
as a mitigating factor for the purposes of fixing an appropriate range of
sentence.
[180]
Taking into account the mitigating and aggravating factors, we think
the trial judge could have imposed a sentence ranging from a sentence at or
near the maximum reformatory term, to a penitentiary sentence of three years.
When the appropriate sentencing range includes sentences
at or
below the two-year mark, a
sentencing judge must give careful consideration to the imposition of a
conditional sentence. As outlined earlier, conditional sentences, properly
used, can ameliorate the longstanding problem of the over-incarceration of
young Black men.
[181]
Mr. Morris was in custody on other charges when sentenced on these
charges. Understandably, given the positions of the parties, no one suggested Mr.
Morris should receive a conditional sentence. We would observe, however, that
all other factors being equal, had Mr. Morris been before the courts
exclusively on these charges and had a conditional sentence, like that ordered
in
Anderson (NSCA)
,
been
available, the trial judge would have had to give that option serious
consideration.
[182]
We also agree with the trial judges conclusion that a term of
probation was necessary. Probation provided for an extended period of
supervision and access to culturally-sensitive counselling. Both had the
potential to further Mr. Morriss rehabilitation and provide added long-term
safety for the community. As probation can only be imposed if a period of
incarceration is no more than two years, the restraint principle favoured a
sentence of two years or less: see
Criminal Code
, s. 731.
[183]
Taking
the factors set out above into account, we would grant leave to appeal, allow
the appeal, and vary the sentence as follows:
·
On
the s. 95 charge (count 3), we would impose a sentence of two years, less a
day. Mr. Morris would be entitled to credit for pretrial custody on a 1.5:1
basis. We would also impose probation for 18 months on the terms set by the
trial judge;
·
On
the other two convictions (counts 2 and 4), we would impose concurrent sentences
of 15 months.
[184]
In
keeping with the Crowns concession, this is an appropriate case in which to
permanently stay the sentence with the exception of the ancillary orders made
by the trial judge on sentencing. Those orders should remain in effect.
Released: October 8, 2021 JMF
Fairburn
A.C.J.O.
Doherty
J.A.
R.G.
Juriansz J.A.
M.
Tulloch J.A.
David
M. Paciocco J.A.
[1]
The sentencing was adjourned several times, for various
reasons, at the request of the defence. The hearing of the appeal was also
delayed for a lengthy period for reasons beyond everyones control.
[2]
The court received fresh evidence indicating Mr. Morris had
been charged with offences related to a home invasion robbery in April 2017
while on bail on these charges. He was held in custody. Mr. Morris pled guilty
to those charges and in June 2019 received a sentence of 3 years, 5 months and
15 days after a credit of 32.5 months for pretrial custody. Mr. Morris was
released on day parole in July 2020 and full parole in January 2021. He spent a
total of approximately 3 years and 3 months in jail on these charges and the
charges related to the home invasion.
It would appear from Mr. Morriss affidavit filed as
fresh evidence, that although he continues to have significant problems,
particularly with his health, he has taken responsibility for his criminal
actions and made several positive steps to better himself and avoid future
contact with the criminal justice system.
[3]
In
Anderson (NSCA)
, at
para. 159, the court indicates the use of denunciation and deterrence to
protect societal values should be informed by a recognition of societys role
in undermining the offenders prospects as a pro-social and law-abiding citizen.
If this passage means that deterrence and denunciation take on less
significance in sentencing for serious crimes if society is somehow complicit
in the circumstances relevant to the commission of the offence, we must, with
respect and for the reasons set out, disagree with that conclusion.
[4]
Bill C-22 was introduced and passed first reading in the House of
Commons before Parliament was dissolved on August 15, 2021.
[5]
The fresh evidence does indicate, that by the time Mr.
Morris had been released on parole on his subsequent home invasion robbery sentence,
he had come to accept responsibility for his criminal conduct.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Psarros, 2021 ONCA 706
DATE: 20211008
DOCKET: C68231
Rouleau, Benotto and Zarnett
JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Peter Psarros
Appellant
Peter Psarros, acting in person
Mark Halfyard, appearing as duty
counsel
Avene Derwa, for the respondent
Heard: October 6, 2021 by
video conference
On appeal from the sentence imposed on February
27, 2020, by Justice Jonathan Bliss of the Ontario Court of Justice.
REASONS FOR DECISION
[1]
The appellant
has abandoned his conviction appeal. As for the sentence appeal, we agree with
the appellants submission that the sentence should be reduced.
[2]
Having
recognized that the appellant was entitled to credit for 152 days of pretrial
custody, the sentencing judge ought to have given him credit for this time at
the rate of 1.5 to 1. He did not do so and gave no reason why the usual credit
should not apply.
[3]
As a result,
leave to appeal the sentence and the sentence appeal are granted. The sentence
is reduced by 76 days. The conviction appeal is dismissed.
Paul Rouleau
M.L. Benotto J.A.
B. Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Jefferies, 2021 ONCA 712
DATE: 20211008
DOCKET: C69343
Fairburn A.C.J.O., Doherty and
Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jamie Jefferies
Appellant
Frank Addario, Sherif Foda, and Rick
Frank, for the appellant
Matthew Asma, for the respondent
Amy Ohler and Eric Neubauer, for the intervener
Criminal Lawyers Association
Heard and released orally:
October 6, 2021
On appeal from the order denying
certiorari
and prohibition entered by Justice C. Stephen Glithero of the Superior Court of
Justice on March 16, 2021, with reasons reported at 2021 ONSC 1983.
REASONS FOR DECISION
[1]
This is an appeal from the dismissal of an application
for two forms of extraordinary relief. The application judge described the
requests for relief as follows:
An order in the nature of prohibition to
prohibit any judge of the Ontario Court of Justice from proceeding to hold the
trial of the accused upon the counts of aggravated assault, assault causing
bodily harm, common assault, two counts of mischief and three counts of breach
release order, contained in Information No. 19005445, sworn June 20, 2019,
presently outstanding in that court.
[and]
An order to quash the ruling of the Honourable
Justice A.T. McKay to conduct the trial of
R. v. Jamie Jefferies
remotely via video conference released on February 18, 2021.
[2]
The application was dismissed on jurisdictional
grounds.
[3]
Since the dismissal of the application for
extraordinary relief, upon which this appeal is predicated, the appellants
request for a full in-person trial has been accommodated. The appellant
acknowledges today that his trial will continue in person on October 18, 2021,
and it is his intention to proceed with that trial, regardless of any order
this court may make, including if this court decides to hear the appeal today. In
our view, in light of that concession, the appeal is moot.
[4]
Despite the fact that this court may find the
appeal moot, the appellant still urges the court to hear the appeal because of
what is said to be the strong public interest engaged. We decline to do so
because:
1) The record in this case is wanting in relation to the issues the
appellant asks to be decided.
2) The issues to be decided are not evasive of review in the context
of the normal appellate process.
3) There is
no evidence before us that would suggest a systemic problem that requires
immediate resolution in the public interest. For example, there does not appear
to be any serious, ongoing controversy over the limits of judicial authority in
utilizing statutory provisions to excuse the attendance of justice system
participants from criminal trials.
4) The
appeal to this court is an appeal from a decision arising from an application
for extraordinary relief and, as such, necessarily limits the scope of the
appeal to this court. In our view, the issues raised on appeal are much better
addressed in the context of a full appeal on the record.
[5]
The appeal is dismissed as moot.
Fairburn A.C.J.O.
Doherty J.A.
David Watt J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Sealy-Ward, 2021 ONCA 714
DATE: 20211008
DOCKET: C67860
Fairburn A.C.J.O., Doherty and
Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Mark Sealy-Ward
Appellant
Eric Granger, for the appellant
Genevieve McInnes, for the respondent
Heard and released orally: October
4, 2021 by video conference
On appeal from the convictions entered
by Justice Michelle OBonsawin of the Superior Court of Justice on April 29,
2019, with reasons reported at 2019 ONSC 2647.
REASONS FOR DECISION
[1]
This is an appeal from conviction for multiple drug and firearm
related offences.
[2]
Police officers stopped a vehicle after it made an unlawful U-turn. After
detecting the odour of cannabis, the vehicle occupants were ordered out of the
vehicle and arrested. A search incident to their arrest uncovered a number of
things in the vehicle, including a few pounds of cannabis, MDA, drug
paraphernalia, and a disassembled rifle with ammunition.
[3]
The appellant was tried before a judge alone. In a blended
Charter
voir dire
, he claimed breaches of his ss. 7, 8, 9, 10(a), and 10(b)
rights.
The trial judge provided extensive written reasons dismissing
the
Charter
application. She also provided extensive written reasons
for conviction.
[4]
This conviction appeal is predicated upon two alleged errors.
[5]
First, the appellant says that the trial judge failed to provide
adequate reasons dismissing the
Charter
motion. Specifically, he
claims that the trial judge failed to adequately address inconsistencies in the
police evidence.
[6]
While we accept that there were inconsistencies in that evidence, the
trial judge was under no obligation to describe and reconcile every such
inconsistency. Rather, it was the trial judges duty to respond to what was
relevant to the
Charter
application. She did that.
[7]
The trial judge turned her mind to the central issues involving: (1) why
the vehicle was stopped and (2) why the appellant was originally removed from
the car and arrested. The trial judge concluded that the officers evidence was
consistent on key points involving the U-turn, all of which justified the
vehicle stop. The trial judge also turned her mind to the differences between
the officers in terms of how they described the smell emerging from the
vehicle. One described it as the smell of fresh vegetative cannabis, while the
other described it as the smell of both burnt and fresh vegetative cannabis.
The trial judge explained why this inconsistency (one officer adding that he
also smelled burnt cannabis) did not impact her assessment of the grounds for
arrest. In our view, the trial judges reasons on these points are more than
adequate.
[8]
The appellant also claims that the trial judges reasons for judgment
fall short in the sense that she misapprehended evidence that had a material
impact on the verdicts. Specifically, the trial judge is said to have
misapprehended evidence as it relates to the location from which the
appellants wallet was seized and the location where a padlock was found.
[9]
The respondent concedes the appellants first point, acknowledging that
the trial judge appears to have incorrectly formed the view that the
appellants wallet was found in the same knapsack that drugs and drug
paraphernalia were located. The respondent acknowledges that is not so. The
appellants wallet was actually seized during a search of his person.
[10]
Despite
this misapprehension of evidence, we are satisfied that it had no impact on the
verdicts.
[11]
The fact is that there was overwhelming evidence pointing to the
appellants possession of the contraband found in the vehicle. That evidence
includes the fact that the appellants former partner testified that, while the
vehicle was registered under her name, it was owned by the appellant. There was
also police evidence that they saw the appellant attempting to get into the
driver seat of the vehicle upon the vehicle being stopped. That is, when the
appellant saw the police, he changed his position with another vehicle
occupant. There is also evidence of a combination lock having been found in a
duffle bag in the trunk of the car. That bag contained a good deal of contraband.
Importantly, the code to the combination lock that was found in that bag was
located in the appellants wallet. This connected him directly to the duffle
bag.
[12]
While
the appellant claims that the trial judge misapprehended the evidence about the
padlock, suggesting that there was no evidence to adequately support that it
had been located in the duffle bag, that submission is belied by the record in
this case. Therefore, in our view, there is no basis for the suggestion that
the trial judge misapprehended the evidence about the padlock in this way.
[13]
Combined
with the other evidence of possession and control, there was a substantial
evidentiary basis upon which to convict.
[14]
The appeal is dismissed.
Fairburn A.C.J.O.
Doherty J.A.
David Watt 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. Simas-Mamani, 2021 ONCA 711
DATE: 20211008
DOCKET: C67388
Fairburn A.C.J.O., Doherty and
Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Zamir Simas-Mamani
Appellant
Craig Zeeh, for the appellant
Erica Whitford, for the respondent
Heard and released orally:
October 4, 2021 by video conference
On appeal from the conviction entered by
Justice Thomas Lofchik of the Superior Court of Justice on July 5, 2018 and the
sentence imposed on July 27, 2018, with reasons reported at 2018 ONSC 4558.
REASONS FOR DECISION
[1]
The sole ground of appeal from conviction is the
dismissal of a mid-trial application under s. 276 of the
Criminal Code
,
R.S.C., 1985, c. C-46. We see no error in the trial judges exercise of his case
management powers, dismissing this late-breaking application brought for the
first time during the cross-examination of the complainant.
[2]
In any event, we see no basis upon which the application,
as constituted at trial, could possibly have succeeded.
[3]
The conviction appeal is dismissed.
[4]
As well, we dismiss the sentence appeal. Although
some mitigating factors were not specifically mentioned by the trial judge in
the reasons for sentence, those factors would not have warranted a reduction in
the eight-year sentence imposed, a sentence that was entirely fit in the
circumstances.
[5]
Leave to appeal sentence is granted. The
sentence appeal is dismissed.
Fairburn
A.C.J.O.
Doherty
J.A.
David
Watt J.A.
|
WARNING
An order restricting publication in
this proceeding was made under s. 517 of the
Criminal Code
and
continues to be in effect. This section of the
Criminal Code
provides:
517(1) If the prosecutor or
the accused intends to show cause under section 515, he or she shall so state
to the justice and the justice may, and shall on application by the accused,
before or at any time during the course of the proceedings under that section,
make an order directing that the evidence taken, the information given or the
representations made and the reasons, if any, given or to be given by the
justice shall not be published in any document, or broadcast or transmitted in
any way before such time as
(a) if a preliminary inquiry
is held, the accused in respect of whom the proceedings are held is discharged;
or
(b) if the accused in respect of whom the
proceedings are held is tried or ordered to stand trial, the trial is ended.
Failure to comply
(2) Everyone who fails without
lawful excuse, the proof of which lies on him, to comply with an order made
under subsection (1) is guilty of an offence punishable on summary conviction.
(3) [Repealed, 2005, c. 32, s.
17]
R.S., 1985, c. C-46, s. 517; R.S.,
1985, c. 27 (1st Supp.), s. 101(E); 2005, c. 32, s. 17.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Williams, 2021 ONCA 705
DATE: 20211008
DOCKET: M52774
Strathy
C.J.O. (Motion Judge)
BETWEEN
Her
Majesty the Queen
Respondent
and
Robert Williams
Applicant
Zachary Kerbel, for the applicant
Karen Papadopoulos, for the respondent
Heard: September 22, 2021 by
video conference
[1]
A non-publication order under s. 517 of the
Criminal
Code
, R.S.C. 1985, c. C-46,
was imposed in this matter at the bail hearing in the court below. That order
precludes the publication, broadcast, or transmission of any evidence taken,
information given, representations made, and reasons given.
[2]
The decision in
R. v. Williams
, 2021
ONCA 705, contains information covered by that order.
[3]
Accordingly, the decision will be available on
the Court of Appeal for Ontarios website once the non-publication order ceases
to be in effect.
[4]
In the interim, a copy of the full decision is
available at the Registry of the Court of Appeal for Ontario at 130 Queen
Street West, Toronto.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Sbihat v. Nasar, 2021 ONCA 701
DATE: 20211008
DOCKET: C68867
Hourigan, Huscroft and Coroza
JJ.A.
BETWEEN
Sameh
Sbihat
Plaintiff/Appellant
and
Loay Abu Nasar, Darshan Singh
Toor, Carmel Transport International Ltd. and AJM Toor Group Inc.
Defendants/Respondents
Todd J. McCarthy and Richard J.
Campbell, for the appellant
David Zuber and Allison Pressé, for the
respondents
Heard: October 6, 2021 by videoconference
On
appeal from the order of Justice Mandhane of the Superior Court of Justice,
dated November 10, 2020.
REASONS FOR DECISION
Introduction
[1]
This action arose out of a motor vehicle
accident that occurred on April 28, 2016. The statement of claim was issued on
April 23, 2018. The defendants Darshan Singh Toor and Carmel Transport
International Ltd. were served with the statement of claim in January or
February 2020 approximately 16 months after the six-month deadline prescribed
by r. 14.08(1) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.
The defendant AJM Toor Group Inc. was never served.
[2]
The appellant moved to validate service and
extend the time for service. In his affidavit filed on the motion, the
appellants former counsel explained that the non-service was caused by
inadvertence and the failure of his staff to follow instructions. The motion
was not opposed by the respondent Nasar. However, it was opposed by the
remaining respondents (the Toor Respondents).
[3]
The motion was initially scheduled for October
2020, but the appellants former counsel could not proceed on that date for
medical reasons. The Toor Respondents consented to an adjournment on the
understanding that the motion would be argued on the record already filed with
the court. The appellants former counsel agreed to this undertaking in
writing. Despite that agreement, the appellants former counsel served and
filed a supplementary affidavit six days before the motion was to be argued.
[4]
The motion was ultimately heard on November 10,
2020. The motion judge had to consider two issues: (1) whether to admit the
appellants supplementary affidavit, and (2) whether to validate service and
grant the extension of time for service.
[5]
The motion judge refused to consider the
appellants supplementary affidavit because the appellant had previously
consented not to file additional materials. Accordingly, she held that it was
improper for the appellant to attempt to resile from that agreement.
[6]
Ultimately, the motion judge dismissed the
motion. She found that the court should not extend the time for service where
to do so would prejudice the respondents, and the onus was on the appellant to
show that there was no prejudice. According to the motion judge, the appellant
had provided an insufficient explanation for the delay and had adduced no
evidence of a lack of prejudice beyond a bald assertion that the respondents
would suffer no prejudice. The motion judge further found that the Toor Respondents
would suffer actual prejudice in their ability to conduct investigations,
preserve evidence, and obtain timely medical assessments.
Issues
[7]
The appellant makes two submissions on this
appeal. First, he argues that this court should admit fresh evidence. Second,
he submits that the motion judge erred in refusing to validate service and
extend the time for service.
Analysis
(i)
Fresh Evidence
[8]
Although the appellant brings a motion for leave
to file fresh evidence, it is a misnomer to label the proposed evidence as
fresh because it was filed on the motion. It consists of two affidavits. The
first was sworn by the appellants former counsel and includes court filings in
a related action arising from the same motor vehicle accident, along with correspondence
between the appellants former counsel and the insurer for the Toor Respondents.
The motion judge rejected this affidavit. The second affidavit is sworn by a
clerk in the Toor Respondents counsels office. It attaches correspondence
memorializing the agreement between counsel that no further material would be
filed following the adjournment.
[9]
The jurisprudence regarding the filing of fresh
evidence is of no assistance, given that the evidence was clearly available on
the return of the motion. The operative question is whether the motion judge
erred in rejecting this evidence. In our view, she did not. On the record
before her, it was clear that the parties had reached an agreement that no
further material would be filed. The motion judge was correct in holding the
parties to that agreement.
(ii)
Extension of Time for Service
[10]
In considering this ground of appeal, we accept
the submission of counsel for the appellant that we may have regard to the
pleadings filed in the companion action. These pleadings establish that the
insurer for the Toor Respondents was made aware of the accident and was in a
position to investigate issues of liability and damages regarding the plaintiff
in that action. The insurers knowledge of the accident is further confirmed
by its receipt of the Motor Vehicle Accident Report, which was filed in the
material before the motion judge. Further, that report also gave the insurer
constructive notice of the appellants claim because he was listed as an involved
person.
[11]
In our view, the motion judge erred in her
analysis of whether to validate service and extend the time for service in two
respects.
[12]
First, the motion judge made a palpable and
overriding error of fact in finding that there
was not a sufficient
explanation
for the delay in service. The unchallenged evidence filed on
the motion made clear that the delay was attributable to the former counsels
inadvertence.
[13]
Second, in her prejudice analysis, the motion
judge failed to consider that the insurer for the Toor Respondents had notice
of the accident and the fact that the appellant was an involved person. This
evidence was sufficient to meet the appellants onus of establishing that the
Toor Respondents would suffer no prejudice if the order sought were granted. In
those circumstances, the onus shifted to the Toor Respondents to demonstrate
why they would suffer prejudice despite their knowledge of the accident and the
appellants involvement.
[14]
On the evidence before us, there is nothing to
suggest that the Toor Respondents have been hindered in any way in
investigating the nature and extent of the appellants injuries. Plainly, they
have had an opportunity to consider liability issues in the related action.
[15]
When these errors are corrected, it is evident that
the appellant has met the test to validate service and extend the time for
service of the statement of claim.
Disposition
[16]
For the foregoing reasons, the motion to admit
fresh evidence is dismissed, and the appeal is allowed. The order of the
motion judge is set aside. In its place, an order shall issue validating the
late service of the statement of claim. The deadline for serving the statement
of claim on any defendants who have not been served is extended to thirty days
from the date of this endorsement. As a term of this order pre-judgment
interest shall not begin to run until February 7, 2020. Regarding costs, in accordance
with the agreement of counsel, we award the appellant $5,500 for the costs of
the motion below and $7,500 for the costs of the appeal. Both amounts are all-inclusive.
C.W. Hourigan J.A.
Grant Huscroft J.A.
S. Coroza J.A.
|
WARNING
The court
directs that the following should be attached to the file:
NOTICE OF
PUBLICATION BAN
An order
restricting publication in this proceeding imposed under ss. 45(3) and 47 of
the
Health Professions Procedural Code
(the
Code
), Schedule 2
to the
Regulated Health Professions Act, 1991
, S.O. 1991, c. 18 shall
continue.
In the College
of Massage Therapists of Ontario and Jose Alberto Tena Schoelly, the Discipline
Committee ordered under ss. 45(3) and 47 of the
Code
that no person
shall publish, broadcast or otherwise disclose any information that would
identify the complainant.
Subsection
93(1) of the
Code
addresses a failure to comply with these orders:
Every person
who contravenes an order made under
section 45 or 47
is guilty of an offence
and on conviction is liable,
(a) in the
case of an individual to a fine of not more than $25,000 for a first offence
and not more than $50,000 for a second or subsequent offence; or
(b) in the
case of a corporation to a fine of not more than $50,000 for a first offence
and not more than $200,000 for a second or subsequent offence.
COURT OF APPEAL FOR ONTARIO
CITATION: College of Massage Therapists of
Ontario v. Schoelly, 2021 ONCA 655
DATE: 20210922
DOCKET: C68756
Strathy C.J.O., Pepall and Pardu
JJ.A.
BETWEEN
College
of Massage Therapists of Ontario
Appellant
and
Jose
Alberto Tena Schoelly
Respondent
Erica Richler and Anastasia-Maria
Hountalas, for the appellant
No one appearing for the respondent
Heard and released orally: September 17, 2021
by video conference
On appeal from the order of the Divisional
Court (Justices Nancy L. Backhouse, Richard A. Lococo and Michael A. Penny),
dated March 2, 2020, with reasons reported at 2020 ONSC 1348, allowing in part an
appeal from a decision of a panel of the Discipline Committee of the College of
Massage Therapists of Ontario, dated March 26, 2019.
REASONS FOR DECISION
[1]
Counsel have advised that the appeal has been
resolved on the basis that the respondent does not oppose the appeal and will
accept the licence revocation ordered by the Discipline Committee. The appeal
is therefore moot.
[2]
The appellant nevertheless asks that this Court
hear its submissions and that we make a decision on the merits. While the
appellant seeks a judicial precedent to serve as a guide in other cases, we
decline to hear the appeal in the absence of an adversarial context. Nor is it
an appropriate use of judicial resources to decide an issue that does not have
any practical consequences for both parties.
[3]
On consent of the parties, an order will issue
reinstating the order of the Discipline Committee of the College of Massage
Therapists of Ontario dated March 26, 2019. In so ordering, we express no
opinion on the conclusions or analysis of the Divisional Court.
G.R.
Strathy C.J.O.
S.E.
Pepall J.A.
G.
Pardu J.A.
|
COURT OF APPEAL
FOR ONTARIO
CITATION: 2619506 Ontario Inc., v. 2082100 Ontario Inc., 2021
ONCA 702
DATE: 20211012
DOCKET: C68814
Lauwers, Harvison
Young and Sossin JJ.A.
BETWEEN
2619506
Ontario Inc.
,
Respondent (Plaintiff)
and
2082100 Ontario Inc.
, Samuel Davis and Farhan
Absar
Appellants (Defendants)
and
2619506 Ontario Inc.
, Vaishali Paralekar and
Jayesh Paralekar
Defendants to the Countercl
aim
Martin Diegel, for the
appellants
Alexander Hora, for the
respondent
Heard: October 1, 2021 by video
conference
On appeal from the
judgment of Justice Shaun OBrien of the Superior Court of Justice, dated November
13, 2020, with reasons reported at 2020 ONSC 6817.
REASONS FOR DECISION
[1]
This appeal arises from an order dated November 13, 2020, granting
summary judgment to the respondent, finding that its notice of rescission was
effective to rescind its franchise agreement with the appellants. The motion
judge held that the financial disclosure document (FDD) the appellants provided
was so deficient as to amount to no disclosure at all pursuant to s. 6(2) of
the
Arthur Wishart Act (Franchise Disclosure), 2000
, S.O. 2000, c. 3
[the Act]. The motion judge also found that both Mr. Davis and Mr. Absar met
the definition of franchisors associates under s.1(1) the Act and that they
were jointly and severally liable for damages pursuant to s. 6(6).
[2]
Briefly, the appellants and the respondent executed a franchise
agreement in May 2018 pursuant to which the respondent 2619506 Ontario Inc,
through its president, Vaishali Paralekar, became a franchisee of the
franchisors Fit for Life chain of quick service restaurants. After Ms.
Paralekar began operating, she found that the sales were much lower than expected.
After trying to sell the franchise, she ultimately served a notice of
rescission through her counsel in May 2019.
[3]
The appellants raise two main grounds of appeal. First, they argue that
the motion judge misapplied the informed investment decision test in finding
that the deficiencies in the disclosure document amounted to absence of
disclosure, thus allowing rescission pursuant to s. 6(2) of the Act within two
years. In particular, they argue that
Raibex Canada Ltd. v. ASWR
Franchising Corp
., 2018 ONCA 62, 419 D.L.R. (4th) 53 obliged her to
conduct a more detailed analysis of whether a potential franchisee is able to
make a properly informed investment decision. The motion judges failure to do
so constituted a reversible error of law.
[4]
Second, they submit that the motion judge erred in finding that the
appellants were franchisors associates pursuant to ss.1(1) and 6(6) of the
Act. Third, and relatedly, they argue that the motion judge erred in imposing
joint and several liability upon both Mr. Davis and Mr. Absar.
[5]
For the following reasons, we conclude that that the appeal must be
dismissed.
[6]
We do not agree that the motion judge erred in her articulation or
application of the test under s. 6(2). We do not agree that this is an
extricable question of law attracting a correctness standard of review. Rather,
it raises a question of mixed law and fact, thus attracting the standard of palpable
and overriding error:
Housen v. Nikolaisen
, 2002 SCC 33, [2002] 2
S.C.R. 235, at paras. 36-37.
[7]
In applying the informed investor test, the motion judge considered both
the purpose of the Act and the evolution of the test. She began by observing
that this court has repeatedly emphasized that the Act is intended to redress
the imbalance of power between franchisors and franchisees and that it does so
by imposing rigorous disclosure obligations on franchisors, with strict
penalties for non-compliance:
Salah v. Timothys Coffees of the World Inc.
,
2010 ONCA 673, 268 O.A.C. 279, at para. 26;
Mendoza v. Active Tire &
Auto Inc.
, 2017 ONCA 471, 139 O.R. (3d) 230, at paras. 13, 26;
6792341
Canada Inc. v. Dollar It Limited
, 2009 ONCA 385, 95 O.R. (3d) 291, at
para. 13. She continued with the following statement:
Two guiding principles have
emerged from the Court of Appeal with respect to the interpretation of s. 6(2)
in particular. The first is that non-compliance with s. 5 of the Act does not
always provide sufficient grounds for rescission under s. 6(2). As set out in
Raibex
Canada Ltd. v. ASWR Franchising Corp.
, 2018 ONCA 62, at para. 46: [a]
franchisee that receives imperfect disclosure does not necessarily stand in the
same position as a franchisee that was never provided with a disclosure
document. In
Imvescor
, at para. 73, this court warned that conflating
those two scenarios would frustrate clear legislative intent
.
[8]
The motion judge also correctly observed at para. 18 that a purported
disclosure document may be so deficient as to effectively amount to no
disclosure, thereby permitting rescission under s. 6(2):
Raibex,
at
para. 47. There is no doubt that financial disclosure is of the utmost
importance in enabling a prospective franchisee to make a properly informed
investment decision:
Dollar It
, at para. 35. In short, she was alive
to and set out the appropriate test to be applied.
[9]
On the facts of this case, the only financial information provided to
the respondents was unaudited 2016 financial statements, despite the clear
requirement in the applicable regulation for the franchisor to include the 2017
financial statement, which it failed to do. Nor was there any evidence as to
whether 2018 financial statements were available when the franchise agreement
was executed. In any event, neither 2017 nor 2018 financial statements were
ever provided. Nor was there any recent financial information at all, such as
sales information for that location. The motion judge concluded that
in the circumstances of this
case, the absence of any recent financial information rendered the FDD so
deficient as to amount to no disclosure at all. As a result, the Plaintiff was
entitled to rescind under s. 6(2) of the Act.
[10]
In our view, the motion judge concisely and accurately set out the
considerations to be taken into account and applied those to the facts before
her in reaching her conclusion that the FDD was so deficient as to amount to no
disclosure at all.
[11]
We also do not agree that the motion judge erred in finding that both Mr.
Davis and Mr. Absar were franchisors associates as defined in the Act.
[12]
As was the case below, the counsel for Mr. Davis did not seriously
pursue the argument that he was not an associate under the Act. As the sole
director and shareholder, as well as the president and CEO of the franchisor,
he directly controlled the franchisor and clearly falls within clause (a)(i) of
subsection 6(6) of the Act as a person who controls the franchisor. As the
person who signed the FDD disclosure certificate, he was directly involved in
the grant of the franchise, falling within the conjunctive provision of clause
(b)(i)(A).
[13]
The appellants argue that Mr. Absar, however, was merely an employee of
the franchisor. Finding that Mr. Absar was a franchisors associate and
imposing joint and several liability, would, they argue, open the door to finding
that any employee, such as a receptionist answering telephone calls from
potential franchisees could be found to be franchisors associates subject to
joint and several liability.
[14]
As the motion judge concluded, Mr. Absar was not a mere employee. First,
she found that he was controlled by another person who also controls directly
or indirectly the franchisor, that is Mr. Davis. She reached this conclusion
on the basis of the appellants own documents. The franchisors own
organizational chart, and Mr. Absars e-mail signature, identified him as the
Director of Franchising and Development for the Davis Group of companies, which
included Fit for Life. Although the Davis Group was not itself a corporation,
Mr. Davis was the head of the Davis Group and owned all of the Davis Group of
companies. We see no error in her finding that Mr. Absar fell within the first
part of the definition as he was controlled by a person, Mr. Davis, who
controlled the franchisor.
[15]
In addition, we see no error with her finding that Mr. Absar met the
second part of the definition in clause (b)(i)(B) because he made representations
to the prospective franchisee on behalf of the franchisor for the purpose of
granting the franchise, marketing the franchise or otherwise offering to grant
the franchise. This finding was well grounded in the record. Mr. Absar
advertised Fit for Life franchises to generate leads and met with potential
franchisees to discuss their application. He acknowledged that he had been
involved in the marketing of the specific franchise location in issue and that
he had personal communications with Ms. Paralekar about the franchise. Her
undisputed evidence was that she met with him to discuss her application and
that he provided her with the FDD.
[16]
Finally, we see no error in the motion judges imposition of joint and
several liability on both appellants. The appellants contend that the liability
can be imposed on the franchisor or franchisors associate pursuant to s.
6(6). However, there was no suggestion before the motion judge that liability
for damages should be imposed on any basis other than joint and several
liability. Although the appellants cite
2122994 Ontario Inc. v. Lettieri
,
2016 ONSC 6209, affd 2017 ONCA 830, in support of its position, we do not find
this case to be of any assistance them.
[17]
Finally, the appellants submit that this matter should not have been
determined on a motion for summary judgment because the affidavit evidence
contained numerous inconsistencies. While it is true, as the motion judge
recognized, that the parties did not agree on all factual matters, she found
that there was no dispute about the primary facts upon which she decided the
issues before her. Her reasons make it clear that she was careful to determine
the issues before her on the basis of undisputed facts and we see no error in
her determination that there were no genuine issues that required a trial:
Hryniak
v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49.
[18]
The appeal is dismissed. Costs are payable by the appellants to the
respondent in the amount of $8,600, inclusive of disbursements and HST.
P. Lauwers J.A.
A. Harvison Young
J.A.
L. Sossin J.A.
|
COURT OF APPEAL
FOR ONTARIO
CITATION: Burke v. Poitras, 2021 ONCA 703
DATE: 20211012
DOCKET: C68442
Rouleau, Hoy and Thorburn JJ.A.
BETWEEN
Natalie Burke
Applicant (Respondent)
and
Shawn Poitras
Respondent (Appellant)
Gordon S. Campbell, for the appellant
Judith Wilcox, for the respondent
Heard: September 23, 2021 by video conference
On
appeal from the order of Justice Laurie Lacelle of the Superior Court of
Justice, dated May 21, 2020, with reasons reported at 2020 ONSC 3162, and from
the costs order, dated July 17, 2020, with reasons reported at 2020 ONSC 4389.
REASONS FOR
DECISION
[1]
The parties were married for 13 years and separated in 2014 after the
respondent left the matrimonial home due to the appellants abusive conduct.
The parties have three children. The oldest child lives primarily with the
appellant and the parties share parenting time for the two younger children.
[2]
After the appellant repeatedly failed to respect his disclosure
obligations and failed to comply with court orders requiring financial disclosure
to the respondent, the appellants answer was struck. Except in relation to the
issues of decision-making responsibility and parenting time, the decision to
strike the appellants answer was confirmed by this court in
Burke v.
Poitras
, 2018 ONCA 1025, 22 R.F.L. (8th) 266. As a result, the matter proceeded
as an uncontested trial.
[3]
In lengthy reasons, the trial judge awarded the respondent child and
spousal support including substantial arrears, an equalization payment and
exclusive possession of the matrimonial home, among other relief. The trial
judge also ordered that the appellant not be permitted to proceed with any
future motions pertaining to the issues in the present litigation without leave
of the court.
[4]
In our court, the appellant raises four grounds of appeal and seeks to
file fresh evidence. He argues that the trial judge erred in:
1.
failing to conduct an independent inquiry into the appellants trial
participation rights;
2.
failing to scrutinize the respondents evidence on a standard of balance
of probabilities;
3.
ordering spousal support to the respondent for an indefinite period of
time and not providing for a review; and
4.
awarding costs
against the appellant.
The fresh evidence application
[5]
The appellant seeks to introduce the affidavit of Alain Gravelle, a
chartered accountant whose firm has provided accounting services to the
appellant and his businesses for over a decade. The affidavit and attachments attempt
to rebut the accounting evidence led by the respondents accounting expert at
trial and accepted in the trial judges reasons and award.
[6]
We deny leave to file the fresh evidence. In our view, it does not meet
the test from
Palmer v. The Queen
,
[1980] 1 SCR 759.
[7]
The information contained in the proposed fresh evidence could, with due
diligence, have been adduced at trial. In large measure, it consists of financial
information about the appellant and his businesses that was not produced prior
to trial in violation of the outstanding court orders. The appellants
continued refusal to disclose this information led to the striking of his answer.
Now, he seeks to circumvent that sanction by introducing evidence in the form
of fresh evidence to critique the respondents accounting expert and the trial
judges decision.
[8]
Not only did the appellant refuse to disclose the financial information
required to properly determine his income and his business revenues, he also refused
to instruct his accountants to cooperate with the respondents expert. Had the
appellant allowed this cooperation, the information he now seeks to file would
have been considered by the respondents expert and, to the extent it was
relevant, included and commented on in his report.
[9]
The appellant cannot argue that we should now accept this evidence and
rely on it and his accountants interpretation of that evidence to challenge
the respondents accounting expert and the findings of the trial judge. The
respondents accountant clearly explained the need to make assumptions given
the absence of disclosure. It is not open to the appellant to now seek to
introduce the very evidence he refused to disclose prior to trial to overturn
the decision on appeal.
The appellants participation rights
[10]
The appellant argues that the trial was unfair as he was provided with
no opportunity to participate. In his submission, even a limited right of
participation would have attenuated the alleged unfairness and led to a more
balanced result. The appellant emphasizes his Grade 9 education and his lack of
sophistication. He submits that he was unable to assert his participation
rights because he was told he would need a lawyer and could not afford one. In
his view, the trial judge ought to have allowed him to question the witnesses
and test the evidence.
[11]
We disagree. By order dated May 17, 2018, the appellants answer was
struck due to his failure to comply with the courts disclosure order. The order
did not provide him with a right to participate in the ongoing proceeding. Pursuant
to the
Family Law Rules
, the appellant was not entitled to participate
in the case in any way: O. Reg. 114/99. As noted above, the appellants appeal
of the order striking his answer was dismissed.
[12]
Nonetheless, the Superior Court, on its own motion, set a date for a hearing
prior to trial to determine whether the appellant ought to be provided with
some degree of participation in the coming trial. The appellant was aware of
the date of the hearing but chose not to appear. He claims he could not
complete the paperwork but, as noted by the respondent, the appellant has no
difficulty communicating with her by text message and operates a very
successful business. As a result, the court ordered that no participation
rights were to be afforded to the appellant. No appeal was taken from that
order.
[13]
Although he was not allowed to participate, the appellant was present
throughout the trial. The trial judge had, in our view, the discretion to vary
the non-participation order and allow some degree of participation. However, the
appellant did not move to vary the order and, given his disruptive conduct over
the course of the trial and his continued refusal to comply with the disclosure
orders, there was no basis to do so. As a result, we see no unfairness.
Failing to scrutinize the respondents evidence
[14]
The appellant argues that the trial judge simply accepted the evidence
tendered by the respondent at trial without analysis or scrutiny. In
particular, the appellant argues that the evidence of the respondents
accounting expert ought to have been rejected as it was largely based on
speculation.
[15]
We do not agree. The trial judge carefully evaluated the evidence. The
respondents accountant expert was quite clear as to when and on what basis he
made assumptions as to the appellants income and expenses. For example, he
concluded that the appellant used corporate income for personal expenses based,
in part, on several expensive personal purchases on the appellants corporate
credit card and bank account. Further, he noted that the appellants company did
not distribute its income, nor did it require significant capital investments.
In the absence of evidence to the contrary, the trial judge accepted the
experts reasoning. She noted that retained earnings are not necessarily
income, but that the appellant failed to provide evidence to rebut these
assumptions.
[16]
Therefore, trial judge explained why she accepted the experts evidence
and the basis for her findings. Based on the record, the trial judges
conclusions are reasonable and we see no basis to interfere.
Was the amount and duration of spousal support reasonable?
[17]
The appellant argues that it was not appropriate for the trial judge to
simply adopt the calculations using the
Spousal Support Advisory Guidelines:
The Revised Users Guide
(April 2016)
(
SSAG
s) and to not provide for the termination of spousal support
within a reasonable time. He reiterates that he has a Grade 9 education,
whereas the respondent is a nurse in a supervisory position at the local
hospital. In the circumstances, a lower amount of support ought to have been
ordered for a definite duration.
[18]
We disagree. The trial judge considered the principles in
Moge v.
Moge
, [1992] 3 S.C.R. 813, and determined that support on a compensatory
basis was appropriate in the circumstances. She saw no reason to depart from
the number generated from the
SSAG
s and noted that the marriage
resulted in significant economic advantages to the appellant. We note that
indefinite support simply means that the duration is not specified. The
SSAG
s
stress that indefinite does not necessarily mean permanent. It only means
that no time limit can be set at the time of the order or agreement: p. 28.
[19]
The trial judges reasons are fulsome in explaining how she reached
these conclusions and are owed deference on appeal. We see no basis to
interfere.
Costs
[20]
The appellant argues that the award of costs in the amount of $217,229.25
after a three-day uncontested trial was excessive.
[21]
We would not interfere with the trial judges costs award. She provided
detailed reasons for the award, accounting for the appellants conduct, including
the breach of the disclosure orders, and found the amount of costs sought by
the respondent to be just and proportionate. The appellant has not demonstrated
any error in the trial judges exercise of discretion in that regard.
Conclusion
[22]
For these reasons, the appeal is dismissed. Costs to the respondent
fixed in the amount of $15,000 inclusive of disbursements and applicable taxes.
Paul
Rouleau J.A.
Alexandra
Hoy J.A.
J.A. Thorburn J.A.
|
WARNING
The judge hearing this motion
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.
WARNING
An order restricting publication in this proceeding
was made under s. 517 of the
Criminal Code
and continues to be in
effect. This section of the
Criminal Code
provides:
517(1) If the prosecutor or the accused
intends to show cause under section 515, he or she shall so state to the
justice and the justice may, and shall on application by the accused, before or
at any time during the course of the proceedings under that section, make an
order directing that the evidence taken, the information given or the
representations made and the reasons, if any, given or to be given by the
justice shall not be published in any document, or broadcast or transmitted in
any way before such time as
(a) if a preliminary inquiry is held, the
accused in respect of whom the proceedings are held is discharged; or
(b) if the accused in respect
of whom the proceedings are held is tried or ordered to stand trial, the trial
is ended.
Failure to comply
(2) Everyone who fails without lawful excuse, the
proof of which lies on him, to comply with an order made under subsection (1)
is guilty of an offence punishable on summary conviction.
(3) [Repealed, 2005, c. 32, s. 17]
R.S., 1985, c. C-46, s. 517; R.S., 1985, c. 27 (1st
Supp.), s. 101(E); 2005, c. 32, s. 17.
COURT OF APPEAL FOR ONTARIO
CITATION:
R. v.
N.S., 2021 ONCA 694
DATE: 20211012
DOCKET: M52570
(C69437)
MacPherson, Roberts and Miller JJ.A.
BETWEEN
Her Majesty the Queen
Applicant
(Appellant)
and
N.S.
Responding Party
(Respondent)
Deborah Krick, Michael Dunn and Jeremy Tatum, for the
applicant
Carlos Rippell and Marianne Salih, for the responding
party
Gerald Chan and Dragana Rakic, for the intervener,
Criminal Lawyers Association (Ontario)
Heard: October 1, 2021 by video conference
REASONS FOR DECISION
[1]
Following the decision of the Supreme Court of Canada in
Canada
(Attorney General) v. Bedford
, 2013 SCC 72, [2013] S.C.R. 1101 (
Bedford
SCC), Parliament enacted new legislation to address the sale of sexual
services in Canada. In this new legislation, Parliament criminalized certain
aspects of commercial sex work.
[2]
The respondent N.S. was charged with several offences under the
Criminal
Code
, R.S.C. 1985, c. C-46, including s. 286.2 (receiving material benefit
from sexual services), s. 286.3(1) (procuring sexual services), and s. 286.4
(advertising sexual services). At trial, the respondent asserted that these
provisions infringed ss. 2(b), 2(d), and 7 of the
Canadian Charter of
Rights and Freedoms
and were not justifiable limits under s. 1 of the
Charter
.
[3]
The trial judge held that these provisions infringed s. 7 of the
Charter
,
declared them of no force and effect, and declined to suspend the declaration
of invalidity:
R. v. N.S.
, 2021 ONSC 1628;
R. v. N.S.
, 2021
ONSC 2920.
[4]
The applicant has appealed these decisions and seeks to stay them
pending the appeal.
[5]
The test for granting a stay is the longstanding and well-known
tripartite one set out by the Supreme Court of Canada in
RJR-MacDonald Inc.
v. Canada (Attorney General)
, [1994] S.C.R. 311, at para. 48:
First, a preliminary assessment must be made of the merits of
the case to ensure that there is a serious question to be tried. Secondly, it
must be determined whether the applicant would suffer irreparable harm if the
application were refused. Finally, an assessment must be made as to which of
the parties would suffer greater harm from the granting or refusal of the
remedy pending a decision on the merits.
[6]
The applicant easily meets the first part of the test. It is obvious
that the respondents challenge to the validity of several provisions in s. 286
of the
Criminal Code
poses a serious question to be tried: see
Bedford
v. Canada Attorney General)
, 2010 ONCA 814, 330 D.L.R. (4th) 162, at para.
10 (
Bedford
ONCA). In recent months three other judges of the
Superior Court have declined to follow the decision in
N.S.
: see
R.
v. MacDonald
, 2021 ONSC 4423, 72 C.R. (7th) 413;
R. v. Williams
(24
June 2021), Brampton, 18-00000980 (Ont. S.C.); and
R. v. Maldonado Vallejos
,
2021 ONSC 5809.
[7]
On the second branch of the test irreparable harm to the applicant
we begin with the analysis by Rosenberg J.A. in the stay application relating
to the former
Criminal Code
prostitution provisions. In
Bedford
ONCA
, Rosenberg J.A. analyzed the second
branch of the
RJR-MacDonald
test at para. 15:
There are obvious advantages to maintaining the
status
quo
by staying the judgment. A stay will minimize public
confusion about the state of the law in Ontario; for the time being the law in
Ontario will be the same as in the rest of Canada. The police will be able
to continue to use the tools associated with enforcement of the law that they
say provides some safety to prostitutes, especially those working on the
streets. The various levels of government will have the opportunity,
should they choose to do so, to consider a legislative response to the
judgment, which might be better informed following a full review by this court
of the application judges decision.
[8]
In our view, the extensive evidentiary record put forward by the
applicant on this motion strongly supports a similar analysis and conclusion.
[9]
The third branch of the
RJR-MacDonald
test the balance of
convenience branch also favours the granting of a stay. Again, the analysis
in the decision on the stay application in
Bedford
ONCA is
instructive. In that case, Rosenberg J.A. said, at para. 24:
In cases involving the constitutionality of legislation,
irreparable harm and balance of convenience tend to blend together and they are
often considered together.
This blending of the two stages in cases
involving the constitutionality of legislation is understandable because, where
the government is the applicant, the public interest is engaged at
both stages
As well, the irreparable harm is not easily quantified in a case
such as this in which monetary issues are not engaged and any harm to one side
or the other cannot be cured by an award of damages at the end of the
litigation
In the result, the same considerations that concern a court at the
irreparable harm stage resurface in the balance of convenience stage.
[10]
In
Bedford
ONCA
,
Rosenberg J.A. went on to conclude that the balance of convenience favoured the
applicant. We would make a similar conclusion with respect to the new
Criminal
Code
provisions relating to prostitution. Their content, and the ongoing
investigative and enforcement steps taken by law enforcement personnel, support
the granting of a stay. This is especially so given that, with the agreement of
counsel, the stay will be a very brief one.
[11]
We
grant the stay and maintain it in place until November 19, 2021, the date on
which the appeal will be heard in this court.
J.C. MacPherson J.A.
L.B. Roberts J.A.
B.W. Miller J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Ossetchkine, 2021 ONCA 698
DATE: 20211012
DOCKET: C67718
Rouleau, Benotto and Zarnett JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Victor Ossetchkine
Appellant
Victor Ossetchkine, acting in person
Jeffrey Wyngaarden,
for the
respondent
Heard: October 4, 2021 by video conference
On appeal from the conviction entered on September 13,
2019 and the sentence imposed on October 18, 2019 by Justice J. Speyer of the Superior
Court of Justice.
REASONS FOR DECISION
[1]
The appellant was convicted by a jury of four
counts of assault and two counts of assault with a weapon. The victims were his
three children and his wife. He was sentenced to 12 months imprisonment less
credit for pre-sentence custody, 3 years probation, a 10-year firearms
prohibition, and a DNA order.
[2]
He appeals the conviction and sentence.
[3]
The Crown alleged that, over a period of several
years, the appellant assaulted each of his children and his wife. He repeatedly
assaulted his son and oldest daughter with a bamboo stick and a leather belt
when he was training them for karate. He used these devices to correct them if
they failed to meet his expectations. They were also made to lie down on their
stomachs with their hands at their sides while he struck them on the buttocks,
thighs, and lower back. He made them fight each other and the loser would get
hit. If there was a tie, they both got hit. The beatings continued until the
son was 17 years old and the daughter was in university. The youngest daughter
was physically disciplined from the age of four for innocuous behaviour such as
not finishing her soup. He would twist her ears until she cried and lifted her
off the ground by her ears. He assaulted his wife by choking her with both
hands and shaking her.
[4]
The appellants defence was that it did not
happen. He testified at trial.
[5]
The appellant submits that the jury verdict is
wrong and repeats much of the evidence he submitted at trial. We do not give
effect to these submissions.
[6]
He also asserts ineffective assistance of trial
counsel. Although the protocol was not followed and we have no evidence from
trial counsel, we do not need to assess the performance aspect of this claim.
The appellant has not met the threshold requirement of showing prejudice. That
is because, even if his assertions are correct, the result of the trial would
not change. There is no miscarriage of justice here.
[7]
By way of example, the appellant submits that his
trial counsel did not tell the jury that his wife lied about when her affidavit
for family law proceedings was prepared in relation to when it was sworn or
that it was prepared and sworn in secret; that he could not have exercised
control over his wife because she was free to go to the grocery store two to
three times a month; and that his wife lied about not having a cell phone. He
also says that counsel agreed that the police witnesses would not be called, so
the jury did not see the video statements showing the wife was not afraid as
they were not produced.
[8]
These matters would not have affected the jury verdict.
The issue at trial was credibility. The complainants were extensively
cross-examined, and the appellant testified at trial. The issues raised by the
appellant had, at best, marginal relevance. In fact, most would not have
assisted him, were irrelevant, or would have worked to his disadvantage. The
jury was convinced beyond a reasonable doubt that the Crown had proven its case
with respect to the convictions. In fact, the appellant was acquitted of some
of the charges against him.
[9]
The sentencing reasons disclose no error in principle, and we do not
interfere.
[10]
The conviction appeal is dismissed. Leave to appeal the sentence is
allowed, but the sentence appeal is dismissed.
Paul Rouleau J.A.
M.L. Benotto J.A.
B. Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Xavier, 2021 ONCA 713
DATE: 20211012
DOCKET: C69531
Fairburn A.C.J.O., Doherty and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Tiago Gomes Xavier
Appellant
Nate Jackson, for the appellant
Mark Luimes, for the respondent
Heard: in writing
On appeal from the sentence imposed by Justice Edward Prutschi
of the Ontario Court of Justice on April 9, 2021.
REASONS FOR DECISION
[1]
The
appellant received a sentence of ten months imprisonment for one count of
robbery. Counsel informed the sentencing judge that the appellant had served
three days in presentence custody, meaning he should be credited 5 days in
total. The sentencing judge agreed.
[2]
The
sentencing judge also gave credit pursuant to
R. v. Downes
(2006), 79 O.R. (3d) 321
(
Downes
credit) for what he
thought was 15 months spent on restrictive bail terms. The
Downes
and presentence custody credit came
to a combined total of 2 months.
[3]
On
appeal, the parties agree that the sentencing judge was misinformed about the
amount of time spent in presentence custody and on restrictive bail conditions.
The appellant actually spent 30 days (not 3 days) in presentence custody,
meaning that he only spent 14 months (not 15 months) on restrictive bail
conditions.
[4]
The
parties agree that that this sentencing error can be remedied by decreasing the
Downes
credit by 4 days and increasing the
presentence custody by 41 days. This results in an additional 37 days of
credit.
[5]
We are prepared to
accede to this joint position. An additional 37 days credit is granted and
should be reflected on the warrant of committal. The sentence remains the same
in all other respects.
Fairburn A.C.J.O.
Doherty J.A.
David Watt J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
RE/MAX
Realtron Realty Inc. v. 2458313 Ontario Inc., 2021 ONCA 715
DATE: 20211012
DOCKET: C68157
Hourigan, Huscroft and Coroza JJ.A.
BETWEEN
RE/MAX Realtron Realty Inc.
Plaintiff (Appellant)
and
2458313 Ontario Inc., 2524991 Ontario
Corporation, Qingxin Shao also known as Newry Shao and Zoubo Gu also known as
Steven Gu
Defendants (Respondents)
Paul Starkman and Calvin Zhang, for the appellant
Jordan Goldblatt and Victoria Wicks, for the respondents
Heard: October 8, 2021 by video conference
On appeal from the judgment of Justice Edward M. Morgan
of the Superior Court of Justice, dated January 29, 2020.
REASONS FOR DECISION
[1]
The appellants claim for commission on the sale of a Toronto property
was dismissed following a mini-trial, which was ordered in the context of the respondents
motion for summary judgment. The trial judge determined that a numbered
company, 2458313 Ontario Inc. (245), whose purchase of the property was
terminated, and the numbered company that subsequently purchased the property,
2524991 Ontario Corporation (252), were separate corporate entities with
overlapping but distinct interests and people. The trial judge found, further,
that
even if the corporate veil were pierced as the appellant
requested, it would do no good because the people behind the two corporations
were different. They were therefore not responsible for each others
contractual obligations and the holdover clause in the purchase and sale
agreement with
245 did not apply.
[2]
The appellant raises several issues on appeal that, taken as a
whole,
essentially invite this court to retry the case. That
is not our role.
[3]
The appellant has not established that the trial judge made
a palpable and overriding error that would justify this courts intervention.
The trial judge found that
245 did not include several people involved
in 252. Those people contributed half of the funds for the acquisition of the
property by 252, had a majority of the corporate officers, owned 50% of the
shares, and negotiated the second agreement of purchase and sale on behalf of
252. These findings were open to the trial judge on the record that was before
him. The trial judge went on to apply the test set out by this court in
Yaiguaje
v. Chevron Corp.
, 2018 ONCA 472, leave
to appeal refused, [2018] S.C.C.A. No. 255,
and found that the
criteria for piercing the corporate veil were not met. 252 was not a mere
façade for 245, nor was either company nothing more than the authorized agent
of its members. These findings reveal no error and are entitled to deference.
[4]
As to the causes of action pleaded by the
appellant, the trial judge found that 245s intention in terminating its
agreement of purchase and sale was not to save commission. Instead, several
individuals who were going to invest in the purchase were concerned by the
state of the building and were simply not satisfied with the deal, so it did
not proceed. The appellant clearly knew of this, as its agent had participated
in group chats about their concerns. A different group made a different offer
using its own real estate agent. In the absence of evidence of underlying wrongdoing
or unlawful intent, the various causes of action advanced by the appellant
necessarily failed. We see no error in the trial judges analysis.
[5]
The motion judge awarded the respondents
$143,931.31 in costs. He took into account that the respondents had made two
offers to settle and had been entirely successful. He found that the appellants
case completely missed the mark and that both the trial and the summary
judgment motion could have been avoided had the offers to settle been accepted.
Thus, the motion judge awarded partial indemnity costs up to the date of the
second offer and substantial indemnity costs thereafter.
[6]
The costs award is indeed large, but the appellant has
not established that the motion judge made an error in principle or that the
quantum of costs is unreasonable in the circumstances,
which include the
appellants rejection of two offers to settle. As the trial judge noted, given
the appellants knowledge of what had occurred, it is not clear why it was
necessary for this case to be tried.
[7]
Accordingly, the appeal is dismissed. Leave to appeal costs is denied.
[8]
The respondent is entitled to costs in the agreed amount of $20,000, all
inclusive.
C.W. Hourigan J.A.
Grant Huscroft J.A.
S. Coroza J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Bouchard
v. Sgovio, 2021 ONCA 709
DATE: 20211013
DOCKET: C69080
Pardu, Paciocco and Nordheimer JJ.A.
BETWEEN
Leslie Bouchard
Applicant (Appellant)
and
Angela Sgovio
Respondent (Respondent)
John P. Schuman and Katelyn Bell, counsel for the appellant
Brian J.R. Hall, counsel for the respondent
Heard: September 1, 2021 by videoconference
On appeal from the order of Justice Jayne E. Hughes of
the Superior Court of Justice, dated February 9, 2021 with reasons at 2021 ONSC
1055.
Paciocco J.A.:
OVERVIEW
[1]
The appellant father, Leslie Bouchard, appeals an enforcement order made
by Hughes J. pursuant to the
Family Law Rules
, O. Reg. 114/99, r. 1(8),
granting the respondent mother, Angela Sgovio, a temporary parenting order to
facilitate the enrollment of their two children in Family Bridges: A Workshop
for Troubled and Alienated Parent-Child Relationships (Family Bridges).
Family Bridges is an intensive therapeutic program for all family members,
designed to heal fractured parent-child relationships resulting from parental alienation.
[2]
The father also appeals a restraining order the motion judge made against
him pursuant to the
Childrens Law Reform Act
, R.S.O 1990, c. C.12, s.
35.
[3]
The parties have two children, T.B., a son, who was born in March 2006,
and a daughter, S.B., who was born in September 2009. The enforcement and restraining
orders are premised on the fathers alleged misconduct in alienating T.B. from his
mother. There were no independent concerns expressed during the underlying
litigation for the wellbeing of S.B., who maintains a positive relationship
with both parents.
[4]
The father argues that the motion judge erred by: (1) imposing the enforcement
order without jurisdiction, (2) making the enforcement order without fully considering
the best interests of the children and without sufficient evidence; and (3) imposing
a restraining order that was not requested by either party.
[5]
The father has presented fresh evidence in support of his appeal. The
fresh evidence purports to show a change in circumstances. There is
disagreement over the relevance and cogency of this evidence. However, it is
not contested that the fresh evidence demonstrates that the terms of the restraining
order interfere with the fathers livelihood. The mother consented to the
variation of the restraining order to remedy this but argues that the fresh
evidence is not otherwise admissible or useful.
[6]
I would grant leave to admit the fresh evidence, but I would dismiss the
appeal relating to the enforcement order for the reasons that follow.
Immediately after hearing this appeal, the panel granted the appeal relating to
the restraining order and varied that order on consent. I would not otherwise
interfere with the restraining order.
THE MATERIAL FACTS
[7]
The parties separated on March 31, 2017. On June 26, 2019, they entered
into a Parenting Agreement that provided for shared parenting of T.B. and S.B. That
same day, the Parenting Agreement was made into a final order on consent (the
Leef Order).
[8]
The Leef Order included a detailed regular schedule and an equally
detailed holiday schedule. It also provided that the children, both T.B. and S.B.,
would receive weekly counselling with Ms. Stacey Rennehan, and it forbade the
parties from involving the children in adult conversations about legal issues
or legal disputes.
[9]
On August 18, 2018, the mother brought a notice of motion seeking relief
arising from the fathers alleged noncompliance with the Leef Order, including
the shared parenting regime. This motion was argued before Hughes J. on August
22, 2019.
[10]
On
October 23, 2019, Hughes J. released her decision (the Hughes Order). She found
that there was ample support in the fathers own evidence to find that he was breaching
the Leef Order by withholding the child T.B. from his mother as a strategy for
resolving outstanding property issues. This finding was based on his past-practice
and the pattern and timing of the breaches of the Leef Order that she found to
have occurred.
[11]
Specifically,
the father confirmed in his affidavit evidence that prior to the Leef Order he had
withheld T.B. from his mother to secure the shared parenting order. This fact was
supported by text messages that had been filed in which he was using contact
with T.B. as an ultimatum in exchange for a shared parenting settlement.
[12]
The
motion judge found that, consistent with this past practice, the repeated
breaches of the shared parenting schedule in the Leef Order began the day after
an unsuccessful property settlement conference had been held. Moreover, she
found that this same day, the father, in breach of the Leef Order,
manipulated T.B. by communicating with T.B. about his extreme frustration
with the mother arising from their legal dispute. She found that this conduct
fueled T.B.s animosity towards his mother.
[13]
The
motion judge also found that the father had failed to take the children to
counselling sessions with Ms. Rennehan as directed, and she rejected his
explanation that he could not afford the costs of the counselling.
[14]
As
the result of her findings, the motion judge ordered the father to pay a global
fine of $18,000 to the mother, which she itemized between the several breaches
of the Leef Order that she had identified. She also ordered that [u]ntil the [father]
brings himself into compliance with the Leef Order, he shall not be entitled to
(d) [b]ring any further motions without leave of this court. The Hughes
Order has not been appealed.
[15]
When
she made the Hughes Order, the motion judge adjourned the matter to November 1,
2019 for a compliance hearing. That adjournment date was subsequently postponed
to December 18, 2019.
[16]
Pending
the December 18, 2019 adjournment date, the mothers care of T.B. had not
resumed, and on November 8, 2019 Ms. Rennehan withdrew from her counselling
role. On December 4, 2019, the mother, who had already moved for additional fines
for further alleged non-compliance, brought a Form 14 Amended Notice of Motion seeking,
among other things, an order that Mills Psychology shall conduct reintegration
therapy between the mother and T.B. The Notice of Motion did not identify the
source of the courts authority to make such order.
[17]
The
parties settled the mothers December 4, 2019 motion and on December 18, 2019,
McGee J. made a temporary consent order directing that the mothers care of T.B.
was to resume, and that T.B. attend counselling with Mr. Jeff Packer and Ms.
Nicole Bolotenko (the McGee Order). The motion was further adjourned to April
17, 2020 to permit T.B.s progress in therapy to be monitored.
[18]
Unfortunately,
the April 17, 2020 date was scuttled because of lockdowns during the COVID-19 pandemic.
It was rescheduled to be heard on September 28, 2020.
[19]
On
August 18, 2020, pending the September 28, 2020 hearing, the mother moved for still
further relief in another Form 14 Notice of Motion. As in the case of the
Notice of Motion she brought on December 4, 2019, she did not identify the
legal authority under which the relief was sought.
[20]
In
the affidavit in support of the Notice of Motion the mother claimed that
despite the Leef Order, the Hughes Order, and the McGee Order, she had not
managed to see her son outside of counselling since December 2019, and she
alleged that the father had sabotaged every attempt at therapeutic
intervention. Materially, she asked for an order that: (1) she have temporary custody
[1]
of the children; (2) that the children be enrolled in Family Bridges; (3) that
pending further Order of this Court, the children shall have no contact with
the [father], his relatives, friends or associates, including his spouse,
except as directed by Family Bridges, or the aftercare professional, or any
other professional designated by the [mother] or the Court, and none of the
abovementioned individuals shall contact the children; and (4) that the
father, who worked in an educational capacity with the Durham District School
Board, be placed at a school at least 20 kilometers away from the schools the
children would be attending.
[21]
On
August 25, 2020, the father brought a cross-motion for: (1) an order pursuant
to s. 30 of the
Childrens Law Reform Act
appointing Marcie Goldhar
to complete an expedited focused assessment to determine the reasons for the
difficulties in the relationship between T.B. and his mother; (2) an order
that the parties exchange offers to settle temporary parenting issues; and (3)
an order setting the school T.B. would be attending as well as setting out the
details of any necessary transportation and online learning arrangements. As was
the case with the mothers requests for further relief, the fathers requests
were made in a Form 14 Notice of Motion and did not identify the legal
authority for the orders sought.
[22]
On
September 28, 2020 Hughes J. conducted the hearing, which she described as a
proceeding to compel the [father] to comply with the Leef Order and orders made
subsequent, and to monitor the [fathers] compliance. The mother filed affidavit
evidence in support of the findings and orders she requested, although she did
not file a Form 35.1 sworn parenting affidavit, which is required in r. 15
motions when seeking to change parenting orders. In the supporting affidavit
she did file, however, she included a detailed description of Family Bridges,
and appended literature from the program as an exhibit.
[23]
Despite
having brought his own motion for substantive relief at the hearing, the father
objected to the motion judges jurisdiction to provide the relief that the
mother was seeking, arguing that such relief, including a change of parenting
time, cannot be provided as a remedy in a contempt proceeding, or an
enforcement proceeding under r. 1 of the
Family Law Rules
, if thats
what this is about. He also argued that he had done everything he could to get
T.B. to comply with the court orders, and he argued that the evidence did not
support a finding that he has alienated T.B. from his mother. He argued that,
in fact, T.B.s estrangement from his mother is justified based on her conduct.
He also argued that the s. 30 assessment he requested is required before the
court has jurisdiction to grant relief based on parental alienation. Finally,
he argued that the orders sought would not be in T.B.s best interest.
[24]
With
respect to the child S.B., the father argued that there was no suggestion that S.B.
was alienated from her mother, inferring that even if such therapy is ordered
relating to T.B., the order should not include S.B.
[25]
The
father also made submissions about the unsuitability of the Family Bridges program.
Specifically, he expressed concern that the parties cannot meet the enrolment
criteria, given that enrolment depends on the childs views about the alienated
parent being unrealistic, when T.B.s views about his mother are not
unrealistic. He presented affidavit evidence from Durham District Childrens
Aid Society case worker, Ms. Cathy Bugden, in which Ms. Bugden expressed
concerns that being sent to a treatment facility could have an extreme impact
on [T.B.s] well-being. In that affidavit, Ms. Bugden, who conceded that she
lacks expertise in the area of determining parental alienation, noted that if
the [professional] assessment supports this, then the professionals will have
made the official recommendations based on their findings.
[26]
Notably,
the father suggested no alternative programs or therapies to the Family Bridges
program, only the alternative strategy of a s. 30
Childrens Law Reform Act
assessment.
[27]
Counsel
for the Durham District School Board appeared to oppose the order the mother requested
that would have imposed area limits on the fathers employment placement.
Counsel for the Board noted that if the Board was forced to comply with such an
order it would place the Board in conflict with the collective agreement and
create significant staffing challenges during the COVID-19 pandemic.
[28]
The
motion judge released her decision on February 9, 2021. In her endorsement, she
rejected the fathers challenge to her jurisdiction to make the orders sought,
noting that this was a compliance matter, not a contempt matter. She said that
[t]he
Family Law Rules
provide the court sufficient discretion
to consider the relief claimed by both parties. She held that where a party
to the proceeding has failed to obey an order, [s.] 1(8) of the
Family Law
Rules
provides this court with a very broad discretion to make an order
the court considers necessary to compel that party into compliance. She ruled:
I find that I do have jurisdiction to place [T.B.] on an extended
visit with his mother on a temporary basis, and to authorize her to obtain the
treatment for herself and the children necessary to reverse the harm that has
been caused to [T.B.] as a result of his fathers refusal or inability to
comply with the Leef Order.
[29]
With
respect to the merits of the application, the motion judge found, based
predominantly on evidence that the father had filed, that:
[I]t is clearly in [T.B.s] best interest to resume the loving,
supportive and healthy relationship he had with his mother prior to his
parents separation, and that his father be provided the therapeutic assistance
he needs to be able to support [T.B.s] relationship with his mother and
recognize the importance of [T.B.s] mothers role in the childs life in order
that [T.B.] may enjoy fully the 50-50 shared parenting plan set out in the Leef
Order, which both parents recognized as being in his best interest.
[30]
However,
she found that:
Despite ample time to correct his course, the [fathers]
ongoing non-compliant conduct [with the Leef Order] has remained undeterred by
both the Hughes Order and the McGee Order, and I find that it is not in [T.B.s]
long-term best interest that his current circumstances continue further.
[31]
The
non-compliance the motion judge found consisted of the fathers continued
failure to facilitate the resumption of T.B.s parenting time with his mother,
and efforts by him to sabotage or actively undermine the therapy that had
been ordered to support T.B.s reunification with his mother.
[32]
Specifically,
she found that the fathers motion materials were peppered with examples of [his]
ongoing abusive conduct in speaking to T.B. about legal issues, including
telling T.B. that his feelings have no weight or importance and will not be
considered. He also acknowledged telling T.B. that Hughes J. said that, his
mother is right and his feelings and memories of his experiences are wrong.
The motion judge found that the father was not only breaching the court order
by making those statements to T.B., he also knew he was not truthful, tried to
justify his noncompliance, and appeared to be blind to the damage his
non-compliant conduct has caused to [T.B.].
[33]
The
motion judge also made findings that the father had actively obstructed the
therapeutic efforts made by each of the counsellors who had been retained
pursuant to the court orders Ms. Rennehan, Mr. Packer and Ms. Bolotenko. She
found that he also undermined the therapeutic efforts made by Mr. Gary Brooks,
who had been retained by agreement on the recommendation of Durham Childrens
Aid Society case worker, Ms. Bugden, after Mr. Packer and Ms. Bolotenko had
resigned.
[34]
The
motion judges finding that the father had undermined the therapeutic work of Ms.
Rennehan was supported by correspondence between the father and Ms. Rennehan. The
motion judge found that the father actively undermined Ms. Rennehans
therapeutic efforts by insisting, despite her recommendation to the contrary, that
the only way T.B. would proceed was if he and his new partner attended the
sessions; by insisting that she meet with T.B. so that T.B. could explain what
he wanted and needed out of the therapy; by suggesting to her that she was not
mandated by the court order to set reunification as a goal of the therapy; by
accusing Ms. Rennehan of having had private conversations with the mother; and
by requesting that he be permitted to record their meeting. These events led
Ms. Rennehan to conclude that trust had been broken and that securing a new
counsellor [for T.B.] is ideal.
[35]
With
respect to the team counselling led by Mr. Packer and Ms. Bolotenko that was
ordered under the McGee Order, the motion judge accepted the contents of a
report that was written to the Durham Childrens Aid Society by Ms. Bolotenko,
but jointly signed by both counsellors, explaining why ethical and safety
reasons required their resignation. That report included the following
information:
Before reunification counselling began, the parents agreed to
attend two sessions with Jeff Packer in order to assess and determine parents
readiness, level of commitment, and ability to engage in reunification counselling
and cooperative parenting coaching. During these two sessions (January 17 and
31, 2020) and subsequent correspondence, this writer found that the [father]
continued to engage in blame and put downs of his co-parent rather than
agreeing and committing to treatment plans set out by the writer for the
improvement of the [mothers] relationship with their son. Facing these
enduring high conflict patterns of behaviour, this writer offered alternatives
such as individual sessions, parallel parenting or parent co-ordination
approaches. The parties were also provided knowledge on how a lack of improvement
of engagement in their sessions would undermine and effect [T.B.s] motivation
and faith in his own counselling within the same organization. The [father] put
up further barriers to continued treatment with threatening and inappropriate
behaviour towards both the [mother] and the writers. On February 8, 2020, the [father]
and the [mother] were informed (via email) by the writers that they could not
continue to provide service for ethical and safety reasons:
It is our concern and impression, given the several hours of
documentation read from court, email correspondence and sessions with the writers
that [the father] continues to ignore court orders for shared custody and is
unwilling and unmotivated to participate in T.B. having a comfortable, healthy
and meaningful connection with his mother. The writers are concerned that [the
father] is directly and indirectly contributing to T.B.s sense of hostility,
dislike and aggression towards his mother. It is our assessment at this time. [The
father] struggles with his responsibility as a parent to encourage the
development of a healthier relationship between T.B. and his mother. Finally,
in keeping with a family systems approach, we are concerned with the health and
wellness of both children should exposure to such high-level parental/caregiver
contact continue.
[36]
The
counselling that had been arranged with Mr. Brooks had initially been going
well and producing positive results. It is not contested that it ended with a
letter from Mr. Brooks to the father in which Mr. Brooks set out the conditions
the father had agreed to, which included making sure T.B. attends therapy, not
discussing adult or court related issues with T.B. for any reason, and not
interrogating, asking questions, discussing, or inquiring how therapy went,
even if T.B. initiated such conversation. The letter continued:
Les your email clearly demonstrates that you did everything you
agreed you would not do which effectively sabotaged the therapeutic process.
Your actions further alienated T.B. from his mom. At this point, given your
actions as witnessed by your detailed email, I do no[t] feel reconciliation
therapy can be effective while T.B. remains in your care, under your direction
and influence. Regretfully, T.B. and his mom will have to seek out the services
of yet another therapist.
[37]
The
father provided alternative explanations for the breakdown of each therapeutic relationship,
but the motion judge rejected each of them. She commented that there is no
reason why the four therapists would provide inaccurate information, and that
given their professional duties, they probably accurately documented the events.
[38]
Of
note, Durham Childrens Aid Society Case Worker, Ms. Bugden, provided affidavit
evidence in support of the fathers conduct towards T.B. After reviewing Ms.
Bugdens affidavit and related documentary information, including Ms. Bugdens
own notes, the motion judge found that the father had manipulated Ms. Bugden,
who was inexperienced with parental alienation and therefore unsuspecting of
manipulative characteristics of parents with alienation tendencies. The motion
judge found that the father had provided her with inaccurate and incomplete
information, dominated their communications, and was given access to statements
made by T.B. to Ms. Bugden that should have been kept private. When the father
confronted Ms. Bugden by telling her that T.B. felt she was minimizing his
feelings about the years of his mother talking negatively about his father and
lying about issues, Ms. Bugden did not interrogate this claim but apologized to
T.B.
[39]
Mr.
Michael Blugerman, a registered social worker with expertise in child welfare,
was retained by the father to assist him with the counselling process. He
provided an affidavit that is supportive of the father and critical of the
counselling Mr. Packer had provided. The motion judge rejected Mr. Blugermans
views, noting that Mr. Blugerman did not have expertise in parental alienation
or reunification, had not contacted Mr. Packer with questions relating to the
reunification method being utilized, had displayed no concern for the fact that
the father had shared with him a surreptitiously recorded conversation with Mr.
Packer, and that Mr. Blugerman had received manipulative and incomplete information
from the father relating to Mr. Packers decision to discontinue counselling T.B.
[40]
Based
on this evidence, the motion judge found that [t]ime has become of the
essence and given the fathers pattern of refusing to engage with professional
therapists, it was not in in T.B.s best interest to delay the enforcement of
the Leef Order pending a further assessment to determine the cause of T.B.s
resistance. She said, [i]t is not necessary to wait for a fourth counsellor to
advise me that the [father] continues to actively alienate his son [T.B.] from
the childs mother.
[41]
The
motion judge concluded that it was necessary to order that the children be
enrolled in the Family Bridges program, that a temporary parenting order
relating to T.B. and S.B. be given to the mother for the period of time the
children are enrolled in the Family Bridges program, and that steps be taken to
prevent the [father] from sabotaging the program by controlling his contact
with the children until his involvement is required by the leaders of the
[Family Bridges] program.
[42]
In
relevant part, the key provisions of the order under appeal provide:
2. The [mother] shall have temporary custody of the children, [T.B.]
and [S.B.]
until further order of the court.
3. The [mother] shall enroll with the children in Family
Bridges: A Workshop for Troubled and Alienated Parent-Child Relationships
(Family Bridges), to enable and assist the children in adjusting to living with
the [mother], without the consent of the [father].
[43]
In
her endorsement, the motion judge also imposed the following restraining order
against the father:
Pursuant to s. 35 of the
Childrens Law Reform Act
,
the [father] is restrained from directly or indirectly contacting or
communicating with the children
, and from coming within 1000 meters of any
location where they are likely to be, including, without limitation, the [mothers]
residence, their schools
the Durham Childrens Aid Society offices
[2]
,
the offices out of which the Family Bridges Program operates, except as
directed by the leaders of the Family Bridges Program or the aftercare
professional, or any professional designated by the [mother] or the court.
Indirect contact shall include from the [fathers] relatives, friends,
associates, and includes his spouse. Contact includes all forms of
communication, including, without limitation, by phone, text, written letters,
email, social media, via computer, in person, or via any third parties. For
clarity, this restraining order does not impact contact between counsel
relating to the ongoing litigation. The restraining order against the [father]
shall not be varied until a minimum of 90 days have passed from the
commencement of therapy recommended by Family Bridges for the [father] unless
the court orders otherwise. This 90-day period is a minimum only. The extension
of which will be considered by the court based on the [fathers] progress made
in any aftercare therapeutic program recommended by Family Bridges
[44]
Both
the order and the endorsement went on to identify the factors that the court
would consider in deciding whether to terminate or extend the restraining order.
Those conditions effectively turn on the fathers compliance with the
requirements of the Family Bridges program, and his behaviour relating to the
promotion of a positive relationship between the children and their mother.
[45]
The
motion judge denied the mothers request to impose an area restriction on the
fathers employment because the Durham District School Board had not been
served and given a full opportunity to respond, and she lacked jurisdiction to
interfere with the contractual terms of the collective agreement. However, the
restraining order prevented the father from attending the childrens schools.
ISSUES
[46]
The
issues that were argued by the father both orally and in writing can be framed and
addressed as follows:
A.
Did the motion judge
commit jurisdictional error by making the orders that she did?
B.
Did the motion judge
err by failing to consider fully the best interests of the children or by
making the orders that she did with insufficient evidence?
C.
Did the motion judge
err in making the restraining order?
[47]
Although
the motion judges decision is not without its concerns, I would not allow the
fathers appeal beyond affirming the variation to the restraining order that
the panel ordered at the close of the hearing of this appeal.
ANALYSIS
A.
Did the motion judge COmmit Jurisdictional Error by Making the Orders
that She did?
[48]
I
would not accept the fathers argument that the motion judge lacked
jurisdiction in the proceedings to make a temporary parenting order in favour
of the mother and to order the enrollment of the mother and children in the
Building Bridges program. The motion judge properly made those orders pursuant
to r. 1(8) of the
Family Law Rules
. Specifically, r. 1(8) provides:
1(8) If a person fails to obey an order in a case or
a related case, the court may deal with the failure by making any order it
considers necessary for a just determination of the matter, including:
(a)
an order for costs;
(b)
an order dismissing a claim;
(c)
an order striking out any
application, answer, notice of motion, motion to change, response to motion to
change, financial statement, affidavit, or any other document filed by a party;
(d)
an order that all or part of a
document that was required to be provided but was not, may not be used in the
case;
(e)
if the failure to obey was by a
party, an order that the party is not entitled to any further order from the
court unless the court orders otherwise;
(f)
an order postponing
the trial or any other step in the case; and
(g)
on motion, a contempt order.
[49]
As
long as the judge is satisfied that there has been a failure to obey an order
in a case or a related case subrule 1(8) is triggered and the relief
provided for therein can be ordered:
Hughes v. Hughes
, (2007), 85 O.R.
(3d) 505,
at para. 17 (Ont. S.C.J.). Although r. 1(8) provides an
itemized list of forms of relief that are available, that list is inclusive,
not exclusive:
Mullin v. Sherlock
, 2018 ONCA 1063, at para. 46;
Childrens
Aid Society of Haldimand and Norfolk v. J.H. and M.H.
, 2020 ONSC 2208, at
para. 126. The reach of the remedial orders that can be made is governed not by
the itemized list in that rule, but by the general and broad language of the
chapeau that precedes it, which provides that the court may deal with the
failure by making any order that it considers necessary for a just
determination of the matter.
[50]
As
a result, even though, with the notable exception of r. 1(8)(g), each of the
itemized forms of relief in r. 1(8) can be described as purely procedural, r.
1(8) has not been interpreted as being confined to purely procedural remedies. In
Freedman v. Freedman
, 2020 ONSC 301, at para. 20, for example, the
court relied on r. 1(8) to give the applicant access to account information as
well as exclusive authority to deal with insurance polices and off-shore
accounts in order to prevent the respondent from dissipating these assets in an
attempt to avoid compliance with court orders to make payments and asset
disclosure. In
Shouldice v. Shouldice
, 2016 ONSC 1481, at paras.
17-19, pursuant to r. 1(8) a receiver of property was appointed to manage rental
property so that support obligations that were being evaded could be enforced.
In
Sadlier v. Carey
, 2015 ONSC 3537, at paras. 64-67, an order was
made pursuant to r. 1(8) requiring the respondent to surrender his passport to the
court to prevent his flight from the jurisdiction, and he was ordered to post
security after he had been evading support orders.
[51]
Such
broad and purposeful applications of r. 1(8) are sensible. The relevant
substantive right is created by the order that is being enforced, while r. 1(8)
serves to provide the means of enforcement so that those substantive rights may
be realized. The rule therefore provides broad discretion to courts to make
orders it considers necessary to fully address a partys failure to comply, a
flexibility that is of particular importance when the orders address the
well-being of children:
Childrens Aid Society of Haldimand and Norfolk v.
J.H. and M.H.
, at para. 127. Stated simply, if the remedy ordered
addresses or [deals] with the failure to comply with the substantive order
and the remedy ordered is found to be necessary to achieve the enforcement of
the order being breached, that remedy is
prima facie
authorized by r.
1(8).
[52]
I
use the term
prima
facie
authorized because I do not
mean to suggest that there are no limits to the kinds of enforcement orders
that can be made under r. 1(8). For example, it may well be that the remedies
that are provided for in r. 31(5), which is reproduced below, cannot be imposed
pursuant to r. 1(8), absent a successful contempt motion as contemplated by r.
1(8)(g): see
Mantella v. Mantella
, 2009 ONCA 194. This proposition
seems sensible since contempt orders require proof beyond a reasonable doubt,
and although they are remedial in purpose, they are punitive in nature, and are
therefore to be used as a last resort:
Hefkey v. Hefkey
, 2013 ONCA 44,
at para. 3;
Prescott-Russell Services for Children and Adults v. G. (N.)
,
[2006] 82 O.R. (3d) 686 (Ont. C.A.), at para. 26. I need not resolve this specific
question since the ground of appeal before us concerns only the temporary
parenting order and the Building Bridges order, neither of which are remedies
contemplated by r. 31(5); the father did not appeal the Hughes Order where the
motion judge did impose punitive fines without making a finding of contempt
against the father, nor did he raise any objections in this appeal to the
motion judges order that those fines would remain in full force and effect. Nevertheless,
this illustration demonstrates that there may be other legal limits on the
kinds of orders that courts may impose under r. 1(8).
[53]
The
father contends that however broad the remedial authority under r. 1(8) may
otherwise be, there is another legal limit that applies and was breached. Specifically,
he contends that r. 1(8) cannot be used to make parenting orders, and the
motion judge erred by purporting to do so. He maintains that parenting orders
may only be made or varied under the authority of ss. 16 and 17 of the
Divorce
Act
, R.S.C. 1985, c. 3 (2nd Supp.), or ss. 20-29 of the
Childrens Law
Reform Act
. He maintains that since no such proceedings were underway
there was no active parenting case before the [c]ourt to enable the motion
judge to make the orders that she did.
[54]
In
my view, the father mischaracterizes the motion judges order in making this
argument. The motion judge did not purport to vary the parenting terms
contained in the Leef Order. Instead, she imposed an order that temporarily
reassigned parenting rights to facilitate a therapeutic process that was
ordered to enable the enforcement of the parenting terms set out in the Leef
Order. Put otherwise, the order made by the motion judge did not vary or
replace the Leef Order. Contrarily, it was made to facilitate the Leef Order. I
am satisfied that this order fell within the motion judges remedial authority
under r. 1(8).
[55]
Moreover,
the implications of the fathers position are untenable. If he is correct, the
proper procedural mechanism for remedying parental alienation that is
frustrating a final parenting order is for the injured party to apply to reopen
and vary the very order they want to enforce. If that were so, a party could
provoke a new hearing on the terms of a final order by simply breaching it.
[56]
Appropriately, where one parent wrongfully withholds a
child from the other, in violation of a court order, r. 1(8) provides quick
access to a remedy, including for example, make-up time with the child. The
parent entitled to court ordered time with the child should not be compelled to
bring a motion to change the existing order. The same holds true where parental
alienation is frustrating a parenting order. When dealing with the best
interests of a child, delay should be avoided as much as possible. Litigation
about children is costly and procedural roadblocks should be avoided.
[57]
Nor
do I accept the fathers submission that the relief that was ordered was not
pled. In fact, it was specifically requested by the mother in her Form 14 Notice
of Motion dated August 18, 2020.
[58]
I
also reject both arguments the father makes in reliance on r. 31(5), namely,
(1) that the motion judge erred in making a r. 1(8) order in a contempt
hearing; and (2) that the motion judge erred, contrary to the decision in
Chan
v. Town
, 2013 ONCA 478, by using a parenting order as a punishment for
contempt. I will set out r. 31(5) before addressing these submissions. That
rule provides:
31(5) If the court finds a person in contempt of the
court, it may order that the person,
(a)
be imprisoned for any period and
any conditions that are just;
(b)
pay a fine in any amount that is
appropriate;
(c)
pay an amount to a party as
a penalty;
(d)
do anything else that the court
decides is appropriate;
(e)
not do what the court forbids;
(f)
pay costs in an amount
decided by the court, and
(g)
obey any other court order.
[59]
I
will make two responses to the fathers submission that the motion judge erred
by making a r. 1(8) order in a contempt hearing.
[60]
First,
there is no clean division between contempt hearings and enforcement hearings.
As r. 1(8)(g) illustrates, a party seeking enforcement under r. 1(8) may, but
need not, bring a contempt motion as an enforcement mechanism. More
importantly, even where contempt is at issue in a hearing, a judge may make a
r. 1(8) order. As I have already indicated, contempt remedies are to be used as
a last resort:
Hefkey
, at para. 3. Indeed, as this Court explained in
Hefkey
,
at para. 3, a contempt remedy should not be granted in family cases if other
remedies would suffice. This includes enforcement orders. There is nothing to
prevent a court from making an enforcement order in addition to, or in lieu of,
a contempt order even if a contempt order is sought in the proceedings: see
Murano
v. Murano
(2002), 219 D.L.R. (4th) 334 (Ont. C.A.).
[61]
Second,
contempt was not even in issue at the hearing where the impugned order was
made. The motion judge arranged the hearing for the express purpose of
monitoring compliance, and none of the general Form 14 Notices of Motion that
the parties filed for additional relief in advance of the hearing sought a
finding of contempt. Not surprisingly, in her endorsement the motion judge
described the hearing as a proceeding to compel the [father] to comply with
the Leef Order and orders made subsequent, and to monitor the [fathers]
compliance. Relief provided for in r. 1(8) was therefore available to the
motion judge at the proceedings.
[62]
I
also reject the fathers related submission that, contrary to the decision in
Chan
,
the motion judge used a parenting order as punishment for contempt. The motion
judge in
Chan
purported to assign custody to the father as
punishment for a finding of contempt that was made on contested evidence that
could not support a finding of contempt beyond a reasonable doubt. In contrast,
the motion judge in this case made a temporary order that effectively suspended
parenting rights conferred in the final order and she did so to facilitate therapy,
not to punish the father. The motion judges order was based predominantly on
the fathers own evidence and was made in order to fulfil the terms of the Leef
Order. Moreover, as I explain below, the motion judge made this order because
of her assessment of the best interests of the children. The cases are not
comparable, and the principles articulated in
Chan
are not offended by
the r. 1(8) order.
[63]
Accordingly,
the motion judge had the jurisdiction to make the orders that she did. I would therefore
reject this ground of appeal.
B.
Did the Motion Judge Err by Failing to Consider Fully the Best Interests
of the Children, Or by making the orders that she did with insufficient
evidence?
[64]
I
do not accept the fathers submission that the motion judge erred by failing to
fully consider the best interests of the children or that she acted on
insufficient evidence in making the orders that she did. In explaining my
conclusions, I will address several discrete objections that the father raised
to the motion judges decision, including: (1) his contention that she should
not have made a finding of alienation without expert evidence or the s. 30
Childrens
Law Reform Act
assessment that he had requested; (2) his submission
that she should not have made the findings or imposed the orders that she did
without a voice of the child report from T.B.; and (3) that she misapprehended
or ignored the evidence that the father had relied upon.
(1)
T.B.
Did the Motion Judge turn her mind to T.B.s best interest?
[65]
It
is patent that the motion judge fully considered whether the orders she was
making were in T.B.s best interest. She noted explicitly that although it was
an enforcement order that she was considering, given the relief that was
requested by the mother, the test remained what disposition is in T.B.s best
interest. She then listed the best interest factors enumerated in s. 24(2) of the
Childrens Law
Reform Act
that a judge shall consider,
and she ultimately concluded that the temporary order was required because time
was of the essence, a consideration that was clearly focused on T.B.s best
interest.
[66]
It
is true that the motion judge did not overtly address each of the factors
enumerated in s. 24(2). However, the failure to mention listed factors is not
an error
per
se
; it is an error only if there is an
indication that the judge failed to consider them:
Van de Perre v. Edwards
,
2001 SCC 60, [2001] 2 S.C.R. 1014, at paras. 14-16. In my view, there is no
basis for concluding that the motion judge failed to consider the material
factors in this case. The best interests issue relating to T.B. was decidedly narrow.
The parties agreed before the motion judge that it was in T.B.s best interest
to have a healthy relationship with his mother, a concession the motion judge
readily and reasonably accepted. There was therefore no need for her to canvass
all of the s. 24(2) factors
seriatum
.
[67]
The
remaining piece is whether the motion judge considered T.B.s best interests in
attending the Building Bridges program. Once again, her reasons make it clear that
she did. She concluded that given the fathers ongoing alienating behaviour,
this more invasive approach was necessary to restore T.B.s relationship with
his mother, an outcome that was in his best interest.
Did the Motion Judge have sufficient evidence?
[68]
I
do not accept the fathers contention that the motion judge lacked the evidence
required to decide that the orders she made were in T.B.s best interest.
[69]
Unless
an error of law has occurred, or a decision is plainly wrong, appellate courts
must defer to a motion judges appreciation of the facts, even if the appellate
judge may have come to a different decision, particularly where the orders at
issue affect the welfare of children:
A.M. v C.H.
, 2019 ONCA 764, at
para. 4;
Slaughter v. Slaughter
, 2013 ONCA 432, at para. 6;
A.P.
v. L.K.
, 2021 ONSC 150, at para. 66;
Van de Perre
, at para. 13. Accordingly,
the motion judges decision that it was in T.B.s best interest to make the
orders that she did is entitled to deference.
[70]
There
was evidence before the motion judge supporting each of her findings about the
failure of the father to comply with the Leef Order. When she made the Hughes
Order, the motion judge had a foundation from the fathers own documentation
that he had communicated with T.B. about legal issues he was having with T.B.s
mother and that the father did so destructively, damaging T.B.s relationship
with his mother. The evidence suggested that these conversations were the onset
of T.B.s estrangement from his mother and that they occurred after a failed
settlement conference. The motion judge was entitled to draw the inference that
the father promoted the breach in T.B.s relationship with his mother for the
purpose of pressuring the mother to settle their legal claim to his
satisfaction. Of note, that finding was never appealed.
[71]
The
additional findings the motion judge made about the fathers misconduct after
the September 28, 2020 hearing were also grounded in the evidence, with most of
it again from the fathers own materials. Most importantly, she had an ample
evidentiary basis for finding that he was actively and systematically
sabotaging the therapeutic programs that had been ordered and that he lacked
insight into how damaging his behaviour was to T.B.
[72]
This
evidence, coupled with the simultaneous change in T.B.s behaviour towards his
mother, adequately supports the motion judges conclusion that the father was
alienating T.B. from his mother, even without evidence from an expert in parental
alienation. As this court made clear in
A.M. v. C.H.
,
at para. 31,
alienation is not a psychiatric diagnosis that invariably requires expert
evidence, but a factual finding about what happened in the family. In this
case, the factual evidence of alienation was adequate without expert evidence.
[73]
Nor
do I see any error in the motion judges decision to deny the fathers request
for an assessment by an expert in parental alienation under s. 30 of the
Childrens
Law Reform Act
. As I have explained, expert evidence was not required to
make this determination. More importantly, based on the motion judges findings,
the father had systematically scuttled every previous effort that had been made
to provide the required therapeutic intervention. To be sure, it was in his
interest to do so, since during the delay that ensued, T.B. was exclusively
with him and not with his mother. The motion judge also found that the father
had manipulated other professionals, including the Durham Childrens Aid
Society worker, Ms. Bugden. In light of the fathers past behaviour, she could
have no confidence that if she ordered an assessment it would be productive,
and the point had been reached where delay was not an option.
[74]
Simply
put, I see no error in her decision to proceed without expert evidence or a s.
30 assessment. The absence of expert evidence did not undermine her finding
that the father was alienating T.B. from his mother.
[75]
A
factual finding that alienation is occurring, such as the reasonable finding of
alienation made by the motion judge in this case, can have implications for the
need for a voice of the child report, even for older children such as T.B., who
was 14 years of age at the time of the hearing. As this court recognised in
A.M.
v. C.H.
, at para. 27, where a child has been poisoned against a parent and
their wishes are not independent because they have been manipulated, a judge is
entitled to give a childs views no weight. It is evident that, in the motion judges
assessment, T.B.s views would not be independent and could carry little if any
weight.
[76]
Moreover,
T.B.s views were well known at the time of the hearing. It was patent on the
evidence, including the email exchanges between T.B. and his mother that had
been filed, that T.B. resisted spending time with his mother, did not believe
he was being alienated from her, and believed that she bore responsibility for
the rift between them. It was not an error in principle in these circumstances
for the motion judge to proceed without a voice of the child report, particularly
given that the father brought no motion to secure one. Nor did the absence of
such a report create a gap in the evidence that undermines the best interest
findings that the motion judge made.
[77]
There
is no basis for concluding that the motion judge misapprehended the evidence or
failed to consider the evidence the father was relying upon to dispute the
alienation claim. The motion judge gave cogent explanations for why she did not
credit that evidence.
[78]
Finally,
although the father did not raise this objection or make it a ground of appeal,
for the sake of completeness I will address the fact that the motion judge made
the order that she did even though mother did not file a Form 35.1 sworn
parenting affidavit. Form 35.1 sworn parenting affidavits are required where
parenting rights are sought in r. 8 applications, as the result of r. 11 amendments
to applications, or in r. 15 motions-to-change. Form 35.1 affidavits include designated
information that is valuable for judges when considering parenting orders,
including a parenting plan, and the disclosure of any criminal charges or
convictions of the party seeking the parenting order. I need not decide whether
a Form 35.1 sworn parenting affidavit was technically required to secure an
enforcement order that touches on parenting rights, but the mother would have been
well advised to include such an affidavit given the nature of the relief she
was requesting. Nevertheless, the motion judge had a clear indication of the
parenting plan during the period covered by the order, and as I have indicated,
the inquiry into the best interests of the children in this case was narrow. In
the absence of any objection, it was not unreasonable for the motion judge to
proceed in the absence of a Form 35.1 sworn parenting affidavit.
[79]
I
would therefore defer to the motion judges clearly grounded decision that it was
in T.B.s best interest to take immediate steps to address the parental
alienation that she found to be occurring. The fathers conduct was profoundly
contrary to T.B.s best interests.
[80]
The
remaining issue is whether there was a proper evidentiary basis for the motion
judges decision that it was in T.B.s best interest to attend the Building
Bridges program, and be removed from his father for a temporary period of time
as required by the program, so that this therapeutic intervention could be
undertaken. Although a better evidentiary foundation can easily be imagined, I
do not agree that the motion judge lacked sufficient evidence about the program
to conclude that it was in T.B.s best interest to attend the Building Bridges
program and to be separated from his father, as required by the program.
[81]
As
indicated, less invasive forms of therapeutic intervention had failed,
suggesting that more invasive steps were needed. The Building Bridges program
was described in some detail in the mothers affidavit, to which material from
their website had been appended. Other courts had ordered treatment at the
Building Bridges program and similar therapeutic programs in other cases, for
example in
X. v. Y.
,
2016 ONSC 4333;
J.C.W. v. J.K.R.W.
,
2014 BCSC 488, [2014] B.C.J. No. 503;
E.T. v. L.D.
, 2018 ONSC
5132; and
M.L.S. v. N.E.D.
, 2017 SKQB 183. Further, the father
presented no evidence about alternative programs, or about any problems with the
Building Bridges program itself. The motion judge acted on the evidence before
her, and in my view, although the evidence was not ideal, it was sufficient. I
would defer to her factual findings and her determination of the appropriate
remedy for T.B.
(2)
S.B.
[82]
I
am of the same views with respect to S.B., although I agree that the motion
judge should have been much more explicit than she was in addressing S.B.s
best interests when including her in the impugned orders. It is important to
remember, however, that this litigation was focused on T.B. The father affirmed
in his submission that it was not about S.B. It is not entirely surprising,
therefore, that the motion judge did not focus her attention on S.B. when
explaining her decision.
[83]
Moreover,
it is clear from her comments relating to T.B. that the motion judge had a full
understanding of the best interest principle. It is also evident that it was
not in S.B.s best interest to be excluded from the orders. In these
circumstances, it is not appropriate to infer that the motion judge failed to
consider S.B.s best interest.
[84]
Specifically,
the motion judge arrived at the reasonable findings that the father had used
the mothers relationship with T.B. as a strategy for achieving his goals, had
manipulated T.B. to achieve this, and lacked awareness of the damage that this
had done to T.B. Although there was no evidence of similar behaviour relating
to S.B., it was obviously in S.B.s best interest for the court to attempt to
ameliorate this kind of behaviour by the father to reduce the risk that she
could be similarly manipulated going forward.
[85]
In
addition, there was evidence before the motion judge that S.B. had a loving and
secure relationship with both parents. There is therefore merit in the fathers
objection that it was not in S.B.s interest to interrupt the positive
relationship with him, even for the temporary period provided for by the motion
judges order. At the same time, however, the motion judge was persuaded that
it was in T.B.s best interest to place him and his mother in the Building
Bridges program and to segregate them from his father. If S.B. was not included
in the program, she would therefore be separated from her mother and her
brother, which was not in her best interest. Moreover, the loving and secure
relationship that S.B. has with her father gives comfort that their
relationship would not suffer long-term damage by the temporary order the
motion judge was making.
[86]
Finally,
there was also evidence before the motion judge that the Building Bridges
program is designed for all family members and required S.B.s participation.
The mother expressed her understanding with the motion judge that S.B. would
need to participate in the program and would be attending the sessions, an
understanding that finds support in case law: see
X v. Y.
, at para. 22.
S.B.s participation was therefore important to T.B.s best interest, as
determined by the motion judge. In making this observation, I am not
supplanting S.B.s best interest with what is best for T.B. To a significant
degree, what is best for T.B. is best for S.B. They are siblings, and members
of the same family. It is not in S.B.s best interest if her brother T.B.s
relationship with their mother is broken and hostile.
[87]
Although
it would have been much preferred had the motion judge addressed these
considerations overtly in her reasons, I am not prepared to find that she
failed to consider them or that there was inadequate evidence of S.B.s best
interest to warrant her inclusion in the orders made. Nor am I prepared to
undermine a last resort and long-delayed order that the motion judge made in T.B.s
best interest, because the motion judge did not articulate adequately why she
came to the only decision she could have relating to S.B.s inclusion in the
impugned orders.
[88]
I
would therefore reject the fathers claim that the motion judge erred by
failing to fully consider the best interests of the children or acted without
sufficient evidence. I have reviewed the fresh evidence filed by the father and
see nothing in it to alter any of the above conclusions.
C.
Did the Motion Judge err in making the REstraining order?
[89]
The
appellant argues that the motion judge erred in making a restraining order that
neither party asked for in their pleadings. He also objects that the
restraining order that the motion judge imposed included a prohibition on
contact with his daughter S.B., non-attendance at his place of employment that
would result in the termination of his employment, and at the Durham Childrens
Aid Society, without rationale at all.
[90]
Based
on the fresh evidence we admitted and on the mothers consent, we ordered that
the order restraining the father from attending at the childrens school or
within 1000 meters of specific locations is varied to provide that the
appellant may attend at the school that is his workplace and may communicate
there with a child of the marriage who attends that school. Based on evidence
that the boundary order relating to the Durham Childrens Aid Society Offices
frustrates the fathers travel to work, we further varied the order to provide
that he may pass within 1000 meters of the Durham Childrens Aid Society
offices when travelling from one location to another.
[91]
Beyond
the variations we have already ordered, I would not otherwise interfere with
the restraining order. I do not accept the fathers contention that the mother
had not sought a restraining order in her pleadings. Although the mother did
not use the language of s. 35 of the
Childrens Law Reform Act
, she
asked for a temporary order that the father have no direct or indirect contact,
including by communication, with the mother and children. She also asked for an
order relating to his employment that would place him at least 20 kilometres
away from the high school the children were expected to attend. In my view, the
restraining order that the motion judge made pursuant to s. 35 of the
Childrens
Law Reform Act
was contemplated by the pleadings.
[92]
For
the reasons I have already provided, I do not accept the fathers submission
that the restraining order related to S.B. was imposed without reason. The
motion judge was attempting to segregate T.B. from all communication with his
father, direct or indirect. There is a heavy risk of indirect communication
with T.B. if the father is free to contact or communicate with S.B. when she is
in T.B.s company. I would not interfere with the motion judges order.
CONCLUSION
[93]
I
would therefore dismiss the appeal. I would order the costs in this appeal to
be payable to the mother in the agreed upon amount of $10,000, inclusive of
disbursements and applicable taxes.
David M. Paciocco
J.A.
I agree. G. Pardu
J.A.
Nordheimer J.A. (dissenting):
[94]
I
have read the reasons of my colleague. He has set out, with his usual clarity,
the questions raised in this case. He has also provided a sound analysis and
rationale for the ultimate order made one that was not provided by the motion
judge. Nevertheless, while I understand my colleagues justification for the
order that was made, I am unable to agree that it was properly granted. In my
view, there were fundamental procedural errors that occurred in reaching the
conclusion in this case. Consequently, the order cannot stand and must be set
aside.
[95]
In
my view, the motion judge lacked the jurisdiction to make the enforcement
order that she did through the process that was before her. What the motion
judge did, in essence, was to vary a final order without requiring the
respondent mother to follow the detailed procedures for seeking such a
variation, thus denying the appellant father, and the children, the procedural
safeguards to which they were entitled before such a serious variation was
made.
[96]
Even
without this fundamental problem, I would find that the motion judge erred in
including certain terms in her order.
[97]
My
colleague has set out the background facts succinctly. It is unnecessary for me
to repeat them.
A.
JURISDICTION
[98]
The
fundamental error committed by the motion judge is that she failed to consider
and address her jurisdiction to make the ultimate order that she did. The
motion judge relied on r. 1(8) of the
Family Law Rules
, O. Reg.
114/99, to make the order. While I appreciate the analysis that my colleague
has undertaken, which ultimately finds that r. 1(8) can be relied upon in this
case, I do not agree that r. 1(8) authorized the order that was made. In
that respect, I agree with, and reinforce, my colleagues point that r. 1(8) is
not a provision by which any form of relief, necessary to enforce an order, can
be granted.
[99]
I
concede the general and broad nature of the introductory language in
r. 1(8), which grants the court authority to make any order that it
considers necessary for a just determination of the matter in the face of
non-compliance with a previous court order. However, in my view, that broad
language does not provide the court with a carte blanche to make any order that
it wishes. Rather, the itemized list of suggested orders in r. 1(8), while
non-exhaustive, does indicate the kind of orders that are appropriately made,
the vast majority of which are procedural in nature. Of more immediate
relevance for this case is that those suggested orders do not include varying a
final order.
[100]
Instead, it is r. 15
that is dedicated to changing a final order or agreement. Importantly, where
the claim relates to parenting orders, r. 15(5.1) requires the parties to file
up-to-date Form 35.1 affidavits. These affidavits include information relevant
to the safety of the subject children, such as whether either parent has been
charged with or found guilty of a criminal offence, as well as the parents
plan for the care of the children and any support network available to them. In
this case, the court did not have the benefit of this potentially relevant
information before it proceeded to alter the parenting order by relying on r.
1(8).
[101]
I accept my
colleagues distinction between taking steps to enforce orders short of a contempt
finding and enforcement that involves the contempt power. I accept that
distinction because this court has already said that the civil contempt remedy
is one of last resort:
Hefkey v. Hefkey
, 2013 ONCA 44, 30 R.F.L.
(7th) 65, at para. 3. However, as I have already said, and as my colleague
points out, the broad language of the introductory portion of r. 1(8) cannot
provide jurisdiction to make whatever order the court wishes. It does not
bestow unlimited authority on a judge to do whatever they choose. My colleague
implicitly acknowledges that there are constraints on the authority granted by
r. 1(8), when he says, at para. 52, there may be other legal limits on the
kinds of orders that courts may impose under r. 1(8).
[102]
I would go farther and
make it clear that there are such limits. They are necessary because, before
certain types of orders are made against a party, it is necessary to follow
certain procedures, including applying the proper burden of proof. These
procedures must be followed because they provide necessary procedural
safeguards to the person who is to be subjected to any such order. For example,
in cases where penal sanctions are sought, those safeguards are provided by
r. 31 of the
Family Law Rules
.
Procedural safeguards are
not to be avoided simply because it is more convenient or more expedient to do
so.
[103]
The problem with
distinguishing between those orders for which jurisdiction can be found in r.
1(8), and those orders for which jurisdiction can only be found in other rules,
such as r. 31, is made more difficult in this case for two reasons. One is the
language used by the motion judge in her reasons and the other is because of an
order that she made in this case in October 2019.
[3]
The language to which I refer is
the motion judges use of the word penalties in her reasons (see
paras. 92, 101). Penalties are generally only available after a finding of
contempt has been made. This is clear from the provisions of r. 31, namely r.
31(5)(c), and from the existing authorities: see, e.g.,
Belcourt v.
Charlebois
, 2020 ONSC 4124 at paras. 28-32.
[104]
Furthermore, as this
court held in
Chan v. Town
, 2013 ONCA 478, 34 R.F.L. (7th) 11, at
para. 6, parenting orders should never be used as punishment:
Custodial arrangements of children cannot be used as a
punishment for contempt. That is not to say that there may not be a
circumstance where a change in custodial arrangements would be in the best
interest interests of the child, but this is not that case.
There was no
motion to vary the final order for custody based on a material change in
circumstances
. The motion judges rationale was that he hoped that this
would bring peace to warring parents, although he said he recognized that it
could make matters worse. [Emphasis added.]
[105]
In fairness, the
motion judge did begin her analysis by reciting the factors relevant to the
child(ren)s best interests. She specified that any order she might make under
r. 1(8) must be determined to be in [the childs] best interests: at para.
86. However, at para. 90, she concluded that [t]ime has become of the
essence. She also found that the evidence before the court was sufficient to
conclude that the father was unwilling or unable to comply with the shared
parenting time arrangement under the Leef Order. Two problems arise from the
motion judges analysis, though.
[106]
First, it is difficult
to discern the factual foundation for the motion judges conclusion that time
was of the essence. The issues that were before the motion judge dated back at
least two years. Indeed, as earlier noted, the same motion judge made an order
in October 2019 addressing some of the same concerns with which she was faced
in making the order that is now under appeal. It is hard to see, therefore, how
this matter had suddenly become so urgent that proper processes could not be
followed or that proper evidence could not be required.
[107]
Second, when the
motion judge made the order that she did, there was no evidence before the
court that the proposed intensive intervention through the Family Bridges program,
including zero contact between the father and the children for a minimum of 90
days, was suitable for these particular children at this particular time.
Indeed, there was very little evidence before the court generally regarding the
Family Bridges program.
[108]
In my view, before a
judge decides to order the type of serious intervention that was made in this
case, and that is inherent in imposing attendance at a program such as Family
Bridges, there must be comprehensive and cogent evidence regarding the program
placed before the court. This evidence should include specific and detailed
information regarding the program itself and, more importantly, specific and
detailed information regarding the success rate of the program generally, and
the likelihood of success in the individual case that is before the court,
including with relation to the ages of the children involved, and the other
specific circumstances. The required evidence should be of a nature similar to
what a court would expect to receive from an expert, who is recommending a
certain course of remedial action or treatment. No such evidence was before the
court in this case. It follows that, among other concerns, there was no
opportunity for the appellant to challenge any such evidence. In my view, the
motion judge erred in making such an intrusive order in the absence of a proper
evidentiary foundation.
[109]
I would add one
further observation regarding these rules. It seems curious that r. 1(8) would
become the principal rule dealing with the enforcement of orders when, in
addition to the contempt route provided for in r. 31, the
Family Law Rules
also include r. 26 that expressly addresses the subject of the enforcement of
orders. The result is that there are at least two different rules (or three, if
my colleague is correct to include r. 1(8)) that purport to deal with the topic
of enforcing orders. It is perhaps time for the Family Rules Committee to look
at this issue and rationalize these various provisions.
[110]
In any event, my
colleagues efforts to surmount the jurisdiction concerns raised by the order
made, and the motion judges reliance on r. 1(8), does not fully answer the
jurisdiction question. In that regard, it is important to remember the effect
of the motion judges order. It changed the shared parenting regime that had
been provided for by agreement of the parties and formalized in the Leef Order.
It also imposed a drastic therapeutic order on these teenaged children, as well
as removing them from all contact with the father for a considerable period of
time.
[111]
Perhaps in
anticipation of this jurisdiction issue, my colleague appears to draw a
distinction, for jurisdiction purposes, between a temporary order (which he
finds this order to be) and a final order. In drawing this distinction, he
appears to accept that reliance on r. 1(8) to justify interference with a final
order would be problematic. However, he does not accept that the same concern
arises if the motion judges order is temporary.
[112]
In my view, whether
the motion judges order changes the parenting regime permanently or
temporarily, matters not. And, of course, we do not know at this stage whether
the change that the motion judge made will be permanent or temporary.
[4]
In any event, the
therapeutic intervention that has been ordered will significantly affect the
children and is, in my view, final in its effect on them.
[113]
I appreciate that some
might say that dwelling on such procedural issues interferes with the need to
address matters arising out of a partys non-compliance with a court order
quickly. However, there are reasons why we require certain steps to be taken
before relief, of this nature, is obtained. Principal among those reasons is to
ensure that there are safeguards in place such that an order that may have
profound effects on the parties or their children, or indeed third parties, is
not made hastily, or without a sufficient evidentiary foundation. With respect,
these are not procedural roadblocks as my colleague characterizes them. It is
simply a question of requiring a party to comply with the Rules in order to
obtain the relief that they seek.
[114]
I would add, on this
point, that it is not solely a question of picking between r. 15 and r.
1(8). There are statutory provisions that address changes to parenting orders.
For example, the
Children's Law Reform Act
, R.S.O. 1990, c. C.12,
provides in s. 29(1):
A court shall not make an order under this Part that varies a
parenting order or contact order unless there has been a material change in
circumstances that affects or is likely to affect the best interests of the
child who is the subject of the order.
[115]
Similarly, the
Divorce
Act
, R.S.C., 1985, c. 3 (2nd Supp.), provides in s. 17(5):
Before the court makes a variation order in respect of a
parenting order or contact order, the court shall satisfy itself that there has
been a change in the circumstances of the child since the making of the order
or the last variation order made in respect of the order, or of an order made
under subsection 16.5(9).
[116]
Neither of these
provisions is referred to by the motion judge nor, for that matter, is there
any reference to r. 15 in her reasons. Once again, the relief granted is
justified by reliance on r. 1(8). Regardless of the debate over the extent to
which enforcement relief can be granted under r. 1(8), there is no suggestion
that the enforcement powers provided by this rule can also be relied upon to
vary final orders. I note, on that point, that the respondent has not provided
this court with any case in which a final order was varied through reliance on
r. 1(8).
[117]
There are established
procedures that are required to be followed to obtain specific relief, such as
the variation of a final order. Taking shortcuts to those procedures simply to
benefit the alleged aggrieved party, by attempting to expedite some form of
relief, must not be permitted. As I have already said, procedural safeguards
are important. They are not to be avoided simply based on expediency or on a
manufactured sense of urgency. If a party seeks a variation, or a motion judge
wishes to grant a variation, then the proper procedure must be followed. It was
not in this case.
B. TERMS OF THE ORDER
[118]
Even if one could
overcome the jurisdiction issues that impact on the order as a whole, there are
problems with some of the individual terms of the order that was made. First,
in para. 14 of her order, the motion judge ordered that the Durham Regional
Police Service, the Ontario Provincial Police, the RCMP, or any other Canadian
police service, are directed to enter into any dwelling at any time to locate,
apprehend, and return the children. In making that order, the motion judge
relies on s. 36(2) of the
Children's Law Reform Act
, although she does
not refer to its terms. Section 36(2) reads:
Where a court is satisfied upon application that
there are reasonable and probable grounds for believing,
(a) that any person is unlawfully withholding a
child from a person entitled to decision-making responsibility, parenting time
or contact with respect to the child;
(b) that a person who is prohibited by court order
or separation agreement from removing a child from Ontario proposes to remove
the child or have the child removed from Ontario; or
(c) that a person who is entitled to parenting
time or contact with respect to a child proposes to remove the child or to have
the child removed from Ontario and that the child is not likely to return,
the court by order may direct a police force, having
jurisdiction in any area where it appears to the court that the child may be,
to locate, apprehend and deliver the child to the person named in the order.
[119]
I first note that this
type of order ought to be granted rarely and only in extraordinary
circumstances. It should only be granted in very serious cases where there is
solid evidence that such interference by the police is necessary. I note on
that point the requirement in the section that there be reasonable and
probable grounds. The evidence in this case does not rise to that level nor
was there any evidence to satisfy any of the other statutory requirements.
Indeed, the motion judge does not point to any such evidence. This term of the
order ought not to have been included. The fact that it was included tends to
show the overreach of the order that was made.
[120]
Second, this overreach
is also demonstrated by para. 1 of the motion judges order that purports to
both continue the penalties that were imposed in her earlier order, including
fines in the amount of $3,000 for each and every instance of non-compliance,
while also raising the possibility that the penalties might be extinguished.
It is unclear to me what penalties were to be extinguished under the order, or
how. While there was no appeal of the earlier order, I am satisfied, for the
reasons that I have set out above, that there was no jurisdiction to impose
penalties on the appellant, absent a motion for contempt being brought. An
order made without jurisdiction is a nullity. It cannot gain jurisdiction
simply because it was not appealed.
[121]
Third is the
restraining order that is set out in para. 101 of the motion judges reasons,
at item 9.
[5]
No one asked the motion judge to make a restraining order. I do not agree with
my colleague that the relief language used in the respondents motion can be
equated to a request for a restraining order. Certainly, it does not appear
that the motion judge treated it as such when she recited the relief being
sought by the respondent in her reasons.
[122]
Further, the fact that
both parties had to consent to variations to the restraining order to, in
essence, eliminate a significant aspect of it would suggest that they had
neither sought nor contemplated the specific relief that the motion judge
granted.
[123]
However, the fact that
the motion judge did grant that relief, with its resulting potential impact on
the appellants employment, amply demonstrates the problem in dealing with
these difficult issues in a summary and procedurally deficient manner. It also
serves to reinforce my concerns about the breadth of the order, or its
overreach as I referred to it above.
[124]
Consequently, even if
the jurisdictional issues that apply to the order, as a whole, could be
overcome, paras. 1 (purporting to both continue and potentially extinguish
penalties imposed in the previous order) and 14 of the order (directing the
police to enter into any dwelling at any time to locate, apprehend and return
the children to the respondents care) cannot stand and must be set aside. I
would be inclined to do the same with the restraining order, but since the
parties have consented to significant changes to that term of the motion
judges order, the issues, as they relate to that single term by itself, are
now largely moot.
C CONCLUSION
[125]
I would allow the
appeal, set aside the order of the motion judge, and dismiss the respondents
motion, without prejudice to the respondent bringing a motion to vary the Leef
Order on proper material and in conformance with r. 15 of the
Family Law
Rules
, if she is so advised. I would make no order as to costs.
Released: October 13, 2021 G.P.
I.V.B. Nordheimer
J.A.
[1]
The term custody is no longer used. Instead, the orders that
confer the parenting rights once described as custody are more properly
referred to as decision-making orders and parenting time:
Divorce Act
, R.S.C.,
1985. c. 3
(2nd Supp), s. 35.4;
Childrens Law Reform Act
, R.S.O. 1990, c. C-12, s. 76(2)-(3).
[2]
The Durham Childrens Aid Society was included in the restraining order because
it was the designated location for the transfer of TB to the Family Bridges
program
[3]
Bouchard v. Sgovio
, 2019 ONSC 6158,
34 R.F.L. (8th) 483.
[4]
I would note that the formal order refers to it being both temporary and final.
[5]
I note that, for reasons that are unexplained, this term does not appear in the
formal order.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Gracie, 2021 ONCA 707
DATE: 20211013
DOCKET: C68834
Rouleau, Benotto and Zarnett JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kellie-Lynne Gracie
Appellant
Kellie-Lynne Gracie, acting in person
Fredrick R. Schumann, appearing as duty counsel
Nicole Rivers, for the respondent
Heard: October 5, 2021, by video conference
On appeal from the conviction entered by Justice John N.
Olver of the Ontario Court of Justice on March 9, 2020.
REASONS FOR DECISION
[1]
The appellant and her co-accused, Dalton MacLeod, were charged with one
count of robbery.
[1]
[2]
The complainant testified that on October 26, 2018, the appellant, with
whom he had a mixed business/personal relationship, asked him to come into her
apartment to fix what she said was a leaky faucet. The complainant initially
resisted, but eventually agreed at the appellants insistence. When they
entered, the appellant walked straight through the apartment and was not seen
again by the complainant. He did see an acquaintance of the appellant, Melissa.
In short order, the complainant was struck from behind and knocked down by a
bandana-wearing male armed with a knife and a hammer, and then pepper sprayed
by Melissa. The male demanded that the complainant empty his pockets. The
complainant was able to recover a knife from his pocket and stab the male
assailant, ending the attack.
[3]
There was no dispute at trial that the male who was stabbed was MacLeod.
MacLeod testified at trial and denied the complainants version of events. The
appellant did not testify.
[4]
The trial judge, after instructing himself on the principles in
R.
v. W.(D.)
, [1991] 1 S.C.R. 742, rejected MacLeods evidence and found it
did not leave him with a reasonable doubt. He accepted the complainants
evidence which left him with no doubt as to what transpired in [the
appellants] apartment on the morning of October 26
th
, 2018. He
found that it was proven beyond a reasonable doubt that MacLeod did commit the
offence alleged.
[5]
The trial judge then considered the position of the appellant. He noted
that she had not testified and instructed himself that he was not to draw any
inference from that. He then stated that the Crown had established a
prima
facie
case against the appellant that she had failed to meet, noting:
(i) that the events happened at her apartment; (ii) she had a prior relationship
with the complainant, insisted that he come into the apartment to fix a leaky
faucet notwithstanding his protestations that he did not have time to do so,
then immediately disappeared after entering the apartment with him; (iii) she
was captured on video leaving the apartment with Melissa, one of the
perpetrators of the attack on the complainant, from an alternate exit; and (iv)
she showed no concern for the complainant after the attack and attempted
robbery. He referred to the argument of the appellants trial counsel that the
evidence was insufficient to show that the appellant did anything more than
passively acquiesce in the situation as it unfolded, and rejected it, stating:
However, in concluding that MacLeod did, in fact, commit the
offence on [the complainant] as alleged, absent any explanation for [the
appellants] conduct, I do not see how she could be viewed as simply a present
and passive spectator without knowledge of the plan for MacLeod and Melissa to
rob him. There is no other reasonable inference to be drawn on this evidentiary
record.
[6]
The trial judge convicted the appellant, finding that she lured [the
complainant] under false pretence to attend inside her apartment knowing of the
plan for MacLeod and Melissa to rob him, thus making her a party to the
robbery/attempt robbery.
[7]
On behalf of the appellant, duty counsel makes two interrelated
arguments. First, he argues that the trial judge reversed the onus of proof,
treating what he called a
prima facie
case as sufficient in the
absence of an explanation from the appellant. Put differently, he submits that
the trial judge in effect used the failure of the appellant to testify and
offer an explanation as a make-weight to pull the Crowns case from one that
was only
prima facie
to one proven beyond a reasonable doubt, contrary
to the principles in
R. v. Noble
, [1997] 1 S.C.R. 874, at paras.
77-81.
[8]
Second, he argues that the trial judges conclusion that the only
reasonable inference was that the appellant was more than a passive, uninformed
spectator was itself unreasonable, as other reasonable inferences were
available.
[9]
We do not accept either argument.
[10]
The
trial judges use of the term
prima facie
was unfortunate. But,
taking his reasons as a whole, it is clear that he did not reverse the onus of
proof, lose sight of the fact that proof beyond a reasonable doubt was
required, consider a
prima facie
case to be sufficient, or use the
failure of the appellant to testify as a make-weight.
[11]
The
trial judge began his analysis by referring to the Crowns onus to prove its
case on all counts beyond a reasonable doubt. He referred to the case as having
been proven against MacLeod beyond a reasonable doubt. He expressly instructed
himself that the appellants failure to testify was not to be used to draw any
inference against her. And although he used the term
prima facie
, he
followed it with a reference to four evidentiary considerations (summarized in
para. 5 above) that satisfied him the appellants involvement as a party to the
robbery was the only reasonable inference to be drawn on this evidentiary
record. In other words, his ultimate conclusion, on the whole of the evidence,
was that the appellants guilt was proven beyond a reasonable doubt.
[12]
Taken
in context, the trial judges references to the absence of any explanation from
the appellant are not indications that he was using the appellants silence to
draw an inference of guilt, nor to give the Crowns case an extra push. He did
not, as the trial judge did in
Noble
, use the appellants silence as a
piece of inculpatory evidence. Rather, consistently with what the majority of
the Supreme Court in
Noble
described as inoffensive to the right to
silence and the presumption of innocence, the trial judge here was simply
recognizing the fact that the evidence of the Crown stands alone. It must be
evaluated on this basis. Contradictions that have not been offered cannot be
supplied
the silence of the accused fails to provide any basis for concluding
otherwise, once the uncontradicted evidence points to guilt beyond a reasonable
doubt:
Noble
, at para. 82.
[13]
The
argument that the trial judge erred in concluding that the appellants
involvement as a party was the only reasonable inference depends on parsing the
four considerations he relied upon individually for example, the fact that
the events took place at the appellants apartment does not on its own exclude
a reasonable inference that she was uninvolved in what occurred. But the trial
judge did not treat each as sufficient individually; he considered them
cumulatively. We see no error in his conclusion that those circumstances, taken
together, permit no other reasonable inference than that the appellant was a
party to the planned robbery.
[14]
For
these reasons, the appeal is dismissed.
Paul Rouleau J.A.
M. L. Benotto J.A.
B. Zarnett J.A.
[1]
MacLeod was charged with other offences arising from the same incident.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Khan v. 1806700 Ontario Inc., 2021 ONCA 724
DATE: 20211013
DOCKET: M52530 (M52457)
Hourigan, Huscroft and Coroza JJ.A.
BETWEEN
Muhammad
Aslam Khan
Proposed Appellant/Moving Party
(Moving Party)
and
1806700 Ontario Inc.
Plaintiff/Respondent
(Responding Party)
and
Sandeep Johal
Intervener/Respondent
(Responding Party)
Muhammad Aslam Khan, self-represented
Joga Singh Chahal, for the respondent 1806700 Ontario
Inc.
Mathieu Bélanger, for the respondent Sandeep Johal
Heard and released orally: October 7, 2021 by videoconference
REASONS FOR DECISION
[1]
The moving party moves to set aside the order of the motion judge dated
May 20, 2021, dismissing his motion for an extension of time for leave to
appeal. The motion judge accepted that the moving party intended to appeal
within the relevant period and that there was a brief period of delay. However,
he found that the appeal had no merit.
[2]
A single judges decision on a motion to extend time is discretionary
and entitled to deference:
Machado v. Ontario Hockey Association
, 2019
ONCA 210. The motion judge applied the correct test and we see no error in his
analysis. We agree with his conclusion that the appeal has no merit.
Accordingly, the motion is dismissed with costs payable by Mr. Khan to the
responding party 1806700 Ontario Inc. in the amount of $2,500, all-inclusive,
and costs payable by Mr. Khan to the responding party Mr. Johal in the amount
of $2,500, all-inclusive, for the costs of this motion.
C.W.
Hourigan J.A.
Grant
Huscroft J.A.
S. Coroza
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Tomek v. Zabukovec, 2021 ONCA 723
DATE: 20211013
DOCKET: C68409
Hourigan, Huscroft and Coroza JJ.A.
BETWEEN
Judith
Evelyn Tomek
Applicant
(Respondent)
and
Joseph Zabukovec
,
Edward Waters, as
Litigation Administrator of the Estate of Joseph Zabukovec
, and Mary
Zabukovec
Respondents
(
Appellant
/
Respondent
)
Dermot Nolan and Heather McKinnon, for the appellant
Ronald Sleightholm, for the respondent Judith Tomek
W. Ross Milliken, for the respondent Joseph Zabukovec
Heard: October 7, 2021
On appeal from the
judgment of Justice Judy Fowler Byrne of the Superior Court of Justice, dated
May 8, 2020, with reasons reported at 2020 ONSC 2930.
REASONS FOR DECISION
[1]
The subject of this appeal is a 15-acre wooded parcel of land in Caledon
(the "Property") registered in the name of Joseph Zabukovec Sr. ("Joseph
Sr.").
[1]
His plan in acquiring the Property was to sever lots and sell them for new home
construction. Despite this plan, Joseph Sr. invited his son Joseph Zabukovec
Jr. ("Joseph Jr.) to build a house for his family on a 1.13-acre section
of the Property (the "house lot").
[2]
Joseph Jr. received the necessary approvals and began constructing a
home on the house lot. He and his wife, Judith Tomek ("Judith"),
moved into the partially completed home in 1989 and over the years finished the
house using their own funds. While Joseph Sr. was a frequent visitor at the
Property, he treated the house as the property of his son and daughter-in-law
and had no input into the design of the home. Joseph Sr. applied to formally
sever the house lot from the Property, with the intention of conveying it to
Joseph Jr. However, he was forced to withdraw his application after discovering
that the severance was not available.
[3]
Joseph Jr. accepted that the house lot would not be conveyed to him
during his father's lifetime but hoped that he would formally receive title to
it in his father's will. That did not happen as his father died intestate in
2004. Joseph Jr. and Judith continued to reside in the home, pay taxes, and
make improvements with the full knowledge of Joseph Sr.'s widow, Mary Zabukovec
("Mary").
[4]
In 2011, Judith and Joseph Jr. separated. Prior to the trial below, they
were able to resolve most of the issues relating to their marriage and
separation in a comprehensive settlement agreement. The only significant
remaining issue was their ownership interest in the Property. At trial,
Joseph Jr. and Judith maintained that they had a beneficial interest in the
Property through an unjust enrichment claim or the principles of proprietary
estoppel. Judith also argued that there was an agreement between her and Joseph
Jr. on the one hand and Joseph Sr. on the other to convey the house lot to
them.
[5]
On the consent of all parties, Edward Waters (Edward), the son of
Joseph Sr. and Mary, was appointed Litigation Administrator of his fathers
estate (the "Estate"). At trial, the Estates position was that there
was no agreement, that Joseph Jr. and Judith did not have a beneficial interest
in the Property, and that their claim for a proprietary interest was
statute-barred. Mary did not participate in the litigation.
[6]
The trial judge ruled in favour of Joseph Jr. and Judith, finding that
the Estate had been unjustly enriched with respect to the house's construction,
improvement, and maintenance, but not with respect to the remainder of the
Property. The trial judge also found that Joseph Jr. successfully made out the
elements of proprietary estoppel regarding the house. Regarding remedy, she
relied on expert evidence to find that the value of the Property, based on a
cost approach that valued the land and the house separately, was $813,000. She
granted Joseph Jr. and Judith joint beneficial ownership of 75% of the
Property.
[7]
The Estate's appeal is restricted to the appropriateness of the trial judge's
remedy. Specifically, it argues that the trial judge erred regarding the value
of the land and failed to consider the contribution Joseph Sr. made to the
construction of the house.
[8]
We agree that the trial judge erred in her consideration of the land
value. The expert evidence was that the raw land was worth $400,000. In her
analysis, the trial judge stated that $400,000 was the value of the improved
land (i.e. the land plus the house). She apportioned that value 50% for the
Estate and 50% for Joseph Jr. and Judith. The Estate submits that the entirety
of the land portion should have been credited to Joseph Sr.
[9]
The trial judge apportioned the full value of the house, being $413,000,
to Joseph Jr. and Judith. The Estate submits this was an error because it
failed to take into account the work that Joseph Sr. put into the construction
of the home. It values that contribution at $100,000.
[10]
After
taking into account Joseph Sr.s work contributions and the value of the land,
the Estate submits that the interest of Joseph Jr. and Judith in the Property is
correctly valued at 38.5%. In the alternative, if only the land value is
adjusted for, then Joseph Jr. and Judiths beneficial interest in the Property
should be set at 50.8%.
[11]
We
agree that the error in the treatment of land value impacts the amount that the
Estate was unjustly enriched. A similar argument can also be made regarding the
work contribution of Joseph Sr. However, we are not persuaded that we should
interfere with the order that was made by the trial judge. The difficulty with
the Estates argument is that it ignores the available remedies where the
elements of proprietary estoppel have been proven.
[12]
As
the Supreme Court has stated, "[w]here a claimant has established
proprietary estoppel, the court has considerable discretion in crafting a
remedy that suits the circumstances":
Cowper-Smith v. Morgan
,
2017 SCC 61, [2017] 2 S.C.R. 754, at para. 46. The court also instructed that
an "appellate court should not interfere unless the trial judge's decision
evinces an error in principle or is plainly wrong":
Cowper-Smith v.
Morgan
, at para. 46.
[13]
Although
a trial judge does not have unfettered authority in crafting an equitable
remedy, we find that the trial judge's remedy, in this case, was appropriate. There
was ample evidence to establish that it was always the intention of the parties
that Joseph Jr. and Judith would receive both the house lot and the house. Indeed,
that was the purpose of Joseph Sr.s aborted severance application. Had that
application been successful, Joseph Jr. and Judith would have been the owners
of their home and the house lot. The order of the trial judge is entirely
consistent with that intended result. It awards them the value of the house and
the house lot. It is, in our view, a just and equitable result in the
circumstances. There is, therefore, no basis for this court to interfere with
that order.
[14]
The
appeal is dismissed. Regarding the costs of the appeal, the parties agreed that
Joseph Jr. and Judith should each receive $12,500. However, there is a
disagreement regarding whether the Estate or Edward should be paying these
costs. This court has the discretion to order costs where the Litigation Administrator
has acted unreasonably or in their own self interest:
Wall v. Shaw
, 2019
ONCA 929, 43 ETR (4th) 1, at paras. 54-55. In our view, Edward was acting in
his own interest in pursuing this appeal and not in the interests of the Estate.
We order that he pay the costs personally.
C.W.
Hourigan J.A.
Grant
Huscroft J.A.
S. Coroza
J.A.
[1]
First names are used in these Reasons for Decision for the sake of clarity and
with no disrespect intended to the parties.
|
WARNING
This is
a case under the
Child, Youth and Family Services Act, 2017
and subject
to subsections 87(8) and 87(9) of this legislation.
These subsections and subsection
142(3) of
the
Child, Youth and
Services Act, 2017
, which
deals with the consequences of failure to comply, read
as follows:
87
(8)
Prohibition re identifying child
No person shall publish or make
public information that has the effect of identifying a child who is a witness
at or a participant in a hearing or the subject of a proceeding, or the childs
parent or foster parent or a member of the childs family.
(9)
Prohibition re identifying person charged
The court may make an order prohibiting the publication of information that
has the effect of identifying a person charged with an offence under this Part.
142
(3)
Offences
re publication
A person who contravenes subsection 87(8) or 134(11)
(publication of identifying information) or an order prohibiting publication
made under clause 87(7)(
c
) or subsection 87(9), and a director, officer
or employee of a corporation who authorizes, permits or concurs in such a
contravention by the corporation, is guilty of an offence and on conviction is
liable to a fine of not more than $10,000 or to imprisonment for a term of not
more than three years, or to both.
COURT OF APPEAL FOR ONTARIO
CITATION:
M.E. v.
Ontario, 2021 ONCA 718
DATE: 20211014
DOCKET: M52619 (M52555)
Hourigan, Huscroft and Coroza JJ.A.
BETWEEN
M.E.
Appellant
and
Her Majesty the Queen in Right of Ontario and
Childrens Aid Society of Toronto and Durham Childrens Aid Society
Respondents
M.E., self-represented
Scott Hutchison, David
Postel and Sheldon Inkol, for the respondents
Heard: October 7, 2021 by
videoconference
REASONS FOR DECISION
[1]
This matter has a long procedural history. For present purposes, it is
sufficient to focus on the motion brought by M.E. on October 9, 2020, wherein
she sought to add additional causes of action and new parties to the action.
The motion judge dismissed the motion as frivolous, vexatious, and an abuse of
process under r. 2.1.01:
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.
M.E. then sought leave to appeal the motion judges order to the Divisional Court.
A panel of the Divisional Court dismissed that motion.
[2]
On May 17, 2021, M.E. applied to this court for leave to appeal the
Divisional Courts order. The Registrar has repeatedly informed her that her
materials do not comply with the Rules and practice directions. On July 5,
2021, M.E. filed the underlying Notice of Motion for Non-Compliance. Simmons
J.A. heard the motion on July 27, 2021. She adjourned the matter to a full
panel, noting that while the Divisional Courts order was final, the motion
judges order concerned a motion to add causes of action, which may not be
interlocutory. As a single judge, Simmons J.A. could not determine this issue.
[3]
We conclude that M.E. was seeking to add new causes of action. An order
refusing leave to amend pleadings to plead a new cause of action is final:
Atlas
Construction Inc. v. Brownstones Ltd.
(1996), 46 C.P.C. (3d) 67 (Ont. Gen.
Div.). So is an order dismissing a motion to add a party, which M.E. also
appears to have been trying to do:
Bryson v. Kerr
(1976), 13 O.R. (2d)
672 (Ont. Div. Ct.). Accordingly, leave to appeal is not required and an appeal
lies as of right to the Court of Appeal:
Courts of Justice Act
, R.S.O.
1990, c. C.43, s. 6(1)(b).
[4]
We order that the appeal of the motion judges order of October 9, 2020
may proceed in this court. Costs of this motion are reserved to the panel
hearing the appeal.
C.W. Hourigan
J.A.
Grant Huscroft
J.A.
S. Coroza 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. Scholl, 2021 ONCA 726
DATE: 20211014
DOCKET: C66610
Rouleau, Benotto and Zarnett JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Cory Scholl
Appellant
Cory Scholl, acting in person
Amy Ohler, appearing as duty counsel
Avene Derwa, for the respondent
Heard and released orally: October 7, 2021 by
video conference
On appeal from the conviction entered on April 18, 2018,
and the sentence imposed on January 23, 2019, by Justice R. Masse of the Ontario
Court of Justice.
REASONS FOR DECISION
[1]
The appellant abandoned his conviction appeal. He appeals his
designation as a dangerous offender at sentencing. His principal argument is
that the court ought to have relied on the opinion of Dr. Booth who expressed
reservations as to the appropriateness of a dangerous offender designation in
this case.
[2]
We see no basis to interfere with the sentencing judges decision. The
appellants trial counsel conceded that a dangerous offender designation was
appropriate, and the appellant has led no fresh evidence suggesting ineffective
assistance of counsel.
[3]
Further, the sentencing judge had before him the opinion of Dr. Watts
who found that the appellant satisfied several of the criteria for the
dangerous offender designation. It was open to the sentencing judge to accept
this opinion. We can only interfere with a sentence if the designation is
unreasonable. In light of this record, we see no basis to do so.
[4]
As a result, we grant leave to appeal sentence, but dismiss the sentence
appeal.
Paul Rouleau J.A.
M.L. Benotto J.A.
B. Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Trudel (Re), 2021 ONCA 720
DATE: 20211014
DOCKET: C69037
Fairburn A.C.J.O., Doherty and Watt JJ.A.
IN THE MATTER OF: CHANTAL TRUDEL
AN APPEAL UNDER PART XX.1 OF THE
CODE
Meaghan McMahon, for the appellant
Sunil Mathai, for the respondent Attorney General of
Ontario
Barbara J. Walker-Renshaw and Kate Deakon, for the respondent
Royal Ottawa Mental Health Centre
Heard: October 7, 2021 by video conference
On appeal from the January 12, 2021 disposition of the
Ontario Review Board, with Reasons for Disposition dated January 26, 2021.
REASONS FOR DECISION
[1]
In 2008, the appellant was found not criminally
responsible. The index offence involved an aggravated assault, where the appellant
stabbed a man in the chest while in a paranoid and psychotic state. She has
been under the supervision of the Ontario Review Board since that time.
[2]
In her most recent review hearing, the appellant
requested an absolute discharge or, in the alternative, a conditional
discharge. That position was rejected. The Board concluded that the appellant
remains a significant threat to the safety of the public and that a
continuation of the detention order is necessary.
[3]
The appellant argues that the Boards reasons
reflect two errors.
[4]
First, the appellant contends that the Board failed to
conduct an appropriate analysis regarding whether she constitutes a significant
threat to public safety. The appellant says that the Boards reasons fall short
by failing to meet the principles of justification and transparency:
Canada (Minister of Citizenship and Immigration)
v. Vavilov
, 2019 SCC 65,
441
D.L.R. (4th) 1,
at paras. 84-86;
Sim (Re)
,
2020 ONCA 563, at para. 68. More specifically, the appellant argues that the
Board failed to adequately explain why the following three factors, noted at
para. 20 of its reasons, supported its conclusion that the appellant remains a
significant threat to the safety of the public: (1) the appellants risk of
relapse; (2) the appellants lack of insight into her mental illness and the
need for medication; and (3) the appellants use of substances to the point
that she recently decompensated after eloping from the location where she was
required to live. This decompensation required hospital admission and
stabilization.
[5]
We do not accept that the Board failed in its duty to justify or
transparently explain the conclusion that the appellant remains a significant
threat to public safety.
[6]
The Boards reasons must be read in the context of the previous
disposition, a detention order, and the fact that this court upheld that
disposition on appeal: see
Trudel (Re)
, 2019 ONCA 759. In this type of
situation, this Courts primary focus must be on the period of time between the
date of the prior disposition and the date of the annual review. Importantly,
the appellants last disposition was based upon largely the same evidence as
was before the Board in the most recent hearing. To the extent that it differs,
the differences point even more clearly toward a detention order than before,
specifically the circumstances surrounding the appellants recent elopement and
decompensation requiring hospital stabilization.
[7]
The impugned paragraph must also be read against the entire reasons,
including the factual summary that supports the conclusions drawn in that paragraph.
It must also be read against the factual record from the hearing, including the
psychiatric evidence underscoring the appellants difficulties with substance
abuse and her symptomatic nature during the period of time most recently under
review.
[8]
Against that contextual backdrop, we conclude that the reasons provide a
transparent and intelligible basis upon which to understand how the Board
arrived at the conclusion that the appellant continues to be a significant
threat to the safety of the public.
[9]
Second, the appellant argues that the Board failed to perform its
inquisitorial duties in a way that would have allowed it to correctly determine
the least onerous and least restrictive disposition commensurate with the
safety of the public. In particular, the appellant suggests that the Board
should have sought out evidence to assist in considering whether a conditional
discharge could have been carefully crafted as a less onerous disposition while
still addressing the concerns expressed by the treating psychiatrist. The
appellant suggests that the Board should have sought out evidence on whether it
would have been appropriate to order a conditional discharge with a treatment
clause, a residence condition, and a condition directing her to quickly return
to the hospital if required.
[10]
Respectfully,
we disagree.
[11]
In
light of the record, we see no abdication by the Board of its responsibilities.
[12]
While
it is true that the Board performs an inquisitorial function, the demands
arising from that function must be considered in context, including the record
as developed before the Board and the positions of the parties as advanced
before the Board. Here, the appellant was represented by counsel who did not
lead evidence on these issues. Moreover, as reflected in the hospital report,
the appellant took the position that she did not want any restrictions placed
on her.
[13]
As
well, the appellants psychiatrist testified that, in light of the appellants
risk to the community, the hospital would need to be directly involved in
approving her supervised community housing, something that can only be done
through a detention order. The psychiatrist also emphasized the need for a
quick return to the hospital should the appellant start to decompensate,
something that can be more easily accomplished under a detention order than
under the
Mental Health Act
, R.S.O. 1990, c. M.7.
[14]
Finally,
the Board accepted the psychiatrists evidence that the appellants risk
profile had actually increased since the last Board disposition involving a
detention order.
[15]
Against
that contextual backdrop, there was nothing that the Board needed to inquire
into.
[16]
In
our view, the disposition was carefully tailored to allow the appellant to
progress toward even further community integration, including the possibility
of being discharged into a 24-hour care group home when COVID-19 restrictions
permit.
[17]
The appeal is dismissed.
Fairburn
A.C.J.O.
Doherty
J.A.
David
Watt J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
1476335
Ontario Inc. v. Frezza, 2021 ONCA 732
DATE: 20211015
DOCKET: M52846 (C69611)
Brown J.A. (Motion
Judge)
BETWEEN
1476335
Ontario Inc., Aldo Rotondi, D'Andrea Management Inc.
and Rick D'Andrea
Plaintiffs
(Moving Parties/Appellants)
and
Brenda
Frezza
,
Onorio Frezza
,
Elio Ascenzo Frezza
,
Jane Frezza
and Frezza
Management Inc.
Defendants
(
Responding Parties/Respondents
)
Anthony J. Gabriele, for the moving parties
Jennifer McLeod, for the responding party, Brenda Frezza
No one appearing for the responding parties, Onorio
Frezza, Elio Ascenzo Frezza, and Jane Frezza
Heard: October 14, 2021 by video conference
ENDORSEMENT
[1]
In 2019 the moving parties,
1476335
Ontario Inc., Aldo Rotondi, D'Andrea Management Inc. and Rick D'Andrea,
commenced an action that seeks,
inter alia
, declarations that the 2003
transfer of what are now two Bonnie Doon Road properties (the Properties) to
the respondent, Brenda Frezza, was a fraudulent conveyance and that Ms. Frezza
holds the former transferors interest in the Properties on a constructive
trust for the moving parties. The action also seeks an order for the issuance
of a certificate of pending litigation (CPL) for registration against the
Properties.
[2]
By order dated May 28, 2021, Aston J. dismissed the moving
parties motion for a CPL (the Order).
[3]
The moving parties have appealed the Order to two different
courts.
[4]
On the one hand, they have commenced a motion for leave to appeal
the Order to the Divisional Court. At the same time, they filed a notice of
appeal with this court. The Divisional Court has put the leave motion on hold
until this court determines whether the Order is final or interlocutory.
[5]
In this court the moving parties have brought two motions. The
first seeks, in effect, a determination that the Order is final in nature and,
therefore, an appeal lies to this court (the Jurisdiction Motion). The
Jurisdiction Motion is scheduled to be heard at a later date (December 10,
2021) by a panel.
[6]
In the meantime, the moving parties have brought this motion
before a single judge seeking, pursuant to s. 134(2) of the
Courts of
Justice Act
, R.S.O. 1990, c. C.43, an interim order granting them
leave to issue and register a CPL against the Properties.
[7]
The respondent seeks an adjournment of this motion on the basis
that the motion materials were not served on it in a timely manner.
[8]
I need not address the merits of that request because I have
determined that I must adjourn the motion in any event to the panel hearing the
Jurisdiction Motion.
[9]
Section 134(2) of the
Courts of Justice Act
states: On motion,
a court to which a motion for leave to appeal is made or to which an appeal is
taken may make any interim order that is considered just to prevent prejudice
to a party
pending the appeal
(emphasis added). As
I interpret this section, it authorizes an appellate court to make an interim
order where an appeal lies to that court. Since the powers of this court derive
from statute, I have strong reservations that I possess the power to make an
order under s. 134(2) where there is a dispute as to whether this court has
jurisdiction to entertain an appeal from the Order. Were I to entertain the
moving parties request for the issuance of a CPL, I would impliedly be
determining the very question that will be before the panel: namely, whether the
Order is final in nature and an appeal properly lies to this court. I am not
prepared to determine, in effect, the very question the moving parties have
placed before a panel.
[10]
At
the same time, there is no doubt that Ms. Frezza is actively trying to sell the
two Properties. While I do not think that I have the jurisdiction to make an
order restraining her given the outstanding final/interlocutory issue, as a
practical matter I think the interests of both parties can be fairly balanced
by advancing the date for the hearing of the Jurisdiction Motion and adjourning
this motion to be heard at the same time as the Jurisdiction Motion.
[11]
A
panel is available on November 5, 2021 to hear both motions. Accordingly, I
adjourn this motion to that date and direct that the Jurisdiction Motion be
rescheduled for hearing on November 5 together with this motion. That date is
peremptory to both parties. A total of 30 minutes is allocated for oral argument
on the combined motions i.e., 15 minutes for each party.
[12]
I
make the following directions regarding the materials for this adjourned motion
and the Jurisdiction Motion to be heard on November 5, 2021:
(i)
The respondents shall serve and file all responding materials for both
motions, including factums and books of authorities, no later than Wednesday,
October 27, 2021; and
(ii)
The
moving parties shall serve and file any reply materials for both motions no
later than Monday, November 1, 2021.
[13]
Evidently
the date for the perfection of this appeal expires on October 15, 2021. I
hereby extend the date for perfection until the disposition of both motions by
the panel or such further date as may be set by the court.
[14]
The
costs of todays attendance are fixed in the amount of $250, inclusive of
disbursements and applicable taxes, with the determination of who pays whom
left to the panel on November 5, 2021.
[15]
I
conclude by observing that one of the great on-going failures of the Ontario
civil justice system is the confusion entrenched in the
Courts of Justice
Act
, R.S.O. 1990, c. C.43 concerning appeal routes from orders made by
judges of the Superior Court of Justice: Does the appeal lie with leave to the
Divisional Court or as of right to this court? Such confusion inflicts
unnecessary legal costs on parties, delays the resolution of appeals on their
merits and, as this case illustrates, sows uncertainty about how a party can
attempt to protect its rights pending an appeal.
[16]
There
is absolutely no excuse for such confusion to continue. Simple bright line
appeal route solutions are available. I would hope that at some point in the
near future the Ontario Legislature will awake and address this
far-too-long-outstanding stain on our civil justice system. In my respectful
view, the Legislature needs to enact legislation that creates an unambiguous
bright line explaining when an appeal lies to the Divisional Court and when
it lies to the Court of Appeal for Ontario. The current final/interlocutory
dividing line is an expensive, time-wasting anachronism. Implementing a bright
line solution is not a hard task: all it needs is a bit of creativity,
political will, and concern for the health of our ailing civil justice system.
David Brown J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Hucsko
v. A.O. Smith Enterprises Limited, 2021 ONCA 728
DATE: 20211015
DOCKET: C68253
Feldman, Harvison Young and Thorburn JJ.A.
BETWEEN
John Hucsko
Plaintiff
(Respondent)
and
A.O. Smith Enterprises Limited
Defendant
(Appellant)
Jeffrey B. Simpson, Paul Boshyk and Kristen Pennington,
for the appellant
Pamela Krauss, for the respondent
Heard: April 12, 2021 by video conference
On appeal from the judgment of Justice Gerald E. Taylor
of the Superior Court of Justice, dated April 22, 2020, with reasons reported
at 2020 ONSC 1346.
Feldman J.A.:
A.
Introduction
[1]
The appellant employer, A.O. Smith Enterprises Limited, terminated the
employment of the respondent employee, John Hucsko, for just cause following an
investigation into a complaint made by a female co-worker, the complainant, regarding
four inappropriate comments that constituted sexual harassment. Following the
investigation, the respondent was offered the opportunity to take remedial
action including sensitivity training, which he agreed to, and to make a direct
apology to the complainant, which he refused. Following that refusal, the
appellant terminated the respondents employment for just cause.
[2]
The trial judge found that the termination for cause was not justified, and
awarded damages to the employee in lieu of 20 months notice.
[3]
For the following reasons, I would allow the appeal. The trial judge
erred in law by failing to find that the inappropriate, demeaning comments that
the employee made to the complainant justified the action taken by the
employer, and that the employees failure to accept the opportunity offered by
the employer to remediate the situation resulted in an irreparable breakdown in
the employment relationship that could not be tolerated by the employer.
B.
Facts
[4]
The respondent, a Senior Product Designer, was a 20-year employee with
the appellant or its predecessor when his employment was terminated on July 25,
2017. The complainant joined the employer as a Project Manager in 2014. She
worked with the respondent on a number of projects. The respondent was 62 years
old at the time of the trial. The complainant was about ten years younger.
[5]
On June 28, 2017, the complainant made a formal complaint to the
employer through Nodine Kalcic, the Human Resources Manager, in which she
reported four separate incidents where Mr. Hucsko made comments to her that were
inappropriate. She included her responses to the comments as well as a
description of the involvement of Mr. Hucskos immediate superior, Ayman
Abdel-Rehim, a Product Development Engineering Manager. The formal complaint
read as follows:
Following is the description of incidents pertaining to
inappropriate comments/gestures made by John Hucsko:
1. The day after all managers in the engineering
department had dinner with Robert during one of his visits, John approached me
and asked how the dinner was and I told him that it was good, we all had a
good time and then he asked if I danced on the tables, in response I told him
that it was an inappropriate comment and walked away
2. John, myself and Ayman were sitting in Ayman's office
discussing project progress and I had posed a question that ok so what is our
step, what do we need to do next in response John said to me that now you
need to go and sit on Simon's lap and ask him nicely to do
(mentioned some
action items) in response Ayman and I both told him that it was an inappropriate
comment; I also approached Ayman afterwards and asked him to talk to John and make
sure he understands that this is his last warning if he doesn't refrain from
making such comments I will report to HR, as per Ayman he communicated that to
John; I had also mentioned the incident number 1 to Ayman. I started to keep
John at one arm distance and so John approached me and asked if everything was
alright between us and I told him that I did not appreciate his comments and
that they were inappropriate and requested that he refrains from making such
comments so as to have a respectful working relationship
3. Week of June 19
th
I was at John's desk talking
about manuals and labels for one of our projects and at the end of the conversation
we spoke a bit about gardening and I said that I finally got the front yard
done with planting new plants but paid for it the next day and he responded oh
it's all good any reason for you to bend over and go down on your knees at the
time I did not say anything and walked away from his desk thinking what did he
mean because it did not sound right to me, the choice of words the way he said
it, it just didn't sound right. I had not mentioned this incident to Ayman as I
wasn't sure about it and then soon after that the incident number 4 happened
4. On Monday June 26
th
I approached John at his
desk and told him that he needs to send me the power point presentation for the
design review that I had scheduled for June 27
th
, in response John
said that he was about to do that and then he went to Outlook and started
composing an email to me so he could send the ppt, as he clicked the letter
"S" in the address field it automatically dropped down a list of
names of the people starting with the letter "S" and my name was on
top of the list so I said hey look I am on top of the list and in response he
said of course you are on top, you are getting pumped from under the skirt
till you can't stand anymore and he made a multiple thrusting gesture with his
hips while he made this comment; I at that point was very shocked and
infuriated by his comment and I walked away from his desk; I did not say
anything to anyone that day but the next day I approached Ayman and told him what
John had said, Ayman and I both agreed that we can no longer deal or resolve
this issue within the team and that it needs to be brought to HR's attention
[6]
In her testimony at trial, the complainant testified about her
understanding of each of the comments. According to the trial judge, she took
the dancing on the tables comment as a reference to exotic dancing, the sit
on lap comment as a reference to lap dancing and flirting with a co-worker,
the down on your knees comment as a reference to a sexual position, and the
pump the skirt comment as a reference to a sexual act. The complainant was
not cross-examined on any of her testimony. As a result, her description was
unchallenged.
[7]
Mr. Hucsko provided the court with explanations regarding each of the
four incidents and his statements to the complainant. The dancing on the
tables comment followed a managers dinner that the complainant, the only
female manager, had told Mr. Hucsko she did not want to attend, but then when
they discussed it the following day, she said she was happy she went and that
everyone had enjoyed themselves. Mr. Hucskos position was that he then asked
not if she had danced on the tables, but if everyone was dancing on the
tables, meaning that they had had a lot of fun.
[8]
With respect to the sit on lap comment, Mr. Hucsko testified that it
arose in a meeting among himself, Mr. Abdel-Rehim and the complainant, where
she was complaining that she had not received information from another
co-worker, Simon. Mr. Hucsko said he told her to sit on Simon until he produced
the information. His intent was to convey that she should pin him down until
she received the information she needed.
[9]
The third incident occurred when Mr. Hucsko and the complainant were
discussing gardening. Mr. Hucsko testified that he suggested she use a kneeling
pad while removing weeds from her lawn. He denied making a thrusting gesture
with his hips, stating that his chair had become stuck in a rut in the carpet
in his cubicle, and he was trying to extract the chair from the rut.
[10]
Regarding
the pump the skirt comment, Mr. Hucskos explanation at trial was that he and
the complainant were discussing a difficult project that she had managed, and
that he told her she would be praised for completing successfully. He told her
that theyre going to pump so much sunshine up [her] skirt, [she] wont be
able to sit down, a colloquialism taken from a 1970s movie that means to
praise someone or give them a lot of credit.
[11]
In
response to receiving the written complaint from the complainant, the employer
appointed John Weiler, the Director of Finance and Administration, and Ms. Kalcic
to conduct an investigation. They held a meeting with Mr. Hucsko where they read
the complainants allegations to him, although they did not give him a copy of
her written complaint. At that time his response to each incident was:
a)
he did not recall making the dancing on tables comment, but if he did,
it was a colloquialism about having a good time, and he suggested wording he
might have used;
b)
he also did not specifically recall the meeting where he was alleged to have
made the sit on lap comment, but he did not deny making it, and said it meant
to pin someone down so they couldnt get away, and did not have a sexual
connotation;
c)
he did not recall the down on your knees comment, but he did not deny
making it and he confirmed that they did discuss gardening; and
d)
he explained the pump sunshine up the skirt comment was a colloquialism
meaning to give a person a lot of praise.
[12]
Mr.
Hucsko suggested that the complainants complaints were motivated by his
challenging her at a meeting, and suggested other employees to interview, which
was done. In the investigators interview with Mr. Abdel-Rehim, he confirmed he
had been present when the sit on lap comment was made, he had told Mr. Hucsko
that it was inappropriate, but he did not take it seriously enough to report it
to the human resources department. He also commented that the complainant could
be sensitive to comments made to her. Another employee confirmed that the
complainant had been very upset with Mr. Hucsko at a meeting, and commented
that Mr. Hucsko acted professionally by removing himself from the meeting.
Another employee was asked if she had witnessed anyone making inappropriate
comments and responded that she had not.
[13]
The
investigation also included a meeting with the complainant. She told the
investigators that she wanted Mr. Hucskos comments to stop and she wanted him
to recognize that they were unwelcome. She also told them that if Mr. Hucsko
only received a slap on the hand, she would have to decide whether to resign from
her position.
[14]
A
few days after his initial meeting, Mr. Hucsko requested a second meeting with
the investigators. At that meeting, he explained that the hip thrusting gesture
described by the complainant was as a result of his chair becoming stuck in a
rut in the carpet. He also said that he made the dancing on tables comment but
it was directed at the group who were at the meeting and not at the complainant
specifically.
[15]
Ms.
Kalcic inspected Mr. Hucskos work cubicle when he was not present and noticed
that the carpet was worn, but was unable to locate a rut which would cause the
chair to become stuck. She also searched the internet and found a reference to
dancing on tables consistent with Mr. Hucskos explanation that it was a
colloquialism. Mr. Weiler searched the internet and found a reference from a
1970s movie about pumping sunshine up ones skirt being a form of praise.
[16]
Following
the investigation, they concluded that Mr. Hucsko had made the inappropriate comments,
and met with him on July 10. At that meeting, they gave him the following memo:
TO: John Hucsko
FROM: John Weiler
DATE: July 10, 2017
RE: Investigation Summary and Final Warning
John,
This summarizes the Companys findings with respect to a female
employees allegation of sexual harassment due to inappropriate comments you
made directed to her on at least four occasions.
The Company has conducted an investigation and has concluded
that you made inappropriate comments. Further, you were specifically advised by
your supervisor on at least one occasion that your comments were inappropriate.
Despite this, you continued to make inappropriate comments. This is a very
serious matter. Your conduct is not acceptable and will not be tolerated by the
Company. The required
corrective action is as follows:
1. Final Warning This corrective action memo will-become a
permanent part of your personnel file. This is a final warning. Should there be
another instance of inappropriate comments of this nature toward the same
employee or another employee, it will result in your immediate
discharge.
2. Additional Training You will be required to participate in
sensitivity training to familiarize you with the impact your comments have on
others. The Company will arrange this training and advise you when it is
scheduled.
3. Apology You will be required to provide a direct apology
to the female employee to whom you directed your inappropriate comments. Your
supervisor and Human Resources Manager will also be present.
Please sign below to indicate that you have received this final
warning.
[17]
Mr.
Hucsko did not agree with the investigations conclusions and asserted that he
had not done or said anything inappropriate to the complainant. He asked for
time to seek advice, and consulted a lawyer who wrote to the appellant on July
19. In that letter, the lawyer advised that while Mr. Hucsko was adamant that training
was unnecessary, he would comply with the additional training requirement set
out in the investigation summary. However, he was not prepared to issue an
apology to the complainant admitting to any wrongdoing. The letter continued:
Given the circumstances where the facts are in dispute and the
complaint is disconcerting to Mr. Hucsko who prides himself on his
professionalism, it is our position that an apology is not appropriate.
[18]
The
employer did not respond to the lawyers letter. It suspended Mr. Hucsko, and then,
on July 25, telephoned him and read a letter that was subsequently delivered to
him. The letter stated that Mr. Hucskos employment was being terminated for
cause effective immediately due to an irreparable breakdown in the employment
relationship based on:
I.
You made inappropriate and vexatious comments to a co-worker, despite
being advised by both the co-worker and your supervisor that your comments were
unwelcome and inappropriate. The Company conducted an investigation into the
matter and found your conduct to be inconsistent with the Companys policies
related to anti-harassment and respect in the workplace.
II.
Throughout the investigation and following its conclusion you have shown
no remorse for your misconduct and have demonstrated an inability to recognize
the seriousness of the matter. Therefore, the Company does not believe that you
are willing and able to correct your behaviour going-forward.
III.
Your refusal to accept and comply with the Companys decision on
corrective action constitutes serious, willful insubordination that cannot be
condoned by the Company.
C.
Findings of the Trial Judge
[19]
The
trial judge found that although the focus of the trial was about whether the
employees comments amounted to sexual harassment, it was unnecessary for him to
categorize the comments because regardless of how they were categorized, they
did not justify summary dismissal. He found that it was unclear whether the
employer had concluded that the employees conduct amounted to sexual
harassment. He also found that the employee was not dismissed for sexual
harassment but for serious and wilful insubordination, which he said was not
specified in the termination letter, but which he presumed was a reference to
an apology to the complainant.
[20]
The
trial judge noted that the letter did not indicate that the apology could be in
writing or that the employee could apologize only for a misunderstanding of his
comments. Mr. Weiler had testified at the trial that such an apology would have
been acceptable. The trial judge criticized the appellant for failing to
negotiate the content of the apology with the employee before terminating his
employment after 20 years of service. He also found that an important factor in
the appellants decision to terminate was that the employee had consulted a
lawyer, and that that was not a justifiable reason to dismiss an employee of
long service.
[21]
In
coming to the result of the trial, the trial judge found that the employer had
faced a situation where two employees were in a difficult working
relationship and the employer was entitled to choose which of the two
employees it wished to continue to employ. However, [w]hat the [appellant] was
not entitled to do was create a situation in which it could rely on just cause
to terminate the [respondents] employment.
[22]
The
trial judges ultimate finding was that the employees conduct did not justify
a conclusion that there had been an irreparable breakdown in the employment
relationship. He went on to calculate the appropriate period of notice and
awarded damages in lieu of notice.
D.
Issues
[23]
The
basis of the appellant employers appeal can be broken down into three main issues:
1)
Did the trial judge make a palpable and overriding error of fact by finding
that the appellant did not conclude that the respondents four comments to the
complainant amounted to sexual harassment?
2)
Did the trial judge err in law by failing to correctly apply the test
for determining whether the appellant had just cause to dismiss the respondent?
3)
Did the trial judge err by failing to find that the appellant had just
cause to terminate the respondents employment?
E.
Analysis
(1)
Did the trial judge make a palpable and overriding error of fact by
finding that the appellant did not conclude that the respondents four comments
to the complainant amounted to sexual harassment?
[24]
The
trial judge came to the conclusion that it was unclear whether the employer made
a finding, following its investigation, that the four impugned comments
amounted to sexual harassment of the complainant. His conclusion is contrary to
both the written and testimonial evidence.
[25]
The
Investigation Summary and Final Warning dated July 10, 2017 that the appellant
handed to the respondent, begins with the following statements:
This summarizes [A.O. Smith]s findings with respect to a
female employees allegation of sexual harassment due to inappropriate comments
you made directed to her on at least four occasions.
[A.O. Smith] has conducted an investigation and has concluded
that you made inappropriate comments.
[26]
The
investigations finding that the comments were inappropriate was in the
specific context of a complaint of sexual harassment. The investigation did not
conclude that the comments were inappropriate in the abstract. It concluded
that the specific allegation of sexual harassment due to inappropriate comments
was substantiated. There was nothing unclear about this conclusion.
[27]
Nor
was it unclear to the respondent. In his cross-examination testimony, he agreed
that in the meeting where he was given the Investigation Summary and Final
Warning document, he was told that his comments constituted sexual harassment,
and that even if the investigators had not used the word sexual in the
meeting, he understood that that was their finding.
[28]
In
addition, Mr. Weiler testified that the investigators had concluded that the
comments fit the definition of sexual harassment in the employers Workplace
Harassment Policy & Procedure, in that they were inappropriate comments of
a sexual nature that were known or ought to have been known to be
inappropriate. They also concluded that the comments fit the definition of
sexual harassment under the
Occupational Health and Safety Act
, R.S.O.
1990, c. O.1, and that the respondent had singled out the complainant for those
comments because of her gender. Mr. Weiler explained that they had taken all
four comments into account and that they saw a pattern of comments with a
sexual nature. The trial judge made no adverse credibility finding against Mr.
Weiler, nor did he suggest a basis to reject the conclusions reached by the
investigation.
[29]
In
my view, the trial judge made a palpable and overriding error of fact, based on
the record, when he stated that it was unclear whether the appellant had found
that the four comments constituted sexual harassment. The evidence was clear
that the appellant made that finding and communicated it to the respondent, and
that he understood it.
(2)
Did the trial judge err in law by failing to correctly apply the test
for determining whether the appellant had just cause to dismiss the respondent?
[30]
The
appellant submitted that the trial judge erred by failing to properly apply the
test for just cause and thereby side-stepped the core question in this case,
namely, whether the employee had engaged in misconduct that gave rise to a
breakdown in the employment relationship or that was irreconcilable with
sustaining the employment relationship. I agree that the trial judge failed to
correctly apply the test set out in this courts decision in
Dowling v.
Ontario (Workplace Safety & Insurance Board)
(2004), 246 D.L.R. (4th)
65 (Ont. C.A.), that explained and elaborated on the test in
McKinley v. BC
Tel
, [2001] 2 S.C.R. 161.
[31]
Referring
to the Supreme Court of Canada decision in
McKinley
, at paras. 48, 51
and 53, the trial judge stated that the test to determine whether an employer
was justified in terminating the employees employment for cause must be
assessed in context, and that a balance must be struck between the severity of
the employees conduct and the sanction imposed. These statements are correct.
[32]
However,
in applying the test, the trial judge erred by failing to properly identify and
characterize the conduct for which the employee was terminated. The trial judge
found that the underlying conduct for which the employee was disciplined, and which
the employer found to be sexual harassment, was irrelevant to the calculus
because the basis for the termination was only the employees failure to
apologize as instructed. The trial judge concluded that the employees refusal
to apologize did not amount to a breakdown in the employment relationship.
[33]
I
will examine these errors in the context of the three-part test for determining
whether termination for cause was justified, as explained in this courts
decision in
Dowling
, at paras. 49-50:
[49] Following
McKinley
, it can be seen that the core
question for determination is whether an employee has engaged in misconduct
that is incompatible with the fundamental terms of the employment relationship.
The rationale for the standard is that the sanction imposed for misconduct is
to be proportional dismissal is warranted when the misconduct is sufficiently
serious that it strikes at the heart of the employment relationship. This is a
factual inquiry to be determined by a contextual examination of the nature of
the misconduct.
[50] Application of the standard consists of:
1. determining the nature and extent of the misconduct;
2. considering the surrounding circumstances; and
3. deciding whether dismissal is warranted (i.e. whether
dismissal is a proportional response).
[34]
In
Dowling
, the court went on to explain the requirements of each step.
At the first step, the nature and extent of the misconduct must be determined,
and the employer is entitled to rely on wrongdoing by the employee that is
discovered both before and after the termination. The second step considers the
employee within the employment relationship, including the employees age,
employment history, seniority, role and responsibilities, and for the employer,
the type of business, any relevant policies or practices, and the employees
position in the organization, including the degree of trust reposed in the
employee. The third step assesses whether the misconduct is reconcilable with
sustaining the employment relationship, and whether the misconduct is
sufficiently serious that it would give rise to a breakdown in the employment
relationship:
Dowling
, at paras. 51-53.
[35]
In
oral submissions, counsel for the respondent argued that although the trial
judge did not refer to the
Dowling
test, he implicitly applied this
three-step approach in his reasons, where he found that however the impugned
comments were characterized, they did not warrant summary dismissal. I would
reject this submission. The trial judges analysis, in substance, does not engage
the analytical steps explained in
Dowling
.
[36]
The
first step of the test is to determine the nature and extent of the misconduct.
The four comments that the respondent made to the complainant were the subject
of a formal complaint of sexual harassment and a misconduct investigation. That
investigation resulted in a finding that the comments were inappropriate, and
the requirement that the respondent take two steps to address the situation:
take sensitivity training and apologize to the complainant. The respondent
agreed to the training but refused to make an apology.
[37]
The
respondents conduct consisted of making the four inappropriate comments,
including after he was told by the complainant that they were inappropriate and
unwelcome and after he was warned by his superior, Mr. Abdel-Rehim, and then
his refusal to apologize when he was told by his employer that that was
required as discipline to remedy the situation.
[38]
The
refusal to apologize is only part of the misconduct that the appellant had to
consider when deciding whether there has been a breakdown in the employment
relationship. The refusal to apologize did not occur in a vacuum. The degree of
seriousness of the misconduct that led to the discipline, and then to the
dismissal, is critical to the ultimate assessment of the propriety and
proportionality of the employers response. But the trial judge eschewed this
analysis, finding instead that the nature and seriousness of the respondents
comments were irrelevant and focusing solely on his refusal to apologize.
[39]
The
trial judge also did not adequately address the second step of the analysis.
While he did take into account the fact that the respondent was a long-term
20-year employee of the appellant, he did not discuss or weigh such factors as
the Workplace Harassment Policy of the employer and the recent training the
respondent had undergone with respect to the Policy. He also did not consider
the senior position the respondent held and the degree of trust that arose from
that in the employer-employee relationship.
[40]
When
it came to the third step, the trial judges assessment of whether dismissal
was warranted by the respondents misconduct was tainted by his failure to
consider, as part of that misconduct, the inappropriate, sexually harassing
comments that the respondent made to the complainant, that were the basis for
the investigation and discipline.
(3)
Did the trial judge err by failing to find that the appellant had just
cause to terminate the respondents employment?
a)
The Nature
and Extent of the Misconduct
[41]
In
order to apply the first step of the three-part test from
Dowling
, the
trial judge was required to decide whether the respondents four impugned
comments amounted to sexual harassment and to assess that misconduct, along
with the refusal to apologize, which together formed the basis for the appellants
decision to terminate the respondents employment.
[42]
The
Supreme Court provided the following definition of sexual harassment in the
workplace in its decision in
Janzen v. Platy Enterprises Ltd.
, [1989]
1 S.C.R. 1252, at p. 1284:
Without seeking to provide an exhaustive definition of the
term, I am of the view that sexual harassment in the workplace may be broadly
defined as unwelcome conduct of a sexual nature that detrimentally affects the
work environment or leads to adverse job-related consequences for the victims
of the harassment. It is, as Adjudicator Shime observed in
Bell v. Ladas
,
supra
, and as has been widely accepted by other adjudicators and
academic commentators, an abuse of power. When sexual harassment occurs in the
workplace, it is an abuse of both economic and sexual power. Sexual harassment
is a demeaning practice, one that constitutes a profound affront to the dignity
of the employees forced to endure it. By requiring an employee to contend with
unwelcome sexual actions or explicit sexual demands, sexual harassment in the
workplace attacks the dignity and self-respect of the victim both as an
employee and as a human being.
[43]
Sexual
harassment is not confined to actions but includes comments with a sexual
innuendo. In Arjun P. Aggarwal and Madhu M. Guptas well-recognized text,
Sexual
Harassment in the Workplace
, 3rd ed. (Toronto: Butterworths, 2000), at p. 119,
the authors provide the following summary of sexual harassment in the workplace:
[B]riefly summarized, sexual harassment is a form of
discrimination based on sex. It occurs when a person is disadvantaged in the
workplace as a result of differential treatment in the workplace. It is an
unwarranted intrusion upon the sexual dignity of a person. It consists of acts
that are unwarranted, unsolicited, and unwelcome. It can be overt or subtle.
Even if the nature of the harassment is not physical, it can still be
considered to be sexual harassment if it creates a poisoned environment, even
if there is no economic consequence such as loss of ones job, loss of
seniority, or economic consequences of a similar nature. It is also clear that
even if it might be considered that what has occurred is sexual banter, common
to the workplace, if a person finds it objectionable and makes it known in
clear and precise terms that such actions are not acceptable to such person,
then that is the standard of behaviour that is established
vis-à-vis
that
person.
[44]
And
as far back as 1998, Carthy J.A. concluded this courts decision in
Bannister
v. General Motors of Canada Ltd.
(1998), 40 O.R. (3d) 577 (C.A.), with
the observation that, even in an industrial plant where no one expects
profanity or vulgarity to be eliminated
unwelcome conduct or expression based
upon gender cannot be tolerated: at p. 590.
[45]
It
is also important to view the respondents comments in the context of the
appellants written Workplace Harassment Policy, which contains the following
definition of sexual harassment:
Sexual harassment is unsolicited conduct, comments or physical
contact of a sexual nature that is unwelcome to the recipient. It includes any
unwelcome sexual advances (oral, written, physical), requests for sexual
favours, sexual and sexist jokes or remarks and the display of degrading or
offensive material when:
a.
such conduct
might reasonably be expected to cause insecurity, discomfort, offence or
humiliation; or
b.
such conduct has
the purpose or effect of interfering with a persons work performance or
creating an intimidating, hostile, offensive work environment; or
c.
submissions to
such conduct is made either implicitly or explicitly a condition of employment;
or
d.
submission to,
or rejection of, such conduct is used as a basis for any employment decision
(i.e. job security, promotion, change in salary and benefits).
[46]
Applying
these definitions and descriptions of sexual harassment to the four comments
the respondent made and the circumstances in which they were made, there is no
doubt that they constituted sexual harassment of the complainant.
[47]
First,
they were each based on gender and bore an unmistakable sexual connotation. They
were comments that would only have been made to a woman, not to a man.
[48]
Second,
the comments were demeaning and undermined the dignity of their recipient. They
implied provocative behaviour by the recipient or that she welcomed sexual
suggestions by the respondent.
[49]
Third,
the comments were unwelcome and the respondent knew that. He was told as much by
the complainant, as well as by his superior Mr. Abdel-Rehim when he heard the
respondent make the sit on lap comment.
[50]
Fourth,
they created a poisoned atmosphere for the complainant in her workplace. In the
words of the appellants Workplace Harassment Policy, the comments were
unsolicited and unwelcome, they were of a sexual nature, and they might
reasonably be expected to cause discomfort and humiliation and create a hostile
and offensive work environment.
b)
The
Surrounding Circumstances
[51]
At
the second step of the test, the court considers the circumstances of both the
employee and the employer. The respondent had just recently received training
on the Workplace Harassment Policy and, as a senior employee with a lengthy
20-year tenure, he would have been trusted to abide by the Policy in his relations
with his co-workers. The complainant was a project manager who had to work
closely with the respondent from time to time. He was clearly expected to treat
her with dignity and respect.
[52]
The
appellants Workplace Harassment Policy is another relevant consideration. The
Policy provided a complaints procedure that was followed by the appellant. It
conducted an investigation, including giving the respondent the opportunity to
address the allegations against him. It determined that he had made sexually
inappropriate comments to the complainant, and delivered its findings to him
along with its decision regarding the steps he was required to take to address
the situation.
[53]
The
Policy sets out the corrective action that the employer may take if it finds
that an employee engaged in harassment or sexual harassment in the workplace,
up to and including termination. It provides:
Corrective Action
Where an investigation substantiates conduct contrary to the
policy, corrective action will be taken. Such corrective action will include
addressing any relevant issues in the work environment, as well as addressing
any employees who have personally engaged in comments or conduct contrary to
this policy.
The objective of the corrective action directed at individuals
is to change attitudes and behaviour and eliminate workplace harassment or
discrimination as defined by the policy. Such action may range from educating
such persons on the appropriateness of his or her behaviour to transfers, demotions,
suspensions or termination. Any disciplinary action will be noted on the
employees personnel file.
c)
Whether
Dismissal Is Warranted
[54]
Having
identified the nature and extent of the misconduct by the respondent, and taken
into account the surrounding circumstances, the third step of the test requires
the court to determine whether the misconduct was sufficiently serious that it
resulted in a breakdown of the employment relationship, and whether dismissal
was a proportional response by the appellant.
[55]
In
his testimony at trial, the respondent confirmed that he understood that sexual
harassment was a fireable offence and that that was a common understanding
within the organization.
[56]
However,
the appellant did not initially terminate the respondents employment as a
result of his sexually harassing conduct. It gave him the opportunity to redeem
himself and to save his job by taking sensitivity training and apologizing to the
complainant. In his testimony, the respondent described the course of
corrective action directed by the employer as an ultimatum, and understood
that the memo constituted a final warning. This was a fair and proportionate
response by the employer.
[57]
In
response, the appellant consulted a lawyer, as he was entitled to do, and gave
his response through counsel. He agreed to take the additional sensitivity
training, but at the same time, he was adamant that it was unnecessary. This
indicated a complete failure to acknowledge the nature and the seriousness of
his conduct, and the effect it had on the complainant and on the atmosphere of
the workplace.
[58]
In
addition, through his lawyers letter, the respondent refused to issue an
apology to [the complainant] admitting any wrongdoing, on the basis that the
facts were in dispute and the complaint was disconcerting to him. The letter
expressly took the position that an apology was not appropriate, and did not
seek any negotiation of the form or terms of an apology. In his testimony, the
respondent acknowledged that if youre guilty of sexual harassment, or any
kind of harassment, the complainant or the victim deserves an apology. Thats a
no-brainer. However, he stood firm in his position that I was not going to
apologize, because I did not harass that woman.
[59]
In
those circumstances, the only conclusion the appellant could reach was that there
was a complete breakdown in the employment relationship as (i) he was either
unwilling or unable to understand the purpose and effect of the Workplace
Harassment Policy and to take its requirements seriously and (ii) he was
unwilling to accept the discipline imposed on him as a consequence of his
misconduct of sexually harassing a co-worker. As a result, the appellant could
have no confidence that the respondent would not continue with the same type of
misconduct in the future.
[60]
Faced
with the respondents lack of contrition, lack of understanding of the
seriousness of his conduct, and his refusal to comply with the reasonable and
essential requirement of an apology to the complainant and target of his
comments, the appellants decision to terminate the respondents employment was
a proportional and wholly warranted response.
[61]
It
follows that I reject the trial judges suggestion that in those circumstances,
it was incumbent on the appellant to try to negotiate an acceptable form of
apology with the respondent. I similarly reject the respondents submission in
oral argument that the appellant was required to warn the respondent that if he
did not apologize, his employment may be terminated. The respondent was treated
fairly. He refused to comply with the discipline imposed and understood that
this discipline presented an ultimatum. He could not have reasonably expected
that he would be able to continue with his employment without apologizing to the
complainant for his comments, that were found to be inappropriate.
[62]
Contrary
to the observation of the trial judge, this was not a situation where the
employer was faced with two employees who could not get along and had to choose
between them. One employee had engaged in workplace misconduct. It was that
employee who had to either accept the appropriate disciplinary measures imposed
by the employer to retain his position, or risk losing that position.
[63]
I
also reject the trial judges conclusions that the appellants decision to
terminate the respondents employment was motivated by the fact that he sought
legal advice, and that it was the appellant that created a situation that gave
it just cause to terminate. These conclusions find no basis in the record.
[64]
The
appellants decision to terminate the respondents employment in these
circumstances was justified and appropriate based on the three-part test from
Dowling
.
F.
Conclusion
[65]
I
would allow the appeal, set aside the judgment below, and dismiss the claim. There
is therefore no need to address the issue of mitigation.
[66]
Counsel
advised the court that they would try to agree on costs. If they are unable to
agree, they may make brief written submissions (maximum three pages) within
three weeks of the release of these reasons, addressing the costs of the appeal
and below.
Released: October 15, 2021 K.F.
K.
Feldman J.A.
I agree.
Harvison Young J.A.
I agree.
Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Kormendy, 2021 ONCA 725
DATE: 20211015
DOCKET: C64638
Rouleau, Benotto and Zarnett JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Kenneth James Kormendy
Appellant
Kenneth James Kormendy, acting in person
Jessica Smith Joy, for the respondent
Heard: in writing
On appeal from the conviction entered on November 21,
2016 by Justice Christopher Bondy of the Superior Court of Justice.
REASONS FOR DECISION
[1]
The appellant was
convicted of five counts of
attempted murder and arson. He was sentenced after trial to 11 years
incarceration. The Crown appealed the sentence and this court increased it to
20 years less credit for pre-sentence custody.
[2]
He appeals his conviction alleging ineffective
assistance of his trial counsel.
[1]
FACTS IN BRIEF
[3]
The Crown alleged at trial that the appellant
attempted to kill his girlfriend and her two daughters, then aged one and seven,
by setting fire to her house while they were inside. The appellant testified
that he did not set the fire. Instead, he implied that his girlfriend must have
started the fire because he was breaking up with her. The trial judge rejected
his evidence and found the Crowns case overwhelming.
[4]
The appellants claim of ineffective assistance
of counsel focuses primarily on trial counsels decision to admit the
voluntariness of his police statement. The appellant says his statement was not
voluntary because he was intoxicated, overtired, and upset because of the fire.
He also did not review the statement before he testified at trial, the result
of which was that his testimony was inconsistent with what he said to the
police. The inconsistencies, he submits, related to key issues including who
started the fire, the motive for the fire and how he sustained an injury to his
hand.
[5]
Crown counsel took the position that the
statement would not be led as part of its case. However, in the week before
trial, he approached defence counsel for a position on the use of the statement
for cross-examination. Trial counsel was well familiar with the law on
voluntariness and concluded that the appellant was cautioned, had the
opportunity to speak to counsel several times in advance of the police interview
and was treated respectfully. Throughout the police interview the appellant was
responsive to detailed questions asked. The appellant did not tell his counsel
that he was intoxicated and in fact had denied that he was intoxicated. Trial
counsel discussed the statement with the appellant, who according to trial
counsel did not want to view it.
ANALYSIS
[6]
The analysis of ineffective assistance of
counsel proceeds on a strong presumption that the counsels conduct fell within
the wide range of reasonable professional assistance. The purpose of the
inquiry is not to grade trial counsels performance, but to determine whether a
miscarriage of justice
occurred
:
see
R. v.
Joanisse
(1995)
, 85 O.A.C. 186 (C.A.) at para. 74, leave to appeal refused, [1996]
S.C.C.A. No. 347.
[7]
To determine whether a miscarriage of justice
has occurred, the court considers whether the appellant has established the
following:
1.
the facts material to his claim on a balance of
probabilities;
2.
that trial counsels representation (or
performance) was incompetent;
3.
that a miscarriage of justice occurred due to
the incompetent representation (the prejudice aspect of the claim).
[8]
If there is a factual basis for the claim, the
court first considers whether a miscarriage of justice occurred. If there is no
miscarriage of justice, it is unnecessary to proceed with the performance
component of the claim: see
Joanisse
,
at paras. 71-73;
R.
v. Fiorilli
, 2021 ONCA 461, 156 O.R. (3d) 582, at paras. 51-59.
[9]
The appellant has not established on a balance
of probabilities that there is a factual basis for his claim that his counsel
refused to show him the video statement or tell him that it would be used in
cross-examination.
[10]
In any event, even if the factual component had been
met, the appellant fails on the prejudice component. While the trial judge did
assess the appellants inconsistent statements in his analysis, he also provided
detailed and extensive reasons for otherwise rejecting the appellants
testimony, in particular:
1.
The trial
judge rejected his evidence about the events leading up to the fire as contrary
to the text messages the appellant had sent.
2.
The trial judge
found the text messages between the appellant and his girlfriend corroborated
her characterization of their relationship, not his.
3.
The trial judge
rejected the appellants evidence about how the fire started because it was
inconsistent with the evidence of the expert witness, who concluded that the
bedroom door was closed when the fire started. The appellant testified that the
bedroom door was open. The trial judge believed the expert witness and did not
believe the appellant.
4.
The trial judge
did not accept the appellants explanation for the injury to his hand. The
appellant said that he burned his hand while attempting to open the childs
bedroom door once the fire had engulfed it. The trial judge found that this
evidence did not make sense considering the appellants testimony that he was
unsure if there was anyone in the bedroom. Further, if the door was open as the
appellant maintained, it would have been unnecessary to touch the doorknob to
open the door. Finally, the appellants injuries were consistent with the
expert testimony on expected injuries from igniting gasoline vapours by hand.
5.
The appellant
testified that he did not call into the childs bedroom once the fire started
as he was unsure if anyone was in the bedroom. The trial judge found that this
evidence lacked harmony with the appellants own earlier testimony that he was
aware that the child was in the bedroom and that he had not observed anyone
leaving the bedroom.
6.
The appellants
version of events leading to him bringing the child from the house was
disbelieved by the trial judge as the appellants version was inconsistent with
that of independent witnesses.
7.
The appellant
denied seeing a gasoline container outside of the childs bedroom door after
the fire started. The trial judge found that this evidence was irreconcilable
with the evidence given by the three witnesses who entered the house to try to
find the child, each one of whom saw the gasoline cannister.
8.
The police
officer who arrested the appellant testified that he noted the strong smell of
gasoline on the appellant at the time of his arrest. The appellant testified
that he smelled like gasoline because he had been working on the lawnmower the
day before. The trial judge gave extensive reasons as to why he disbelieved the
appellants evidence on this point.
[11]
As
a result of this analysis by the trial judge, it is clear that the inconsistencies
in the appellants testimony with respect to the video statement would not have
changed the result at trial.
[12]
In
any event, we see no basis to conclude that counsels performance failed to
meet the high threshold for incompetence. The video statement differed only
slightly with the appellants testimony at trial. Counsel understood the test
for voluntariness and
the
decision not to contest the Crowns ability to use the video statement was
reasonable in the circumstances.
[13]
The
appellant raises additional complaints about trial counsels assistance. For
example, the appellant raises the following points:
1.
He complains
that counsel did not properly use text messages to confirm the evidence of the
witness Ms. Kormendi. However, her evidence was largely accepted by the trial
judge who gave it little weight.
2.
He claims that
counsel should have called an expert to opine that the injury to his hand was
inconsistent with having started the fire. However, the Crowns expert agreed
that the injury was consistent with both having started the fire and with the
appellants testimony.
3.
He claims that
counsel failed to prepare him to testify at trial while evidence supports that the
appellant and counsel met several times, and that counsel was reasonably diligent.
4.
He claims that
his mother should have been called as a witness, but counsel made a strategic
decision that it would not be wise to call his mother as her evidence would be
limited and her demeanor likely would not have helped the appellants case.
[14]
These
complaints find no support in the record and do not satisfy the factual
component of the test for ineffective assistance.
[15]
For
these reasons, the appeal is dismissed.
Paul Rouleau J.A.
M.L. Benotto J.A.
B. Zarnett J.A.
[1]
The appellant indicated that he was assisted in the
preparation of his factum on appeal by Mark C. Halfyard as duty counsel.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Premji, 2021 ONCA 721
DATE: 20211015
DOCKET: C66102
Fairburn A.C.J.O., Doherty and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Noordin Premji
Appellant
Faisal Mirza, for the appellant
Ian Bell, for the respondent
Heard: October 8, 2021 by video conference
On appeal from the sentence imposed on October 10, 2018
by Justice Leonard Ricchetti of the Superior Court of Justice.
REASONS FOR DECISION
[1]
But for the appellants advanced age (77 years old at the time of
sentencing), the 13.5-year prison sentence imposed by the trial judge was fit,
having regard to the very serious nature of the offence and the absence of any
significant mitigating factors. The trial judge did not, however, consider the
appellants advanced age as a factor in mitigation of sentence. As the trial
judge said: There are no mitigating factors.
[2]
As the court noted in
R. v. M. (C.A.)
, [1996] 1 S.C.R. 500,
at para. 74:
[I]n the process of
determining a just and appropriate fixed-term sentence of imprisonment, the sentencing
judge should be mindful of the age of the offender in applying the relevant
principles of sentencing. After a certain point, the utilitarian and normative
goals of sentencing will eventually begin to exhaust themselves once a
contemplated sentence starts to surpass any reasonable estimation of the
offenders remaining natural life span.
[3]
Therefore, in exercising
discretion under the
Criminal Code
, a sentencing judge should generally refrain from
imposing a fixed-term sentence which so greatly exceeds an offenders expected
remaining life span that the traditional goals of sentencing, even general
deterrence and denunciation, have all but depleted their functional value:
M.
(C.A.)
, at para. 74.
[4]
The appellants
advanced
age should have mitigated, to some extent, the very lengthy sentence called for
in this case.
[5]
The trial judges failure to consider the appellants advanced age
amounts to an error in principle, having a material impact on the appropriate
sentence. Accordingly, this court must perform its own sentencing analysis to
determine a fit sentence:
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R.
1089,
at para. 43;
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th)
1,
at para. 27.
In doing so, we accept the findings of fact made
by the trial judge and consider the new information available to us on appeal.
[6]
We have been provided with extensive fresh evidence. The appellants
health has deteriorated significantly since the time that he was sentenced. In
light of that evidence, the Crown concedes that there should be some downward adjustment
of the appellants sentence to take into account that deterioration. However,
the appellants medical condition cannot overwhelm the principles of sentencing
so as to result in a sentence which fails entirely to reflect the seriousness
of the offence or the appellants moral culpability.
[7]
The offence for which the appellant was convicted, heroin importing,
remains a very serious offence committed by an individual with a previous
drug-related conviction for which he received a substantial penitentiary
sentence.
[8]
In the exceptional circumstances, as laid out in the fresh evidence, and
in light of the Crowns position, we are prepared to vary the appellants
sentence to nine years. In doing so, we should not be taken as signalling any
change in this courts approach to sentencing in large-scale drug importing
cases like this one. The appellants very advanced age and the combination of
several significant medical problems make this a highly unusual case.
[9]
We reject the suggestion that the appellant should receive a conditional
sentence because of health-related problems or COVID-19
related
concerns. A conditional sentence would ignore entirely the proportionality
principle and denigrate the seriousness of the offence.
[10]
In
our view, the appellants specific ongoing health-related problems and any COVID-19
related
problems that may arise from his incarceration are best dealt with by the
Parole Board of Canada using the powers provided to it under the
Corrections
and Conditional Release Act
, S.C. 1992, c. 20, s. 121:
R. v.
Kanthasamy
, 2021 ONCA 32, at para. 11.
Fairburn A.C.J.O.
Doherty J.A.
David Watt J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R.
v. Smithen-Davis, 2021 ONCA 731
DATE: 20211015
DOCKET: M52769 (C65661)
Fairburn A.C.J.O., Doherty and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent (Applicant/Moving Party)
and
Haldane Smithen-Davis
Appellant (Responding Party)
Michael Dunn and Samuel Greene, for the moving party
David Butt,
Amicus
Curiae
May Sengupta-Murray on behalf of Alan D. Gold, for
Haldane Smithen-Davis
Heard and released orally: October 8, 2021
REASONS FOR DECISION
[1]
On a motion for directions, the Crown seeks an order:
i.
declaring that Jason Hamilton has waived his privilege over
communications with his trial counsel regarding issues relevant to an application
by Haldane Smithen-Davis to reopen his appeal;
ii.
directing Jason Hamilton to answer questions in cross-examination on
issues on which he has waived his privilege; and
iii.
in the alternative, an order declaring Jason Hamiltons affidavit
inadmissible on the reopening application.
The Background
[2]
The circumstances in which the motion arises fall within a narrow
compass.
[3]
Jason Hamilton and Haldane Smithen-Davis were convicted of a home
invasion in which another participant was killed. The evidence at their trial
consisted principally of an Agreed Statement of Facts. Both were represented by
experienced counsel. Both appealed. Both appeals were dismissed.
[4]
Subsequently, Mr. Smithen-Davis has applied to reopen his appeal. In
support of his application, he relies on his own affidavit and that of Jason
Hamilton. Reduced to their essence, these affidavits assert that Mr.
Smithen-Davis did not participate in the offence of which both he and Jason
Hamilton were convicted.
[5]
In their affidavits, both claim that, on the morning of trial, they
signed off on an Agreed Statement of Fact drafted by their counsel. Each denies
having reviewed the Agreed Statement of Fact in any meaningful way before they
signed it.
[6]
In his affidavit, Jason Hamilton swears that:
i.
the Agreed Statement of Fact is not true;
ii.
he never told his trial counsel that he was present at, but did not
participate in, the home invasion; and
iii.
he never told his trial counsel that Mr. Smithen-Davis was not present
when the home invasion occurred.
[7]
Mr. Smithen-Davis has signed a waiver of solicitor-client privilege in
connection with his communications with his trial counsel. Mr. Hamilton
declined the Crowns request that he execute an equivalent waiver.
Amicus
was appointed to provide him with advice about responding to the Crowns
request. He remains steadfast in his refusal.
The Motion
[8]
On this motion for directions, the Crown says that three reasons compel
the conclusion that Jason Hamilton has waived solicitor-client privilege over
communications with his trial counsel on the creation and accuracy of the Agreed
Statement of Fact:
i. by partially and selectively disclosing his
communications with trial counsel in his affidavit;
ii. by relying on his partial recitation of his
communications with trial counsel to explain his course of action, including
the timing and content of his disclosures; and
iii. by
refusing to provide a signed waiver of privilege thus insulating his evidence
from effective challenge.
[9]
In these circumstances we are satisfied that fairness dictates that Mr.
Hamilton has waived his solicitor-client privilege with respect to
communications about:
i. the accuracy of the Agreed Statement of Fact; and
ii. how the Agreed Statement of Fact came about.
See: VIII,
Wigmore
on
Evidence
, (McNaughton
Rev), at pgs. 635-636; Sopinka, Lederman, & Bryant
The
Law of
Evidence in Canada
(5th ed)
,
at para. 14.128.
The Disposition
[10]
An
order will issue in the terms I have set out. The cross-examination shall be
conducted before a judge or commissioner appointed for that purpose. Further
proceedings shall be case managed by a judge of this Court.
Fairburn A.C.J.O.
Doherty J.A.
David Watt J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 722
DATE: 20211015
DOCKET: C69156
Strathy C.J.O., Pepall and Pardu JJ.A.
BETWEEN
Thrive Capital
Management Ltd., Thrive Uplands Ltd.,
2699010 Ontario Inc. and 2699011 Ontario Inc.
Plaintiffs (Respondent)
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)
Justin Necpal, Justin H. Nasseri and Joshua Ng, for the
appellants
Brian N. Radnoff and Joshua Suttner, for the respondents
Heard: September 15, 2021 by video conference
On
appeal from the judgment of Justice Markus Koehnen of the Superior Court of
Justice, dated January 21, 2021.
Pardu J.A.:
[1]
The appellants were found in contempt of court for multiple failures to
disclose their assets and to account for money paid in respect of real estate investments.
They do not challenge the finding of contempt but say that the motion judge
erred in granting judgment against them for some $9 million dollars, following
the sentencing hearing.
Background
[2]
The respondents alleged that the appellants misappropriated $9 million
dollars of investment funds intended for real estate projects in Brampton and
Richmond Hill.
[3]
The respondents started an action and quickly obtained a
Mareva
injunction. The motion judge found that the respondents had a strong prima
facie case that their assets had been misappropriated. The terms attached to
the
Mareva
injunction required the appellants to produce an accounting
for the funds, affidavits of assets, and contact information for the recipients
of all funds and documents related to the real estate projects.
[4]
The matter was adjourned several times in an attempt to persuade the
appellants to comply, without success. They were found in contempt on June 19,
2020 and do not challenge that finding.
[5]
Their purported compliance was derisory. As the motion judge noted, the
appellants:
blatantly ignored even the
simplest of court orders, have forced the plaintiffs to court on numerous
occasions to deal with their outright refusals to comply and have wasted scarce
public resources in doing so. They have treated court orders as meaningless
scraps of paper that could be used to tie the plaintiffs up in knots rather
than as mandatory directives that form an essential part of basic social order.
[6]
The flagrant nature of the contempt is demonstrated by the responses to
the order to disclose their assets.
[7]
Hymans affidavit of assets filed following the April 23, 2020 order
describes a bank account with $17 in it, shares in a private company he valued
at $500, and corporate assets of about $1916. A net worth statement he filed
about two months earlier showed net assets of $15,061,000, including $5 million
in cash, a Rolls-Royce and a Lamborghini with a total value of $1,564,000, and
five other cars worth over $2 million. Hyman asked for an interim order
permitting him to use $40,000 a month for living expenses.
[8]
In a similar vein, Anastasios affidavit of assets disclosed a bank
account containing $18,517.91 and two Volkswagen Jettas worth about $15,000
each. He was also discovered to have leased a Porsche 911 and a Rolls-Royce. He
asked for $20,000 a month for living expenses.
[9]
Their affidavits, purportedly filed to explain where the money went, do
more to obfuscate than clarify
[10]
The
motion judges observation, I cannot understate the seriousness of the
Defendants continued contempt of court, was well founded. On June 19, 2020 he
found the appellants in contempt for failure to comply with the orders to
provide an accounting of funds, disclosure, and contact information for
individuals or entities who received money from the accounts or the appellants.
In addition, he found Hyman in contempt for failing to close the purchase of
the Richmond Hill property, breaching the
Mareva
injunction by
transferring funds, failing to provide information regarding vehicles, and
breaching the prohibition that the Mercedes Benz and Land Rover were not to be
driven. After making these findings, the motion judge asked the parties to make
submissions on whether judgment was a possible sanction for contempt.
[11]
The
respondents served a motion record seeking judgment against the appellants in
the form of a r. 60.11 sanction for contempt:
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194.
They did not invoke r. 60.12 in their motion
record. The appellants sought an urgent case conference, claiming that they had
been taken by surprise by the request for judgment and that this required
submissions on the merits of the action.
[12]
The
motion judge adjourned the sentencing hearing for a month to allow the
appellants to prepare arguments on whether judgment in the action could be a
sanction for contempt. He directed that the arguments available were that it
was possible, that it was not possible, or that it was not possible without
adjudicating the merits. He directed: The point of the sanctions hearing is
not, however, to argue the merits. The defendants are able to argue on the
sanctions hearing that judgment on the merits is not appropriate without an
adjudication on the merits. That does not require them to actually adjudicate
the merits.
[13]
The
respondents provided the appellants with the case authority upon which they
relied to support their claim for judgment,
Falcon Lumber Limited. v.
24803375 Ontario Inc.
, 2019 ONSC 4280,
affd 2020 ONCA 310,
a case dealing with striking
pleadings for failure to make documentary disclosure.
[14]
The
respondents sought judgment against the appellants and 6 months incarceration.
[15]
The
motion judge concluded that the appellants behaviour was serious enough to
warrant incarceration, but that judgment was more appropriate. He found that it
would be inappropriate to allow the appellants to defend the proceeding, while
at the same time ignoring orders of the court. He found that a fine would not
be adequate to persuade the appellants to obey the court orders and would
amount to a licence to steal. The appellants efforts to comply with the orders
were inadequate and their evidence was not worthy of belief. They continued to
be in contempt of the orders at the sentencing hearing.
[16]
The
motion judge was satisfied that the appellants conduct warranted incarceration
but concluded that incarceration was not the preferable penalty. He concluded
that it was most appropriate to tailor the remedy to the default by granting
the respondents judgment. He indicated that he would ordinarily expect a party
who was accused of a $9 million fraud to explain why they were legitimately
entitled to the money. In the absence of any explanation some nine months after
the action had been started, he indicated that he saw no injustice in granting
judgment against the appellants. Relying on rr. 60.11 and 60.12 as the source
of his authority, he concluded this is an appropriate case in which to use
that power as a sanction for contempt. Here the defendants have not yet
defended. The appropriate corollary is to deny them the ability to defend and
to enter judgment against them. He concluded that if he had not granted
judgment, he would have sentenced the appellants to six months incarceration.
Analysis
[17]
Here
the motion judge was critical of the appellants failure to explain why they
were entitled to the money and relied on that failure in deciding that judgment
was the appropriate remedy. However, he had instructed that the appellants were
not to address the merits of the action at the sentencing hearing. This
requires that the judgment be set aside and the matter returned to the Superior
Court for a new sentencing hearing. In light of the appellants behaviour, it
is easy to see why he was highly skeptical that there was any defence to the
action. If the merits were a factor, however, the appellants should have been
able to address that issue.
[18]
I
turn now to a consideration of the issues raised by this appeal:
1.
What factors are relevant to determining a sanction for contempt?
2.
Can an opposing party move to strike a defence or bar a defendant from
participating in the proceeding as a remedy for contempt?
3.
If such a motion is brought, are the merits of the proceeding a factor in
deciding whether to grant the remedy?
4.
Is judgment directly available as a sanction for contempt?
5.
What are the steps required to attempt to obtain judgment against a
party in contempt?
[19]
The
merits of an action may not be particularly relevant in determining what
punishment is appropriate for contempt of court but are relevant to the issue
of whether judgment should be granted. The purpose of a penalty for civil
contempt is two-fold; not only do such penalties enforce the rights of a
private party, but they also maintain respect for the authority of the courts.
The factors relevant to the determination of the appropriate sentence for civil
contempt include:
1.
The proportionality of the sentence to the wrongdoing;
2.
The presence of mitigating factors;
3.
The presence of aggravating factors;
4.
Deterrence and denunciation;
5.
The similarity of sentences in like circumstances; and
6.
The reasonableness of a fine or incarceration.
[20]
None
of these factors focuses on the merits of the proceeding:
Boily v. Carleton
Condominium
, 2014 ONCA 574, 121 O.R. (3d) 670, at paras. 79, 90. A fine
imposed for contempt is payable to the Crown and not to the opposing party:
SNC-Lavalin
Profac Inc. v. Sankar
, 2009 ONCA 97, 94 O.R. (3d) 236, at para. 14.
[21]
The
distinctions between the two distinct roles of a court imposing a sanction for
contempt on the one hand and granting judgment on the other can be blurred if
the analysis is not separated.
[22]
There
can be no doubt, however, that a statement of defence can be struck for
contempt of court. Courts have denied contemnors the opportunity to deal with a
claim on the merits. In
iTrade Finance Inc. v. Webworx Inc.
, (2005) 255 D.L.R. (4th) 748 (Ont. S.C.J.),
the
court found that the defendants failure to comply with court orders was such
that the remedy of striking its pleadings was appropriate. In
Paul Magder
Furs Ltd. v. Ontario (Attorney General)
, 6 O.R. (3d) 188 (Ont. C.A.), at
para. 14, the court observed that it is an abuse of process to assert a right
to be heard by the court and at the same time refuse to undertake to obey the
order of the court so long as it remains in force. Section 140(5) of the
Courts
of Justice Act
, R.S.O. 1990, c. C.43 gives the court express power to stay
or dismiss a proceeding as an abuse of process. In
Dickie v. Dickie
(2006), 78 O.R.(3d) 1, this court refused to hear a litigant who was abusing
the processes of the court. By analogy, a court could bar a defendant in
contempt from filing a statement of defence.
[23]
Rule
60.12 provides explicitly that where a party fails to comply with an interlocutory
order, the court may, in addition to any other sanction provided by the rules,
stay the partys proceeding, dismiss the proceeding, strike out the partys
defence, or make such other order as is just.
[24]
Both
rr. 60.11 and 60.12 deal with failures to obey court orders. Rule 60.11 focuses
on the context of contempt proceedings. Either rule would allow a court to
strike a statement of defence or bar a litigant from filing a defence.
[25]
In
determining whether to strike a pleading, even where judgment is not granted
concurrently, there may be some analysis of the merits of the claims. In
Falcon
Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors)
, 2020 ONCA 310,
Brown J.A. discussed the
factors to be considered when determining whether to strike a partys claim for
failure to produce documents under r. 30.08(2). This rule expressly permits a
court to strike out a statement of defence from a party who fails to serve an
affidavit of documents, produce documents for inspection, or comply with an
order of the court under rr. 30.02 to 30.11, which deal with the various
aspects of documentary discovery.
[26]
Brown
J.A. observed that the exercise of discretion to strike a pleading is not
limited to a last resort, following multiple failures, but that a court would
usually want to ensure that a party had a reasonable opportunity to cure the
default before striking a pleading:
Falcon Lumber Limited
, at para.
50. Relevant factors would include whether the failure was deliberate or
inadvertent, whether the failure was clear, whether there was a reasonable
explanation for the default and a promise to cure it, whether the substance of
the default was important, whether the default continued, and the impact upon
the opposite partys attempts to get justice:
Falcon Lumber Limited
,
at para. 51.
He went on to note that the court could also consider the
merits of the defaulting partys claim or defence, but that this might only
play a limited role, as one would expect a party with a strong claim or defence
to comply promptly with its disclosure obligations:
Falcon Lumber Limited
,
at para. 52. Finally, he noted that a court must consider whether an order
striking a pleading would constitute a proportional remedy to ensure that civil
justice was proportionate, timely, and affordable:
Falcon Lumber Limited
,
at para. 53.
Has the defaulting partys conduct increased the opposite
partys costs of litigating the action? Has the default delayed adjudication of
the matter on the merits?:
Falcon Lumber Limited
, at para. 55.
[27]
This
analysis applies with equal force to motions under r. 60.12 to strike a
statement of defence for failure to comply with an interlocutory order, as well
as to the sanction of striking pleadings when sought for contempt. Where the
remedy for contempt sought is an order barring a party from defending or an
order striking a pleading, some assessment of the merits may be necessary to
determine whether such an order is a proportionate response to the contempt
alleged. Where, for example, the contempt is less serious, is likely to be
cured, and it appears that a party has a defence of substance, it would be
disproportionate to bar the defendant from participating in the action.
[28]
Where
a statement of defence is struck, there may well follow an unopposed motion for
default judgment.
[29]
While
it may be tempting to collapse the issues of contempt and striking a defence on
the one hand and a motion for judgment on the other hand into one proceeding,
this may be false economy.
[30]
It
can turn motions to strike pleadings for failure to comply with orders, whether
as a sanction for contempt or pursuant to r. 60.12, into something resembling
summary judgment motions, thereby shifting the focus from the failure to comply
to the merits of the action. When granting judgment on the claim, the merits
must be addressed.
[31]
While
a judgment on the merits brings an action to an end, a court may subject a
party in contempt to multiple sanctions hearings in order to compel compliance.
[32]
The
Ontario
Rules of Civil Procedure
do not explicitly provide that
judgment may be entered against a party who has failed to comply with a court
order. Rule 60.12 does allow a court to make any order that is just for failure
to comply with an order. In contrast, r. 10.53(1)(d)(iii) of the Alberta
Rules
of Court
, AR 124/2010, says that judgment may be entered as a penalty
for contempt. Final judgment in the action is not directly available as a
punishment for contempt of court in Ontario.
[33]
This
is not to say that in a given case, judgment may not be an appropriate remedy
against a party who is in contempt or who has failed to comply with an interim
order. There is no impediment in the Rules barring a party from moving for
various and alternative relief. For example, a litigant could move under r.
60.11 for an order imprisoning a party for contempt, for an order striking
their pleadings under either rr. 60.11 or 60.12, and for default judgment in
the event the pleadings are struck. If the latter is included, the moving party
should expect that there will be a more searching inquiry about the merits and
that the respondent will be given an opportunity to respond to the merits.
[34]
Here,
there is no doubt that a strong response was required to sanction the
appellants contempt, but they should not have been barred from making any
submission as to the merits of any defence when it was clear that the
respondents were seeking final judgment on their claims. Even if the moving
party had not sought judgment on the motion but sought only to bar the
appellants from defending the action because of their contempt and disobedience
of court orders, some skeletal review of any defence raised may have been required
to assess whether they should be barred from defending the action.
[35]
Here
the plaintiffs sought judgment as a sanction for contempt, although judgment is
not a remedy directly available as a punishment for contempt. As the appellants
were entirely aware that judgment was sought on the motion, the procedural
mischaracterization in the motion record might have been forgiven pursuant to r.
1.04 of the
Rules of Civil Procedure
, had the appellants not been
barred from addressing the merits at all in their response to the motion.
[36]
I
would set aside the judgment and remit the matter to another judge of the
Superior Court to determine the appropriate sanction to be imposed upon the
appellants for their contempt of the orders of the motion judge. Ordinarily one
would expect the same judge to make the finding of contempt and impose the
sanction, however here, given that the motion judge has expressed his views on
the appropriate sanction, the better course would be to have a different judge
decide what should follow the finding of contempt, depending on the relief sought
and pleaded.
Reasonable apprehension of bias
[37]
I
would not conclude that an informed person, looking at the matter realistically
and practically, and having thought the matter through, would think it more
likely than not that the judge would decide the case unfairly. It is not
surprising that the motion judge was concerned about the appellants wilful and
outrageous conduct, which deserved a significant response by the court.
[38]
I
would direct the parties to make brief written submissions in relation to the
costs of the appeal and the costs awarded below, due by October 29, 2021.
Released: October 15, 2021 GRS
G. Pardu J.A.
I agree G.R. Strathy C.J.O.
I agree S.E. Pepall
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Battiston v. Microsoft Canada Inc., 2021 ONCA 727
DATE: 20211018
DOCKET: C68550
Benotto, Brown and Harvison Young JJ.A.
BETWEEN
Fransic Battiston
Plaintiff (Respondent)
and
Microsoft Canada Inc.
Defendant (Appellant)
Deborah Glendinning, Nancy
Roberts and Mark Sheeley, for the appellant
Andrew Monkhouse and
Samantha Lucifora, for the respondent
Heard: September 9, 2020 by video
conference
On
appeal from the judgment of Justice Mario D. Faieta of the Superior Court of
Justice, dated July 15, 2020.
REASONS FOR
DECISION
[1]
For almost 23 years, the respondent was employed by
Microsoft Canada Inc. He was terminated without cause and brought an action for
wrongful dismissal. The trial judge found that the respondent was entitled to
24
months pay in lieu of reasonable notice less 1 percent contingency for
re-employment during the balance of the notice period, plus a 0.7 percent
annual merit increase, an annual cash bonus of $12,100 and stock awards.
[2]
Microsoft Canada Inc. appeals, but only with respect to
the trial judges conclusion that the respondent is entitled to unvested stock
awards after his termination. The appellant relies on the Stock Award Agreement
(the Agreement) which provided that any unvested stock awards do not vest to
an employee if employment ends for any reason.
The trial judge found
that the termination provisions in the Agreement were not drawn to the
respondents attention and could not be enforced because they were harsh and
oppressive.
[3]
In oral submissions, t
he appellant raised
several issues in support of its position:
1)
the trial judge erred in finding the termination
provisions unenforceable as the decision was rendered prior to the Supreme
Court decision
Matthews v. Ocean Nutrition Canada Ltd.
,
2020 SCC 26, 449
D.L.R. (4th) 583. (In that case, the Supreme Court revised the test for whether
bonus payments are included as part of damages in lieu of reasonable notice);
2)
the Award Agreement was a separate agreement
that did not form part of the compensation package because it was with the
parent company, not the appellant;
3)
the terms violate s. 60(a) or (b) of the
Employment
Standards Act
, which precludes changes to wages during
the notice period; and
4)
the terms of the Agreement were not brought to
the attention of the respondent.
[4]
The appellant raised several more issues in
written submissions:
1)
the trial judge erred in law in
imposing a common law right to damages in respect of the unvested stock awards
(the first step of
Matthews
);
2)
the trial judge erroneously ruled
against the appellant after concluding that the award agreements were
unambiguous (the second step of
Matthews
);
3)
the trial judge erred by modifying
the legal test by adding an unfounded harsh and oppressive standard; and
4)
that policy considerations
militate in support of allowing this appeal, including regarding differential
treatment of employees post-termination.
[5]
We need only address one issue which is
dispositive of the appeal: the trial judges conclusion that, because the
respondent did not receive notice, the Agreement is unenforceable.
[6]
Each year the respondent received an email as follows:
Congratulations on your recent
stock award! To accept this stock award, please go to
My
Rewards
and complete the online acceptance process. A record will be
saved indicating that you have read, understood and accepted the stock award
agreement and the accompanying Plan documents. Please note that failure to read
and accept the stock award and the Plan documents may prevent you from
receiving shares from this stock award in the future.
[7]
Each year, for 16 years, the respondent confirmed that he received these
emails. His practice was to click a box to confirm that he had read, understood
and accepted the stock award agreement. In fact, he said that he did not read the
Agreement and thus did not know about the termination provisions. He thought he
would get the unvested stock if he was terminated.
[8]
The trial judge found that the Agreement unambiguously excludes the
respondents right to vest his stock awards after he has been terminated
without cause. However, he also found that the terms are unenforceable because
they are harsh and oppressive and because the respondent was not given notice.
The trial judges reasons are somewhat unclear on this issue. Although he
states at paragraph 65 that there is no dispute that notice was not given, he
later made a finding of fact which demonstrates that the appellant did not
concede the issue. He said the following at paragraph 70:
I find that the termination
provisions found in the Stock Award Agreements were harsh and oppressive as
they precluded [the respondents] right to have unvested stock awards vest if
he had been terminated without cause.
I also accept [the
respondents] evidence that he was unaware of these termination provisions and
that these provisions were not brought to his attention by Microsoft
. Microsofts
email communication that accompanied the notice of the stock award each year
does not amount to reasonable measures to draw the termination provisions to
[the respondents] attention. [Emphasis added.]
[9]
This finding cannot stand because the trial judges conclusion that the
notice provisions were not brought to the respondents attention fails to
address the following facts:
1)
For 16 years the respondent expressly agreed to the terms of the
agreement.
2)
The respondent made a conscious decision not to read the agreement despite
indicating that he did read it by clicking the box confirming such.
3)
By misrepresenting his assent to the appellant, he put himself in a
better position than an employee who did not misrepresent, thereby taking
advantage of his own wrong: see
Berlingieri v. DeSantis
(1980), 31
O.R. (2d) 1 (C.A.) at para. 18.
[10]
The trial judge erred by finding the respondent received no notice.
[11]
The appeal is allowed with costs in the amount of $20,000 inclusive of
disbursements and HST. We do not interfere with the award of costs in the court
below.
M.L. Benotto J.A.
David Brown J.A.
A. Harvison Young
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Cowan, 2021 ONCA 729
DATE: 20211018
DOCKET: C67628
Fairburn A.C.J.O., Doherty and Watt JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Peter Cowan
Appellant
Chris Rudnicki, for the appellant
Victoria Rivers, for the respondent
Heard: October 8, 2021 by video conference
On appeal from the conviction on a charge of possession of
cocaine for the purpose of trafficking entered by Justice R. Khawly of the
Ontario Court of Justice on August 16, 2019; and on appeal from the sentence of
nine months imposed on November 8, 2019.
REASONS FOR DECISION
[1]
The appellant was convicted of possession of cocaine for the purposes of
trafficking and received a sentence of 9 months. He appeals his conviction. If
the conviction appeal fails, the appellant seeks leave to appeal his sentence
and, if leave is granted, appeals his sentence. He asks the court to impose a
conditional sentence.
The Conviction Appeal
[2]
This was a simple single-issue trial. The appellant admitted he was in
possession of a significant amount of cocaine when he was arrested. He also
admitted that it had been packaged for resale. He testified, however, that all
of the cocaine was for his personal use. Counsel argued the appellant should be
convicted of the included offence of possession of cocaine.
[3]
The appellant was arrested and found in possession, both on his person
and in his vehicle, of about 64 grams of cocaine. Most of the cocaine had been
separated and packaged into about 65 baggies, each containing a street-level
quantity of that drug. In short, the quantity and the packaging of the cocaine found
in the possession of the appellant strongly suggested he was in possession of
the cocaine for the purposes of resale.
[4]
Three days before his arrest, the appellant was under video surveillance
by his employers, who suspected him of theft. The video surveillance captured
the appellant meeting with several individuals in his vehicle at various
locations. Generally speaking, each individual was in the appellants vehicle
for a minute or two before leaving.
[5]
In his evidence, the appellant acknowledged he used crack cocaine. He admitted
he had possession of the cocaine seized from his person and vehicle. The
appellant testified he purchased the cocaine from a dealer with whom he had some
prior connection. The cocaine was already packaged in individual baggies ready
for resale. The dealer explained to the appellant he had repossessed the drugs
from one of his sellers when the seller had defaulted on payment. The dealer was
driving north from Toronto to Muskoka and did not want to take the drugs with
him in his vehicle. The dealer offered all of the cocaine to the appellant at a
substantially reduced price.
[6]
The appellant testified he purchased the drugs and took possession of
them in their individual baggies. The drugs were, however, exclusively for his personal
use.
[7]
The appellant explained that the several meetings captured on the video
surveillance related to his shoe resale business. Some involved the sale of
shoes and others involved collecting money owed on the previous sale of shoes.
[8]
The video surveillance appeared to show that two of the several people
who met with the appellant in his vehicle may have been purchasing shoes. The
appellant was a shoe hoarder and had literally hundreds of pairs of shoes in
his apartment. The Crown did not allege any illegality relating to the
appellants acquisition or resale of the shoes.
[9]
The grounds of appeal on conviction arise out of the trial judges
application of the burden of proof.
[10]
When, as in this case, the appellant testifies and denies the
allegation, the trial judge should approach the burden of proof by asking the
three questions laid down in
R. v. W. (D.)
(1991), 63 C.C.C. (3d) 397
(SCC):
·
Does
the trial judge believe the accuseds explanation?
·
If
the trial judge does not believe the accuseds explanation, does that
explanation leave the trial judge with a reasonable doubt?
·
If
the evidence of the accused is not believed and does not leave the trial judge
with a reasonable doubt, has the Crown proved guilt beyond a reasonable doubt based
on the evidence the trial judge does accept?
[11]
Counsel agree that, on the evidence, the outcome of the case turned on
the answer to the first two questions posed in
W. (D.)
. Counsel agree,
and so do we, that if the evidence of the accused was rejected and did not
leave the trial judge with a reasonable doubt, the remainder of the evidence
established beyond any doubt that the appellant had possession of the cocaine
for the purposes of trafficking.
[12]
The trial judge indicated he did not believe the appellants evidence.
He then turned to the second question posed in
W. (D.)
and asked
whether the appellants evidence could reasonably be true.
[13]
The phrase could reasonably be true should be avoided. It can imply
that the accused carries the onus of demonstrating the existence of a
reasonable doubt: see
R. v. Rattray
, 2007 ONCA 164, at para. 13. The
ultimate question on appellate review is not, however, whether the trial judge
used an inappropriate phrase, but whether the trial judge correctly applied the
burden of proof.
[14]
With respect to the first question did the trial judge believe the
accused counsel for the accused at trial candidly and correctly acknowledged
that the appellants denial that he had possession of the cocaine for the
purposes of resale strained credulity in all of the circumstances. She urged
the trial judge, however, to take into account the appellants apparent mental disorder
when assessing his evidence.
[15]
As has repeatedly been stated, this court must defer to credibility
assessments made at trial. We see no error in the manner in which the trial
judge assessed the credibility of the appellants evidence. The trial judge
tested that evidence against the trial judges notions of common sense, human
experience and logic. Triers of fact are required to do exactly that:
R. v.
Calnen
, 2019 SCC 6, at para. 112.
[16]
We do not agree that, in assessing the appellants evidence, the trial
judge invoked negative stereotypes based on the appellants economic
circumstances and lifestyle. Nor did the trial judge introduce new
considerations not arising from the evidence into his fact-finding. The trial
judge focused on the evidence. In his view, the appellants explanation as to
how he came to be in possession of a significant amount of cocaine, packaged
for resale, but intending to use all of the cocaine himself, was incredible.
[17]
With respect to the second question posed in
W. (D.)
does
the accuseds evidence leave the trial judge with a reasonable doubt we are
satisfied, despite the inappropriate language used by the trial judge, that, on
this record, the trial judges conclusion the appellants evidence could not
reasonably be true was tantamount to a finding that he was not left with a
reasonable doubt based on that evidence.
[18]
The conviction appeal is dismissed.
The Sentence Appeal
[19]
The appellant is not a Canadian citizen, although he has been in Canada
for 26 years. He is subject to deportation on account of this conviction. The
parties agree the trial judge misapprehended the potential likelihood of
deportation if the appellant received a sentence of 6 months or more. They also
agree that this misapprehension of a significant collateral consequence warrants
a
de novo
assessment of the fitness of the 9-month sentence imposed by
the trial judge.
[20]
At the time of trial, the statutory minimum in place prohibited the
granting of a conditional sentence. This court struck down the mandatory minimum
in
R. v. Sharma
, 2020 ONCA 478. The appellant submits that a
conditional sentence can and should be imposed.
[21]
Crown counsel acknowledges that a conditional sentence is now available,
but submits that the sentence was nonetheless fit. In the alternative, Crown
counsel submits that if the sentence is varied, it should be varied to
something slightly less than 6 months, to be followed by a period of probation.
[22]
The appellant is, for all intents and purposes, a first offender. The
circumstances of the offence indicate the appellant was engaged in low-level
trafficking. His personal circumstances strongly suggest the appellants mental
disabilities played a central role in the appellant ending up selling drugs
from his vehicle. In our view, a conditional sentence with appropriate terms
can serve the ultimate purpose of sentencing and properly reflect a
consideration of the applicable sentencing principles.
[23]
At the request of the court, counsel drafted suggested terms should the
court decide to impose a conditional sentence. We are in substantial agreement
with those terms.
[24]
The sentence is varied to a conditional sentence of 12 months on the
following terms. The appellant will:
a.
Keep the peace and be of good behaviour;
b.
Appear before the court as directed;
c.
Report to a supervisor within 1 week after this courts decision is
released and thereafter as directed by the supervisor;
d.
Remain in Ontario, unless written permission to leave Ontario is first
obtained from the court or the supervisor;
e.
Notify the court or the supervisor in advance of any change of name or
address and promptly notify the court or the supervisor of any change in
employment or occupation;
f.
Reside at an address approved by the supervisor;
g.
For the first 7 months of this order, remain in his residence at all
times except,
(i)
between the hours of 12:00 p.m. to 4:00 p.m. on Sundays in order to acquire the
necessities of life;
(ii)
for any medical emergencies involving the appellant or any member of his
immediate family;
(iii)
while going directly to and from court appearances, religious services and
legal, medical or dental appointments; and
(iv)
while going directly to, from and while at a place of work approved by the
supervisor.
h.
For the last 5 months of this order, remain in his residence between the
hours of 10:00 p.m. and 5:00 a.m., except for medical emergencies involving the
appellant or a member of his immediate family;
i.
Attend and actively participate in all assessments, counselling or
rehabilitative programs as directed by the supervisor and complete them to the
supervisors satisfaction;
j.
Sign release forms as required to enable the supervisor to monitor the
appellants attendance and completion of any assessments, counselling or
rehabilitative programs; and
k.
Do not possess any weapons, as defined by the
Criminal Code
.
Conclusion
[25]
The conviction appeal is dismissed. Leave to appeal sentence is granted,
the appeal is allowed, and the sentence is varied in accordance with these
reasons.
Fairburn A.C.J.O.
Doherty J.A.
David Watt 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.M., 2021 ONCA 735
DATE: 20211018
DOCKET: M52652 (C68627)
Watt, Benotto and Trotter JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
J.M.
Applicant
Jessica Zita, for the applicant
David Friesen, for the respondent
Heard: September 23, 2021 by videoconference
Watt J.A.:
[1]
A jury found the applicant guilty of sexual assault. The trial judge
imposed a sentence of imprisonment for eighteen months. A judge of this court
ordered the applicant released pending the determination of his appeal against
conviction.
[2]
The applicant sought funding for his appeal from Legal Aid Ontario (LAO).
He relied on an opinion letter from counsel that set out several proposed
grounds of appeal. Each ground alleged an error or omission in the trial judges
charge to the jury.
[3]
On November 20, 2020, LAO declined the applicants funding request. The
applicant appealed. On February 25, 2021 the appeal was dismissed. LAO would
not be funding the applicants appeal.
[4]
On April 8, 2021, the applicant applied to the chambers judge for an
order under s. 684(1) of the
Criminal Code
that counsel be assigned to
act on his behalf on his appeal from conviction. The chambers judge dismissed
the application.
[5]
The applicant now seeks an order quashing the order of the chambers
judge and directing that counsel be appointed under s.684(1) to act on the
applicants behalf with her fees and disbursements being paid by the Attorney
General who is the respondent on appeal in accordance with s. 684(2) of the
Criminal
Code
[6]
At the conclusion of argument, we dismissed the application. We said
that we would explain why we came to that conclusion. We do so now.
The Essential Background
[7]
A brief reference to the proceedings before the chambers judge will
provide the essential background.
The Chambers Motion
[8]
Before the chambers judge, the applicant contended that an order under
s. 684 of the
Criminal Code
was desirable in the interests of justice.
The applicant lacked sufficient means to retain counsel. His appeal was
meritorious. And, left to his own devices, he lacked the ability to argue the
case on his own.
[9]
The respondent opposed the motion, principally on the basis that the
appeal was bankrupt of merit. The respondent acknowledged that the applicant
lacked the means necessary to retain counsel and appears to have accepted that
the applicant lacked the ability to advance argument on his own behalf.
The Decision of the Chambers Judge
[10]
The chambers judge accepted that the statutory standard in s. 684(1)
required her to determine whether it appeared desirable in the interests of
justice that the applicant should have legal assistance to argue his appeal and
that he lacked sufficient means to do so.
[11]
It was uncontroversial, the chambers judge explained, that the applicant
lacked the financial means to retain counsel. She was also not prepared to say,
as counsel for the respondent had argued, that the appeal lacked merit.
However, funding orders are exceptional. The circumstances did not satisfy the
interests of justice standard. The issues raised were straightforward. They
could be advanced by duty counsel in an inmate appeal with the assistance of
the opinion letter counsel wrote to LAO seeking funding. The issues could also
be determined by a panel of the court assigned to inmate appeals.
This Application
[12]
In this court the applicant seeks an order quashing the order of the
chambers judge. In its place, he asks that we appoint Ms. Zita as his counsel
and direct that her fees and disbursements be paid by the Attorney General who
is the respondent in the appeal.
The Arguments of Counsel
[13]
The applicant invokes several sources as a basis upon which we can
review the order of the chambers judge. Those sources include:
i.
the Practice Direction concerning Criminal Appeals;
ii.
section 683(3) of the
Criminal
Code
;
iii.
the Practice Direction concerning Civil Appeals; and
iv.
section 7(5) of the
Courts of Justice Act
, R.S O. 1990, c.C 43.
(
CJA
).
[14]
To obtain an order under s. 684, the applicant accepts, he must show
that it is in the interests of justice that counsel be appointed to act on
his behalf. The order is discretionary. Whether it should issue depends upon
and requires consideration of all the circumstances. These include the merits
of the appeal, the appellants ability to present his case without the
assistance of counsel, and the ability of the court to determine the issues
raised without the assistance of counsel.
[15]
In this case, the applicant continues, the appeal has substantial merit.
It alleges specific errors and omissions in the charge to the jury, thus
surpasses the standard that it be arguable. The proceedings under review were a
10-day jury trial with pre-trial and in-trial motions including a s 276. application.
There was a pre-charge conference about what should be included in the charge.
The jury asked questions. These issues are well beyond the ability of the
appellant to present to the Court. Further, the Duty Counsel Program available
in inmate appeals is not an adequate substitute for fully-funded counsel. The
availability of assistance from that program should not undermine meritorious
s. 684 applications.
[16]
The respondent challenges the review mechanisms asserted by the
applicant. Rights of appeal are entirely statutory. The
Criminal
Code
provides no right of appeal from refusal of an order under s. 684. And the
Criminal
Code
is where any appellate rights must be found. Section 7(5) of the
C
JA
, alone or together with s. 683(3) of the
Criminal
Code,
is of no avail. The
CJA
does not apply to criminal proceedings. And it
is well settled that it, in tandem with s. 683(3) of the
Criminal
Code
,
affords no basis of appeal or review. Likewise, Practice Directions which
implement but cannot create rights of appeal or review.
[17]
Turning to the merits, the respondent points out that the remedy
afforded by s. 684 is discretionary. Decisions granting or refusing the
appointment of funded counsel are accorded significant deference on appeal. In
this case, the applicant has not demonstrated any basis upon which we should
interfere. The circumstances have not changed. The chambers judge did not err in
law or depart from governing principles. She did not dismiss the application on
the basis that the Duty Counsel Program would be an adequate or sufficient
substitute for funded counsel. The chambers judge simply observed that the
straightforward issues advanced by the applicant could be properly advanced by
Duty Counsel aided by the opinion letter prepared by counsel. And this court,
assisted by Duty Counsel, and counsel for the respondent, is well-positioned to
decide the appeal without funded counsel.
Discussion
[18]
Like counsel, we approach our task in two steps. The first examines the
existence and scope of our authority, if any, to review the decision of the
chambers judge refusing to make an order for funded counsel. Second, we
consider the merits of the claim.
Issue #1: The Availability of
Review
[19]
The applicant invokes several different sources as a basis upon which we
are entitled to review the decision of the chambers judge.
Rights of Appeal under the
Criminal Code
[20]
The right of appeal is an exceptional right. Appellate rights, procedure
on appeal, and the jurisdiction of appellate courts are wholly creatures of
statute. An appellate court such as this has no inherent jurisdiction to
entertain an appeal in criminal cases
: Welch v. The King
[1950], S.C.R
412, at page 428;
R. v. Morgentaler, Smoling and Scott
(1984), 16 CCC (3d)
1 (Ont. CA), at pages 5-6;
R. v. Smithen-Davis
, 2020 ONCA 759, at
paras. 27-28. Where no right of appeal is given, none exists.
[21]
Section 684 contains no provision that authorizes an appeal by any party
to the proceedings under the section. Nor is an appeal authorized by any other
provision in Part XXI or elsewhere in the
Criminal
Code
. See
by comparison, s. 490(17) of the
Criminal
Code
.
Sections 683(3) of the
Criminal
Code
and 7(5) of the
CJA
[22]
Section 683(3) of the
Criminal
Code
permits a court of
appeal to exercise, in relation to proceedings in the court, any powers beyond
those in s. 683(1) that the court can exercise in civil matters. Section 7(5)
of the
CJA
permits a panel of the court, on motion, to set aside or
vary a decision made by a single judge of the court on a motion.
[23]
Section 683(3) cannot reasonably be read as extending the appellate
jurisdiction of a court of appeal beyond the jurisdiction the
Criminal
Code
expressly grants it.
[24]
Section 683(1) defines the authority of a court of appeal to make
procedural orders to facilitate the hearing and adjudication of an appeal,
provided the court concludes that it is in the interests of justice to make
these orders. Section 683(3) expands the express authority granted by s. 683(1)
to include any power the court may exercise in civil matters:
R. v. Perkins
,
2017 ONCA 152, 347 CCC (3d) 58, at paras. 21-22;
R. v. Codina
, 2009
ONCA 907, 266 CCC (3d) 1, at para. 8.
[25]
On its own, s. 7(5)
CJA
cannot ground a right of appeal in
criminal proceedings. The province lacks the constitutional competence to
create rights of appeal in criminal cases:
Perkins
, at para. 63.
[26]
Nor does the combination of sections 683(3) of the
Criminal
Code
and 7(5) of the
CJA
fare any better as a source of appellate
jurisdiction. To decide otherwise would be to encroach on Parliaments
exclusive jurisdiction to determine rights of appeal in criminal proceedings:
Perkins,
at para. 23.
The
Criminal Appeal Rules
and
Practice
Directions
[27]
Section 482(1) of the
Criminal
Code
permits a court of
appeal to make rules of court not inconsistent with the
Criminal
Code
or any other Act of Parliament. These rules apply to appeals within the
jurisdiction of the court instituted in relation to criminal proceedings. Rules
may be made under s. 482(3)(d) to carry out the
Codes
provisions
relating to appeals. However, this rule-making authority cannot be invoked to
extend the substantive jurisdiction of the court. The authority to make rules,
equally to issue practice directions, is limited to matters already within the
jurisdiction of the court. Rules implement jurisdiction otherwise granted. They
do not create substantive rights that do not otherwise exist:
Smithen-Davis
,
at paras. 27-28;
McEwen (Re)
, 2020 ONCA 511, at paras. 53-55. See
also,
R. v. OMalley
(1997), 119 CCC (3d) 360 (BCCA), at para. 18.
[28]
In the result, neither the
Criminal Appeal Rules
nor the
Practice
Directions
of the court can ground a right of appeal or of review for
which the
Criminal
Code
does not provide.
Section 684 and Concurrent Jurisdiction
[29]
A judge and a panel of judges of this court have equivalent jurisdiction
to determine whether an order for state-funded counsel is desirable in the
interests of justice under s. 684(1) of the
Criminal
Code
. In
other words, the jurisdiction of a single judge and a panel of judges is
concurrent. This is not unique to s. 684. See, for example, ss. 675(1)(a)(ii);
(b)(1.1); 678(2); and 839(1).
[30]
The mere fact of concurrent jurisdiction in a single judge and a panel
of the court does not mean that a panel of judges has authority to review the
order of a single judge or sit on appeal of that order. To decide otherwise
would be at odds with the very essence of concurrent jurisdiction. Separate,
but equal. Indeed, the
Criminal
Code
confirms as much when it
provides, for example, in s. 675(4), for a right to a panel hearing when leave
to appeal is refused by a single judge.
[31]
Yet the absence of a review authority does not mean that a judge and a
panel of the court cannot both exercise jurisdiction to consider a request for
the appointment of state-funded counsel in the same case. As this court has
previously decided, in an appropriate case, a panel of the court may exercise
its s. 684 jurisdiction even though a judge of the court has refused to do so:
R.
v. Bernardo
(1997), 121 CCC (3d) 123 (Ont. CA), at para. 12.
[32]
The
Bernardo
court did not define the scope of what it
considered appropriate to warrant panel consideration of an application for
state-funded counsel under s. 684 after rejection of an application for the
same relief by a single judge. It was not necessary for the court to formulate
a test or standard or otherwise to define the outer reaches of what might
engage the concurrent jurisdiction of a panel after consideration by a single
judge. Suffice it to say, that what prompted the
Bernardo
court to
exercise its concurrent jurisdiction was a change of circumstances. What
changed, as the single judge contemplated in his refusal of the application,
was that substantial parts of the trial record not available to the single
judge became available to the panel. This enabled the panel to make a more
mature assessment of the complexity of the appeal and the appellants ability
to effectively argue the appeal without the assistance of counsel:
Bernardo,
at para. 12.
[33]
Absent from the decision in
Bernardo
is any suggestion that the
panel was exercising an appellate jurisdiction in relation to the decision of
the single judge. The authorities invoked by the
Bernardo
court, as
well as its analysis reveal a
de
novo
assessment based on
changed circumstances:
Bernardo
, at para 12;
R. v. Foster
(1954), 110 CCC 214 (Ont. CA), at page 215;
R. v. Walker
(1978), 46
CCC (2d) 124 (Que. CA), at page 25.
[34]
From this review of the authorities, we are satisfied that there is no
right of appeal or other review from the chambers judge refusing to direct the
appointment of state-funded counsel. Our concurrent jurisdiction permits us to
consider the application afresh, provided we are satisfied that circumstances
have changed sufficiently from those before the single judge to warrant a
reassessment.
Issue #2: The Merits of the
Claim
[35]
In large measure, the scope of our jurisdiction on this application
predestines its demise. We exercise no appellate or cognate review function.
Rather, we canvass whether there has been a change in circumstances since the
decision of the application judge. Further, if there has been such a change, we
evaluate its nature and extent to determine whether the interests of justice
warrant a different conclusion than reached by the chambers judge.
[36]
In this case, the applicant asserts no change in circumstances between
those prevalent on the determination of the chambers judge and those current on
this application. This is not a case in which additional relevant material has
become available after the initial decision. It follows, that the application
cannot succeed on the basis of changed circumstances.
[37]
Even if we were prepared to conclude that we could exercise our
concurrent jurisdiction on the basis of a legal error in the reasoning or
conclusion of the chambers judge, we would not do so here.
[38]
The remedy afforded by s. 684(1) - the appointment of state-funded
counsel - is discretionary. The applicable standard - the interests of
justice - involves the exercise of a case-specific discretion which is subject
to substantial deference on appeal absent any error of law or principle,
misapprehension of material evidence, or a decision that is plainly
unreasonable.
[39]
In this case, the error alleged is that the chambers judge essentially
concluded that the Duty Counsel Program for inmate appeals was an adequate
proxy or surrogate for state-funded counsel. We are not persuaded that the
chambers judge declined the application on this basis. As we understand her
reasons, the chambers judge concluded that the grounds of appeal to be
advanced, all of which related to the charge to the jury, were straight forward
and could be properly advanced on an inmate appeal. This was so despite the
applicants evidence about his learning disability and his challenges with
reading comprehension and communication.
Disposition
[40]
It is for these reasons that we dismissed the application for an order
for state-funded counsel under s. 684.
Released: October 18, 2021 D.W.
David Watt J.A.
I agree. M.L. Benotto
J.A.
I agree. Gary Trotter
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
R. v.
Campbell, 2021 ONCA 739
DATE: 20211019
DOCKET: M52783 (C68693)
Brown J.A. (Motion
Judge)
BETWEEN
Her Majesty the Queen
Responding Party
and
Andrew Campbell
Applicant
Aidan Seymour-Butler, for the applicant
Stephanie A. Lewis, for the responding party
Heard: October 12, 2021 by video conference
ENDORSEMENT
I. OVERVIEW
[1]
The applicant, Andrew Campbell, applies for bail
pending appeal.
[2]
Almost three years ago, on November 2, 2018, Mr.
Campbell was convicted by a jury of kidnapping, pointing a firearm, and assault
causing bodily harm.
[3]
Briefly, the facts as set out in the reasons for
sentence are as follows. A confrontation occurred between Mr. Campbell and the
victim, Jamal Karshe, in the early morning hours one Saturday in 2015 at the
apartment of Heather Lafleur. In the result, Mr. Campbell left the apartment
and then returned with a handgun, which he pointed at Mr. Karshe. Mr. Campbell
directed Ms. Lafleur to tie up the victim and then pour heated oil on the
victims thigh and around his ears. Mr. Campbell and Ms. Lafleur then put
the victim in a truck, which Mr. Campbell drove to a wooded area. He put Mr.
Karshe on the ground and choked him to the point of unconsciousness.
[4]
On May 22, 2019, the sentencing judge imposed a
global sentence of seven years imprisonment which, after appropriate credits,
resulted in a sentence to be served of 73 months, or six years and one month.
The time remaining on his sentence is now three years, eight months, and two
weeks.
[5]
Mr. Campbell filed an inmate notice of appeal
dated June 6, 2019 against conviction and sentence. By order dated September
18, 2020, Hourigan J.A. granted Mr. Campbell a s. 684 order. A solicitors
notice of appeal was filed on October 8, 2020.
[6]
By notice of application dated August 16, 2021,
Mr. Campbell seeks bail pending appeal.
[7]
The Crown opposes the application. The Crown
takes the position that while Mr. Campbells appeal is not frivolous and he
will surrender into custody in accordance with the terms of a release order, he
has not demonstrated that his detention is not necessary in the public
interest:
Criminal Code
,
R.S.C. 1985, c. C-46,
s. 679(3)(c).
II. RESIDUAL PUBLIC SAFETY CONCERNS
[8]
The Crown submits that there are residual public
safety concerns inherent in Mr. Campbells release plan as it proposes that for
the first two weeks following his release, the appellant live alone at his
mothers home, not in the presence of any of his sureties. The appellants
mother proposed this arrangement in order to minimize the risk that she might
contract COVID-19 from him upon his release.
[9]
At the hearing, the appellant abandoned this
part of his release plan in light of the Crowns opposition. Under his amended
plan, Mr. Campbell would reside in his mothers presence from the time of his
release.
[10]
As a result of this amended plan, I am satisfied
that there are not any residual public safety concerns with the proposed
release plan. As well, Mr. Campbell complied with the terms of his
presentence interim release.
[11]
I next consider the reviewability and
enforceability interests that make up the public confidence component of
Criminal
Code
s. 679(3)(c).
III. REVIEWABILITY INTEREST
A.
Introduction
[12]
The strength of the grounds of appeal play a
central role in assessing the reviewability interest. In conducting a more
pointed assessment of the strength of an appeal beyond the not frivolous
requirement, a court must examine the grounds identified in the notice of
appeal with an eye to their general legal plausibility and their foundation in
the record:
R. v. Oland
,
2017
SCC 17, [2017] 1 S.C.R. 250
, at para. 44. The courts
task is to ascertain if the grounds of appeal clearly surpass the minimal
standard required to meet the not frivolous criterion:
Oland
, at
para. 44.
[13]
On this application, Mr. Campbell focuses on
three grounds of appeal: (i) the trial judge failed to properly instruct the
jury on the need for cultural competence and context when assessing the
evidence of the appellants post-offence conduct; (ii) the trial judge failed
to properly instruct the jury on reasonable doubt; and (iii) the verdict was
unreasonable.
[14]
In his reasons granting the s. 684 order,
Hourigan J.A. considered the merits of the appeal, concluding that he would not
categorize any of the grounds of appeal as strong. However,
he was not prepared to conclude that none of the grounds
are arguable:
R. v. Campbell
,
2020 ONCA 573, at para. 10.
B.
Grounds of appeal concerning the charge to the
jury
[15]
Two of the grounds concern the trial judges instructions
to the jury.
Post-offence conduct
[16]
The first concerns the charge regarding how the
jury could use the evidence of Mr. Campbells conduct at the time of his
arrest.
[17]
After Mr. Karshe was left unconscious on the
ground, he awoke and walked to a gas station, where help was summoned. The
police were called.
Three plain clothes officers went to Ms. Lafleurs
apartment building where they set up surveillance of her apartment door in the
stairwell. When Mr. Campbell and another male left the apartment, the plain
clothes officers exited the stairwell. At least one officer had his gun drawn.
Mr. Campbell ran. The officer who testified at trial was confident that he said
something to the effect of stop, police, but he was not confident about
whether he did so before or after Mr. Campbell started to run. Mr. Campbell
fled to the stairwell on the opposite side of the hall. The arresting officers
pursued him downstairs and into the hallway of the tenth floor. There, Mr. Campbell
stopped running, faced the approaching officers, and put his hands in the air.
He was tackled to the ground, handcuffed, and told he was under arrest for
attempted murder.
[18]
In his charge, the trial judge gave detailed
instructions on the use the jury could make of the evidence about what Mr.
Campbell did or said during the events surrounding his arrest. In the course of
his instructions, the trial judge reviewed Mr. Campbells evidence about those
events:
[94] Mr. Campbell testified that he ran
because three men were chasing him with firearms drawn. He did not realize they
were police officers until he was handcuffed.
[95] Mr. Campbell testified that the previous
evening, some guy was calling Ms. La[f]leur repeatedly and to his knowledge,
she did not take any of the calls. In his police statement there is evidence
that Mr. Campbell was concerned about this guy and that he may send some men
over. He did not know the guy and had never met him. When asked why he would be
concerned, he said he was paranoid.
[19]
The trial judge also reviewed some of the
evidence given by Officer Wilson about those events:
[103] When cross-examined, Officer Wilson agreed that it would
be reasonable to run if three unknown men with guns were chasing you, or
something to that effect. However, it was also the officer's evidence that he
and the other officers repeatedly yelled "Stop police" or something
to that effect and Mr. Campbell stopped running on the 10th floor.
[20]
In the portion of the charge setting out the
position of the defence, the trial judge stated:
Defence counsel suggests that the, or submits rather, that the after-the-fact
conduct alleged by the Crown, that is Campbell running from police in civilian
clothing is of no assistance in determining the legal issues in this case. Mr.
Campbell had a perfectly reasonable explanation for why he ran. In fact,
defence counsel asks us to recall Officer Wilson's testimony that he, too,
would have done the same, that is run away from strange men with guns.
[21]
The appellant does not dispute that the charge
on post-offence conduct contains the required elements for a standard charge on
such evidence. The appellants complaint is that the charge was legally
deficient because it was insufficient on the issue of the issue of
race/cultural context of the appellants evidence specifically, the
perspective of the appellant, a Black man, when faced with plain clothes
officers with their guns drawn.
[22]
During the pre-charge conference, defence
counsel advised that she did not have major issues with the post-offence
conduct section of the charge. While defence counsel requested certain wordsmithing
changes to the narrative of events, no request was made to add language of a
racial/cultural context nature.
Reasonable doubt
[23]
The appellant submits that the trial judge erred when,
following questions from the jury, he failed to provide further instructions on
the issue of credibility or recharge on
R. v.
W.(D.)
, [1991] 1 S.C.R. 742.
[24]
After retiring, the jury sent the judge a
question:
We would like to hear a playback of Jamal Karshe's
cross-examination.
A discussion ensued amongst the trial
judge and counsel whether the entirety of the cross-examination should be
played back or whether the jury should be asked if there were specific portions
of the cross-examination they wished to listen to. It was agreed to bring the
jury back and ask if they could be more definitive about what evidence they
wanted to hear. The trial judge then asked the jury to retire and provide a
written answer to the following question:
The only question we had and I'm going to put the question to
you and then you're going to have to go out and put your response in writing,
but is there a certain area you're looking at or do you want to hear the whole
thing generally?
[25]
Further discussion ensued once the jury retired.
Defence counsel stated that since the jury seemed to be discussing the
credibility and reliability of Mr. Karshes evidence, it might be best to
playback the entire cross-examination.
[26]
The jury returned with a two-part written
request regarding Mr. Karshes evidence:
Did in anywhere during Mr. Karshe's testimony, was he asked
if he knew or had knowledge of a gun, I think in Heather's apartment prior to
seeing it in Mr. Campbell's hands?
Would like to hear the defence attorney's suggestion at the end
of Mr. Karshe's testimony and his responses.
[27]
Further discussion ensued amongst the trial
judge and counsel.
[28]
Defence counsel initially submitted that the
whole cross-examination should be played to the jury. Ultimately, the trial
judge and counsel agreed that the jurys inquiries could be addressed by
playing back a specific part of Mr. Karshes cross-examination. The jury
returned; the portion was played back; at the end of which the trial judge
inquired:
All right, members of the jury. You've heard
that exchange. Were you able to hear it? And did it answer the questions or the
inquiries or do you need to hear further evidence? Everyone seems okay. All
right. Then I'll ask you to step out again and continue your discussions for a
little while anyways. Thank you.
[29]
No request was made by defence counsel that the
trial judge provide further instructions on the issues of credibility and
reasonable doubt.
C.
Unreasonable verdict
[30]
The appellant submits that the jurys verdict
was unreasonable for two reasons: (i) the only direct evidence led by the Crown
about the events came from the complainant, Mr. Karshe; and, (ii) although a
gun was found in the stairwell near the place of Mr. Campbells arrest, his DNA
was not found on that gun.
[31]
The Crown counters that the mere fact that Mr.
Campbells DNA was not found on the firearm did not make the pointing a firearm
conviction unreasonable because:
There was ample evidence to support the jurys verdict on this
count: the victim testified that the [appellant] threatened him with a handgun
wrapped in green cloth; the arresting officer testified that the [appellant]
looked like he was running with a weapon; and a handgun wrapped in green cloth
was recovered from the stairwell the [appellant] ran through.
D.
Potential grounds of appeal
[32]
The appellants notice of application hints at
possible other grounds of appeal that are under investigation by appellate
counsel: the propriety of the Crowns cross-examination of the appellant and
trial counsels concession of the voluntariness of the appellants statement to
the police. Given that these potential grounds of appeal are under
investigation, undeveloped, and do not form part of the notice of appeal, I am
not prepared to consider them as part of this application:
Oland
, at
para. 45.
E.
Assessment
[33]
I have considered the three grounds of appeal in
light of the trial judges charge to the jury, the discussion between the trial
judge and defence counsel during the pre-charge conference and following the
question from the jury, and the evidence regarding the handgun and the
circumstances of Mr. Campbells arrest. While the absence of an objection from
defence counsel is not determinative of the two issues regarding the
instructions to the jury, it does inform the consideration of whether the trial
judge adequately tied the legal instructions to the specific circumstances of
the case.
[34]
I agree with the assessment made by Hourigan
J.A. in his s. 684 reasons that is to say, I cannot conclude that none of the
grounds are arguable. At the same time, I do not view them, to use the language
of
Oland
, as clearly surpassing the minimal standard required to meet
the not frivolous criterion.
IV. ENFORCEABILITY INTEREST
[35]
Mr. Campbell has been convicted of very serious
offences. The circumstances of the offences, as described in para. 3 above,
were violent and caused Mr. Karshe significant harm. The global sentence
imposed of seven years imprisonment underscores the seriousness of the
offences.
V. BALANCING THE INTERESTS
[36]
Balancing the reviewability and enforceability
interests that make up the public confidence component of
Criminal Code
s. 679(3)(c) requires a qualitative and contextual assessment, measured through
the eyes of a reasonable member of the public:
Oland
, at paras. 47 and
49.
[37]
I conclude that in the present case the
enforceability interest significantly outweighs the reviewability interest. The
grounds of appeal, although arguable, do not clearly surpass the minimal
standard of the not frivolous criterion. The offences were very serious, understandably
attracting a lengthy prison sentence.
[38]
This is not a case where the anticipated delay
in hearing the appeal relative to the length of the sentence tips the balance
in favour of reviewability:
Oland
, at para. 48. The appellant delayed
for a considerable period of time before bringing this application for release:
he waited over two and one-half years following his conviction and one year
since the appointment of counsel following the s. 684 application.
[39]
As well, the appellant has not indicated a willingness
to move his appeal along with dispatch. While the appellant proposes as a
condition of release the standard term of pursuing his appeal with all due
diligence, he objects to the Crowns request that any release order require
him to perfect his appeal by the end of this year. I pressed applicants
counsel on this point during the hearing, but it is obvious that he lacked
instructions to commit to any specific perfection date, let alone a reasonably
prompt perfection date. Such an unwillingness raises concerns on my part that
if release were to be granted, the appellant would not pursue his appeal with
all due diligence, contrary to the general obligation that all appellant
offenders proceed with their appeals in a timely fashion.
[40]
Accordingly, on the record before me, I am not
satisfied that the appellant has demonstrated that his detention is not
necessary in the public interest.
DISPOSITION
[41]
For these reasons, the application for bail pending
appeal is dismissed.
David Brown J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Narwhal International Limited v. Teda International
Realty Inc., 2021 ONCA 741
DATE: 20211019
DOCKET: C68786
Strathy C.J.O., Pepall and Pardu JJ.A.
BETWEEN
Narwhal International
Limited
Applicant (Appellant)
and
Teda International Realty Inc.
Respondent (Respondent)
Gennady Tcherny, President of Narwal International
Limited, acting as agent for the appellant, with leave of the Court
Stephanie Tassopoulos, for the respondent
Heard: By written submissions
COSTS ENDORSEMENT
[1]
Having received and considered the parties written submissions, we
order costs to be paid by the appellant to the respondent in the amount of
$7,500, inclusive of disbursements and all applicable taxes.
G.R. Strathy C.J.O.
S.E. Pepall J.A.
G. Pardu J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
R. v.
Bond, 2021 ONCA 730
DATE: 20211019
DOCKET: C67283
MacPherson, Roberts and Miller JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Andrew Bond
Appellant
Craig Zeeh and Jessica Zita, for the appellant
Mabel Lai, for the respondent
Heard: September 29, 2021 by video conference
On appeal from the convictions entered on June 11, 2018
and the sentence imposed on October 23, 2018 by Justice David L. Corbett of the
Superior Court of Justice.
MacPherson J.A.:
A.
Introduction
[1]
In a judge alone trial, the appellant was convicted of several offences
relating to drugs and a firearm. He received a global sentence of 11 years,
less 2 years and 11 months for pre-trial custody. The appellant appeals the
convictions and sentence.
[2]
The principal grounds of appeal relating to the convictions are that the
trial judge erred in upholding the warrants that led police to discover the
drugs and firearm and in his treatment of the warrantless pinging of the
appellant's cell phone, including his finding that the evidence obtained under
the warrants that the appellant says was derived from the pinging should not
be excluded under s. 24(2) of the
Canadian Charter of Rights and Freedoms
.
[3]
The only ground of appeal relating to the sentence is that the trial
judge erred in his calculation of credit for pre-trial custody.
B.
facts
(1)
The parties and events
[4]
Four confidential informants led police to believe that the appellant
was dealing cocaine from an apartment on Jane Street in Toronto and was
habitually armed with a semi-automatic handgun. Three informants had proved
reliable in the past and one had never previously provided information to
police.
[5]
Using location pings from a cell tower to the appellants cell phone, in
addition to database searches and surveillance, police found three addresses
with which the appellant was associated and where he was suspected of dealing
cocaine. They also found that the appellant had a lengthy criminal record.
[6]
On December 27, 2016, the police applied to a Justice of the Peace for
search warrants relating to those addresses with which Bond was associated: a
residential apartment (the apartment), a commercial condominium (the
commercial unit), and a green Honda Accord (the vehicle).
[7]
At 2:32 p.m. on December 27, the Justice of the Peace denied the
warrants and provided reasons:
a.
The relied upon confidential
informant information was dated, and there was no indication when the
information given was actually observed or how/when it was acquired;
b.
The ITO
indicated the information provided was corroborated in each case, yet not all
information was clear on the corroborating details;
c.
Appendix
A items to be seized was too broad, and the ITO lacked supporting information
to provide a nexus; and
d.
There were
insufficient reasonable grounds to believe items to be seized would be at the
specific location.
[8]
Later the same date, the police submitted the same ITO to a second
application judge at the Ontario Court of Justice. The only addition to the ITO
was paragraph 19 which indicated that the application had been submitted to and
refused by a Justice of the Peace. The reasons for the refusal were included in
the ITO. At 5:20 p.m., the second application judge granted the authorization.
[9]
The police executed the warrants. At the apartment, they found property
linking the appellant to the apartment, cocaine, and cocaine paraphernalia. In
the commercial unit, police found property linking the appellant to the
premises, a firearm and ammunition, and enough cocaine to give rise to the
inference that it was possessed for the purpose of trafficking. Police found no
material evidence in the vehicle. After the apartment and commercial unit were
searched, police obtained another warrant to search the appellants storage locker
where they found small amounts of cocaine.
(2)
The trial judges
Charter
ruling
[10]
At the trial, the appellant challenged both the validity of the search
warrants and the warrantless search of his cell phone by virtue of pinging a
nearby cell tower. The trial judge framed the two issues in this fashion:
During the trial the defence sought to exclude evidence on the
basis that it was obtained in violation of Mr. Bonds rights to be free from
unreasonable search and seizure. This application had two aspects argued before
me:
(a) Police obtained warrants on the basis of information
from confidential informants. The defence argued that the warrants could not be
upheld on the basis of unredacted portions of the Information to Obtain (ITO)
used before the issuing justice.
(b) Police obtained information about Mr. Bonds whereabouts
by pinging the phone with which he was associated. Police did this with the
assistance of Bell Canada without first obtaining a warrant to do so. The
defence argued that this was a warrantless search and all information obtained
by police as a result of this pinging should be excluded.
[11]
In comprehensive reasons, the trial judge rejected the appellants
submissions on both issues.
[12]
On the validity of the warrants issue, the trial judge concluded:
The judicial summary and the redacted ITO make it clear that
police had reasonable and probable grounds to believe Mr. Bond had committed
criminal offences and was probably still committing them on an ongoing basis. In
terms of the test in
Debot
, the totality of this evidence is
credible, corroborated and compelling. Direct evidence from four informants,
three of whom had previously proved reliable, is a very strong case to
establish reasonable grounds to believe that a crime has been and will be
committed. The weaker part of the evidence in support of the warrants concerns
whether the places to be searched are sufficiently connected to Mr. Bond to
justify authorization of search warrants. And the evidence in respect to these
issues is not found in the information obtained from the confidential
informants. The defence has full access to the information before the issuing
justice on these contested points, and is able to challenge it fully in this
court.
The evidence pointing to the Apartment and the Commercial
Condo, fully disclosed to the defence as it was provided to the issuing
justice, was more than sufficient to ground issuance of the warrants. The Crown
has satisfied step 6 of
Garofoli
in respect to the basis for believing
Mr. Bond was an armed drug dealer. The warrants are upheld.
[13]
On the pinging the appellants cell phone issue, the trial judge found
no s. 8
Charter
infringement. Alternatively, he was prepared to
assume that a
Charter
infringement was made out. However, even excluding
the pings evidence, he declined to strike down the search warrants or exclude
the other evidence obtained during those searches under s. 24(2) of the
Charter.
C.
issues
[14]
The appellant frames the issues as follows:
Conviction appeal
(1)
The trial judges written reasons
on the
Charter
application are an after-the-fact justification;
(2)
The trial judge misapprehended the
nature of the application;
(3)
The trial judge erred in finding
that the affiants judge shopping was permissible; and
(4)
The trial judge provided
insufficient reasons on the
Charter
application.
Sentence appeal
(5)
The trial judge erred in his
calculation of pre-trial custody.
D.
analysis
(1)
Reasons as improper after-the-fact justification for result
[15]
The genesis of the appellants argument on this issue is an email the
trial judge sent to counsel during the trial:
The defence application to exclude evidence is dismissed except
for the cellphone pings information obtained without a warrant. In respect to
those, I am not satisfied that urgency was of such kind as to justify
proceeding without a warrant. However, I am satisfied that the police acted in
good faith in proceeding without a warrant. In the result, I find that search
to have been unreasonable within the meaning of s. 8 of the
Charter
for having been done without a warrant.
My reasons for decision are reserved and will be released in
due course.
[16]
After the trial concluded, the trial judge issued comprehensive reasons
for his
Charter
ruling. The appellant contends that [w]hen the
written reasons were finally released, they revealed that the trial judges
findings departed significantly from his brief oral conclusions given over a
year earlier. (Appellants Factum, at para. 39).
[17]
I am not persuaded by this submission. I see no clear dichotomy between
the trial judges very brief ruling during the trial and his comprehensive
reasons for the ruling after the trial. Indeed, as the trial judge explained in
his formal reasons, the pings issue was peripheral to the broader search
warrants issue:
In my view, even if the evidence from the pings was excluded,
the Crowns case would not be materially affected. Police had an
independent basis for believing that Mr. Bond was living at the Apartment, and
that basis was sufficient for granting the warrants. The pings were not
relevant to any issue other than identifying Mr. Bonds whereabouts, an issue,
itself, only relevant to identifying the premises to be authorized under the
warrants. The warrants were justified without the pings, and so
excluding the pings would not affect anything else: none of the evidence admitted
against Mr. Bond, other than the pings themselves, was derived from the
pings. Indeed, police subsequently conducted direct surveillance that
provides a much stronger basis the one truly relied upon by the Crown to
tie Mr. Bond to the premises searched. On this analysis, societys
interest in adjudication on the merits would be unaffected by exclusion of the
evidence, and I would exclude the evidence under s. 24(2).
[18]
I agree with this analysis.
(2)
Misapprehension of the nature of the application
[19]
The authorization granted by the second application judge listed the
enumerated offence as unlawful possession of a firearm contrary to s. 91 of the
Criminal Code
. The appellant submits that the trial judge in his
reasons focused exclusively on his drug trafficking and ignored whether he
possessed a firearm and whether it would be located in the places to be
searched.
[20]
I am not persuaded by this submission. In his reasons, the trial judge
made extensive reference to both drugs and firearms:
i.
All four of the confidential informants provided detailed and specific
first-hand information, identifying Andrew Bond as a cocaine dealer, carrying
on business as such at [an apartment on] Jane Street, Toronto, and provided
information that Mr. Bond possessed and used a firearm in his drug-dealing.
ii.
Each of the confidential informants identified a photo of Andrew Bond as
the armed drug dealer.
iii.
Three of the confidential informants described the firearm as a
semi-automatic handgun (one of whom described it as Glock-style, police-style)
and said that Mr. Bond keeps the gun tucked in his front waistband.
I am satisfied that this information, taken together, provides
evidence:
b. That the Subject is habitually armed with a
semi-automatic handgun which the Subject carries by tucking the gun in at the
waist of his pants.
Here, the totality of information from the confidential
informants grounded the officers belief that Mr. Bond was an armed and
dangerous drug dealer, selling cocaine in Toronto.
On the basis of information from the confidential informants
and the fruits of police investigation
Mr. Bond appears to be a very
dangerous man, systematically dealing hard drugs, carrying a loaded
semi-automatic handgun, in defiance of multiple prohibition orders.
[21]
In summary, these passages, and other similar passages, completely belie
the appellants submission that in his
Charter
reasons the trial judge
focused exclusively on the alleged drug offences.
(3)
The judge shopping issue
[22]
As set out in the Facts section of this judgment, on December 27, 2016,
the police applied twice for search warrants relating to two properties and one
vehicle.
[23]
At 2:32 p.m., the Justice of the Peace refused to authorize the
warrants, giving four reasons in support.
[24]
At 5:20 p.m., the justice of the Ontario Court of Justice authorized the
warrants, without reasons.
[25]
At trial, the appellant raised this issue, labelling it impermissible
judge-shopping. The trial judge dealt with it in a footnote:
The defence argued that taking the second request to [the justice
at the Ontario Court of Justice] was impermissible judge-shopping. Police
disclosed the prior request to the Justice of the Peace, including the
rejection and reasons for the rejection, when they made the request of [the
second application judge]. This is not impermissible judge-shopping: it
was within [the second application judges] discretion to decide the warrant
request, and he did so on full and fair information:
R. v. Campbell
, [2014]
OJ No. 6541 (SCJ), per McMahon J.
[26]
The appellant submits that the trial judge erred in reaching this
conclusion. His position on this issue is succinctly summarized in his factum,
at para. 58:
Judge shopping strikes at the core of our judicial system. The
concept undermines the high level of confidence that is placed in our judicial
system, where the decision of a judicial officer is final and binding unless
and until it has been overturned by a higher court. Section 487(2) of the
Criminal
Code
provides that a justice may issue a warrant. The
Criminal Code
defines
a justice as a Justice of the Peace or a judge of the provincial court.
Therefore, [the justice at the Ontario Court of Justice] cannot be considered a
higher court than [the] Justice of the Peace
By
applying for successive warrants on the same information to a different judge
of the same court, the police committed impermissible judge-shopping
. [Emphasis
added.]
[27]
I do not accept this submission, including the emphasized conclusion.
[28]
I begin by observing that I do not think that there should be a
bright-line rule that the police cannot make a second application for a warrant
if the first application is rejected. It needs to be recalled that there is no
appeal from the initial refusal: see
R. v. Campbell
, [2014] O.J. No.
6541 (S.C.), at para. 40.
[29]
On this point, I agree with what Thackray J.A. said in
R. v. Duchcherer
,
2006 BCCA 171, at para. 29:
The procedure of applying successively for search warrants
cannot reasonably be said, as such, to be an abuse of process or a subversion
of the judicial system. Within the process there can, of course, be abuses
that would lead to such a finding. It will be a fact driven decision in
each case whether the circumstances amount to an abuse of process.
[30]
My second contextual observation is that the second judge considering
whether to grant the search warrant is not sitting in appeal of the first judges
decision nor in review of that judges decision by way of prerogative writ. As
Thackray J.A. said in
Duchcherer
, at para. 17, where a judge knows of
the previous application to a justice of the peace for a search warrant, but
exercises his own discretion, it is a hearing
de novo
, not a review of
the decision of the justice of the peace.: see also
R. v. Colbourne
(2001), 157 C.C.C. (3d) 273 (Ont. C.A.), at para. 41.
[31]
This court in
Colbourne
, at para. 42 began to address the issue
of whether a warrant could be granted on a second application. I agree with
Doherty J.A. that had the second information been the same as the first
information, the initial refusal would have played a much more significant role
in how the second Justice of the Peace exercised his or her discretion. While
it does play a role and should be considered by the second application judge,
the fact a warrant request has been rejected is not determinative to the second
request. This is supported by Doherty J.A.s further reasoning in
Colbourne
,
at para. 42, that he need not decide whether I would go so far as to say that
two applications based on the same information are improper even if full
disclosure of the initial refusal is made.
[32]
Turning to the merits of the appellants submission on this issue, in my
view, the disclosure to the second application judge of the previous refusal
and the reasons for that refusal ensured the openness and transparency of the
process that the appellant submits was lacking. Those factors were endorsed by
McMahon J. in
Campbell
, at para. 56:
In submitting the materials the officer should ensure the ITO
includes the particulars of the earlier refusal, including the time, name of
the judicial officer, and the reasons of refusal.
A copy of any reason or endorsement provided by the judicial
officer who refused the warrant should be an appendix to the ITO.
[33]
As the trial judge noted in the footnote dealing with the judge-shopping
issue, the police complied with these factors. The second application judge,
who issued the search warrant, was fully apprised of the previous application,
its timing, the fact that it had been rejected, and the reasons for the
rejection. He was well-positioned to consider the application
de novo
.
[34]
McMahon J. in
Campbell
also identified another factor to
consider, namely that no specific officer should be selecting individually any
reviewing judge; instead, the second judicial officer should be the one on
call. I note that the appellant does not allege that this factor is in play in
this case.
[35]
In conclusion, like McMahon J. in
Campbell
, at para. 58, I do
not accept the argument that allowing successive search warrant applications on
the same materials would amount to judge-shopping and would be a reason not to
allow for such procedure. Each case will need to be addressed on its own
facts. In this case, the trial judge did not err by affirming the validity of
the second search warrant.
(4)
Insufficient reasons
[36]
The appellant submits that the trial judges written reasons did not
address critical issues or allow for meaningful appellate scrutiny.
[37]
I disagree. The trial judge wrote careful and extensive (66 paragraphs)
reasons and this court, with the assistance of the oral and written submissions
of counsel, is well-positioned to provide meaningful appellate scrutiny.
(5)
Sentence appeal
[38]
The trial judge imposed a sentence of 11 years, less 2 years and 11
months for pre-trial custody. The appellant and respondent jointly submit that
the trial judge made a modest error in his calculation of credit for pre-trial
custody. I accept this submission and would give the appellant an additional 70
days credit for pre-trial custody.
E.
disposition
[39]
I would dismiss the conviction appeal. I would allow the sentence appeal
and assign an additional 70 days to the calculation of pre-trial custody.
Released: October 19, 2021 JCM
J.C. MacPherson
J.A.
I agree. L.B.
Roberts J.A.
I agree. B.W. Miller
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Kyko
Global Inc. v. M/S Crawford Bayley & Co., 2021 ONCA 736
DATE: 20211020
DOCKET:
C68842
Rouleau, Hoy and Thorburn JJ.A.
BETWEEN
Kyko Global Inc.
Plaintiff (Respondent)
and
M/S Crawford Bayley & Co. and Sanjay Asher
Defendants (Appellants)
James Bunting and Anisah Hassan, for the appellants
Jayson W. Thomas and Laura Chiu, for the respondent
Heard: September 24, 2021 by video conference
On appeal from the order of Justice Michael T. Doi of the
Superior Court of Justice, dated October 30, 2020, with reasons at 2020 ONSC 6537.
Hoy J.A.:
[1]
The appellants, M/S Crawford Bayley & Co.
and Sanjay Asher (Mr. Asher), are a law firm based in Mumbai, India, and
a senior partner of that firm, respectively. Before the motion judge, they
unsuccessfully argued that Ontario lacks jurisdiction over, and is not the
convenient forum for, the respondent, Kyko Global Inc.s action against them.
They appeal the motion judges dismissal of their motion seeking the stay or
dismissal of Kykos action.
Background
[2]
Kyko, an Ontario corporation, had retained the
appellants to provide an opinion on the enforceability of a guarantee to be
provided by Sical Logistics Limited (Sical or the guarantor), a publicly-traded
company in India. The guarantee was security for a trade finance facility
provided by Kyko to another Indian company, West Coast Marine Private Limited.
In a letter dated September 9, 2010 addressed to Kykos Ontario counsel, the
appellants opined that the guarantee was enforceable in accordance with its
terms. The guarantee had Ontario choice of law and forum provisions.
[3]
Unbeknownst to Kyko, it was Mr. Ashers cousin,
Yogesh Asher, who effectively brokered Kykos agreement to provide the trade
facility to West Coast Marine Private Limited.
[4]
The facility went into default and Kyko obtained
a default judgment in Ontario against Sical. Sical obtained an interim
injunction from the High Court of Judicature at Madras, in India, to restrain
enforcement of the default judgment by alleging that the guarantee was a
forgery. Police in the City of Chennai (also known as Madras) opened a criminal
investigation and concluded that the signatures on the guarantee were forged.
[5]
Kyko subsequently brought this action against
the appellants for negligent and fraudulent misrepresentation and breach of
contract. At the time the motion was heard, Sicals injunction application was
still pending before the Madras High Court. The motion judge noted that Kyko
concedes that its claim against the appellants may only proceed if the
guarantee is a forgery, and as a result depends on the outcome of the
proceeding in the Madras High Court.
The motion judges decision
[6]
Applying the test in
Club Resorts
Ltd. v.
Van Breda
, 2012
SCC 17, [2012] 1 S.C.R. 572, the motion judge concluded that two
presumptive connecting factors were present. Therefore, there was a presumption
that there was a real and substantial connection between the subject matter of
the litigation and Ontario.
[7]
First, there was a good arguable case that the
tort (fraudulent or negligent misrepresentation) took place in Ontario: in particular,
there was a good arguable case that the appellants legal opinion was first
provided to Kyko in Ontario; arrangements were made in Ontario to advance the
credit facility; and Kyko suffered damages in Ontario.
[8]
Second, there was a good arguable case that the
contract connected to the dispute was made in Ontario. Kyko pleaded this in its
statement of claim, and the appellants did not adduce any evidence to challenge
or deny it. In the absence of evidence from the appellants to challenge or deny
the facts pleaded in Kykos claim, Kyko could rely on those facts, which are
presumed to be true, to presumptively demonstrate jurisdiction
simpliciter
:
Ontario v. Rothmans Inc.
, 2013 ONCA
353, 115 O.R. (3d) 561, at paras. 111-114, leave to appeal refused, [2013] S.C.C.A.
No. 327;
Vahle v. Global Work & Travel Co. Inc.
, 2020 ONCA 224, at para. 13.
[9]
The motion judge noted that the burden of
rebutting the presumption of jurisdiction is on the party challenging it. The
appellants were required to show facts to demonstrate that the presumptive
connecting factors do not point to any real relationship between the subject
matter of the litigation and the forum, or point to a weak relationship:
Van Breda
, at para. 95. The motion
judge found that they had failed to do so and, accordingly, that Ontario had
jurisdiction
simpliciter
over the action.
[10]
The motion judge then considered whether the
appellants had discharged their burden of showing why jurisdiction should nevertheless
be declined in favour of a different forum (
forum non conveniens
). He correctly noted that the standard to displace the plaintiffs
chosen forum is high: the alternate forum must be clearly more appropriate
such that it would be fairer and more efficient to decide the dispute there:
Van Breda
, at paras. 108-9.
[11]
As I discuss in more detail below in addressing
the fifth issue that the appellants raise on appeal, the motion judge
considered six factors in the course of his analysis. He concluded that the
appellants had not discharged their burden to show that their proposed
alternate forum, Mumbai, is clearly more appropriate.
Issues on appeal
[12]
The appellants raise five issues on appeal:
1.
Did the motion judge reverse the burden of proof on the test for
jurisdiction
simpliciter
?
2.
In his jurisdiction
simpliciter
analysis, did the motion judge
err by accepting allegations in the statement of claim as true despite evidence
to the contrary?
3.
Did the motion judge discount the appellants evidence on the location
of their witnesses in his
forum non conveniens
analysis as a result of
a misreading of the applicable jurisprudence?
4.
Did the motion judge fail to consider relevant factors in his
forum non
conveniens
analysis?
5.
Is the motion judges decision that the appellants had not discharged
their burden to show that Mumbai was a clearly more appropriate forum
unreasonable?
First, I address the standard of
review. Then I address the appellants five issues in turn.
Standard of review
[13]
Whether or not a motion judge has erred in the application
of the test for jurisdiction
simpliciter
is a
question of mixed fact and law, reviewable for palpable and overriding error,
unless an error in the application of the test can be attributed to an
extricable question of law:
Airia Brands Inc. v. Air Canada
, 2017 ONCA 792, 417 D.L.R. (4th) 467 at para. 39, leave to appeal
refused, [2017] S.C.C.A. No. 476.
[14]
The application of
forum non conveniens
is an exercise
of discretion reviewable in accordance with the principle of deference to
discretionary decisions. An appeal court should intervene only if the motion
judge erred in principle, misapprehended or failed to take account of material
evidence, or reached an unreasonable decision:
Young v. Tyco International
of Canada Ltd.
, 2008 ONCA 709, 92 O.R. (3d) 161, at para. 27;
Éditions
Écosociété Inc. v. Banro Corp.
, 2012 SCC 18, [2012] 1 S.C.R. 636, at para.
41;
Haaretz.com v. Goldhar
, 2018 SCC 28, [2018] 2 S.C.R. 3, at para.
49. Errors of law and clear and serious errors of fact may also give grounds
for intervention:
Lapointe Rosenstein Marchand Melançon LLP v. Cassels
Brock & Blackwell LLP
, 2016 SCC 30, [2016] 1 S.C.R. 851, at para. 54;
Van Breda
at para. 112.
[15]
With the standard of review in mind, I turn now to the appellants
arguments on jurisdiction
simpliciter
.
(1)
Did the motion judge reverse the burden of proof on the test for
jurisdiction
simpliciter
?
[16]
As noted above, the motion judge concluded that
Kyko has a good arguable case that Kyko first received the opinion in Ontario,
when it was sent to Kykos legal counsel.
[17]
The appellants point to the evidence that the
original of the opinion was delivered to Kykos CEO, Mr. Kulkarni, in India. They
argue that the motion judge erred in applying the test for jurisdiction
simpliciter
: he reversed the burden of proof by only considering whether that
evidence rebutted the presumption of jurisdiction, and not in determining
whether Kyko had discharged its onus of establishing that there was a good
arguable case.
[18]
I reject this argument. The motion judge
recounted that on September 9, 2010, Mr. Asher signed the opinion for his firm
and faxed it to Ms. Thomas, Kykos external legal counsel, at her office in Brampton,
Ontario. Then, on September 13, 2010, Mr. Ashers associate, Ms. Batra, emailed
Ms. Thomas an electronic version of the opinion. That email indicated that the
opinion is being handed over to Yogesh [Asher]. This was done so that he
could hand-deliver the original opinion to Mr. Kulkarni. There was no
evidence about when the original opinion was delivered to Mr. Kulkarni.
The motion judge wrote that [i]t also appears from the record that Mr. Kulkarni
could not have received the Opinion before it was sent to Ms. Thomas by
facsimile on September 9, 2010 and by email on September 13, 2010.
[19]
Citing
Rothmans
, at paras. 53-54, and
Vahle
, at para. 13, the motion judge held that on a jurisdiction motion
brought at an early stage of a proceeding, the court does not assess the facts
of a case beyond deciding whether a good arguable case is shown to ground
jurisdiction. After considering the appellants argument in relation to the
delivery of the original opinion to Mr. Kulkarni, the motion judge concluded
that Kyko has a good arguable case that Kyko first received the opinion in
Ontario. The motion judge did not reverse the burden of proof. He considered
the evidence on which the appellants rely both in concluding that Kyko has a
good arguable case, and in concluding that the appellants had not rebutted the
presumption of jurisdiction.
[20]
The appellants also argue that the motion judges
conclusion that there was a good arguable case that the receipt of their
opinion in Ontario by Ms. Thomas completed the tort of misrepresentation was
tainted by legal error. They say that the document had to be received by a
principal or directing mind of Kyko, and that did not occur until the opinion
was delivered to Mr. Kulkarni in Mumbai.
[21]
I reject this argument. The opinion was
addressed to Ms. Thomas. Mr. Kulkarnis evidence was as long as our lawyers
were happy, I was happy. There was nothing for me to review. Here, there is
clearly a good arguable case that receipt of the opinion by Ms. Thomas was
receipt by Kyko.
[22]
Moreover, the tort of negligent or fraudulent
misrepresentation occurs where the information is received and relied upon. Even
if the opinion were first received in India, it should not deprive Ontario of
jurisdiction. The appellants provided the opinion with the clear understanding that
it would be relied on in Ontario: see
Central Sun Mining Inc. v.
Vector Engineering Inc.
, 2013 ONCA 601, 117 O.R. (3d) 313,
at para. 33, leave to appeal refused, [2013] S.C.C.A. No. 475.
(2)
Did the motion judge err by accepting allegations in the statement of
claim as true despite evidence to the contrary?
[23]
As noted above, the motion judge further
concluded that there was a good arguable case that the contract connected to
the dispute was made in Ontario. Kyko pleaded this in its statement of claim,
and the appellants did not adduce any evidence to challenge or deny it.
[24]
The appellants argue that the motion judges
conclusion was tainted by palpable and overriding error. They say that Kykos
pleading was in fact contradicted by Mr. Kulkarnis evidence on
cross-examination. The motion judge accordingly erred in relying on the pleaded
facts, and there was not a good arguable case that the contract connected to
the dispute was made in Ontario. Further, they argue that the motion judge
erred in law in permitting Kyko to rely on its pleading that the contract was
made in Ontario: that was a legal conclusion, not an allegation of fact.
Moreover, it was a bald conclusory statement and was not sufficiently particularized.
[25]
I disagree.
[26]
In cross-examination, Mr. Kulkarni was directed
to the Notice of Examination, which asked that he produce evidence of any
payment made by Kyko to the appellants in return for the provision of legal
services and any contract or retainer agreement between Kyko and the
[appellants].
[27]
Mr. Kulkarni confirmed that he did not produce
any such documents because there werent any. During that exchange, he made the
following statement, on which the appellants rely:
Obviously we didnt make any payment, if that
is the question. But say in return for the provision of legal services, I
said that
they didnt provide any legal services
to Kyko,
so I dont know what this thing refers to. [Emphasis
added.]
[28]
The appellants say the substance of Mr.
Kulkarnis evidence is that Kyko did not have a contract with the appellants
(they did not provide any legal services to Kyko) and, since there was no
contract, there could not have been a contract made in Ontario.
[29]
I am not persuaded that the motion judges
conclusion that there was a good arguable case that the contract connected to
the dispute was made in Ontario is tainted by palpable and overriding error.
[30]
On the motion, there was no dispute that the
appellants delivered the opinion and that they had been retained to do so.
Indeed, Mr. Ashers evidence was that Kyko required that Crawford Bayley
provide a legal opinion concerning the guarantee and that Crawford Bayley did
not have written agreements with all its clients. The appellants did not argue
below that there was no contract. The only issue was where the contract was
made. In context, including that the opinion was addressed to Kykos Ontario
legal counsel, Mr. Kulkarnis evidence does not contradict Kykos pleading that
the contract was made in Ontario. The appellants should not now be permitted to
assert that there was no contract.
[31]
Nor am I persuaded that the motion judge erred
in principle by failing to require Kyko to lead evidence to support its pleading
that the contract was made in Ontario. The appellants do not appear to have
argued below that Kyko could not rely on its pleading to establish a
presumptive connective factor because it pleaded a legal conclusion, or because
it did not provide sufficient particulars. Moreover, in context, I would not
characterize the allegation as a purely legal conclusion. Rather, as the motion
judge found, it is essentially a factual allegation.
[32]
In
Rothmans
, at para. 113, this court suggested that a plaintiff asserting
jurisdiction may be required call evidence to support undenied allegations in a
statement of claim either where the cause of action as pleaded appears to be
devoid of merit or where the pleadings fail to demonstrate any air of reality
concerning the possible existence of the presumptive connecting factor. I agree
with the motion judge that this is not such a case. Kyko pleaded that it is an
Ontario corporation with its head office in Brampton, Ontario, and that the
appellants delivered the opinion. It is open to the appellants to seek
particulars under r. 25.10 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.
[33]
In summary, I am not persuaded that the motion judge committed any palpable
and overriding error of fact or any extricable error of law in finding that
Ontario had jurisdiction
simpliciter
. I turn
next to the appellants challenges to the motion judges
forum non
conveniens
analysis.
(3)
Did the motion judge discount the appellants evidence on the location
of their witnesses in his
forum non conveniens
analysis as a result of
a misreading of the applicable jurisprudence?
[34]
One of the relevant factors in determining
whether a defendant has discharged its burden of showing why jurisdiction
should be declined to displace the forum chosen by the plaintiff is the
comparative convenience and expense for the parties to the proceeding and for
their witnesses in litigating in the court or in any alternative forum.
[35]
The motion judge concluded that this factor was
neutral in this case. This ground of appeal arises out of the underlined
portion of the passage below from the motion judges reasons addressing the
comparative convenience and expense for the witnesses:
[51] Similarly, I find that the comparative convenience and
expense for the witnesses is largely neutral in this matter. Kykos witnesses,
including Mr. Kulkarni and Ms. Thomas, are in Ontario. Sanjay Asher, Ms. Batra
and Yogesh Asher, are located in Mumbai. Mr. Rajappan and Mr. Sundar purportedly
signed the Guarantee for Sical, but it is unknown if they are in India,
Singapore or elsewhere. The Defendants may call others from Sical to testify,
but do not know whether anyone at Sical has anything relevant to say and, if
so, who or where they are. The Defendants may call a police witness from
Chennai, located about 1,300 km from Mumbai, to testify about the forgery investigation.
They also submit that Amit Punde, Kykos former representative in Pune, may be a
witness, although Mr. Punde did not witness any relevant events and can only
give second-hand information about the forgery investigation, which the police
witness likely will address.
As the
Defendants gave little or no information as to what their
witnesses will say, apart from Sanjay
Asher and
Ms. Batra, I am persuaded to treat their proposed list of witnesses with
caution:
Goldhar
at para 57
.
[52] Should a party or witness outside of Ontario not wish to
travel to Brampton for any part of this proceeding, Kyko has undertaken to
consent to their attendance by videoconferencing, which is how the parties
conducted cross-examinations on the affidavits for this motion. The Defendants did
not object to video testimony and led no evidence to suggest that any of its
witnesses would not agree to testify by video. As a result, I find that video
technology may offer a fair, convenient, and cost-effective way to obtain
testimony from witnesses abroad at trial in Ontario:
Davies v.
Clarington
,
2015 ONSC 7353 at paras 23-28. In contrast, there was no evidence of whether
video evidence is permitted by the High Court of Bombay. [Emphasis added.]
[36]
The
appellants argue that the motion judge relied on a passage in the decision of
the motion judge in
Goldhar
that Côté J. overruled when the decision
was appealed to the Supreme Court. She held at para. 67 that the motion judge
had
erred by unreasonably discounting [the defendant] Haaretzs
proposed witnesses and the relevance of their evidence. Haaretz had, in its
factum, described what these 22 witnesses may speak to and had filed a
supplemental affidavit briefly describing the evidence that 8 of the witnesses
might give to assist it at trial. Goldhar had, in comparison, no evidence
concerning the witnesses he might call and what those witnesses would speak to.
[37]
Côté
J. described the motion judges error as involving a complete misapprehension
of, or failure to consider, material evidence (at para. 50), and the motion
judges conclusion regarding the comparative convenience and expense for the
witnesses as wholly unreasonable in light of the evidence before him (at
para. 55.) She concluded that this factor heavily favoured the forum proposed
by the defendant (Israel). She also held that the motion judge erred in giving
weight to the notion of having the Israeli witnesses (many of whom were
reluctant) testify by videoconference, since there was no evidence that an
Ontario court could compel them to do so.
[38]
The
appellants argue that they, like the defendant Haaretz in
Goldhar
,
provided a list of their proposed witnesses and a brief description of what
some of them would speak to, and the motion judge therefore erred in treating
their witness list with caution. They say this led the motion judge to
erroneously conclude that the factor of comparative inconvenience for the
witnesses was neutral. They submit that the motion judges error is not saved
by his observation that videoconferencing may be an option for witnesses from
outside of Ontario. They point to what they say are the inherent frailties of
testifying by videoconference.
[39]
While
the motion judge in this case erred in citing to the overruled passage in
Goldhar
,
I am not persuaded that this warrants interference by this court. The
appellants do not impugn any of the motion judges findings of fact in the
passages reproduced above. The motion judge acknowledged that the appellants
had provided information about what some of their witnesses (Mr. Asher and Ms.
Batra) will say. Unlike Haaretz in
Goldhar
, however, Mr. Asher could
not say what, if any relevant evidence the other witnesses might be able to
provide. The motion judge in this case, therefore, unlike the motion judge in
Goldhar
,
did not misapprehend the evidence and his conclusion was reasonable. His error
in citing to
Goldhar
did not lead him to conclude that the factor of
comparative inconvenience to witnesses was largely neutral.
[40]
Further,
while I appreciate that there is a 9½-hour time difference between Ontario and
Mumbai, the appellants have not demonstrated any error in principle concerning
the motion judges observation that videoconferencing technology may offer a
fair, convenient and cost-effective way to obtain testimony from witnesses
abroad at trial in Ontario. It is open to an Ontario court to modify its usual
sitting hours to better accommodate an out-of-country witness. Even before the COVID-19
pandemic made videoconferencing software ubiquitous, Canadian courts have considered
the possibility of proceeding electronically as part of the
forum non
conveniens
analysis:
Tyco
at para. 52;
Henry Estate v. Henry
,
2012 MBCA 4, 275 Man. R. (2d) 90, at paras. 54-57. The motion judge in this
case did not fall into the error in
Goldhar
. Unlike Haaretz, the
appellants did not adduce evidence that their witnesses in India would not testify
voluntarily. The motion judge did not
rely on videoconferencing to
overcome the problem of foreign witnesses who are unwilling to testify, in the
absence of evidence that those witnesses could be compelled in Ontario.
(4)
Did the motion judge fail to consider relevant factors in his
forum
non conveniens
analysis?
[41]
The
appellants argue that the motion judge erred in principle in his
forum non
conveniens
analysis because he failed to consider the jurisdiction where
the factual matters arose and the location of the evidence.
[42]
I
am not persuaded that, in the context of this case, the fact that the motion
judge did not specifically address these two factors in his reasons constitutes
an error in principle or resulted in an unreasonable decision.
[43]
In
Van Breda
, LeBel J. wrote the following at paras. 105 and 110:
A party applying for a stay on the basis of
forum non
conveniens
may raise diverse facts, considerations and concerns. Despite
some legislative attempts to draw up exhaustive lists, I doubt that it will ever
be possible to do so. In essence, the doctrine focusses on the contexts of
individual cases, and its purpose is to ensure that both parties are treated
fairly and that the process for resolving their litigation is efficient
[T]he factors that a court may consider in deciding whether to
apply
forum non conveniens
may vary depending on the context and might
include the locations of parties and witnesses, the cost of transferring the
case to another jurisdiction or of declining the stay, the impact of a transfer
on the conduct of the litigation or on related or parallel proceedings, the
possibility of conflicting judgments, problems related to the recognition and
enforcement of judgments, and the relative strengths of the connections of the
two parties.
[44]
As
discussed in more detail below, the motion judges reasons reflect that he
considered and balanced the following six factors in his
forum non
conveniens
analysis: the comparative convenience and expense to the
parties and witnesses in litigating in Ontario or India; the law to be applied
to the issues in the proceeding; the desirability of avoiding a multiplicity of
proceedings; the desirability of avoiding conflicting decisions in different
courts; the enforcement of an eventual judgment; and the fair and efficient
working of the Canadian legal system as a whole.
[45]
The
appellants assert that all the underlying conduct described in Kykos statement
of claim occurred in India, and that the majority of the physical evidence is
located in India. These two factors clearly favour India. When these factors
are considered (as they should have been), Mumbai is clearly a more appropriate
forum than Ontario.
[46]
While the opinion was prepared in India, the motion judge found
that
there was a good arguable case that the appellants legal
opinion was first provided to Kyko in Ontario. Arrangements were made in
Ontario to advance the credit facility, and Kyko suffered damages in Ontario.
All the underlying conduct did not occur in India.
[47]
As to the significance of the physical evidence,
on cross-examination, Mr. Asher admitted that he relied on only four
documents in forming the opinion: the guarantee, the minutes of two board
meetings of the guarantor relating to it, and the memorandum articles of
association of the guarantor. He does not remember if he has ever seen the
originals of the guarantee or minutes. The appellants do not identify any other
documents that they say will be required in this case and are located in India.
In assessing the comparative convenience to the parties and the witnesses, the
motion judge considered that Mr. Asher is located in Mumbai.
[48]
In the context of this case, the factors that the appellants argue
the motion judge should have considered are minor, and are largely subsumed by
the motion judges analysis of the comparative convenience and expense to the
parties and witnesses in litigating in Ontario or Mumbai.
(5)
Is the motion judges decision that the appellants had not discharged
their burden to show that Mumbai was a clearly more appropriate forum
unreasonable?
[49]
While noted above, for ease of reference, I
repeat that the motion judge considered, and balanced, six factors in concluding
that the appellants had not met the onus of showing India to be a
clearly
more
appropriate forum for the action than Ontario: (1) the comparative convenience
and expense for the parties to the proceeding and for their witnesses in
litigating in Ontario or India; (2) the law to be applied to the issues in the
proceeding; (3) the desirability of avoiding a multiplicity of proceedings; (4)
the desirability of avoiding conflicting decisions in different courts; (5) the
enforcement of an eventual judgment; and (6) the fair and efficient working of
the Canadian legal system.
[50]
The motion judge found that the first four
factors were neutral, the fifth factor favoured Mumbai, and the final factor
favoured Ontario. As a result, he concluded that the appellants had not met the
onus of showing India to be a clearly more appropriate forum than Ontario.
[51]
The appellants argue that the motion judge
unreasonably concluded that the first four factors are neutral, and that the
final factor favoured Ontario. They say these factors clearly favour India and,
as a result, the motion judges conclusion that they had not met their onus of
showing India to be a clearly more appropriate forum was unreasonable. Below, I
address their arguments with respect to each of the challenged factors. As I
will explain, the motion judges conclusions were reasonable.
[52]
As to the first factor (the comparative
convenience and expense for the parties to the proceeding and for their
witnesses in litigating in Ontario or in India), the appellants argue that,
while an Ontario corporation, Kyko carries on business in India and was
carrying on business in India in connection with and at the time it received
the opinion and the vast majority of the witnesses are domiciled in India. They
argue that, in light of this, the motion judges conclusion that the first
factor is neutral was unreasonable.
[53]
I disagree. The motion judge noted that Kyko is
situated in Brampton, Ontario and
no longer
has a business presence in
India. Its CEO, Mr. Kulkarni, is based in Ontario and visits India
infrequently. The motion judge did not fail to consider or misapprehend the
evidence or make a clear and serious error of fact about Kykos business
activities in India. In assessing the comparative convenience and expense to the
parties, the motion judge reasonably focused on Kykos current situation,
rather than what might have been its situation in the past.
[54]
Above, in addressing the third issue that the
appellants raise on this appeal, I reproduce the motion judges analysis of the
comparative convenience and expense for the witnesses. The motion judge did not
find that the vast majority of the witnesses are domiciled in India. Further,
his analysis reasonably considered more than the number of witnesses on each
partys list of proposed witnesses. His decision that this factor is neutral
was reasonable.
[55]
The appellants argue that, at its core, this
action is about whether an Indian lawyer met the expected standard of care of
an Indian lawyer in providing the opinion and that is a matter of Indian law.
Accordingly, they argue, the motion judges conclusion that both Indian and
Ontario law are implicated in this case, and the second factor
applicable law
was therefore a neutral factor, was unreasonable.
[56]
The motion judge specifically considered that
Indian law was implicated because of this standard of care issue. However, he
accepted that Ontario law was also implicated because of Kykos position that
the place of the tort is Ontario, where it received and acted on the allegedly
negligent
and fraudulent
representation in the opinion, and that Kykos contract claim
pleads a breach of contract made in Ontario. The motion judge did not accept
that, at its core, this action is about professional negligence.
[57]
The motion judges conclusion that both Indian
and Ontario law are implicated in this case and that applicable law is
therefore a neutral factor is reasonable.
[58]
Turning to the third and fourth factors
(desirability of avoiding a multiplicity of proceedings and conflicting decisions),
the appellants say that given that the Madras High Court will consider whether
the guarantee is a forgery, it would be eminently reasonable for the Madras
High Court to also determine the issues raised in Kykos action. The motion
judges conclusion that these factors were neutral is accordingly unreasonable.
[59]
I disagree. The motion judge specifically
recognized that the Madras High Court is to consider whether the guarantee is a
forgery, which will overlap with Kykos claims against the appellants. He noted,
however, that neither party viewed the Madras High Court as an appropriate or
convenient forum: the appellants submitted that the High Court of Bombay in
Mumbai was the convenient forum. He held that there was no evidence on this
motion to suggest that having this proceeding heard in Mumbai would lead to any
ongoing efficiencies with the ongoing matter in the Madras High Court or
mitigate the multiplicity of proceedings. There was no indication that the
parties or claims in the matter before the Madras High Court could be
consolidated with Kykos action against the appellants if it were heard before
the High Court of Bombay and it seemed likely that the litigation in Chennai
will continue as a separate proceeding, whether Kykos claim is heard in Mumbai
or Ontario. Nor was there any suggestion that having Kykos claim heard in
Mumbai would result in procedural efficiencies with litigation in Chennai by
allowing common records, productions or other evidence to be shared in both
proceedings, or by allowing any appeals from the proceeding to be joined or
heard in tandem. Further, whichever court hears Kykos claim whether in
Ontario or Mumbai will likely have to consider the risk of a conflicting
decision in the Madras High Court proceedings.
[60]
On appeal, the appellants attempt to re-cast
their position before the motion judge, submitting that the Madras High Court
is the clearly more convenient forum. However, Mr. Ashers evidence was that
Kykos action should be heard in Bombay. The motion judges conclusion that the
third and fourth factors are neutral is reasonable.
[61]
With
respect to the sixth factor, the appellants argue that an Indian court is
clearly in a better position to dispose fairly and efficiently of the
litigation. Indeed, they say it is unfair to require an Indian law firm and
lawyer who provided an opinion about the enforceability in India of a guarantee
given by an Indian company to an Ontario company which carried on business in
India to defend an action in Ontario arising out of their provision of that
guarantee. They say this case is different from
Sincies Chiementin S.p.A.
(Trustee of) v. King
, 2012 ONCA 653, leave to appeal refused, [2012]
S.C.C.A. No. 516, on which the motion judge relied, in concluding that it was
fair for the appellants to be called to account in Ontario. Mr. Asher is a
lawyer in a regional law firm in India, not a lawyer who specializes in
international business law like the lawyer in
Sincies
. Further, they say
that the motion judge leant instinctively in favour of his own jurisdiction,
which
Van Breda
, at para. 112, cautions against.
[62]
The motion judge instructed himself that, having
regard to the case as a whole, he must consider and balance the broader issues
of fairness and efficiency of a particular forum with the justice of that
choice to the parties. He found himself unable to assess the juridical
advantage factor, and the appellants do not fault that finding.
[63]
He concluded that overall fairness
considerations favoured Ontario. In his view, this case was like
Sincies
because, like the lawyer in that case, the appellants
are sophisticated legal professionals who advised Kyko, an Ontario corporate
client, knowing that it would receive and act upon the advice in the forum. It
would therefore be fair for the appellants to account for their conduct in
Ontario. The motion judge held that the appellants had not shown that the High
Court of Bombay would be a substantially less inconvenient and expensive forum.
[64]
In my view, that conclusion is reasonable. Whether
or not Mr. Asher specialized in international business law, the appellants are
one of Indias oldest law firms and a senior partner at that firm. As the
motion judge found, they are sophisticated legal professionals who advised an
Ontario corporation, and there was a good arguable case that the opinion was
first provided to Kyko in Ontario and relied upon there. The motion judges
analysis was rigorous and much more than an instinctive favouring of his own
jurisdiction.
Disposition
[65]
For
these reasons, I would dismiss the appeal, with costs to Kyko in the
all-inclusive amount of $20,000.
Released: October 20, 2021 PR
Alexandra Hoy J.A.
I agree. Paul
Rouleau J.A.
I agree. Thorburn
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Ilgner
v. Box, 2021 ONCA 747
DATE: 20211020
DOCKET: M52850 (C69621)
Brown J.A. (Motion
Judge)
In the Matter of the Estate of Juliet Pitterson-Box, deceased
BETWEEN
Audrey Ilgner, personally
and in her capacity as Estate Trustee of the Estate of Juliet Pitterson-Box
Applicant/Moving Party
(Responding Party/Respondent)
and
Blaze
Box
, Klay Box, Storm Box, Alburn Vidal (referred to as Alluin Didal in
the Last Will and Testament of Juliet Pitterson-Box), Claudia Roseanne Soso and
Nora Mazit
Respondents
(
Moving Party/
Appellant
)
Blaze Box, acting in person
Jonathon Kappy and Stuart Clark, for the responding
party
Heard: October 12, 2021 by video conference
ENDORSEMENT
[1]
The moving party appellant, Mr. Blaze Box, has
filed a notice of appeal from the order made by Conway J. dated June 3, 2021
(the Third Conway Order). Mr. Box has not yet perfected his appeal.
[2]
Mr. Box moves for an order: (i) granting him an
extension of time until December 31, 2021 to perfect his appeal; (ii) requiring
the estate trustee, his grandmother Audrey Ilgner, to release to him all draft
copies of the will of his late mother, Juliet Pitterson-Box, her medical
records and any insurance documents (the Document Requests); (iii) putting in
place a process that would enable him to pay out his two siblings share of the
estate from a mortgage he wishes to place on the main estate asset, a
residential property at 352 Dupont Street, Toronto (the Property), which he
presently occupies; and (iv) staying the Third Conway Order that ordered him to
vacate the Property and granted leave to issue a writ of possession to the
estate trustee in respect of the Property.
[3]
Ms. Pitterson-Box died on June 18, 2019. At the
time of her death, she had three adult children: the appellant, Klay Box, and
Storm Box.
[4]
The deceaseds Will dated February 12, 2019 (the
Will) appointed her mother, Ms. Ilgner, as estate trustee. The Will provides
for several bequests totaling $150,000, with the residue to be divided equally
amongst the deceaseds three children.
[5]
In January 2020, Blaze and Klay Box filed a
notice of objection in respect of the Will in which they asserted that their
mother wanted to maintain the Property as the family home with the three
children as beneficiaries. The siblings contended that the estate trustee was
not acting in the best interests of the beneficiaries and asserted that the
failure of the Will to include a bequest to one of their mothers friends
indicated that her wishes seemed to be ignored/tampered with and/or changed
through suspicions + questionable circumstances. The objectors did not assert
the existence of an alternate will.
[6]
The Property is the main estate asset.
[7]
Mr. Box has resided at the Property at least
since his mothers death. He is, in effect, treating the Property as his own,
renting out some of the rooms and making some renovations.
[8]
By notice of application issued October 13,
2020, the estate trustee sought various relief, including orders striking out
the notice of objection, restraining the three children from effecting any
capital improvements or renovations to the Property, requiring the children to
account for any rental income they had received for the Property, and directing
the children to provide vacant possession of the Property. Blaze and Klay Box
filed a notice of appearance in the application.
[9]
On November 9, 2020, Conway J. made her first
order (the First Conway Order). It directed Blaze and Klay to desist from
further renovations and account for their dealing with the Property. Mr. Blaze
Box did not participate in that hearing.
[10]
Mr. Box contends that he did not participate in
many of the hearings because he was not given notice of them and was not
properly served with court materials. The record contradicts his assertion.
There is no doubt that Mr. Box uses the email address to which the various
affidavits of service state the court materials were sent. Emails from him
dating back to April 1, 2020 attest to that fact. Mr. Box contends that during
the pandemic he did not check his email with great frequency. Whether or not
that is true, it does not detract from the propriety of service of various
court materials to his email address, as well, on occasion, to the Property,
where he lives.
[11]
No appeal was taken from the First Conway Order.
[12]
The record shows that Mr. Box ignored the First
Conway Order. That led to the second order (the Second Conway Order) dated
December 16, 2020, which struck out the notice of objection filed by Blaze and
Klay without leave to amend, directed the issuance of a certificate of
appointment of estate trustee to Ms. Ilgner, and directed Blaze and Klay to
comply with the First Conway Order.
[13]
No appeal was taken from the Second Conway
Order.
[14]
In late May 2021, the estate trustee moved for
an order requiring Mr. Box to vacate the Property and seeking leave to issue a
writ of possession. The Third Conway Order, dated June 3, 2021, ordered Mr. Box
to vacate the Property by July 3, 2021, failing which a writ of possession
could issue.
[15]
Mr. Box remains in the Property.
[16]
On July 7, 2021, Mr. Box filed a notice of
appeal from the Third Conway Order.
[17]
To date, Mr. Box has not filed any materials to
perfect his appeal, notwithstanding the courts issuance on August 16, 2021 of
a notice of intention to dismiss for delay if the appeal was not perfected by
September 13, 2021.
[18]
Instead, Mr. Box seeks an extension, until the
end of this year, to perfect his appeal.
[19]
I start my consideration of his request for an
extension with the observation that while the appellants delay in perfecting
his appeal is not unduly long, he offers no reasonable explanation about why
there was any delay, given that the proceeding before Conway J. in June 2021
was a motion based on a written record. The subsequent variation of the Third
Conway Order in September 2021 to include the Propertys legal description and
PIN number would not prevent Mr. Box from perfecting his appeal. The record
strongly suggests that Mr. Box believes he can live on in the estates Property
for as long as he wishes and disregard the terms of his mothers Will and the
efforts of his grandmother to administer the estate. His motion for an
extension of time to perfect until the end of this year strikes me as a
continuation of that pattern of conduct.
[20]
As to the merits of his appeal of the Third
Conway Order, I see no meritorious grounds of appeal:
Chuang v. Royal
College of Dental Surgeons of Ontario
(2005), 77 O.R. (3d) 280 (Div. Ct.),
at para. 3. No appeal was taken from the Second Conway Order that struck out
the notice of objection and directed the issuance of a certificate of
appointment of estate trustee. Given the lack of an appeal, the Will must be
taken as proved. Therefore, the Document Requests sought by Mr. Box are no
longer relevant.
[21]
The Will does not grant Mr. Box a proprietary
interest in the Property; his interest is in the residue of the estate
following the realization of the estates assets. Accordingly, there is no
legal basis for his position that he should be allowed to somehow take title to
the Property, mortgage it, and pay out his siblings shares of the residue. It
also follows that there is no legal basis for Mr. Box to remain in the
Property, which is the estates asset.
[22]
Since the Property is the main estate asset, any
continuing delay would prejudice the estate and the other beneficiaries of the
estate.
[23]
In sum, the justice of the case works against
granting the relief requested by Mr. Box. Instead, the justice of the case
requires the administration of the estate to proceed without further efforts by
Mr. Box to delay the estate trustee.
[24]
For those reasons, the motion is dismissed.
[25]
The respondent estate trustee is entitled to her partial indemnity
costs of this motion fixed in the amount of $10,000.00, inclusive of
disbursements and applicable taxes, payable out of the residuary interest of Mr.
Blaze Box in the Estate of Juliet Pitterson-Box.
David Brown J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Eden, 2021 ONCA 733
DATE: 20211020
DOCKET: C68564
Paciocco, Nordheimer and Thorburn JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Brooke Eden
Appellant
Jessica Zita, for the appellant
Katie Doherty, for the respondent
Heard: October 13, 2021 by videoconference
On appeal from the conviction entered on June 21, 2019
and the sentence imposed on February 7, 2020 by Justice Joseph Nadel of the Ontario
Court of Justice.
REASONS FOR DECISION
[1]
Ms. Eden appeals from her convictions for Impaired Operation Causing
Death, Impaired Operation Causing Bodily Harm, and Failing to Remain, for which
she received a global sentence of five years. The appellant also seeks leave to
appeal the sentence.
[2]
The basic facts are that the appellant was operating her mothers motor
vehicle when she collided with a vehicle ahead of her that had stopped at an
intersection. The appellants vehicle careened off the vehicle that she hit,
moved into the opposite lane, and struck a motorcycle heading in the opposite
direction. The driver of the motorcycle was killed, and his passenger was
seriously injured.
[3]
The appellant fled on foot from the accident. She was arrested a short
time later about two kilometres from the accident. The arresting officer
noticed the odour of alcohol on the appellants breath and that her eyes were
bloodshot. Subsequent Intoxilyzer readings, extrapolated by an expert for the
passage of time, put the appellants blood alcohol readings at the time of the
accident in a range between 70 milligrams to 135 milligrams of alcohol per 100
millilitres of blood. An analysis of information from the vehicle, that the
appellant had been operating, established that the speed of the vehicle just before
the accident was 113 to 114 kph. The posted speed limit on the road was 80 kph.
[4]
The appellant pled guilty to the offences. However, there was an issue
regarding her mental health and fitness. The trial judge inquired about these
matters at the time of the plea and was told that a fitness assessment had recently
been conducted and that the appellant had been found to be fit. The trial judge
was also told by the appellants counsel that he had conducted a full plea
inquiry and that he had reviewed the agreed facts with her. The appellant then
entered a plea of guilty to each of the three offences.
[5]
While the appellant was represented at the time of her guilty plea, by
the time of sentencing, she had fired her lawyer and was unrepresented. The
appellant said that she wanted to proceed with sentencing without a lawyer. The
trial judge cautioned the appellant against proceeding without a lawyer, but
the appellant insisted.
[6]
The trial judge explained the process to the appellant. He then heard
the Crowns submissions on sentence and heard the victim impact statements. The
trial judge adjourned the matter for two months so that the appellant could
have more time to prepare her submissions.
[7]
The appellant then brought a number of motions, the significant one of
which was a motion that appeared to seek to strike the guilty plea. The judge
conducted a hearing on that motion, that included hearing from the appellants
former counsel. He dismissed the motion as he did not find a basis for any
suggestion that the plea had been involuntary or uninformed. In particular, the
appellant asserted that she had pled guilty under duress, but the trial judge
found that there was no evidence to support that assertion.
[8]
The matter proceeded to sentencing. After hearing submissions from the
appellant, the judge imposed a global sentence of five years: four years on the
impaired operation causing death conviction; one year concurrent on the impaired
operation causing bodily harm conviction; and one year consecutive for the fail
to remain conviction.
[9]
The appellant has failed to identify any legal error in the trial
judges reasons for rejecting the motion to strike the guilty plea. More
particularly, the appellant has failed to demonstrate any error in the trial
judges conclusion that the plea was neither involuntary nor uninformed. We do
not accept that the conduct of the appellant after the guilty plea provides any
reliable evidence as to the appellants understanding of the events at the time
that the guilty pleas were entered which, we would reiterate, occurred when she
was represented and had been found fit to stand trial. Put simply, it is not
sufficient to set aside a guilty plea on the basis that the accused has simply
changed their mind after the fact.
[10]
In
terms of the sentence appeal, the sentencing hearing was conducted fairly. The
trial judge confirmed repeatedly that the appellant wished to represent herself
and ensured that she understood the process, the law and the Crowns arguments.
The trial judge was not required to adjourn matters, nor to appoint
amicus
.
The sentence imposed by the trial judge was entirely warranted by the facts of
the case and the appellants prior driving record. In terms of the complaint
that the trial judge did not provide any
Downes
credit, that is a
matter of discretion for the trial judge. The appellant has failed to show any
basis for us to interfere with his exercise of that discretion. In saying that,
we would note that the subject and terms of the bail were negotiated between
counsel in a situation where the appellants entitlement to bail, given her
breaches of prior bail orders, was certainly a live issue. We also note that
the bail terms imposed did not represent the most onerous form of house arrest.
[11]
The
conviction appeal is dismissed. While leave to appeal sentence is granted, the
appeal is dismissed.
David M. Paciocco
J.A.
I.V.B. Nordheimer
J.A.
J.A. Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Hevey
v. Hevey, 2021 ONCA 740
DATE: 20211021
DOCKET: C68436
Feldman, Harvison Young and
Thorburn JJ.A.
BETWEEN
Lynne Marie Hevey
Applicant (Appellant)
and
Charles James Hevey
Respondent (Respondent)
Gary S. Joseph and Stephen P. Kirby, for the appellant
Bryan R.G. Smith and Sarah Conlin, for the respondent
Heard: April 14, 2021 by video conference
On appeal from the order of Justice Jonathon C. George of
the of the Superior Court of Justice, dated May 27, 2020, with reasons reported
at 2020 ONSC 3307.
Harvison Young J.A.:
[1]
The appellant, Lynne Hevey, appeals from an order granting summary
judgment to the respondent, Charles Hevey, dismissing her application for
equalization and other relief. At the time of her application, the parties had
been divorced for more than 10 years. The dispute arises out of a complex
financial arrangement.
[2]
Ms. Hevey claimed in her application to have recently discovered that
Mr. Hevey had misrepresented material facts and failed to make significant
disclosure at the time of the divorce application in 2008. In particular, she
claimed Mr. Hevey had represented to banks that his net worth was approximately
$21 million at the same time that he stated in a sworn financial statement that
his total assets amounted to $0. At the time, the parties did not pursue
equalization or spousal support. In his summary judgment motion, Mr. Hevey
relied heavily on his submission that the parties had agreed not to pursue
either, although there was no written agreement not to pursue equalization or
spousal support. He also argued that Ms. Heveys claim for equalization was
barred by s. 7(3) of the
Family Law Act
, R.S.O. 1990, c. F.3 [
FLA
].
[3]
The heart of the appeal is Ms. Heveys assertion that this was not an
appropriate case for summary judgment. For the following reasons, I would allow
the appeal and order that the matter be remitted for trial.
A.
Background
[4]
The appellant, Ms. Hevey, and the respondent, Mr. Hevey, married in
1980, separated in 2006, divorced in 2008, and have two adult sons. They
negotiated the issues arising from their separation in 2008 and did not pursue
equalization, although the surrounding circumstances form part of the subject
of this appeal. Both parties were represented by counsel at the time.
[5]
In 2019, Ms. Hevey brought an application for equalization and spousal
support, alleging that Mr. Hevey had misrepresented his financial circumstances
during their negotiations.
[6]
In her application, Ms. Hevey claimed to have recently discovered the misrepresentation
when Mr. Hevey, who is a real estate developer, sold one of the familys
commercial properties in April 2019 for over $16 million. During the
disposition of the property, Ms. Hevey, through her commercial counsel,
received documents that disclosed a trust arrangement involving PMP Trust, of
which Mr. Hevey was the sole beneficiary. Ms. Hevey then discovered the alleged
misrepresentation: while Mr. Heveys financial statement sworn in December 2008
indicated a net family property value of $0, he was actually worth more than
$21 million between 2007 and May 2008, based on his disclosure to a bank.
[7]
The relevant background to the family arrangements pre-separation may be
briefly summarized. In 1986 and 1996, two family trusts were created which held
various assets. Ms. Hevey was the trustee of both family trusts and Mr. and Ms.
Heveys two sons were the beneficiaries. In 2006, the assets of those family
trusts were transferred to three new numbered companies due to the pending
expiry of the 21-year period from the date of creation of one of the family
trusts. There is no dispute that this was required by tax laws. The dispute
arises from the corporate arrangements established, into which the trust assets
were transferred.
[8]
Ms. Hevey and Mr. and Ms. Heveys two sons owned special or preferential
shares in the three numbered companies. However, PMP Trust, of which Mr. Hevey
was the sole beneficiary, owned the only common, or growth share, in each of
the three numbered companies. According to Ms. Hevey, Mr. Hevey thereby was the
beneficiary of all the family assets, except for one half interest in the
matrimonial home. She notes that when she raised Mr. Heveys interest in PMP
trust through counsel in July 2009, Mr. Hevey emailed her stating that her
lawyers [
sic
] concern about PMP trust is without merit, as the one
common share held by PMP has absolutely no value and that [t]he boys control
the corporation. Ms. Hevey claims that she relied on Mr. Heveys
representations about his financial situation and his representations that he
was making all efforts to ensure she and the children benefited from the family
assets.
[9]
In response to Ms. Heveys application for equalization and spousal
support, Mr. Hevey brought a motion for summary judgment under r. 16 of the
Family
Law Rules
, O. Reg. 114/99 [
FLR
], dismissing Ms. Heveys
application. He argued that the limitation period set out in s. 7(3) of the
FLA
had long expired and that he and Ms. Hevey had agreed not to pursue
equalization or spousal support at the time of their divorce. The test,
summarized by this court in
Ramdial v. Davis
, 2015 ONCA 726, 68 R.F.L.
(7th) 287, at paras. 27-31, required the motion judge to ascertain whether
there was a genuine issue for trial. At the time Mr. Hevey brought the motion,
he had not filed an answer to Ms. Heveys application or a financial statement
as required by the
FLR
.
B.
Issues on Appeal
[10]
The
issues are whether the motion judge erred by
·
allowing Mr. Heveys motion for summary judgment when Mr. Hevey
had not served an answer as required by r. 16 of the
FLR
; and
·
misinterpreting and misapplying s. 2(8) of the
FLA
.
C.
Decision Below
[11]
The
motion judge granted summary judgment against Ms. Hevey, dismissing her
application. Before addressing the motion directly, he spoke to Ms. Heveys
argument that he did not have the authority to consider the motion when Mr.
Hevey had not yet filed an answer and financial statement as required by r.
16(1) of the
FLR
. The motion judge referred to an endorsement from
September 12, 2019, which stated that Mr. Hevey was not required to file an
answer or sworn financial statement pending determination of the summary
judgment motion. Citing Ms. Heveys counsels lack of concern with that
endorsement and his conduct afterward, he found that the parties had agreed to
proceed without the filing of an answer.
[12]
The
motion judge noted that, in any event, the primary objective of the rules was
to ensure the court can deal with cases justly and to mandate a process that is
fair, efficient, and appropriate given the importance and complexity of the
issues. He stated that an answer would have done little to enhance Mr. Heveys
position and that the record was sufficient to deal with the merits of the
motion. The motion judge was puzzled as to why Ms. Hevey, if she had procedural
concerns before, did not raise them prior to consenting to the timetables and
foregoing cross-examinations.
[13]
Proceeding
to the merits of the motion, the motion judge noted that Ms. Heveys claim for
equalization was statute-barred under s. 7(3) of the
FLA
. To revisit
the issue of equalization, Ms. Hevey needed to satisfy the conditions under s.
2(8) of the
FLA
, which permits the court to extend a time prescribed
by the
FLA
if it is satisfied that there are apparent grounds for
relief, relief is available because of delay that has been incurred in good
faith, and no person will suffer substantial prejudice by reason of delay.
[14]
The
test for summary judgment is whether there is a genuine issue requiring a
trial:
Hryniak v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87.
[15]
The
motion judge considered the evidence before him, which was that the
equalization claim was statute-barred; the parties were represented by
experienced counsel when they decided to forego equalization; financial
disclosure was exchanged in relation to that decision; Ms. Hevey was a savvy
business-person and had run her own family company for years; Ms. Hevey had
access to her own accounting and legal professionals; Ms. Hevey was directly
involved with and had knowledge of Mr. Heveys finances and that of the trusts;
and the correspondence from 2008-2009 during their negotiations addressed the
issues Ms. Hevey now raised. The motion judge found no evidence of an intention
to mislead, no evidence of fraud, and no evidence that Mr. Hevey acted in bad
faith. He also found that the documents Ms. Hevey relied on lacked context and
could not be fully attributed. The motion judge observed that the parties
settled their affairs, motived by a desire for finality so that they could move
on with their lives.
[16]
Lastly,
the motion judge addressed the issue of spousal support. The parties made only
limited submissions on spousal support and, in any case, those issues had been
settled over 10 years earlier and there was no evidence of fraud. The motion
judge concluded that there was no genuine issue requiring a trial.
D.
Discussion
[17]
For
reasons that follow, I would allow the appeal.
[18]
As
Iacobucci and Major J.J., writing for the majority, noted in
Housen v.
Nikolaisen
, 2002 SCC 33, [2002] 2 S.C.R. 235, the standard of review on a
pure question of law is correctness: at para. 8. Questions of mixed fact and
law, which involve applying a legal standard to a set of facts and which lie
along a spectrum, are usually subject to the more stringent standard of
palpable and overriding error:
Housen
,
at paras. 26, 36-37.
[19]
Here,
the motion judge fell into reversible error by permitting the respondent to
proceed with his summary judgment motion despite not having filed an answer to
the appellants application as required by r. 16 of the
FLR
. In
addition, he fell into error by misinterpreting and misapplying s. 2(8) of the
FLA
,
which sets out the conditions to be applied by the court in considering whether
an extension of time prescribed by the
FLA
should be granted.
(1)
Did the motion judge err by allowing the summary judgment motion to
proceed in the absence of an answer?
[20]
Given
the language of r. 16 of the
FLR
and the importance of disclosure in
family law and in light of the opacity of Mr. Heveys financial arrangements,
the motion judge made a palpable and overriding error in concluding that an
answer was not required before proceeding with the summary judgment motion.
[21]
Summary
judgment is governed by r. 16 of the
FLR
.
[22]
Rule
16(1) specifically provides that summary judgment is available
after
the respondent has served an answer:
WHEN AVAILABLE
16. (1) After the
respondent has served an answer or after the time for serving an answer has
expired, a party may make a motion for summary judgment for a final order
without a trial on all or part of any claim made or any defence presented in
the case.
[23]
The appellant says that this rule is mandatory and that the appeal
should be allowed on this basis alone. The respondent states that the
appellants counsel did not raise any concerns about the motion judges order
dispensing with the requirement that the respondent file an answer prior to the
hearing of the summary judgment motion. In his reasons, the motion judge made a
similar comment, stating that [a]s I recall it, Applicant[s] counsel did not
object to this nor did he raise any concerns.
[24]
The
appellants concern was, however, raised before the motion judge at the
scheduling hearing. In response to a question from the motion judge as to
whether granting an order dispensing with the request to file an answer before
the summary judgment hearing would prejudice Ms. Hevey, the appellants lawyer
stated that he was not agreeing to such an order but that it should be left to
the judge hearing the summary judgment motion. The motion judge wrote an
endorsement dispensing with the requirement that Mr. Hevey file an answer and
financial statement, and the summary judgment hearing proceeded on March 6,
2020, on that basis.
[25]
With
respect, the motion judge erred in permitting the summary judgment motion to
proceed to hearing in the absence of an answer and financial statement from Mr.
Hevey.
[26]
As
this court held in
Frick v. Frick
, 2016 ONCA 799, 132 O.R. (3d) 321,
at para. 11, [t]he
Family Law Rules
were enacted to reflect the fact
that litigation in family law matters is different from civil litigation
They
embody a philosophy peculiar to a lawsuit that involves a family. Part of that
philosophy is the recognition that [t]he most basic obligation in family law
is the duty to disclose financial information:
Roberts v. Roberts
,
2015 ONCA 450, 65 R.F.L. (7th) 6, at para. 11.
[27]
Here,
the appellants position was that she had received inadequate disclosure
initially. She put forward some evidence to substantiate her claim in
particular, the roughly contemporaneous $0 sworn net family property statement
and the May 2008 bank disclosure asserting that the respondent had assets in
excess of $21 million, which she stated she never saw until 2019.
[28]
Mr.
Hevey insists that, as a sophisticated business woman who ran her own business,
had been a trustee of the trusts, and was a preferential non-voting shareholder
in one of the companies, Ms. Hevey understood exactly how his financial affairs
were managed and what his interests were at the time. He says she also knew
that his net worth vacillated as he bought and sold properties, and, in
addition, that times were especially bad in December 2008 following the
financial crash in the fall of 2008.
[29]
In
my view, and without deciding whether an answer is always needed, an answer was
needed here as required by the rules. Specifically, the answer would have been
accompanied by a new sworn financial statement upon which Mr. Hevey could have
been cross-examined. Cross-examinations, particularly about the nature of the respondents
interest in the PNP trust could in fact be very helpful in this case. In their
absence, the respondents affidavits could rely upon the complexity of the corporate
arrangements and the PNP trust to skirt what might be, and might have been, a
significant beneficial interest. For example, a cross examination on a
financial statement might include a question such as Despite not being a
shareholder, have you received any benefit in any form from the trust, which
holds your common shares in the corporations? At the same time, the motion
judge may have been inferring from the fact that neither party sought to
cross-examine the other on the sworn affidavits that were in evidence that
there would also not have been cross-examinations on a sworn financial
statement.
[30]
The
requirement for both parties to provide financial statements at the outset is
closely related to the importance of disclosure in family law proceedings, a
particularly salient principle in the present case. This court has repeatedly
emphasized this point in recent years, and it has been recently emphasized in
the Supreme Court of Canada decision in
Colucci v. Colucci
, 2021 SCC
24, 458 D.L.R. (4th) 183
.
[31]
While
the respondent argues that the appellant waived equalization, the record
suggests that she merely did not pursue it at that time. There was no written
waiver or domestic contract. In support of his argument that the appellant was
sophisticated, knew all the arrangements, and had access to all the financial
information, the respondent provided a letter. This letter dated December 17,
2008, from his lawyer Donald Kilpatrick to Ms. Heveys lawyer, sets out the
general structure of the family assets and the roll-over of the trust assets to
the three numbered companies. It also mentions that Mr. Hevey was not a
shareholder of any of the companies, going on to state that PNP trust did own a
common share in each one and that Mr. Hevey is the beneficiary of the PNP
trust.
[32]
The
evidence about what Ms. Hevey understood about the new corporate structure into
which the trust assets were moved is very conflicting. Mr. Hevey states that
she had open access to Brian Chapman, the commercial lawyer who made the
arrangements. Ms. Hevey states that at one point Mr. Hevey called her and said,
I dont have anything but if you dont believe me then talk to Brian Chapman.
She also states that she never had independent legal advice on these issues and
that Mr. Chapman was effectively Mr. Heveys own commercial lawyer. She also
points to other contemporary correspondence she learned about later suggesting
that while Mr. Hevey was being kept out of the limelight, he was retaining
the control of the companies.
[33]
Against
this backdrop is the May 2008 statement to a bank in which Mr. Hevey disclosed
assets of approximately $21 million. There may well be good explanations for
the disparity between this amount, the $0 amount on his December 2008 financial
statement, and the fact that he did not disclose any beneficial interest in PNP
or any other corporate interests. In the absence of an answer and sworn
financial statement, Ms. Hevey was at a significant disadvantage in the course
of this summary judgment motion where she was required to put her best foot
forward.
[34]
Suggesting
that she could have cross-examined Mr. Hevey misses the mark. It is up to the
party with the assets to make the disclosure and the valuation of assets.
According to the Ontario family law regime, and as already stated, financial
disclosure is a paramount consideration. That also applies to a summary
judgment motion such as this one. Moreover, it is not up to the claimant to
ferret out information, as the appellant put it, about income and assets from
the other party
.
Although, in
Colucci
, the Supreme Court was
dealing with retroactive child support, the same imperatives apply when dealing
with issues of retroactive spousal support, namely that courts must encourage
proactive financial disclosure and in no way reward those who improperly
withhold, hide or misrepresent information they ought to have shared: at para.
54.
[35]
There
is nothing in the record that presents any valuation of the common shares of
any of the companies at the time of Mr. Heveys December 2008 financial
statement. Nor is there anything in his financial statement that disclosed his
beneficial interest in the three companies.
[36]
A
continuing theme in Mr. Kilpatricks letter was that the respondent was
considering claiming equalization and spousal support from the appellant. This
suggests that her understanding at the time was that Mr. Hevey had little or
nothing in the way of assets and that she decided to not pursue any claims to
pre-empt him from claiming anything from her. There is nothing in the record to
indicate that Mr. Hevey had produced any valuation of his beneficial interest
in the PNP trust at the time. Ms. Heveys evidence is that he had not, and that
she did not understand the nature of his interests in the companies.
[37]
In
short, in my view, the motion judge fell into palpable and overriding error in
dispensing with the requirement that the respondent file an answer and
financial statement, as required by r. 16 of the
FLR
, before
proceeding with a summary judgment motion in these circumstances.
(2)
Did the motion judge err in interpreting and applying s. 2(8) of the
FLA
?
[38]
The
motion judge reasoned that summary judgment was available to dismiss the
appellants claims largely because the limitation period for equalization
claims set in the
FLA
had long expired.
[39]
Section
2(8) of the
FLA
provides:
The court may, on motion, extend a time prescribed by
this Act if it is satisfied that,
(a) there are apparent grounds for relief;
(b) relief is unavailable because of delay that has
been incurred in good faith; and
(c) no person will
suffer substantial prejudice by reason of the delay.
[40]
Each
of the requirements must be met as a pre-condition to granting the relief:
Vivier
v. Vivier
, 5 R.F.L. (3d) 450 (Ont. Dist. Ct.). The relief is not the
extension of time but the relief claimed under the
FLA
such as
equalization:
Scherer v. Scherer
(2002), 59 O.R. (3d) 393 (Ont. C.A.),
at para. 16. In determining whether apparent grounds for relief exist, the
court may make a limited inquiry into the merits of the proposed claim. The
question to be answered is [b]ut for the limitation period that acts as a bar,
are there apparent grounds to support the claim?: see
Werth v. Werth
,
2004 ONCJ 43, at para. 14. The relief must be unavailable because of a delay
that has been incurred in good faith. The good faith requirement requires the
applicant for an extension to show that they acted honestly and with no
ulterior motive:
Hart v. Hart
(1990), 27 R.F.L. (3d) 419 (Ont.
U.F.C.), at p. 432. Lastly, it must be demonstrated that no person will suffer
substantial prejudice by reason of the delay. The mere showing of prejudice is
not sufficient; rather, it must be demonstrated that the prejudice will be
substantial. Generally, the length of time occasioned by the delay is a factor,
along with the extent to which the responding party has rearranged their
financial affairs: see e.g.,
Douthwaite v. Douthwaite
(1997), 32
R.F.L. (4th) 90 (Ont. Gen. Div.).
[41]
With
respect, the motion judges reasons do not interpret and apply s. 2(8) of the
FLA
correctly.
[42]
First,
the motion judge erred in his interpretation of s. 2(8)(b), which refers to the
delay incurred in good faith. This clearly refers to the delay occasioned by
the party claiming the extension:
Hart
, at p. 432. However, the motion
judge appears to have focussed on whether the appellant had established fraud
on the part of the respondent. At para. 10, he notes:
More than that, however, [namely,
the fact that she was at the relevant time, in the loop so to speak and kept
up to speed on all issues relating to the trusts] while recognizing that
limitation periods can be extended and that
an established fraud would
indeed allow one to revisit these issues
.[Emphasis added].
[43]
This
articulation holds the appellant up to a higher standard for revisiting the
limitation period than s. 2(8) sets out. Specifically, while s. 2(8) only
requires apparent grounds for relief, unavailability of relief because of delay
that has been incurred in good faith, and no substantial prejudice, the motion
judges statement at para. 10 suggests that he was holding the appellant to a
standard of established fraud before revisiting the limitation period
question. There is no authority to support that interpretation, and it is not
consistent with the clear wording of the provision.
[44]
Second,
the motion judge fell into palpable and overriding error in inferring that Ms.
Hevey knew or ought to have known all information about the trusts and the
corporations.
[45]
The
appellants evidence explaining the delay is that she began her claim after
receiving information in 2019 indicating that the respondent had been in a much
stronger financial position in the period leading up to the application for
divorce than he had led her to believe. If true, this explains her delay. As I
have indicated earlier in these reasons, the appellant was not in a position to
put her best foot forward in the summary judgment motion because Mr. Hevey
had not filed an answer and financial statement.
[46]
A
related concern is the motion judges inference, as argued by the respondent
both below and in this court, that because the appellant had book-keeping
experience and access to some (though not all) of the trust information, she
understood the complexity and consequences of the corporate and trust
arrangements. In my view, it was unfair to infer that the appellant did
understand all this at the time. She does not appear to have received
independent legal advice concerning the structure of the new corporations and
the PNP trust, although she was represented by an experienced family lawyer.
Again, given the absence of a clear written agreement between the parties, the
record before this court might have supported the inference that she did not
understand the arrangements, whether as a result of a lack of disclosure,
misrepresentation, or other factors. As already mentioned, the record includes
the letter from Mr. Kilpatrick referred to above clearly indicating that Mr.
Hevey was considering claiming spousal support and equalization from Ms. Hevey
as well as the evidence of the discrepancy between the $0 on the respondents net
family property statement and the bank statement earlier in 2008 that his net
worth was $21 million.
[47]
These
determinations relate both to the explanation for Mr. Heveys delay and to her
good faith and could not be made on a summary judgment motion, at least in the
absence of an answer by the respondent, which undermined her ability to put her
best foot forward.
[48]
Finally,
this was not simply a claim for equalization but also a claim for spousal
support which is not subject to the same limitation period. There is no
discussion of this point. It may well be that Ms. Heveys claim for spousal
support would not be strong. That said, the circumstances of disclosure in
December 2008 and the question as to whether the respondent did mislead the
appellant are material issues that would be very relevant to whether Ms. Hevey
could have been entitled to spousal support. That could not be determined in
this summary judgment motion.
E.
Disposition
[49]
For
the foregoing reasons, I would allow the appeal and remit the matter to trial,
without prejudice to the right of the parties to bring a fresh motion for
summary judgment in accordance with these reasons. Costs are payable by the
respondent to the appellant for this appeal in the amount of $15,000.
Released: October 21, 2021 K.F.
Harvison Young J.A.
I agree. K. Feldman
J.A.
I agree. Thorburn
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Robertson (Re), 2021 ONCA 737
DATE: 20211021
DOCKET: C69116
Paciocco, Nordheimer and Thorburn JJ.A.
IN THE MATTER OF: James Robertson
AN APPEAL UNDER PART XX.1 OF THE
CODE
James Robertson, acting in person
Mercedes Perez, appearing as
amicus curiae
Molly Flanagan, for the respondent, Attorney General of
Ontario
James P. Thomson and Julia Lefebvre, for the respondent,
Person in Charge of Waypoint Centre for Mental Health Care
Heard: October 15, 2021 by video conference
On appeal from the disposition of the Ontario Review
Board, dated October 22, 2020, with reasons dated November 13, 2020.
REASONS FOR DECISION
[1]
Mr. Robertson appeals from the disposition of the Ontario Review Board
that continued the detention order against him. The appellant submits that the
Board erred in not awarding an absolute discharge. In the alternative, the
appellant submits that the Board erred in not allowing him to transfer to a
less secure psychiatric facility. For the following reasons, the appeal is
dismissed.
[2]
The appellant has been under the auspices of the Board since October 2007
when he was found not criminally responsible (NCR) with respect to offences
of criminal harassment and invitation to sexual touching.
[3]
At this most recent review, the Board found that the appellant continues
to pose a significant threat to the safety of the public. There was a solid
evidentiary foundation for that conclusion. Indeed, all of the expert evidence
before the Board supported that conclusion. Given this solid evidentiary
foundation, it was reasonable for the Board to have concluded that the appellant
remains a significant threat to the safety of the public. This is sufficient to
dispose of the request for an absolute discharge.
[4]
The Board heard from the appellants attending physician. It is fair to
say that, while the concerns regarding the conduct of the appellant were
originally based in inappropriate sexual contact, those concerns have largely
ameliorated as the appellant has grown older. The appellant is currently
sixty-six years old. However, concerns regarding the appellants generally aggressive
and threatening behaviour continue. The appellants psychiatrist testified
before the Board that, as recently as the weekend before, the appellant had
threatened staff.
[5]
The Board also heard from Dr. Phillip Klassen, who had been retained to
provide an independent psychiatric assessment. Dr. Klassens assessment was
limited, however, as the appellant refused to meet with him. Nevertheless,
based on a review of the appellants history, Dr. Klassen agreed that the
appellant continues to pose a significant threat. Dr. Klassen assessed the
appellant as having a high risk of general/violent recidivism. Of importance to
the appellants request to transfer to a less secure psychiatric facility, Dr.
Klassen said that, given the appellants past conduct, especially his conduct
towards females, it made sense for the appellant to remain on an all-male unit.
That requirement restricts the psychiatric facilities to which the appellant
could be transferred as not all such facilities have all-male units.
[6]
Dr. Klassen also noted that he was unable to determine to what degree
the appellants ongoing aggressive conduct is related to his unhappiness with
being at Waypoint, as opposed to his high score on the appraisal test for
recidivism. The appellant views his continued detention at Waypoint as being an
injustice.
[7]
The Board concluded that this was not the appropriate time to consider
allowing the appellant to transfer to a less secure psychiatric facility. In
particular, the Board declined to allow the appellant to transfer to the two
facilities that he proposed because neither of those facilities has an all-male
unit.
[8]
The Board acknowledged the positive strides that the appellant had made
in the last year. However, the Board concluded that the appellant should remain
at Waypoint to determine if those positive strides will continue. The Board
appears to be alert to the concerns that arise from the appellants continued
detention at Waypoint as a high security facility and also appears to be open
to a transfer to a less secure facility, in the future, if the appellant
continues to improve.
[9]
Given the evidence, and the ongoing conduct of the appellant, the
Boards conclusion was a reasonable one. It is entitled to deference from this
court. We have no basis to interfere with it, especially since the Board is alive
to the concerns about the appellants continued detention at Waypoint and to
the possibility of a transfer in the future. Also, the appellants increasing
age will be a factor in determining whether his aggressive behaviour remains a
concern.
[10]
Before
concluding, we address two other points. One is the appellants reliance on the
Universal Declaration of Human Rights
, G.A. Res. 217 A (III), U.N.
Doc. A/810, at 71 (1948), s. 5, s. 8 and the oath of Queen Elizabeth II. As
important as these documents are, the principles they describe do not govern
this appeal. The provisions of Part XX.1 of the
Criminal Code
set out
the law that must be applied, and the Board decision properly applies those
provisions. Nor has the appellant satisfied us that any provisions of the
Canadian
Charter of Rights and Freedoms
have been violated.
[11]
The
other is the attempt by the appellant to file what he called fresh evidence. While
we have looked at the material that the appellant filed in this regard, we have
not considered that material in coming to our conclusion. The will say
statements set out in that material are not evidence. They are hearsay. The
appellants last-minute request to have unidentified witnesses testify for the
first time on appeal came too late. More importantly, the issue before us
relates to the reasonableness of the Boards decision. The reasonableness of that
decision must be judged based on the evidence that was before the Board at the
time. Therefore, the material offered does not satisfy the well-established requirements
for admission as fresh evidence:
Palmer v. The Queen
, [1980] 1 S.C.R.
759.
[12]
The
appeal is dismissed.
David M. Paciocco
J.A.
I.V.B. Nordheimer
J.A.
J.A. Thorburn J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Foxgate Developments Inc. v. Jane Doe, 2021
ONCA 745
DATE: 20211006
DOCKET:
M52714, M52762 & M52781
(C68873)
Coroza J.A. (Motion
Judge)
BETWEEN
Foxgate Developments
Inc.
Plaintiff
(Respondent/Responding Party)
and
Jane Doe, John Doe,
Skyler
Williams
, or any agent or person acting under their instructions, and other
persons unknown, and
the Corporation of Haldimand County
Defendants
(
Appellant
/
Respondent
/
Responding Party
)
and
Attorney General of
Canada and Her Majesty the Queen in Right of Ontario
Third Parties
(Respondents)
Barry L. Yellin, for the appellant Skyler Williams
Paul DeMelo and Kristie Jennings, for the responding
party Foxgate Developments Inc.
Bruce A. Macdonald, for the responding party Corporation
of Haldimand County
Richard Ogden and James Shields, for the respondent Her
Majesty the Queen in Right of Ontario
Mary Eberts and Jillian Rogin, for the proposed
intervener 1492 Windsor Law Coalition
Caitlyn E. Kasper and Jonathan Rudin, for the proposed
intervener Aboriginal Legal Services
Cara Zwibel, for the proposed intervener Canadian Civil
Liberties Association
Heard: September 22, 2021 by video conference
REASONS FOR DECISION
Overview
[1]
1492 Windsor Law Coalition (1492 WLC) (M52762), Aboriginal Legal
Services (ALS) (M52714), and the Canadian Civil Liberties Association (CCLA)
(M52781) have brought motions for leave to intervene as a friend of the court,
pursuant to r. 13.02 of the
Rules of Civil Procedure
, R.R.O. 1990,
Reg. 194, in an appeal from an order of the decision of Harper J. (the motion
judge) of the Superior Court of Justice.
[2]
The order under appeal struck out the appellants pleadings on an
injunction brought by Foxgate Developments Inc. (Foxgate) and the Corporation
of Haldimand County (Haldimand). The motion judge found the appellant had
engaged in an abuse of process due to the appellants self-admitted contempt of
court. The appellant also seeks leave to appeal the costs decision of the motion
judge, which directed the appellant to pay Foxgate and Haldimand substantial
costs.
[3]
During the proceedings below, the appellant also brought a Notice of
Constitutional Question and Third-Party Claim against Canada and Ontario. Both
Canada and Ontario are third parties in the appeal.
[4]
The appeal was perfected by the appellant on February 23, 2021. All the
materials by the parties involved in the appeal were filed by the end of July.
The appeal is scheduled to be heard on October 26, 2021.
[5]
Foxgate and Haldimand are opposed to the motions. Canada takes no
position on any of the motions to intervene. Ontario consents to the motions to
intervene by the CCLA and ALS and takes no position on 1492 WLCs motion.
[6]
In determining these motions, I must consider the general nature of the
case, the issues that arise in the case, and
the
contribution that the proposed intervener can make to resolving those issues
without doing an injustice to the parties
:
Jones v. Tsige
(2011), 106 O.R. (3d) 721 (C.A.), at para. 22;
Peel (Regional Municipality)
v. Great Atlantic & Pacific Co. of Canada Ltd.
(1990), 74 O.R. (2d)
164 (C.A.), at p. 167.
[7]
I am also mindful that where an appeal involves a private dispute rather
than public law, the proposed intervener must meet a stringent standard:
Tsige
,
at para. 23.
Nature of the Case
[8]
Foxgate owns a development site that is located on land that is the
subject of an ongoing and long-standing land dispute between Six Nations,
Canada, and Ontario. The appellant, Skyler Williams, argues that this site is
unceded Six Nations land and since July 2020, a group of Indigenous
individuals and their supporters has occupied the site.
[9]
Foxgate and Haldimand County obtained interlocutory injunctions against
the individuals occupying the site and also those demonstrating in surrounding
streets.
[10]
On
August 25, 2020, the motion judge added the appellant as a defendant in the proceeding.
The motion judge extended the interlocutory injunctions to October 9. The
appellant filed a statement of defence.
[11]
At
the October 9 hearing, the appellant admitted he was in contempt of court and in
breach of the interlocutory orders. He also stated that he would remain in
contempt of court and would continue to occupy the site. At this hearing, it
became clear that the appellant had also tried to serve the Crown (i.e., Canada
and Ontario) on September 18, but the documentation was not in the proper form
and had been rejected by the court.
[12]
In
a written endorsement dated October 16, 2020, the motion judge ruled that he
would not permit the appellant to proceed against Canada and Ontario while the
appellant was not in compliance with the courts orders. However, he directed
that if the appellant did comply with the orders of the court and vacate the
subject lands, he could reinstate himself and fully participate in the
proceedings. The matters were adjourned to October 22, 2020.
[13]
The
appellant then issued a Third-Party Claim on October 20, 2020 and served a
Notice of Constitutional Question pursuant to the
Rules of Civil Procedure
and
the
Courts of Justice Act, R.S.O. 1990, c. C.43
.
[14]
At
the October 22 hearing, the motion judge asked the appellant if he would comply
with permanent injunctions if the court ordered that relief in favour of
Foxgate and Haldimand. The appellant stated that his position had not changed.
[15]
The
motion judge then stated again that the appellant was engaged in an abuse of
process and that the appellant was still in contempt of court. He then ordered
that the appellants pleadings be struck. The motion judge then heard
submissions from Foxgate and Haldimand County on the request for permanent
injunctions and he granted those injunctions. Finally, the motion judge fixed
and ordered costs against the appellant on a substantial indemnity scale to
Foxgate at $117,814.18 and to Haldimand at $49,470 (plus HST).
Issues that Arise on Appeal
[16]
I
have reviewed the factums filed by the parties on the appeal. The appellant
asks that this court set aside the final orders made by the motion judge so
that the injunction motion can be reheard in the Superior Court with him as a
party and on their merits. The appellant also seeks leave to appeal the cost
orders.
[17]
First,
the appellant argues that, in arriving at the decision to strike his pleadings
and terminating his further participation in the action against him, the motion
judge failed to afford him procedural fairness.
[18]
Second,
the appellant submits that the court also failed to consider certain principles
that ought to apply in cases concerning civil remedies that are levied against
Indigenous parties. Specifically, the appellant argues that the motion judge
ought to have considered the
Gladue
sentencing principles before he
struck the pleadings.
[19]
Finally,
the appellant argues that, before striking the appellants pleadings, the motion
judge ought to have considered:
·
whether, by its own admission, the courts impartiality had been
diminished;
·
whether
amicus curiae
ought to have been appointed for
the appellant, given that the appellant had supposedly engaged in contumacious
behaviour that had not been purged;
·
whether the principles of abuse of process ought to have been
conflated with contempt of court;
·
whether the prosecution of the appellants contempt ought to have
been referred to the Attorney General to avoid the court taking on a dual role;
·
given that a finding of contempt was made on the courts own motion,
whether the hearing ought to have been held in accordance with the principle of
strictissimi juris
, which it was not; and, among other things,
·
whether certain considerations ought to have been afforded to the
appellant, since he is Indigenous, and had properly commenced a Third-Party
Claim against the Crown and had served a Notice of Constitutional Question.
[20]
The
appellant will also argue that the order made by the motion judge, directing
that the appellant pay over $168,000.00 in legal costs, was exorbitant. He
contends that it is based on an error in principle or is otherwise plainly
wrong.
Proposed Contributions
Submissions of 1492 WLC
[21]
1492
WLC is a grassroots coalition of students (Indigenous, non-Indigenous,
settlers, immigrant settlers) and professors at the University of Windsor,
Faculty of Law. 1492 WLC came together in the Fall of 2020 in response to the
call to action issued by land defenders at 1492 Landback Lane, a land
reclamation action undertaken by the appellant and many other Haudenosaunee and
non-Haudenosaunee people. 1492 WLC has worked to provide accessible public
legal information and research related to the reclamation, media support, court
support, solidarity statements, and solidarity event organizing.
[22]
1492
WLC argues that it would make a useful contribution by intervening in order to
examine the ways in which settler colonialism in Canada has influenced the
place of Indigenous peoples and legal orders in Canadian law, and to explore
the ways in which the injunction remedy has been shaped by this influence. 1492
WLC would argue that Indigenous Legal Orders should form part of the rule of law.
1492 WLC asserts that the rule of law has been raised in the appeal and is not
a new legal issue.
[23]
1492
WLCs 21-page draft factum addresses the appropriateness of an injunction
remedy in the context of land protest cases by Indigenous persons. 1492 WLC
submits that, if this court on appeal should decide that errors by the motion
judge require the injunction to be set aside and a new proceeding ordered, this
court should provide guidance on various procedural and substantive matters to
the court rehearing the matter.
[24]
1492
WLC seeks to file a 20-page factum and be given 20 minutes of oral submissions.
They also seek that no costs be awarded for or against them.
Submissions of ALS
[25]
ALS
is a multi-service legal agency that provides services to the Indigenous
community in Ontario. ALS expertise arises from its direct work with and on
behalf of Indigenous communities. This expertise has been recognized both in
courtrooms and in other arenas. Over the past thirty-one years, ALS has worked
to convey Indigenous perspectives in justice-related matters. ALS has been
granted intervener status in 26 Supreme Court cases and participated in at
least 18 cases at this court, either as an intervener or as counsel to the
accused.
[26]
ALS
submits that the issues raised in this appeal will directly impact their
clients and the Indigenous community members who face contempt of court due to
asserting their s. 35 rights in a dispute where injunctive relief has been
granted. According to ALS, there is a need for this court to hear from the
broader Indigenous community, not just that of the appellant.
[27]
ALSs
20-page draft factum highlights the following issues raised by this appeal. ALS
submits that it can provide a distinct perspective on these three issues without
expanding the scope of the appeal:
1.
The breadth of the analytic framework necessary to determine an
application for injunction against members of an Indigenous community when s.
35 interests are engaged;
2.
Why every effort must be made by the court to encourage the resolution
of competing rights and interests; and
3.
The approach in treatment of an Indigenous contemnors participation in
court proceedings when contempt has not been purged.
[28]
ALS
seeks to file a 20-page factum and be given 20 minutes of oral submissions.
They also seek that no costs be awarded for or against them.
Submissions of the CCLA
[29]
The
CCLA is a leading national, independent, non-profit, and non-governmental
organization dedicated to the furtherance of civil liberties across Canada. It
was formed with the objective of promoting and advancing respect for and
observance of fundamental human rights and civil liberties. In recognition of
its important role, the CCLA has frequently been granted intervener status
before courts, including this court.
[30]
The
CCLA has substantial expertise in the areas of protecting and promoting
fundamental freedoms, including freedom of expression, peaceful assembly, and
association. The CCLA has frequently been involved in litigation and policy
debates implicating the right to protest and considering the permissible nature
and scope of state conduct in relation to protest activities, including work
focused on the special considerations relevant to protests involving Indigenous
people.
[31]
The
CCLA argues that its submissions will assist the court in placing the appeal in
a broader context and address points that are distinct from those raised by the
parties or other proposed interveners.
[32]
The
CCLAs 16-page draft factum makes the following three submissions that, it
submits, provide a distinct perspective that does not expand the scope of the
appeal:
1.
A finding of
contempt requires that the alleged contemnor be afforded meaningful due
process;
2.
Amicus curiae
should be appointed in requires for
ex parte
injunctive relief that significantly engage constitutional rights; and
3.
The need to consider systemic racism and discrimination before denying a
litigant an opportunity to be heard and sanctioning the individual with a large
costs award.
[33]
The
CCLA seeks to file a 20-page factum and be given 20 minutes of oral
submissions.
Prejudice
[34]
An
overarching concern is prejudice to the parties in the appeal due to the timing
of these motions. The proposed interveners have waited a long time to bring
these motions given that the appeal was perfected on February 23, 2021. If the
court were to grant leave to intervene, the respondents would only have a brief
period of time to provide responding submissions. Although this concern is
somewhat alleviated because all of the proposed interveners served draft factums
in late July and early August when they brought their motions for leave to
intervene, the reality is that the proposed intervention has been brought late
in the day. I am of the view that there are legitimate concerns regarding
prejudice from the late filing of motions approximately six weeks before an
appeal that was perfected on February 23, 2021. If intervention is granted,
materials would have to be produced to respond to the interventions. An intervention
of this nature is meant to assist the court. The assistance can be
significantly diminished when five additional factums
[1]
are being filed at the last minute:
Foster v. West
, 2021 ONCA 263, 55
R.F.L. (8th) 270, at para. 18.
[35]
Foxgate
and Haldimand argue that most of the submissions the proposed interveners seek
to make are not relevant to the narrow procedural issue which is the subject
matter of the appeal and that they will be prejudiced by the inordinate delay and
increased costs that will be caused by the proposed interveners attempts to add
substantial new arguments and issues not raised by the parties.
[36]
Foxgate
especially opposes 1492 WLCs intervention because, it argues, that 1492 WLC
has no standing as an unincorporated association to intervene, and 1492 WLCs
intervention is inappropriate, given that 1492 WLC has provided support and
legal advice to the appellant throughout the proceedings.
Discussion
[37]
I
do not think it can be seriously argued that all three proposed interveners
have expertise with a distinct perspective of this case. The primary
consideration on this motion is an assessment of the contribution that each
proposed intervener can make to the issues raised by the appellant without
doing an injustice to the parties.
[38]
The
submission made by Foxgate and Haldimand that the appeal is limited to whether
any individual, whether an Indigenous person or a non-Indigenous person who is
in contempt of the Court on their own admission is to be afforded the ability
to advance their own claims and interests before the Court against others in
the same proceedings is an overly simplistic characterization that is devoid
of context. While it is true that the appeal does not relate to the merits of
the granting of interim or permanent injunctions against the appellant and does
not relate to the constitutionality of injunctions in relation to First
Nations claims or contempt in First Nations cases generally, the striking of
the appellants pleadings must be viewed in the context of the fact that it was
an injunction proceeding that brought the appellant before the Superior Court
of Justice.
[39]
Although
the nature of this case is a private dispute, and a stricter onus has been applied
to interventions in private disputes, the issues raised in this appeal involve
broader public policy considerations that transcend the dispute between the
immediate parties. This court has held that the more onerous threshold may be
softened somewhat where issues of public policy arise:
Tsige
, at
para. 23, citing
Childs v. Desormeaux
(2003), 67 O.R. (3d) 385 (C.A.),
at paras. 3, 10;
Huang v. Fraser Hillarys Limited
, 2018 ONCA 277,
at para. 5. While it is true this is not a case that directly involves s. 35 of
the
Constitution Act, 1982,
in his factum, the appellant, who is
Indigenous, will argue that the rule of law has many dimensions, including
respect for minority rights, reconciliation of Aboriginal and non-Aboriginal
interests through negotiations, and fair procedural safeguards. In my view, the
appellant does raise the important public policy issues in his factum about
whether the assertion of collective interests by an Indigenous person impacts
the appropriateness of a decision to strike pleadings for abuse of process from
contempt.
[40]
That
said, all of these public policy issues are addressed in the appellants
factum. Furthermore, the specific remedy sought by the appellant from this
court is for the motion judges orders to be set aside so that he can
meaningfully participate in a rehearing that will determine Foxgate and
Haldimands request for a permanent injunction. Given the general nature of the
case and the issues that arise in the appellants factum, I must assess the
contribution that the proposed interveners can make to those issues and also
keep in mind the arguments relating to prejudice advanced by Foxgate and Haldimand.
1492 WLC
[41]
In
my view, 1492 WLC should not be granted intervener status in this case because they
will not make a useful contribution without prejudicing the parties. Their
draft factum solely addresses the appropriateness of a permanent injunction in
the context of land protests by Indigenous persons. Although the context of an
injunction proceeding is important, this issue is not before the court and it
expands the record in a way that is prejudicial to the parties. The parties
would be required to address a new issue so that this court can give potential
guidance to the court below relating to permanent injunctions if it is sent
back for a rehearing. In my view, if this court does send the case back for a
rehearing, it is open to 1492 WLC to seek intervention status for that hearing.
[42]
In
light of my decision to deny 1492 WLCs motion, I need not deal with Foxgate
and Haldimands submission that 1492 WLC has no standing because they are not
incorporated. However, that submission seems to be more of an objection that is
one of form rather than substance. This court has rejected the submission that
an unincorporated entity is barred from intervention:
Halpern v. Canada
(Attorney General)
(2003), 169 O.A.C. 172 (C.A.), at para. 7. I agree with
WLC 1492s submissions that they are not a fly-by-night organization that will
disobey any rules and parameters set by a court and that the lack of
incorporation by the organization should not be a bar to their proposed
intervention.
[43]
Nor
do I need to deal with Foxgates submission that WLC 1492 is really an
appellant in disguise. Again, I would only make the observation that this court
in other cases has recognized that interveners need not be impartial,
objective or disinterested in the outcome of the case and [t]he fact that
the position of a proposed intervenor is generally aligned with the position of
one of the parties is not a bar to intervention if the intervenor can make a
useful contribution to the analysis to of the issues before the court:
Oakwell
Engineering Limited v. Enernorth Industries Inc.
, 2006 CanLII 60327 (Ont.
C.A.), at para. 9;
Childs,
at para. 13.
ALS
[44]
Like
1492 WLC, ALSs submissions also focus mostly on considerations of injunction
proceedings against members of an Indigenous community when s. 35 rights are
engaged (approx. 15 pages). In contrast to 1492 WLCs submissions which address
the particulars of the test of an injunction, ALS does provide additional brief
submissions that focus on the treatment of an Indigenous contemnors
participation in court proceedings when contempt has not been purged. However,
I am of the view that this issue will be addressed by the appellant who may
develop the submissions made at para. 93 of his factum. In my view, the court does
not require additional assistance from ALS on this specific issue, which is
outlined at paras. 46 to 56 of its draft factum. Indeed, the submissions advanced
by ALS will likely be duplicative of the appellants submissions.
CCLA
[45]
While
the CCLA does focus on the issues before the court, their arguments about due
process are largely duplicative of the submissions that will be advanced by the
appellant in his appeal. I have already summarized the submissions of the
appellant earlier in these reasons. There is considerable overlap between the
submissions of the CCLA and the appellant. Moreover, the proposed submissions
on the appropriateness of appointing
amicus curiae
in cases where
ex
parte
injunctions may impact constitutional rights is also addressed by
Ontario, a third party to this appeal. Overall, I cannot say with confidence
that the CCLA provides a unique perspective on this particular case. The
submissions made by the CCLA will be addressed by the parties in the appeal.
[46]
Overall,
I am not persuaded that WLC 1492, ALS, or the CCLA have any distinct contribution
to make in relation to this specific appeal. I am satisfied that the Indigenous
perspective will be fully and adequately addressed by the appellant.
[47]
In
conclusion, I agree with Foxgate and Haldimand that a substantial portion of
the submissions proposed by WLC 1492 and ALS inappropriately expands the legal
issues on appeal by making submissions on injunctions. With respect to the CCLA,
I find that a substantial portion of its submissions overlaps with those made
by the appellant. When I consider the nature of this appeal against the nature
of the contribution that could be made to the issues in dispute, and the nature
of the prejudice that could arise from allowing perfection of such a late
intervention, I conclude that the motions must be dismissed.
DISPOSITION
[48]
The
motions to intervene are dismissed.
[49]
Foxgate
and Haldimand seek costs of these motions. In my view, this is not an
appropriate case to order costs against the proposed interveners. The motions
are from public interest organizations and an organization that is associated
with a Canadian law school. There will be no order as to costs of this motion.
S. Coroza J.A.
[1]
Foxgate and Haldimand would likely file separate factums.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Nelson v. TELUS Communications
Inc., 2021 ONCA 751
DATE: 20211021
DOCKET: C69093
Strathy C.J.O., Nordheimer J.A. and Wilton-Siegel
J. (
ad hoc
)
BETWEEN
Marjorie Nelson
Plaintiff (Respondent)
and
TELUS Communications Inc.
Defendant (Appellant)
Catherine Beagan Flood, Christopher DiMatteo and Natalie
Cammarasana, for the appellant
Douglas Lennox, Careen Hannouche and Andrew Cleland, for the
respondent
Heard: October 20, 2021 by video conference
On appeal from the order of Justice Paul M. Perell of the
Superior Court of Justice, dated January 12, 2021, with reasons reported at 2021
ONSC 22, 2021 ONSC 23 and 2021 ONSC 24.
APPEAL BOOK ENDORSEMENT
[1]
The appeal is dismissed, substantially for the careful and thorough
reasons of the motion judge.
[2]
The provincial legislation at issue, the
Wireless Services Agreement
Act 2013
(
WSAA
), has been repealed. Except for the purposes of
this class proceeding, the issue of the constitutional validity of the
WSAA
appears to be of no further consequence. None of Ontario, Canada or the CRTC
has sought to intervene in this proceeding.
[3]
The appeal has largely been a re-argument of the issues that were before
the motion judge, without any reference to his reasons and without specifically
identifying any error in his factual findings, or any error in his application
of well-settled principles of constitutional law. It is evident from his
reasons that the motion judge carefully considered the appellants arguments
and the applicable law, and we agree with his conclusions that (a) the
WSAA
was within provincial legislative jurisdiction; and (b) it was not rendered
inoperative as a result of either paramountcy or interjurisdictional immunity.
[4]
Nor do we accept the appellants alternative submission that the class
action should be stayed so that the CRTC can determine whether the plaintiff is
entitled to a refund. The motion judges conclusion that the
WSAA
was
valid provincial legislation that was operative during the class period does
not permit any conclusion other than the plaintiff is entitled to assert her
claim that the appellant breached s. 16 of the
WSAA
by failing to
provide refunds to class members and that the Superior Court of Justice has
jurisdiction over the proceeding.
[5]
Costs to the respondent fixed at the agreed amount of $65,000, inclusive
of disbursements and all applicable taxes.
|
COURT OF APPEAL FOR ONTARIO
CITATION: S. v. A., 2021 ONCA 744
DATE: 20211007
DOCKET: M52807 (C69835)
Coroza J.A. (Motion
Judge)
BETWEEN
W.S.
Applicant
(Respondent/Responding Party)
and
P.I.A.
Respondent
(Appellant/Moving Party)
Gary S. Joseph and Alice Parama, for the moving party
Gary Gottlieb and Mira Pilch, for the responding party
Heard: September 23, 2021
REASONS FOR DECISION
[1]
Mr. S, the respondent, and Ms. A, the appellant,
were married in 2011 and separated in 2016. They have two children, L who is
seven and A who is five.
[1]
[2]
Regrettably, both parties could not resolve the
parenting issues relating to their children. The respondent issued an
Application in 2016. A hotly contested 39day trial was held over nine weeks in
the Superior Court of Justice beginning in May of 2021. On September 9, 2021,
the trial judge released very lengthy and comprehensive reasons ordering that
the primary care of the children be transferred to the respondent and granting
him sole responsibility for decision making.
[3]
The appellant has filed a Notice of Appeal with
this court. She seeks a stay of the trial judges final order pending her appeal.
The motion is opposed by the respondent.
[4]
The test for a stay is not disputed. This court
recently summarized the test in the following way, in
D.C. v. T.B.
, 2021 ONCA 562, at para. 9:
Custody and access orders remain in effect
pending an appeal to this court unless the court has ordered otherwise. In
determining whether to stay an order involving the parenting of a child, the
courts must consider: (1) whether, on a preliminary assessment, the appeal
raises a serious question (recognizing that this is a low threshold); [2] whether
the child will suffer irreparable harm if a stay is refused; and (3) the
balance of convenience: namely whether there would be greater harm from the
granting or refusal of a stay pending a decision on the merits of the appeal.
The overriding consideration, again, is the best interests of the child. In
other words, the court must be satisfied that it is in the childs best
interests to grant a stay. [Citations omitted.]
[5]
For the reasons that follow, I would dismiss the
application for a stay.
Serious Question
[6]
It is not necessary to outline each and every
ground of appeal that will be advanced by the appellant in her Notice of
Appeal. This is not the appeal. For the purpose of this motion, I will address
three arguments that the appellant intends to develop on appeal.
[7]
First, the appellant argues that the trial judge erred
by reversing custody because the
respondent has a long and documented
history of domestic violence against her and the children. The appellant
submits that the children show signs that they fear him and during the trial,
the appellant provided examples of the oldest child kicking, screaming, biting,
punching, and swearing to avoid seeing his father. The appellant contends that
the trial judge unreasonably rejected this relevant and compelling evidence of
serious domestic violence and that this is a significant error because the amendments
to the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.), prioritize
considerations of family violence and its impact on the parenting of the
children.
[8]
In my view, the appellant faces an uphill climb in advancing this ground
of appeal. The trial judge made strong findings that the appellants
allegations of physical, financial, and sexual abuse had not been made out.
Moreover, the trial judge found that the appellant had intentionally acted to
undermine court-ordered parenting schedules and reunification counselling by
bringing false allegations of sexual abuse designed to terminate the childrens
relationship with the respondent. As I read her reasons, the trial judge was
prepared to find that the respondent did verbally and emotionally abuse the
appellant during their marriage, but this had no impact on his present ability
to be primary caregiver and decision maker for the children. That was the trial
judges call to make. When I consider that the standard for appellate review of
a custody or parenting decision is exacting, and that the function of this
court will not be to retry the case, these complaints appear to me to be
destined to fail:
Bors v. Bors
, 2021 ONCA 513, at paras. 18-20;
A.M.
v. C.H.
, 2019 ONCA 764, 32 R.F.L. (8th) 1, at paras. 4, 74.
[9]
The trial judge also specifically dealt with the argument that the
amendments to the
Divorce Act
put domestic violence at the forefront,
at para. 23 of her reasons. After noting that a history of family violence has
always been an important factor in the adjudication of parenting disputes, she
concluded that the pattern of family violence that threatened the childrens
best interests was not the conduct of the respondent. Instead, she made very
strong findings that it was the appellants conduct that undermined the best
interests of the children. Her careful reasons do not reveal any obvious error
in reaching that conclusion.
[10]
Second,
the appellant argues that the trial judge erred in relying on a dated assessment
under s. 30 of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12. Howard
Hurwitz completed this assessment in 2017 and provided the court with a
detailed report on March 9, 2018.
[11]
The
appellant argues that the trial judge stated that the report was dated and
could not be of any assistance to her. The appellant points to comments that
the trial judge made when she adjourned the trial on June 2, 2021, so that she
could explore obtaining an updated report from Mr. Hurwitz. However, when the
parties next appeared in court on June 4, 2021, the trial judge seemingly
changed her mind and told the parties an updated was not necessary and did not
explain why. In his report, Mr. Hurwitz reported that he saw no evidence that
the respondent was dangerous or that he could not move forward with the
appellant to develop a healthy parenting plan. However, Mr. Hurwitz did not
recommend custody reversal in his report he had recommended sole custody to
the appellant. The appellant argues that the trial judge erred in relying on
the report.
[12]
I
do not find this argument to be a compelling one.
[13]
I
am not clear as to what an updated s. 30 assessment report would have
accomplished. As this court has previously held, the law is clear that a trial
judge should not delegate decision making to an assessor, and an assessors
evidence is but one piece of evidence to consider:
Mattina v. Mattina
,
2018 ONCA 641, at para. 13, leave to appeal refused, [2018] S.C.C.A. No.
392. The fact that the report may have been dated was a factor to consider. It
was the trial judges call to make whether or not an updated report was
required. Of course, the context of this trial cannot be ignored. The trial had
been extensively case managed by judges of the Superior Court, and there had
been lengthy delays in getting the matter to trial. The decision not to order
an updated s. 30 report is an exercise in trial management, and I see no
obvious error in the trial judges call.
[14]
In
any event, even if the report was dated, Mr. Hurwitz was produced for trial.
Counsel for the appellant was able to cross-examine Mr. Hurwitz and inquire
about the respondents weaknesses as a caregiver. It appears that there was
very little prejudice visited on the appellant by not having an updated report.
The trial judge was entitled to rely on the report and the cross examination in
reaching her decision.
[15]
Third, the appellant submits that it is of grave
concern that, out of the several professionals involved with the parties and
their children since 2016, none recommended a custody reversal except a
reunification therapist, Wendy MacKenzie, who was a clinician permitted to
offer opinion evidence without a
voir dire
. The
appellant also complains that Ms. MacKenzie was not a registered social worker.
[16]
The respondent argues that the trial judge did
inquire into Ms. MacKenzies qualifications and that previous judges involved
in prior motions in this case had accepted Ms. MacKenzie as an expert.
[17]
I am not prepared to say that this argument
should be dismissed out of hand. The appellant may develop an argument that Ms.
MacKenzie provided inadmissible opinion evidence that strayed well beyond her
expertise and that a
voir dire
was required to
determine her qualifications and the nature of the opinion that she was
qualified to give to the court.
[18]
That said, I note that it is the appellant, through counsel, who
first proposed in early January 2020 that the parties retain Ms. MacKenzie to
conduct reunification counselling. It seems to me that the bulk of Ms.
MacKenzies evidence (as summarized by the trial judge) relates to her
observations of the parties during this process. The trial judges reasons
reveal that
Ms. MacKenzie provided evidence on which parent was best
prepared to work within the reunification process. The trial judge also
described in detail the efforts made by Ms. MacKenzie to counsel the appellant
about fostering a positive relationship with the respondent. In the end, the
trial judge found that the appellant had intentionally undermined and sabotaged
the reunification process. The trial judge found that, although Ms. MacKenzie
had made efforts to convince the appellant to support the childrens
relationship with their father, this proposition was never accepted by the
appellant. I do not see any obvious error in the trial judges treatment of Ms.
MacKenzies evidence, nor do I see how the failure to hold a
voir dire
would make her observations inadmissible.
[19]
That
said, this is not the appeal. The threshold to cross in order to establish that
there is a serious question on appeal is a low one. I am prepared to say, with
this ground of appeal, the appellant has met the threshold for establishing a
serious question for appeal. To be clear, I am not suggesting that this ground
of appeal is strong.
Irreparable Harm
[20]
The
appellant argues that the children will suffer irreparable harm if they are
forced to reside with their father, and that the court should revert back to
the
status quo
. The appellant argues that there has been a long
history of domestic violence towards the children, and that she has had primary
care of the children. The appellant submits that the order causes irreparable
harm because the children effectively lose their meaningful parent-child
relationship with her, their primary caregiver, mother, and support system.
[21]
The
appellant argues that the change ordered by the trial judge is so drastic that it
has caused physical, emotional, social, and psychological harm to the children.
The appellant relies on two pieces evidence that she has obtained post-trial to
support her submission on irreparable harm.
[22]
First, the appellant points to a recent chat she had with her
oldest child on Zoom. In that chat, the
child wrote, help
call popo [police]. The child also wrote, pls [please] get me out of here
and i hate my life. The appellant points to this as evidence that the child
is suffering in the current situation.
[23]
As a preliminary matter, the respondent objected
to the appellant filing these excerpts of communications. I do not see the
basis for the objection. This appeal involves the best interests of a child and
on a motion to stay it is important to have the most current information
possible when determining irreparable harm. I see no issue with this evidence
because the primary concern is the childs best interests.
[24]
Turning now to the appellants argument that the
chats demonstrate irreparable harm, I do not view this as evidence of
significant harm. Arguably, there is contrary evidence from the respondent that
suggests that the children have adjusted well since the order was made and are
working on a continuing positive relationship with the respondent.
[25]
It is beyond dispute that moving children back
and forth is necessarily disruptive. It seems to me that, while reversal of
custody decisions contemplate that there will be initial unhappiness, they are decided
for the long-term benefit. The trial judge recognized this. While the chats are
troubling, they do not provide evidence of significant or irreparable harm.
[26]
Second, the appellant relies on an opinion from Dr.
Peter Jaffe, a psychologist and Professor Emeritus in the Faculty of Education
at Western University and Director Emeritus of the London Family Court Clinic.
According to the opinion, the type of arrangements ordered by the trial judge
rarely work, and custody reversal is highly intrusive and does not always
succeed because it may further traumatize children.
[27]
Respectfully, I am not persuaded that this
report should carry much weight in the analysis. I do not dispute that Dr.
Jaffe is an expert. But this evidence does not assist me on this motion. It has
not been subjected to cross-examination, he was not called as a witness at
trial, he did not meet the children or the parties, or review the trial
evidence. He was only asked to comment on his opinion with respect to custody
reversal. This opinion does not provide a picture to this court as to how the
children are doing post-trial in assessing irreparable harm. In addition, it
is not clear to me that this new evidence would be admissible on the appeal,
even with the caveat that the test for fresh evidence is more flexible where an
appeal involves the best interests of a child:
Goldman v. Kudelya
, 2017 ONCA 300, at para. 25.
Balance of Convenience
[28]
In my view, this factor tips in favour of the
respondent. I am not satisfied that there is evidence of irreparable harm or
risk of harm to the children as a result of the order, but there is evidence of
benefit to the children in continuing to have the trial judges order intact
pending appeal. The trial judge concluded that the very best outcome for the
children is to first restore their parenting relationship with the respondent,
and then to progress parenting as quickly as possible to a schedule appropriate
to their age and stage of development, while minimizing transitions. To stay
the order under appeal would be highly disruptive to this goal and would not be
in their best interests. The order was made on September 9, 2021. The children
have had less than one month to adjust to being with the respondent. I see no
reason at this stage to doubt the trial judges conclusions as to what the best
interests of the children are.
[29]
The overarching consideration in whether to
grant a stay pending appeal is whether doing so is in the interests of justice.
By all accounts, this was a very difficult, high-conflict trial. In light of
the very weak grounds of appeal, no evidence of irreparable harm, and the
balance of convenience tipping in favour of maintaining the trial judges goal
of restoring the parenting relationship with the respondent, it is not in the
interests of justice to grant a stay.
Conclusion
[30]
For these reasons, the application for a stay
pending appeal is dismissed. Within ten days of the release of this decision,
the parties may provide costs submissions in writing not to exceed three pages,
supported by bills of costs. The parties are directed to contact the Appeal
Scheduling Unit to arrange for a case management judge with a view of
expediting the appeal.
S. Coroza J.A.
[1]
The decision appealed from initialized the parties and the childrens names as
well as omitting their birthdates to protect their privacy. I have decided to
continue to do the same in these reasons.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Pinder
v. Biggar, 2021 ONCA 750
DATE: 20211021
DOCKET: M52551 (C69419)
Benotto, Brown and Harvison Young JJ.A.
BETWEEN
Jack Pinder, Victor
Dusik and Innotech Safety Solutions Inc.
Creditors
(Respondents/Moving Parties)
and
Wayne Biggar
Debtor
(Appellant/Responding Party)
and
Hospodar Davies & Goold
Garnishee
(Respondent/Responding Party)
Howard Borlack, Stephen Barbier and Ben Tustain, for the
moving parties
Douglas Spiller, for the responding party Wayne Biggar
John Davies, for the responding party Hospodar Davies
& Goold
[1]
Heard: September 8, 2021 by video conference
COSTS ENDOSEMENT
[1]
We have reviewed the parties cost submissions. Mr. Biggars appeal to
this court clearly was brought to the wrong court and was an obvious delay
tactic. Consequently, the respondents Jack Pinder, Victor Dusik and Innotech
Safety Solutions Inc., are entitled to their substantial indemnity costs fixed
in the amount of $11,500, inclusive of disbursements and applicable taxes,
payable by Mr. Biggar within 5 days of the release of this endorsement.
M.L. Benotto J.A.
David Brown J.A.
Harvison Young J.A.
[1]
John Davies appeared but made no written or oral submissions on behalf of the responding
party Hospodar Davies & Goold.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Scaffidi-Argentina v. Tega Homes Developments, 2021 ONCA
738
DATE: 20211022
DOCKET: C68870
Hourigan, Huscroft and Coroza JJ.A.
BETWEEN
Carmen
Scaffidi-Argentina, Michaelangelo Scaffidi-Argentina,
Sheila Scaffidi-Argentina
and Marissa Scaffidi-Argentina
Plaintiffs
and
Tega
Homes Developments Inc.
,
Goodeve
Manhire Inc.
,
Goodeve Manhire
Partners Inc.
, Paterson Group Inc. and the City of Ottawa
Defendants
(
Appellant
/
Respondents
)
Robert Emblem and William Plante-Bischoff, for the
appellant
Elizabeth K. Ackman and Sean D. McGarry, for the
respondents
Heard: October 8, 2021 by video conference
On appeal from the order of Justice Charles T. Hackland
of the Superior Court of Justice, dated October 30, 2020, with reasons reported
at 2020 ONSC 6656, 8 C.C.L.I. (6th) 223.
REASONS FOR DECISION
[1]
The respondents served as an engineering consultant and subcontractor on
a construction project in the City of Ottawa. The appellant was the owner and
developer of the project and was insured under a wrap-up liability policy which
contained a waiver of subrogation clause. Adjacent property owners (the plaintiffs)
sued the parties arising from damages caused by excavation work on the project.
The plaintiffs filed a statement of claim and their own property insurer, State
Farm Fire and Casualty Company (State Farm), indemnified part of the damages
sought in the claim. State Farm thus became subrogated to part of the plaintiffs
claim against the parties. The plaintiffs later recovered an amount from the
appellants insurer.
[2]
In response to the claim, the appellant filed a statement of defence and
crossclaim. The crossclaim against the respondents sought contribution and
indemnity in respect of any amounts it might be found liable to pay to the plaintiffs.
The respondents then brought a summary judgment motion requesting that the
crossclaim be dismissed on the basis that they were insured under the
appellants policy and the crossclaim was prohibited by the waiver of
subrogation clause in the policy.
[3]
The motion judge granted the motion and dismissed the appellants
crossclaim. He concluded that the respondents were additional insured under
the policy and were entitled to the waiver of subrogation provided for in the
policy.
[4]
In this appeal, the appellant repeats the same argument made before the
motion judge that the policy does not bar it from asserting a subrogated
claim for indemnity against the respondents because they are not covered under
the policy for the professional services claims brought by the property owners.
According to the appellant, the respondents have coverage for professional
services claims from their own insurer, yet, the motion judges decision
requires it to nevertheless cover the loss because of the waiver of subrogation
clause. The appellant submits that such a decision results in a windfall for
the respondents, is commercially unreasonable, and ignores the relevant
surrounding circumstances.
[5]
We reject the appellants argument.
[6]
The policy was a standard form contract. The surrounding circumstances
generally play less of a role in the interpretation of these types of contracts
of adhesion because the parties do not negotiate the terms, and the contract is
put to the receiving party as a take it or leave it proposition:
Ledcor
Construction Ltd. v. Northbridge Indemnity Insurance Co.
, 2016 SCC
37, [2016] 2 S.C.R. 23, at paras. 25, 32.
[7]
It was agreed that the respondents were an engineering consultant and
subcontractor. As such, the respondents were within the definition of additional
insureds under the policy and although the policy specifically excluded
coverage for professional liability, the appellant contracted out of any right
of subrogation against all insureds (including additional insureds) under the
policy. The motion judge observed that it would have been open to the appellant
to have changed the wording of the policy, perhaps by altering the scope of the
subrogation waiver or the definition of additional insured, to reflect the
professional services coverage exclusion. We agree with the motion judges
conclusion that it was not his function to restructure the commercial
contractual arrangement agreed upon by these sophisticated parties to achieve what
might be considered a fairer result. The motion judge noted that since there
were no project agreements between the parties pertaining to insurance coverage,
the policy must speak for itself.
[8]
The motion judge interpreted the policy in accordance with the guidance
set out by the Supreme Court of Canada in its decision in
Progressive Homes
Ltd. v. Lombard General Insurance Co. of Canada
, 2010 SCC 33,
[2010] 2 S.C.R. 245, at paras. 22-24. Reading the contract as a whole, the
language of the policy is unambiguous and the motion judge was required to give
effect to the clear language set out in the policy. We are in substantial
agreement with his reasons.
[9]
The appellant also argues that the motion judge erred in assuming that
the crossclaim was a subrogated claim. To support this point, the appellant advanced
two main submissions in oral argument.
[10]
First,
the appellant contends that the crossclaim was filed before its insurer made
any payment to the plaintiffs, and the payment that was subsequently made was not
to settle the appellants liability since no trial determining liability has taken
place yet. The appellant thus argues that the crossclaim never became a
subrogated claim because its insurer made no payments pursuant to a policy
obligation. We disagree. The appellants insurer made payment to the plaintiffs
after damages were assessed at the damages trial and in exchange for a full and
final release. The release explicitly refers to the damage amount being consideration
for the settlement of the issue of liability advanced by the plaintiffs. In
settling with the plaintiffs, the appellants insurer was dealing with a
liability issue, notwithstanding the fact that the crossclaim remained to be
determined.
[11]
At
its core, the dispute between the parties on the crossclaim was whether the appellant
could recover the payment of money from the respondents. It is self-evident
that any recovery on the crossclaim would have been paid to the appellants
insurer to cover the settlement amount. The act of seeking indemnity from a
third party such as the respondents for payments is, by definition,
subrogation.
[12]
Second,
the appellant submits that the crossclaim was not a subrogated claim because
the appellant has made no payment to State Farm for its subrogated portion of
the plaintiffs claim. We do not accept this submission. The appellant is the
only defendant remaining in the action. Thus, the only party State Farm can
obtain judgment against is the appellant. Indeed, in oral argument it was acknowledged
that State Farm has obtained a judgment against the appellant for this payment:
Scaffidi-Argentina v. Tega Homes Developments Inc. et al.
, 2021 ONSC
3223, appeal as of right filed, C69482. The appellants submission is an
argument with respect to timing. A payment to State Farm may not have been made
yet, but that does not change the nature of the claim being made by the
appellant against the respondents. Again, the only way it can seek recovery is
by subrogation.
[13]
The
motion judge was correct to consider the appellants crossclaim a subrogated
claim. He did not err in dismissing the crossclaim in its entirety.
[14]
The
appeal is dismissed. Costs for the appeal are awarded to the respondents in the
agreed upon amount of $25,000 all-inclusive.
C. W. Hourigan J.A.
Grant Huscroft J.A.
S. Coroza J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Weslease
2018 Operating LP v. Eastgate Pharmaceuticals Inc., 2021 ONCA 743
DATE: 20211022
DOCKET: C68859
Feldman, Pepall and Tulloch JJ.A.
BETWEEN
Weslease 2018 Operating LP
Plaintiff (Respondent)
and
Eastgate Pharmaceuticals Inc.,
Proactive Supply
Chain Solutions Inc., Salvatore Mancuso, Chris Pearcey, Giancarlo Staffieri
and Anna Gluskin
Defendants (Appellants)
Yonatan Lipetz, for the appellants Proactive Supply
Chain Solutions Inc., Salvatore Mancuso, Chris Pearcey and Giancarlo Staffieri
David Winer, for the respondent
Heard: October 14, 2021 by video conference
On appeal from the judgment of Justice Grant R. Dow of
the Superior Court of Justice, dated November 2, 2020, with reasons reported at
2020 ONSC 6464.
REASONS FOR DECISION
[1]
The appellants, Proactive Supply Chain Solutions
Inc., Salvatore Mancuso, Chris Pearcey, and Giancarlo Staffieri appeal from the
summary judgment granted against them in favour of the respondent, Weslease
2018 Operating LP.
[2]
The respondent leased laboratory equipment to
the appellants pursuant to a lease and general security agreement. The
appellants defaulted in payment. Relying on its security, the respondent commenced
proceedings and successfully obtained an order to recover five of seven pieces
of equipment. A bailiff subsequently repossessed the five pieces of equipment.
[3]
The respondent agreed to sell all seven pieces
of equipment to a third party purchaser, who paid $60,000. The sale was
conditional on the respondents ability to deliver the remaining two pieces
still in the appellants possession, failing which, the $60,000 was to be
refunded.
[4]
The respondent subsequently brought a motion for
summary judgment for damages against the appellants, and an order for delivery
up of the remaining two pieces of equipment. Before the motion judge, the
appellants argued that they had entered into a settlement agreement with the
respondent which required dismissal of the respondents motion.
[5]
The motion judge concluded that the parties had
not entered into a settlement agreement. He granted the relief requested and
ordered that if the appellants failed to deliver the remaining two pieces of
equipment, they were to pay the respondent $60,000 on receipt of proof that the
respondent had refunded that amount to the third party purchaser.
[6]
The appellants advance three grounds of appeal.
[7]
First, they submit that the motion judge made a
palpable and overriding error in determining that the parties never entered
into a settlement agreement.
[8]
We disagree.
[9]
The documents relied upon by the appellants were
conditional on payment of outstanding arrears which never materialized. Neither
the written nor the oral evidence before the motion judge supported the finding
of a settlement agreement and he correctly dismissed the appellants arguments
in that regard.
[10]
Second, the appellants submit that issues of
credibility amounted to genuine issues requiring a trial and hence summary
judgment ought not to have been granted. The problem with this argument is that
the appellants were unable to identify any issues in the evidentiary record
before the motion judge that engaged relevant competing issues of credibility.
[11]
Third, the appellants submit that the motion
judge failed to adequately assess damages. The appellants failed to proffer any
evidence of value that would dictate a different result than that reached by
the motion judge. We fail to see any merit in the appellants damages argument.
[12]
The appeal is dismissed with costs of $10,000 inclusive of
disbursements and HST to be paid by the appellants to the respondent.
K. Feldman J.A.
S.E. Pepall J.A.
M. Tulloch J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Antonyuk v. Antonyuk, 2021 ONCA 748
DATE: 20211025
DOCKET: C69381
Feldman, Pepall and Tulloch JJ.A.
BETWEEN
Iryna
Antonyuk
Applicant
(Appellant)
and
Mykhaylo Antonyuk
Respondent
(Respondent)
Iryna Antonyuk, acting in person
Igor Yushchenko, for the respondent
Heard: October 13, 2021 by video conference
On appeal from the
order of Justice E. Llana Nakonechny of the Superior Court of Justice, dated January
29, 2020, with reasons reported at 2020 ONSC 644.
REASONS FOR DECISION
[1]
The appellant appeals the decision of the trial judge which recognized
the divorce of the appellant and the respondent obtained by the respondent in
Ukraine, dated October 23, 1998, pursuant to s. 22 of the
Divorce Act
,
R.S.C. 1985, c. 3 (2nd Supp.).
[2]
The appellant argued at trial that the Ukrainian divorce was invalidly
obtained and that the court in Kiev did not have jurisdiction to grant the
divorce.
[3]
The appellant sought a divorce in Canada in 2017 and obtained a divorce
order, but that divorce was set aside when the respondent took the position
that the parties were already divorced. The respondent has remarried and has a
child with his current wife. The appellants position is that she needs a
Canadian divorce in order to be able to remarry because the Ukrainian divorce
is not valid.
[4]
This was a four-day trial with evidence from the parties, a witness who
observed the parties immediately after the Ukrainian divorce, and an expert on
Ukrainian law.
[5]
The trial judge considered the requirements of s. 22 of the
Divorce
Act
for the recognition of a foreign divorce, noting that foreign divorce
decrees are presumptively valid.
[6]
The trial judge accepted the opinion of the expert that the Ukrainian
court had jurisdiction to grant the divorce. The trial judge also accepted the
finding by the Ukrainian court that the appellant had been given notice of the
hearing and had not appeared. The trial judge noted that the appellant had not
alleged fraud, and there was no evidence of fraud.
[7]
The trial judge found that the appellant had relied on the Certificate
of Divorce from Ukraine when filing her Canadian income tax returns as a
divorced person since 2001 and continued to do so even after she began to
question the validity of the divorce. The trial judge also observed that the
appellant delayed for many years before challenging the validity of the
divorce. This observation was made in the context of the fact that failing to
recognize the validity of the divorce would be very detrimental to the
respondent and his family.
[8]
The trial judge concluded that the appellant had not met her onus of
proving that the Certificate of Divorce from Ukraine was not properly obtained
and should not be recognized in Canada.
[9]
We see no error in the trial judges findings or analysis. She was
entitled to accept the evidence presented that verified the validity of the
Ukrainian divorce and to reject the position of the appellant.
[10]
The appeal is dismissed with costs fixed in the amount of $5,000,
inclusive of disbursements and HST.
K. Feldman J.A.
S.E. Pepall J.A.
M. Tulloch J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: McFlow Capital Corp. v. James, 2021 ONCA 753
DATE: 20211025
DOCKET: C68043
Rouleau, Hoy and Thorburn JJ.A.
BETWEEN
McFlow Capital Corp.
Plaintiff (Respondent/
Appellant by way of cross-appeal)
and
Kenneth James,
personally and in his capacity as trustee for Laura McClenaghan, Rosemary
Cremer and the Estate of Kenneth McClenaghan
,
Laura McClenaghan, personally
and in her capacity as trustee for the Estate of
Kenneth McClenaghan, Dorothy
Short in her capacity as trustee for the Estate of
Kenneth McClenaghan,
Rosemary
Cremer
, Susan James, 1303678 Ontario Inc.,
Sterling
Capital Corporation, Eveline Holdings Ltd., and G.A.C. Investments Ltd.
Defendants (Appellants/
Respondents by way of cross-appeal)
AND BETWEEN
Kenneth James,
personally and in his capacity as trustee for Laura McClenaghan, Rosemary
Cremer and the Estate of Kenneth McClenaghan
, Laura McClenaghan, personally
and in her capacity as trustee for the Estate of Kenneth McClenaghan, Dorothy
Short in her capacity as trustee for the Estate of Kenneth McClenaghan,
Rosemary
Cremer
, 1303678 Ontario Inc., and G.A.C. Investments Ltd.
Plaintiffs by Counterclaim (
Appellants/
Respondents by way of cross-appeal
)
and
McFlow Capital Corp.,
Premium Properties Limited
and Milton Winberg
Defendants to the Counterclaim
(Respondents/
Appellants by way of cross-appeal)
Theodore B. Rotenberg and Ranjan Das, for the
appellants/respondents by way of cross-appeal
Hilary Book and Samantha Del Frate, for the
respondents/appellants by way of cross-appeal
Heard: September 21, 2021 by video conference
On appeal from the judgment of Justice Sandra Nishikawa
of the Superior Court of Justice, dated January 20, 2020 and October 9, 2020,
with reasons reported at 2020 ONSC 374 and 2020 ONSC 6167.
Thorburn J.A.:
A.
INTRODUCTION
[1]
This is an appeal by the appellants (defendants), Kenneth James personally
(James), and in his capacity as trustee for Laura McClenaghan, Rosemary
Cremer, and the Estate of Kenneth McClenaghan, and Rosemary Cremer (Cremer).
The appellants claim the trial judge erred in holding that the oppression and
conspiracy claims against Cremer were not statute-barred, awarding punitive
damages against Cremer, and ordering substantial indemnity costs payable to
McFlow.
[2]
The respondents,
McFlow Capital Corporation (McFlow),
Premium Properties Limited (Premium) and Milton Winberg, cross-appeal the
trial judges award of prejudgment interest.
B.
THE PARTIES
[3]
The claim involves a condominium corporation called
Simcoe
Condominium Corporation No. 27 (SCC 27).
[4]
The appellant, James, was the lawyer for both SCC 27,
and the first and second mortgagees for 30 of the 44 units (the majority
units) in SCC 27. The trial judge determined that James held a beneficial
interest in the mortgages on the majority units in SCC 27 such that he was able
to control SCC 27, himself or through two
off-shore companies, Eveline
Holdings Ltd. (Eveline) and Sterling Capital Corporation (Sterling).
Eveline and Sterling were James alter egos.
[5]
The appellant, Cremer, was the bookkeeper and office
manager of James law firm, a director of SCC 27, and James friend and
housemate.
[6]
The respondent McFlow was the mortgagee of the
remaining 14 units (the minority units) in SCC 27, which were owned by
1652030 Ontario Limited (165).
C.
BACKGROUND FACTS
[7]
In 2008, SCC 27 issued a special assessment of $40,000
per unit on all the units in the complex (the 2008 special assessment). The
trial judge found that there was no legitimate basis for this assessment amount
and that the amount was set high enough that the minority unit owner, 165,
would not be able to pay the sum and would be forced into default. Notices of
Sale under Lien were issued by SCC 27 only for the minority units, even though
the majority units had also not paid the 2008 special assessment.
[8]
In April 2009, McFlow, as mortgagee of the minority
units, commenced an application for oppression against SCC 27 and James. In May
2009, the court appointed an administrator to manage SCC 27s affairs.
[9]
In May 2009, James swore an affidavit that he was in
possession of a $2 million GIC which he said was money paid by the majority
mortgagees toward the 2008 special assessment and an earlier assessment in
2004.
[10]
On June 3, 2009, the administrator served a Notice of
Motion to have the $2 million GIC paid into court pending a determination
of its ownership.
[11]
On June 4, 2009, the GIC was cashed and funds were
wired to Evelines account in the Turks and Caicos Islands (TCI).
In
his affidavit dated June 4, 2009,
James swore that he was
holding the money in trust for Eveline and it was never SCC 27s property.
[12]
The funds were returned to Canada but James counsel
informed the administrator that James had not personally received the $2
million and no longer had control over any of the funds in the Eveline account.
[13]
On June 30, 2009, the court ordered Eveline and James
to pay into court all the money derived from the proceeds of the GIC. The money
was not paid into court.
[14]
In August 2009, McFlow commenced a negligence action
against its own counsel and mortgage broker for losses, which was settled for
the sum of $875,000.
[15]
In December 2009, the administrator listed the minority
units for sale.
[16]
In 2011, James offered to purchase the minority units
and three others for a total of $10,000, which the administrator refused. In
2012, the administrator listed all the units for sale.
[17]
The court approved the sale and the sale was completed
in August 2013.
[18]
In December 2013, the appellants counterclaimed for
oppression against McFlow, Premium and Winberg. (Premium was a company related
to McFlow, and Milton Winberg was the principal of McFlow and Premium.)
[19]
In May 2015, McFlow issued a statement of claim against
all the defendants (including the appellants).
D.
THE TRIAL JUDGES REASONS
[20]
At paras. 314-16 of her reasons for decision, the trial judge held that:
After Mr. James took control of SCC 27, the disarray turned
into paralyzing dysfunction.
The dysfunction would ensure that no reasonable
purchaser or lender would want any involvement in the Minority Units. In the
end, only Mr. James would want to purchase the Minority Units, which he could
do at a bargain price, leaving him in control of the entire Complex.
No rational condominium corporation, unit owner, or mortgagee
would want this level of dysfunction and the attendant stigma, which would
cause the property value to fall.
The intent was to cause the owner, 165, and
the mortgagee, McFlow, to walk away.
[21]
At para. 319 of her reasons, the trial judge found that:
Ms. Cremer has admitted to being involved in the decision to
levy the 2008 Special Assessment and to register liens on the Minority Units,
as well as the decision to wire the $2 million to the TCI. Ms. Cremer did not
perform those acts while fulfilling the proper course of her duties as a
director of SCC 27. Rather, she used her position as a director of SCC 27 to
perpetrate acts that were prejudicial to its interest and to McFlows. Ms. Cremer
admits to participating in or directing those decisions and was instrumental to
Mr. James ability to carry them out. She engaged in the oppression in addition
to Mr. James.
[22]
In respect of the alleged conspiracy among James, SCC 27 and Cremer, the
trial judge held, at para. 341 that,
Mr. James, SCC 27 and Ms. Cremer
acted in concert, by
agreement or with a common design. Mr. James was the directing and controlling
mind of SCC 27. Mr. James and Ms. Cremer were at all times acting in pursuit of
a common design. Whether Mr. James was instructing Ms. Cremer or Ms. Cremer was
instructing Mr. James, they both had the same objectives in mind. The
predominant purpose of their conduct was to cause injury to the owner and/or
mortgagee of the Minority Units by eliminating or rendering valueless their
interests in SCC 27. Alternatively, they used unlawful means (oppression and
breach of the
Condominium Act
) in circumstances where they knew or should
have known that damage to McFlow was likely to result. As discussed above,
their conduct caused McFlow damage.
[23]
The trial judge concluded that James actions were intended to force out
McFlows interest in the minority units and that his actions, and his
failures, in precipitating a state of dysfunction were oppressive, or at the
very least, unfairly prejudicial, because it was intended specifically to
squeeze out McFlows interest in the Minority Units.
[24]
She accepted that McFlow had not done enough due diligence before
advancing and increasing loans on the mortgages on the minority units but held
that McFlow was nonetheless entitled to damages for oppression from James and
Cremer pursuant to s. 135 of the
Condominium Act 1998,
S.O. 1998, c.
19.
[25]
She also granted judgment for conspiracy against Cremer, Eveline and
Sterling on the basis that James was the directing mind of Eveline and Sterling
and used them to execute his scheme to injure McFlow. She held that the failure
to pay the $2 million to the administrator was a brazen disregard of a court
order by an officer of the court.
[26]
The trial judge dismissed the appellants argument that McFlows claims
were statute-barred by the expiry of the limitation period.
[27]
At paras. 357-65 of her reasons, she held that until 2013, the only
information that McFlow had about Cremer was that she was James employee and,
from 2008, a director of SCC 27.
While McFlow knew that Ms. Cremer was a director of SCC 27 when
it served its Notice of Application in May 2009, she appeared to be nothing
more than a nominee director acting for Mr. James
. McFlow did not know and
could not have known by the exercise of reasonable diligence, that it had a
claim against Ms. Cremer personally. It could not have alleged any facts to
support her liability as a director. Moreover, McFlow did not know until 2013
that Ms. Cremer was a beneficiary of the McClenaghan Trust and that after Mr.
McClenaghans death she was purportedly instructing Mr. James.
[28]
The beneficiaries of the McClenaghan Trust were Mr. McClenaghans
spouse, Cremer and James then-spouse. According to James, he and Eveline were
trustees of the trust at some points. The trial judge found that the
McClenaghan Trust raises more questions than it answers and, even if the
trust agreement were authentic and the trust legitimate, she rejected James
argument that it held the beneficial interest in the majority units
in SCC 27.
[29]
The trial judge ordered the appellants to pay McFlow
damages in the amount of $413,595.27 and prejudgment interest of $141,199.14,
calculated at the rate of 1.3 percent per annum, as provided for in the
Courts
of Justice Act
, R.S.O. 1990 c. C.43 (
CJA
), which was the interest rate when the action was commenced.
[30]
She also ordered punitive damages in the amount of $100,000,
and post-judgment interest calculated at the rate of 3 percent commencing on
January 20, 2020. She further ordered the appellants to pay substantial
indemnity costs of $568,292.05 to McFlow, bearing 2 percent interest,
commencing on October 9, 2020.
E.
THE ISSUES
[31]
While a number of issues were raised in the appellants factum, at the
time of the hearing, the appellants advised that the only issues to be
adjudicated on this appeal are whether the trial judge erred in holding that:
i.
the oppression and conspiracy claims against Cremer were not
statute-barred;
ii.
punitive damages should be awarded against Cremer; and
iii.
substantial indemnity costs were warranted, in addition to punitive
damages.
[32]
The respondents cross-appeal claiming
the trial judge
erred in awarding interest at the rate of 1.3 percent as provided in the
CJA
rather than
prejudgment interest at the rate of 6.5 percent,
compounded monthly, which was sought by McFlow.
F.
ANALYSIS
The First Issue: Were the Claims Against Cremer
Statute-Barred?
[33]
The appellants submit that the trial judge erred in concluding that the
claims against Cremer were not statute-barred.
[34]
A claim is discovered on the earlier of the day on which a party knew or
ought to have known (i) that the injury, loss or damage had occurred, (ii) that
it was caused by an act or omission of the person against whom the claim is
made, and (iii) that a proceeding would be the appropriate means to seek to
remedy it, or that a reasonable person with the abilities and in the
circumstances of the person with the claim first ought to have known of these
matters. At this point, the two-year limitation period is triggered:
Limitations
Act
, 2002, S.O. 2002, c. 24, Sched. B.
,
s. 5(1).
[35]
In
Grant Thornton LLP v. New Brunswick,
2021 SCC 31, at para.
42, Moldaver J., writing for the Court, held that in respect of a similar
provision in the New Brunswick
Limitations of Actions Act
, S.N.B.
2009, c. L-8.5, a claim is discovered when a plaintiff has knowledge, actual
or constructive, of the material facts upon which a plausible inference of
liability on the defendants part can be drawn.
Grant Thornton
was
followed by this court in
Gordon Dunk Farms Limited v. HFH Inc.
, 2021
ONCA 681, at paras. 36-38.
[36]
The appellants claim the trial judge applied too high a standard to
determine whether McFlow had the requisite degree of knowledge to discover a
claim under the
Limitations Act
and did not consider whether a
plausible inference of liability could be drawn.
[37]
They claim that in 2009, McFlow knew Cremer was James employee and a
director at the time of the 2008 special assessment. Since Cremer was a
director, McFlow could have made a plausible inference that she supported the
assessment in 2009 which McFlow alleged was oppressive and involved a
conspiracy, triggering the limitation period.
[38]
I do not agree.
[39]
The trial judge found that while McFlow knew Cremer was a director of
SCC 27 in 2009, she appeared to be nothing more than a nominee director. It was
not until 2013 that McFlow knew or could have known by the exercise of
reasonable due diligence, that Cremer was a beneficiary of the McClenaghan
Trust, which James claimed held the beneficial interest in the majority units,
and that after Mr. McClenaghans death, she was purportedly instructing
James.
[40]
Until then, any claim in oppression or conspiracy would have been
founded on mere suspicion or speculation which is not sufficient to draw a
plausible inference of liability:
Grant Thornton,
at para. 46.
[41]
For these reasons, the first ground of appeal fails.
The Second Issue: Did the Trial Judge Err in Awarding
Punitive Damages Against Cremer?
[42]
The appellants claim the trial judge erred in awarding punitive damages
against Cremer as the only explanation for doing so was Cremers role in
failing to have the $2 million GIC paid into court. They claim this cannot form
the basis of a punitive damage award as the money was to be paid to the credit
of the action the court administrator for SCC 27 was to commence and that
action was never commenced.
[43]
As noted by the trial judge, in deciding whether to make an award of
punitive damages, the question is whether the defendants conduct was so
outrageous that punitive damages are rationally required for deterrence. Trial
courts have latitude in determining punitive damages, provided the amount
serves a rational purpose, namely prevention, deterrence and denunciation:
Whiten
v. Pilot Insurance Co.,
2002 SCC 18, [2002] 1 S.C.R. 595
,
at
paras. 94-100;
Richard v. Time Inc.,
2012 SCC 8, [2012] 1 S.C.R. 265
,
at para. 190;
Cinar Corporation v. Robinson,
2013 SCC 73, [2013]
3 S.C.R. 1168, at para. 134.
[44]
Appellate courts should only intervene where there has been an error of
law or a wholly erroneous assessment of the quantum of punitive damages, that
is, if the amount awarded was not rationally connected to the purposes in
awarding punitive damages:
Richard,
at para. 190;
Cinar
, at
para. 134.
[45]
The trial judge did not rely exclusively on Cremers role with respect
to the $2 million GIC. In this case, the trial judge found that Cremer acted in
concert, by agreement or in pursuit of a common design with James to cause
injury to the owner and/or mortgagee of the minority units by rendering
valueless their interests in SCC 27 or to use unlawful means in circumstances
where they knew or should have known that damage to McFlow was likely to
result.
[46]
She held that punitive damages were warranted to denounce and deter
James years of oppressive conduct and James and Cremers dissipation of the $2
million GIC by deliberately hiding the money from the court, the administrator
and creditors, knowing that a court order had been issued to pay the money into
court. She rejected the appellants argument that the obligation to pay the $2 million
into court was conditional on the administrator commencing a proceeding. As
noted by the trial judge, the funds were only ever paid to the credit of the
action, after being seized by the RCMP in an unrelated criminal proceeding.
[47]
The award of punitive damages was rationally connected to the policy
objectives of deterrence and denunciation and there were adequate grounds to
support the trial judges decision to impose punitive damages against Cremer.
[48]
For this reason, the second ground of appeal fails.
The Third Issue: Did the Trial Judge Err in Awarding
Substantial Indemnity Costs?
[49]
The appellants also challenge the discretionary costs award. They argue
that the trial judge erred in principle by relying on the same conduct that
gave rise to her award of punitive damages as the basis of her decision to
award costs on a substantial indemnity scale. This, they submit, is contrary to
this courts decision in
Sliwinski v. Marks
(2006), 211 O.A.C. 215
(C.A.), at para. 29.
[50]
Since the substantive appeal is dismissed, the appellants are required
to seek leave to appeal the discretionary costs award:
CJA,
s. 133;
Gary
Anthony Bennett Professional Corporation v. Triella Corp.,
2019 ONCA 225,
at para. 7. To grant leave, there must be strong grounds upon which the
appellate court could find that the trial judge erred in exercising his
discretion:
Brad-Jay Investments Limited v. Village Developments Limited
(2006), 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007]
S.C.C.A. No. 92. This includes errors in principle or a costs award that is
plainly wrong:
Hamilton v. Open Window Bakery Ltd.,
2004 SCC 9, [2004]
1 S.C.R. 9, at para. 27, citing
Duong v. NN Life Insurance Co. of Canada
(2001)
,
141 O.A.C. 307 (C.A.), at para. 14.
[51]
The appellants have not sought leave.
[52]
In any event, I see no reason to interfere with the trial judges
exercise of discretion in awarding costs as the trial judge committed no error
in principle. She made numerous findings of egregious conduct by the appellants
in the context of McFlows oppression claim and held, at para. 21 of her costs
endorsement that:
[T]he Defendants significantly lengthened the proceedings by
raising every possible argument, including limitation periods, laches,
election, waiver and unclean hands; failing to make reasonable admissions and
serving a blanket denial in response to McFlow's detailed chronology served
before trial; and filing lengthy affidavit evidence rife with self-serving
editorializing, speculation and rationalization.
[53]
The trial judge considered the appellants argument, relying on
Sliwinski,
that an award of substantial indemnity costs would be an unnecessary
double judicial admonishment.
[54]
The trial judge held that
Sliwinski
was distinguishable from
this case as:
[T]he punitive damages award and substantial indemnity costs
were in relation to the same conduct; no issue was raised about the defendants
conduct in the litigation.
In this case, even if the Defendants oppressive conduct is
sufficiently compensated by the punitive damages award, I would nonetheless
find that substantial indemnity costs are warranted based on the Defendants
conduct in the litigation.
[55]
On the basis of these findings of fact which are supported by the
evidence, I see no error in the trial judges exercise of her discretion to
award substantial indemnity costs.
[56]
For these reasons, the third ground of appeal fails.
The Fourth Issue: Did the Trial Judge Err in Awarding Prejudgment
Interest at the Court of Justice Act Rate Rather Than the Mortgage Rate?
[57]
McFlow claims the trial judge erred in awarding prejudgment interest at
the
CJA
rate rather than the mortgage rate.
[58]
The party seeking an order to depart from the
CJA
rate pursuant
to s. 130 of the
CJA,
has the onus to demonstrate that the
CJA
rate should be displaced:
Metropolitan Toronto Police Widows & Orphans
Fund
v. Telus Communications Inc.
(2008), 44 B.LR. (4th) 140
(Ont. SC), at para. 69, affd 2009 ONCA 111, 55 B.L.R. (4th) 12.
[59]
Awards of compound prejudgment or post judgment interest are generally
limited to breach of contract cases where there is evidence that the parties
agreed, knew, or should have known that the money would bear compound interest
as damages:
Bank of America Canada v. Mutual Trust Co.,
2002 SCC 43,
[2002] 2 S.C.R. 601, at para. 55. Compound prejudgment or post judgment
interest may be awarded as consequential damages in other cases but there
would be the usual requirement of proving that damage:
Bank of America,
at
para. 55. The same principles apply to interest at a rate in excess of the rate
provided for in the
CJA
.
[60]
This is not a breach of contract case; accordingly, McFlow was required
to prove compound interest at a rate in excess of the
CJA
rates as
consequential damages.
[61]
McFlow claims that, had it been able to sell the minority units in 2009,
it would have had the funds available for reinvestment. McFlows principal,
Milton Winberg, testified that McFlow could have earned interest similar to the
mortgage rate on the minority units, which was 6.5 percent per annum,
compounded monthly.
[62]
However, the trial judge held that there was no evidence to demonstrate
a reasonable probability that McFlow could earn interest at a rate of 6.5
percent compound interest other than Mr. Winbergs bald assertion. As noted by
the trial judge: McFlow provided no evidence of the interest it was earning on
other mortgage loans over the same time period.
[63]
For this reason, the trial judge held that, I am not satisfied that
either party has raised a sufficient basis for departing from the applicable
prejudgment interest rate under the
CJA,
which is the interest rate
when the action was commenced, or 1.3 percent. The total amount of prejudgment
interest is $141,199.14.
[64]
Since (i) the onus is on the moving party to satisfy the court that the
interest rate set out in the
CJA
should be displaced and (ii) there
was no evidence as to the amount McFlow was earning on its other loans at that
time, the trial judge declined to exercise her discretion to award interest at
a rate higher than that provided for in the
CJA
.
[65]
Given the evidence about McFlows lack of due diligence in its lending
business, her conclusion that further evidence was required was reasonable. I
see no reason to interfere with this exercise of her discretion and for this
reason, the cross-appeal fails.
G.
CONCLUSION
[66]
For the above reasons, I would dismiss the appeal and cross-appeal.
[67]
I would award costs of the appeal to the respondents in the amount of
$23,000 all-inclusive and costs of the cross-appeal to the appellants in the
amount of $2,000 all-inclusive as agreed by the parties.
Released: October 25, 2021 P.R.
J.A. Thorburn J.A.
I agree. Paul Rouleau J.A.
I agree. Alexandra Hoy 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. N.T., 2021 ONCA 754
DATE: 20211025
DOCKET: C66755
Simmons, Lauwers and Pardu JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
N.T.
Appellant
John Hale, for the appellant
Rebecca Schwartz, for the respondent
Heard: October 19, 2021 by video conference
On appeal from the convictions entered by Justice Michel
Z. Charbonneau of the Superior Court of Justice on April 3, 2019.
REASONS FOR DECISION
[1]
Following a judge alone trial, the appellant was convicted of one count
of sexual interference and one count of assault but acquitted of sexual assault
and invitation to sexual touching. All charges related to the appellant's
step-daughter.
[2]
The appellant testified at trial and denied the incident that was the
foundation for the sexual interference and sexual assault charges. Although he
acknowledged physical contact with the complainant during the incident forming
the subject matter of the assault charge, his version of the event raised s. 43
of the
Criminal Code
, R.S.C. 1985, c. C-46, as a potential defence.
[3]
The appellant raises two issues on appeal.
[4]
First, the appellant submits that the trial judges reasons are
insufficient for several reasons. The appellant contends that the reasons fail
to explain how the trial judge resolved the inconsistent versions of events, why
he rejected the appellants evidence or set out any pathway to conviction. The
reasons make only passing reference to the appellants evidence and fail to
apply
W.(D.)
.
[1]
Further, the reasons do not address the elements of the offences or the s. 43
defence. Overall, the deficiencies in the reasons render them immune to appellate
review.
[5]
Second, the appellant submits that the trial judges reasons for
sentence demonstrate he intended to convict the appellant of the second count
of the indictment, sexual assault, and acquit him of the more serious charge of
sexual interference.
[6]
We do not accept these submissions.
[7]
Regarding the physical assault, the trial judge gave extensive reasons
explaining why he accepted the evidence of the complainant and her mother and
rejected the challenges to their credibility raised by the defence. Although
the appellant acknowledged physical contact with the complainant during the
incident forming the subject matter of the assault charge, he denied the level
of angry physical force described by the complainant. Instead, he explained he
intervened to prevent escalation of a confrontation between the complainant and
her mother and relied on s. 43 of the
Criminal Code
as a defence. The
mothers evidence concerning the assault supported the complainant's evidence
and undermined the appellant's account.
[8]
Contrary to the appellants submissions, the trial judge expressly
adverted to
W.(D.)
when addressing the assault. If not explicit, it is
implicit from the trial judges reasons that he rejected the appellants
account of the assault because he accepted the Crown's evidence. On the
complainants version of the assault, it was unnecessary that the trial judge
go into greater detail concerning why a s. 43 defence was not available.
[9]
Concerning the sexual interference offence, the appellant denied that
the incident described by the complainant occurred. Once again, if not
explicit, it is implicit in the trial judges reasons that he rejected the
appellants denial because he accepted the complainants testimony. Further, we
are satisfied that a finding of sexual purpose is the only reasonable inference
arising from the trial judges description of the sexual touching incident.
[2]
[10]
The trial judges oral reasons were in large measure a response to the
submissions that were made to him the previous day. On our review of the record,
the trial judges path to conviction is apparent. He found guilt beyond a
reasonable doubt based on a considered and reasoned acceptance of the Crowns
evidence:
R. v. J.J.R.D.
(2006), 215 C.C.C. (3d) 252 (Ont. C.A.), at
paras. 53-55, leave to appeal refused, [2007] S.C.C.A. No. 69.
[11]
As to the second issue, we reject the appellant's submission that the
reasons for sentence demonstrate the trial judge intended to convict of sexual
assault and not sexual interference for the breast cupping incident. A fair
reading of the sentencing reasons demonstrates that after initially referring explicitly
to the sexual interference offence, the trial judge subsequently used the term sexual
assault as a shorthand to describe it. As we have explained, we are satisfied
that the trial judge made a finding of sexual purpose in relation to the breast
cupping incident in his reasons for decision. We do not read the reference to
absence of a sexual purpose in his reasons for sentence as referring to that
incident.
[12]
Finally, we accept the Crown's submission that the acquittal on the
sexual assault charge, which also related to the breast cupping incident, was patently
an error in law and did not render the verdicts on the sexual interference and
sexual assault counts inconsistent:
R. v. Plein
, 2018 ONCA 748, 50
C.R. (7th) 41.
[13]
Based on the foregoing reasons, the appeal is dismissed.
Janet Simmons J.A.
P. Lauwers J.A.
G. Pardu J.A.
[1]
R. v. W.(D.)
, [1991] 1 S.C.R. 742.
[2]
The trial judge said:
However, on one
occasion it was different. She has indicated she was in front of the sink and
that he groped her breast, not briefly, but for several seconds he actually
groped her breast and in a sexual manner.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Bobel v. Humecka, 2021 ONCA 757
DATE: 20211026
DOCKET: M52506
Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J.
(
ad hoc
)
BETWEEN
Przemyslaw Bobel
Plaintiff (Moving Party)
and
Edyta Maria Humecka and Raymond
Alexander Patten
Defendants (Responding Parties)
Przemyslaw Bobel, acting in person
Alexander Boissonneau-Lehner, for the responding parties
Heard: in writing
REASONS FOR DECISION
[1]
By judgment released February 2, 2021, the moving partys claim against
the responding parties (his former romantic partner and her current partner)
for malicious prosecution, nervous shock, false imprisonment, negligence and
other collateral claims was dismissed (the Judgment). The trial judge
subsequently ordered that the moving party pay the responding parties costs,
fixed at $75,000, inclusive of HST and disbursements (the Costs Order).
[2]
The moving party now brings a motion in writing for:
(a)
leave
to appeal the so-called Ancillary Claim portion of the Judgment;
(b)
an
extension of time to appeal the Judgment;
(c)
leave
to appeal the Costs Order;
(d)
leave
to file fresh evidence on appeal;
(e)
if
leave to file fresh evidence is granted, leave to file uncommissioned affidavit
evidence.
[3]
The moving party does not require leave to appeal the Judgment, but he
does require an extension of time to appeal, since he is out of time.
[4]
The factors to be considered in granting an extension of time to appeal
are set out in
Enbridge Gas Distribution Inc. v. Froese
, 2013 ONCA
131, 114 O.R. (3d) 636, at para. 15. The court must consider:
(a)
whether
the moving party formed a
bona fide
intention to appeal within the
relevant time period;
(b)
the
length of, and explanation for, the delay;
(c)
any
prejudice to the responding parties caused, perpetuated, or exacerbated by the
delay; and
(d)
the
merits of the proposed appeal.
[5]
Accepting the moving partys unsworn affidavit in support of the
motion at face value, there is no evidence that the moving party formed a
bona
fide
intention to appeal before he filed his motion on May 26, 2021. While
the delay is not particularly lengthy (just under three months), the moving
party has provided no explanation for it.
[6]
Considering the last two factors together, we find the appeal has no
merit and it would be prejudicial to the responding parties to continue the
stay of the Costs Order and to subject them to further costs in resisting an
unmeritorious appeal. The trial judge gave thorough and careful reasons,
grounded in large measure in his rejection of the moving partys evidence as
not credible or reliable and his acceptance of the responding parties evidence.
Excusing the delay and permitting the moving party to pursue an unmeritorious
appeal would cause further prejudice to the responding parties. We dismiss the
motion for an extension of time to appeal.
[7]
We also dismiss the motion for leave to appeal the Costs Order. Again,
the trial judge considered the applicable principles pertaining to costs. The
award was reasonable having regard to the length of the trial (8 days), the
conduct of the moving party that needlessly extended the action, thereby
increasing the costs, the unfounded allegations against the responding parties
counsel, and the responding parties offer to settle. The moving party has
identified no error in principle in the award of costs. The award itself is
entitled to deference and is reasonable.
[8]
The motion is dismissed, with costs to the responding parties fixed at
$2,500, inclusive of disbursements and all applicable taxes.
G.R. Strathy C.J.O.
B. Zarnett J.A.
Wilton-Siegel J.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Echelon
Environmental Inc. v. Glassdoor Inc., 2021 ONCA 763
DATE: 20211026
DOCKET: M52789
Miller J.A. (Motion
Judge)
BETWEEN
Echelon Environmental
Inc. and Robert Rainford
Responding Parties
and
Glassdoor Inc.
Responding Party
and
John Doe
Moving Party
Julia Lefebvre, for the moving party
Christine L. Lonsdale, for the responding parties, Echelon
Environmental Inc. and Robert Rainford
Jonathan G. Colombo and Amrita V. Singh, for the
responding party, Glassdoor Inc.
Heard: October 7, 2021 by video conference
ENDORSEMENT
[1]
John Doe brings this motion to extend the time
to serve and file a Notice of Appeal from an order of Dow J., dated June 7,
2021, which denied his standing to appear as an anonymous party and make
submissions on an Anti-SLAPP motion.
[2]
For the reasons that follow, the motion is
dismissed.
Background
[3]
An anonymous poster, identifying as a former
employee of Echelon, posted an online review of Echelon on the Glassdoor
website. Echelon responded by bringing a defamation action against Glassdoor
and the anonymous poster, referred to as John Doe. The identity of John Doe has
not been revealed to either Echelon or the courts.
[4]
Glassdoor took the position that Does post was
expression relating to a matter of public interest, protected by s. 137.1(3) of
the
Courts of Justice Act
, R.S.O.
1990, c. C.43
. Relying on this section, Glassdoor brought an
Anti-SLAPP motion to have Echelons action dismissed.
[5]
Counsel for Doe advised in March 2021 that she
intended to file a factum and make oral submissions on the Anti-SLAPP motion.
Echelon objected.
[6]
The parties appeared before Dow J. on June 7,
2021. Dow J. was unable to hear the substance of the Anti-SLAPP motion that
day, and he adjourned it to July 28. He was able to deal with two
preliminary matters: a sealing order and the issue of Does right of
participation. Dow J.s endorsement noted that Doe had not filed a Notice of
Intent to Defend, and ruled that Doe had no standing and could not be heard
from in the Anti-SLAPP motion, subject to any formal, on the record appearance
by counsel for the John Doe and any step taken in the litigation as a result. Thirty
days elapsed, and Doe did not appeal.
[7]
The Anti-SLAPP motion was returned before Pollak
J on July 28. Counsel for Doe appeared, intending to reargue the issue of
standing. However, Pollak J. adjourned all matters related to the Anti-SLAPP
motion to Monday, August 16, 2021, to be heard by Dow J.
[8]
On August 13, sixty-seven days from the date of
Dow J.s order denying Doe standing to appear at the Anti-SLAPP motion, Doe
served a motion record seeking to extend his time to serve and file a Notice of
Appeal. Counsel for Doe did not seek an adjournment of the Anti-SLAPP motion
itself, which proceeded as scheduled on August 16, and was ultimately dismissed
by Dow J. the day before this motion was heard. Glassdoors counsel advised
this court that it intends to appeal the dismissal. Doe continues to press his
motion to extend time to serve and file a Notice of Appeal from Dow J.s order
denying him standing.
Analysis
[9]
This court will extend the time to serve and
file a Notice of Appeal if an extension is required by the justice of the case:
2363523 Ontario Inc. v. Nowack
, 2018 ONCA 286, at para. 4. The court
will generally consider the following factors:
1.
Whether the appellant formed a
bona
fide
intention to appeal within the relevant time period;
2.
The length of delay in filing and the
explanation for it;
3.
Any prejudice that would be caused to the responding
party by allowing the motion;
4.
The merits of the proposed appeal.
See
Howard v. Martin,
2014
ONCA 309, 42 R.F.L. (7th) 47, at para. 26;
Leighton v. Best
, 2014
ONCA 667, 20 C.B.R. (6th) 326, at para. 1.
[10]
No one factor decides the outcome. All factors
must be considered, but how they bear on what justice requires is context-specific:
see
Enbridge Gas Distribution Inc. v. Froese
, 2013
ONCA 131
, 114 O.R. (3d) 636, at para. 15;
Monteith v. Monteith
, 2010
ONCA 78
, at para. 20.
Intention to appeal
[11]
Counsel for Doe argues that he formed an
intention to appeal very shortly after appreciating the finality of Dow J.s
decision.
[12]
Counsel for Echelon argues that the finality of Dow
J.s decision was obvious on its face, and Doe waited to appeal as part of a
tactical decision to make another attempt at getting a standing order from another
judge. It was not until the collateral attack failed, and Doe realized that the
motion would be returned before Dow J., that Doe decided to proceed with the appeal.
Doe admits in his written submissions to this court that he only moved to
appeal after it was clear that Justice Dows decision could not be challenged
at the new hearing before Pollak J.
[13]
I agree that Dow J.s order was clearly final on
its face. Dow J.s order states that if Doe did not identify himself, he would
have no standing and no right of participation. Nothing that happened
subsequently could have caused Dow J.s order to crystalize at a later date,
as Does counsel contends. The actions of Doe given the obviousness of the
finality of Dow J.s order and the absence of any change of circumstances suggest
that Doe had no intention to appeal until well after the time period had
expired, and that his delay was the result of a litigation strategy that
failed.
[14]
Even on Does version of events, he did not form
an intention to appeal during the relevant period. Doe claims to have only
realized the finality of the order after Pollak J.s adjournment, several weeks
after the deadline to appeal had expired. Therefore the only intention he could
have formed during the period before the deadline expired was an intention to challenge
Dow J.s order at the hearing before Pollak J., which is not the same as an
intention to appeal: see, by analogy,
Cunningham v. Hutchings
, 2017
ONCA 938, at paras. 13-16.
The length and explanation for the delay
[15]
The 67-day delay is not long, but Does
explanation for it is weak. His explanation rests on his misunderstanding as to
whether Dow J.s order was final. The salience of the explanation is diminished
by the orders obvious finality.
Prejudice to the Responding Parties
[16]
In general, this court considers only prejudice
caused by the delay in filing a notice of appeal, not prejudice that could be caused
by the outcome of the appeal:
40 Park Lane Circle v. Aiello,
2019
ONCA 451, at para. 6. But in this case, the two considerations merge, and a
proper account of the justice of the case requires me to have regard to both.
Echelon occupies a far more difficult litigation position because of the delay
than it would have occupied had Doe filed in a timely manner.
[17]
Had Doe had brought his appeal in a timely manner,
the Anti-SLAPP motion would have been adjourned, or Does appeal expedited, so
that the question of standing would have been resolved prior to the hearing of
the Anti-SLAPP motion.
[18]
Instead, Echelon will have to litigate Glassdoors
appeal of the Anti-SLAPP dismissal on its merits, while simultaneously
litigating an appeal of Does standing. If Echelon prevails against Glassdoor
but Doe is successful, the Anti-SLAPP motion will have to be heard again on a
new record involving Doe effectively invalidating the victory against
Glassdoor.
Merits of the Appeal
[19]
Doe argues that Dow J. made errors of law (1) in
determining that Doe had no standing, and (2) in providing insufficient
reasons.
[20]
Doe asserts private interest standing as a named
defendant in the action, and argues that the Anti-SLAPP motion (or the appeal
of it) could affect Does rights by resulting in the action being dismissed.
[21]
Doe and Glassdoor argue that s. 137.1 serves to
protect anonymous speech, and that part of protecting anonymous speech is
keeping it anonymous in the context of a defamation action.
[22]
I was not taken to any authority for the
proposition that s. 137.1 modifies the general obligation that parties who wish
to participate in litigation must identify themselves both to the court and to
those against whom they are asserting rights. On its face, s. 137.1 does not
provide for this. Section 137.1 protects a subset of speech not by maintaining
its anonymity, but by providing an expedited procedure for having the action
dismissed.
[23]
The claim made is not only novel, but seems contrary
to well-established principle, and without support in law.
[24]
Doe is on slightly firmer ground with the
argument that the reasons that were provided were insufficient. The reasons
were brief and conclusory. But to be fair to the motion judge, the ruling he
was asked to make was obvious. The difficulty on this motion is that I have no
evidence of what argument the motion judge was invited to consider. Doe filed
no materials and there is no transcript of the hearing. Even assuming the
argument was the same as the one outlined before me that the Anti-SLAPP
provisions protect the anonymity of speech it is nothing more than an
assertion and need not have detained the motion judge.
The justice of the case
[25]
There are no further considerations that have
not already been addressed. Doe made a strategic procedural choice. That
failed, and when Doe decided to appeal, he did so at a time and in a manner that
- if successful - would result in significant expense and repetition of matters
already litigated. On balance, the justice of the case does not require this
court to grant an extension.
Conclusion
[26]
The motion for leave to extend time is
dismissed. The responding party is entitled to its costs of the motion. If the
parties are unable to settle the quantum among themselves, I will receive brief
submissions not exceeding three pages in addition to a bill of costs, to be
filed with the court within 14 days of the date of this decision.
B.W. Miller J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Kerner v. Information Builders (Canada) Inc., 2021
ONCA 756
DATE: 20211026
DOCKET: C68548
Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J.
(
ad hoc
)
BETWEEN
David Kerner
Plaintiff (Respondent)
and
Information Builders (Canada) Inc.
Defendant (Appellant)
Hendrik Nieuwland, for the appellant
Philip R. White and Jason Wong, for the respondent
Heard: October 18, 2021 by video conference
On appeal from the judgment of Justice Andra Pollak of
the Superior Court of Justice, dated July 16, 2020, with reasons reported at
2020 ONSC 2975.
REASONS FOR DECISION
[1]
The sole issue on this appeal is whether the trial judge erred in
awarding damages for wrongful dismissal based on a reasonable notice period of
eight months.
[2]
The trial judges assessment of reasonable notice is entitled to
deference and should not be disturbed unless it is outside an acceptable range
or unless, in arriving at the figure, the trial judge erred in principle or
made an unreasonable finding of fact. If the trial judge erred in principle, we
may substitute our own figure, but we should do so sparingly if the trial
judges award is within an acceptable range, despite the error in principle:
Holland
v. Hostopia.Com Inc.
, 2015 ONCA 762, at para. 44.
[3]
The appellant submits that the trial judge made two errors in principle.
First, she erred by having regard to the respondents prior service with the
employer. That service (16 ½ years) ended when the respondent voluntarily resigned
in 2013 to take up other employment. When the latter employment ended, the
respondent was unemployed for about a year before returning to work with the
appellant in January 2017. He was dismissed without reasonable notice in
September 2018.
[4]
Second, the appellant submits that the trial judge erred by having
regard to the time it took the respondent to find new employment after his
termination.
[5]
Assuming these were errors in principle, we conclude that a notice
period of eight months for
this
employee in
these circumstances
was reasonable.
[6]
The trial judge had regard to the
Bardal
principles. She
adverted to the respondents age (56), the fact that his work experience was
almost entirely in the IT/Enterprise sector, his recent employment with the
appellant as Regional Sales Manager in New York, and his relatively high
compensation package of approximately $300,000 per year. The trial judge could
also have considered the fact (which she mentioned in her reasons) that before
returning to the appellants employ in 2017, it had taken the respondent almost
a year to find employment with the appellant after being terminated by his
previous employer. This was a relevant indicator of the time it would
reasonably take the respondent to find comparable employment.
[7]
Having considered the cases referred to by both parties, we are not
satisfied that eight months was outside an acceptable range in the
circumstances of this case. To state the obvious, the cases turn on their own
facts. That said, the cases mentioned in the appellants factum are from
jurisdictions other than Ontario and decisions involving other marketplaces
must be viewed with some caution. The cases identified by the respondent, which
include authorities from Ontario as well as other provinces, indicate that some
senior managers in their fifties, drawing salaries lower than the respondents,
with less than three years of service, have been awarded notice in the range of
6 to 12 months.
[8]
The appeal is dismissed with costs to the respondent in the agreed
amount of $9,000, inclusive of disbursements and all applicable taxes.
G.R. Strathy C.J.O.
B. Zarnett J.A.
Wilton-Siegel J.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
N. v. F., 2021 ONCA 766
DATE: 20211026
DOCKET: C68926
Lauwers, Hourigan and
Brown JJ.A.
BETWEEN
N.
Applicant (Respondent)
and
F.
Respondent (Appellant)
Fareen L. Jamal, Fadwa Yehia and Edward C. Conway, for
the appellant
Bryan R.G. Smith, Lindsey Love-Forester and Andrew
Lokan, for the respondent
Estée Garfin and Hera Evans, for the intervener
Attorney General of Ontario
Caterina E. Tempesta and Sheena Scott, for the
intervener Office of the Childrens Lawyer
Heard: January 21, 2021 by video conference
On appeal from the order of Justice Clayton Conlan of the
Superior Court of Justice, dated December 15, 2020, with reasons reported at
2020 ONSC 7789.
COSTS ENDORSEMENT
[1]
The respondent was entirely successful on the appeal. He seeks his costs
on a full indemnity basis in the amount of $99,500, all-inclusive. This figure
reflects a reduction of almost half from the actual time incurred by the
respondents counsel and is reflective of the actual amount billed to and paid
by the respondent for the appeal.
[2]
The appellant submits that each party should bear their own costs of the
appeal. In any event, she argues that the costs incurred by the respondent are
excessive and beyond the reasonable expectations of the parties. She notes that
her costs of the appeal on a partial indemnity basis were approximately
$48,500. Further, she submits that she has limited means to pay such a cost
award.
[3]
We are not satisfied that there are special circumstances in this case
that warrant either an award of costs on a higher scale or an order that each
party should bear their own costs. In our view, the costs should follow the
result. Having regard to the parties submissions and their reasonable
expectations, we order that the appellant pay to the respondent his costs of
the appeal in the all-inclusive sum of $50,000.
P. Lauwers J.A.
C.W. Hourigan J.A.
David Brown J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Jarrett, 2021 ONCA 758
DATE: 20211026
DOCKET: C65726
Watt, Roberts and Zarnett JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Melville Jarrett
Appellant
Riaz Sayani, for the appellant
Amanda Hauk, for the respondent
Heard: April 19, 2021, by video conference
On appeal from the conviction entered by Justice Robert
B. Reid of the Superior Court of Justice on March 7, 2018.
Zarnett J.A.
:
INTRODUCTION
[1]
The appellant appeals his convictions for assaulting a police officer;
failing to comply with a recognizance; possession of cocaine, oxycodone
[1]
, and hydromorphone
for the purpose of trafficking; and possession of proceeds of crime. The appeal
centres on the trial judges refusal
[2]
to stay charges or exclude evidence as a result of what the appellant contends
were breaches of his protected rights under the
Canadian Charter of Rights
and Freedoms
.
[2]
The trial judge dismissed the appellants application to stay
proceedings on the basis that excessive force was used by police when he was
arrested, thus violating his rights to life, liberty and security of the person,
and to not be subjected to cruel and unusual punishment, under ss. 7 and 12,
respectively, of the
Charter
. The appellant argues that the trial
judge misallocated the burden of proof relating to whether excessive force was
used, fatally tainting his conclusion that there was no
Charter
breach. He submits that the question of whether there was a violation of these
Charter
rights should be re-heard, and that the convictions for assaulting a police
officer (which followed from the same evidence considered on the stay
application) and breach of recognizance should be set aside and a new trial
ordered.
[3]
The appellant also submits that the trial judge, after finding that
there had been a violation of the appellants right, following his arrest, to
retain and instruct counsel without delay under s. 10(b) of the
Charter
,
erred in refusing to exclude evidence discovered by the police at the scene of
the arrest. Since that evidence was the basis of the convictions for drug
trafficking and possession of proceeds of crime, he asks that those convictions
be set aside and acquittals entered.
[4]
I would not give effect to the argument that the trial judge erred in
his approach to whether there was a breach of the appellants ss. 7 and 12
rights. Contrary to the appellants argument, reading the trial judges reasons
as a whole, he did not actually decide the matter by applying an incorrect
burden of proof. He accepted the evidence proffered by the Crown, considered
whether the force used was reasonable, and concluded that the force used was
not excessive in the circumstances. His findings show that he concluded that
what was the Crowns evidentiary burden was satisfied.
[5]
I would, however, allow the appeal from the drug trafficking and
proceeds of crime convictions and substitute acquittals on those charges. As
the trial judge noted, there was little dispute about the facts relevant to the
s. 10(b) breach. The trial judge found that there had been a breach of the
appellants right to counsel since although the police had made an initial
effort leaving a voicemail message with the appellants counsel of choice they
did not follow up or make any further efforts, leaving the appellant with no
contact with counsel for 30 hours following his arrest, 20 of which he spent
handcuffed to a hospital bed. As the trial judge also noted, whether exclusion
of evidence was warranted turned on how the law applied to those facts. In my
view, the trial judges analysis of the factors relevant to exclusion of
evidence, set out in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353,
was legally flawed. Performing the correct analysis, the evidence seized at the
scene of the arrest ought to have been excluded under s. 24(2) of the
Charter
as a remedy for the s. 10(b) breach.
BACKGROUND
A.
The Arrest
[6]
On June 25, 2015, three plainclothes Niagara Regional Police detectives
in an unmarked police car pulled up next to the appellants vehicle at an
intersection in St. Catharines. The officers saw the appellant using a cell
phone. They directed the appellant to pull his vehicle over to the side of the
street. The appellant complied. Meanwhile, a fourth officer, in uniform,
arrived at the scene.
[7]
One of the officers requested identification from the appellant and the
three passengers in his vehicle. The appellant provided his drivers licence
and registration in response to the request. Two of the officers performed
database searches and learned that the appellant was on bail and a term of his
release was to not possess a cell phone if it had not been registered with the
Niagara Regional Police. As the cell phone had not been registered, the
appellant was advised by one of the officers that he was being placed under arrest,
and was asked to get out of his car.
[8]
As the trial judge noted, the circumstances of the arrest from that
point forward were the main factual dispute between the parties. He described
the evidence of the appellant and that of the police officers as diametrically
opposed.
[9]
The appellant testified that as he got out of the car, he stumbled. A
fanny pack he was wearing was caught in the seatbelt and he reached around to
take it off and threw it back into the car. As he stumbled out of the car, the
police officers did the following: administered a knee strike to his chest,
causing excruciating pain; administered a knee strike to his head; wrestled him
to the ground; tasered him three times; held him on the ground; and handcuffed
him. He denied ever resisting the police or fighting with them.
[10]
The appellants girlfriend, Stacy Lamb, who was one of the passengers in
his car, also testified. The trial judge noted that Ms. Lamb did not see
exactly what happened. She said that the appellant stumbled as he got out of
the car, that he fell into one of the officers who hit him multiple times,
including a knee strike to the chest, and that the appellant was tasered three
times and pepper sprayed two or three times. She believed the police
incapacitated the appellant for no reason. She said that she had asked the
appellant for the fanny pack before the officer returned to the car to tell the
appellant he was under arrest, and that when he gave it to her, she tried to
hide it so that the police would not find it. She testified that she had given
an incorrect statement to the police on the day of the arrest, to the effect
that the appellant had thrown it at her and that she did not know what to do
with it and had panicked.
[11]
The police officers gave a different version of the events.
[12]
Det. DiFranco was the officer who took the licence and registration from
the appellant and returned to arrest him. He described the appellant as
aggressive and confrontational. He testified that as the appellant was getting
out of his car, he reached for a fanny pack around his waist, leading Det.
DiFranco to reach for it as well due to safety concerns, as he did not know
what it contained. Det. DiFranco administered a knee strike to the appellants
upper body area to create distance between them.
[13]
Cst. Poirier, the officer in uniform, was also at the appellants
vehicle when he was asked to get out of it. He described the appellant as argumentative
and extremely hostile, and also testified that he reached for the fanny pack
while getting out of the car. Cst. Poirier grabbed the appellants left arm to
arrest him, at which point the appellant began to struggle. Cst. Poirier applied
knee strikes to the appellants leg to bring him to the ground, so as to
handcuff him and complete the arrest. The appellant broke free, got up, charged
at Cst. Poirier, headbutted him and put his hands around Cst. Poiriers waist
in a bear hug, and they fell back onto the road.
[14]
Det. DiFranco and Cst. Poirier struggled with the appellant across the
street, over a curb and sidewalk, and into a flower bed. Both described the
arrest as one of, or the most, difficult they had ever had to make.
[15]
Det. Sgt. Knevel was at the scene initially focussing on the passengers
in the appellants vehicle. He observed the struggle to subdue the appellant
and joined it to assist. He described the appellant fighting violently to get
away.
[16]
According to the three officers, when the knee strikes and wrestling did
not bring the appellant under control to allow them to apply handcuffs, a
decision was made to use a taser. Cst. Poirier deployed it three times within
about 30 seconds. All of the officers testified that no pepper spray was used.
[17]
The evidence of the three officers was in part confirmed by the fourth
officer at the scene, Det. Cunningham. The trial judge noted he was minimally
involved in the interaction with the appellant but confirmed the dynamic
nature of the situation and the struggle between the officers and [the
appellant].
[18]
Mr. Eaton, a civilian who observed the confrontation, also testified. He
saw an individual resisting efforts by the police to hold him down, and pushing
himself up off the ground even after a taser was used. The trial judge
considered his evidence to be generally consistent with that of the police
officers, although his estimate that the entire struggle took 1.5 hours was
grossly at odds with what was otherwise described as a brief but dynamic
interaction.
B.
The
Opportunity to Retain and Instruct Counsel
[19]
As the trial judge noted, there was relatively little dispute about the
facts on this issue.
[20]
The appellant was advised of his right to counsel upon his arrest. He
requested the opportunity to contact counsel, whom he identified by name.
[21]
The appellant was then taken to the hospital for medical attention as a
result of the circumstances of his arrest. He remained there, in police
custody, handcuffed to his bed, for about 20 hours. He had no contact with
counsel, and was not offered the opportunity to contact counsel from the
hospital, although there was no health reason that would have prevented him
from having that contact.
[22]
The appellant only had contact with counsel sometime after being
returned from the hospital to the police station or courthouse. The trial judge
accepted that this occurred about 30 hours after the arrest.
[23]
Although the appellant asked the police for the opportunity to consult
counsel at the time of his arrest, the only step taken to facilitate that was
Det. DiFranco leaving a voicemail message for the appellants counsel after the
detective returned to the police station, about an hour and a half after the
arrest. The police did not tell the appellant they had made this call, or
follow up when the call to counsel was not returned. Nor did the police make any
further efforts to facilitate contact with counsel for the entire time the
appellant was at the hospital, or until they facilitated contact from the
police station or courthouse some 30 hours after the arrest.
[24]
The appellant was not asked for nor did he give any statement to the
police prior to contacting counsel.
C.
The Fanny
Pack
[25]
The police recovered the fanny pack at the scene. After the appellants
arrest, it was searched. The fanny pack contained, among other things, 13 grams
of cocaine, 40 oxycodone pills and 25 hydromorphone pills, and $125 in cash.
THE DECISIONS OF THE TRIAL JUDGE
A.
The Trial
Judges Decision on the
Charter
Issues
[26]
The appellant applied for a stay of proceedings or that evidence be
excluded on the basis of breaches of his
Charter
rights. He asserted
that his rights under ss. 7 and 12 of the
Charter
were infringed when
the arresting officers used excessive force, and that his rights under s. 10(b)
of the
Charter
were infringed when he was not allowed to contact
counsel for about 30 hours after the arrest.
[27]
The trial judge stated that: It is undisputed that [the appellant]
bears the onus of establishing any
Charter
violation on the balance of
probabilities.
[28]
Dealing with the issue of excessive force, the trial judge referred to
ss. 7 and 12 of the
Charter
and observed that [i]t is trite to say
that a section 7
Charter
breach will be established where excessive
force is used in arresting a person. He noted that s. 25 of the
Criminal
Code
, R.S.C. 1985, c. C-46 authorizes the police to use as much force as
is necessary when lawfully arresting a person and case law also supports the
use of reasonable force to maintain the state of being under arrest. He
identified the key question after examining all the circumstances to be what
amount of force was necessary and whether the actual force used was excessive.
He referred to a list of factors from case law relevant to determining whether
force used was reasonable or necessary in the circumstances.
[29]
The trial judge found the appellants evidence that he did not resist
arrest to be inconsistent with the preponderance of evidence. He found that a
struggle ensued immediately outside the drivers door of the appellants
vehicle, and that even if there was an inadvertent stumble and a painful first
knee strike, it was not reasonable to conclude that the appellant was compliant
with subsequent efforts to arrest him. He accepted the evidence of the police
officers concerning the struggle, and found it was supported by the evidence of
Mr. Eaton. He did not consider the evidence of Ms. Lamb to be helpful to the
appellant for various reasons relating to its reliability, including that Ms.
Lamb had a limited view of the scene and an ongoing personal relationship with
the appellant. He concluded that the appellant was in a physical condition to
have represented a threat to the police officers, and I accept their evidence
that it was not possible to physically subdue him despite the best efforts of three
of them until the Taser was applied.
[30]
He stated that the appellant did not satisfy his onus of proving on a
balance of probabilities that excessive force was used against him by the
police. I find that the police used only the force necessary to effect the
arrest in the circumstances. Therefore, there was no breach of [the appellants]
section 7 or section 12
Charter
rights.
[31]
On the question of whether the appellants s. 10(b) right was infringed,
the trial judge began by noting that the right had an informational and an
implementational component, both aspects of which were to be provided
immediately. He held that the implementational component was engaged when the
appellant requested the opportunity to consult with a specific lawyer. It was
reasonable for Det. DiFranco to assist by leaving a message for the lawyer, but
not reasonable for the police to consider the matter ended there, leaving the
appellant in the hospital for almost a day without being afforded the
opportunity to contact counsel. Further efforts were required and were not
taken. There was no evidence that proper arrangements could not have been made
to facilitate contact from the hospital. He found that the appellants s. 10(b)
right was violated.
[32]
Although the fanny pack was recovered at the scene of the arrest before
the s. 10(b) breach occurred, he was satisfied that the breach that followed
the arrest was part of the same transaction or chain of events that included
the seizure of that evidence, and the temporal connection between the two was
not too remote. Therefore, he found that the precondition to the exclusion of the
fanny pack evidence under s. 24(2) of the
Charter
that the evidence
was obtained in a manner that infringed or denied
Charter
rights
had been met.
[33]
However, the trial judge rejected the claim that the s. 10(b) breach
justified the exclusion of the fanny pack evidence recovered at the scene,
under s. 24(2) of the
Charter,
because he was not satisfied that
admitting the evidence would bring the administration of justice into disrepute.
[3]
[34]
In considering whether admitting the evidence would bring the
administration of justice into disrepute, the trial judge followed the method
of analysis set out in
Grant
, at paras. 72-86, which requires
consideration of the seriousness of the
Charter
-infringing state
conduct, the impact of that conduct on the
Charter
-protected interests
of the accused, and societys interest in an adjudication on the merits.
[35]
The trial judge found the breach arguably inadvertent, but not
trivial, and that the serious nature of the breach militates against the
admission of the evidence
while its apparently inadvertent nature militates
toward admission of the evidence. He considered that this factor did not
clearly require the exclusion of evidence. He found the breach had little
practical effect as the appellant was aware of why he was arrested and was not
requested to give a statement, and even if he had contacted counsel, the search
would have continued and the fanny pack would have been found. He considered that
the public interest would not be offended by the admission of evidence under
this factor. And he found that the exclusion of relevant evidence would have
rendered the trial unfair from the publics perspective, favouring the
admission of the evidence. He concluded that the admission of the evidence
would not bring the administration of justice into disrepute in the eyes of a
reasonable person informed of all the relevant circumstances and the values
underlying the
Charter
.
B.
The
Convictions
[36]
After the
Charter
applications were dismissed, the drug
trafficking, possession of proceeds of crime, and breach of recognizance
charges proceeded with an agreed statement of facts. The agreed facts included
that the contents of the fanny pack were in the appellants possession, that
the contents included oxycodone and hydromorphone that he sold from time to
time, that he had a cell phone in his possession, that he knew he had an
obligation to ensure any cell phone in his possession was registered with the Niagara
Regional Police and that this cell phone was not, and that the cash in the
fanny pack included money from cocaine sales.
[37]
The charge of assaulting a police officer Cst. Poirier proceeded on
the basis of the evidence in the
Charter
application, with further
submissions. The trial judge repeated the findings made in his
Charter
decision. He directed himself that it was not simply a case of preferring the
evidence of the officers to that of the appellant and Ms. Lamb. Applying
R.
v. W.(D.)
, [1991] 1 S.C.R. 742, he concluded that the evidence of the
appellant was not believable, and that it did not raise a reasonable doubt. He
then considered whether on the evidence he did accept, the appellants guilt
was proven beyond a reasonable doubt. He found that the appellant had applied
force a bear hug and headbutt to Cst. Poirier, in the course of resisting
lawful arrest by the police.
[38]
As a consequence, the trial judge entered the convictions appealed from.
[39]
The trial judge sentenced the appellant to 25 months in custody on the
drug trafficking charges (counts 2, 3, and 4), two months concurrent on the
proceeds of crime charge (count 9), one month consecutive for breach of
recognizance (count 10), and three months consecutive for assaulting a police
officer (count 1). Various ancillary orders were also made.
THE ISSUES
[40]
The appeal raises the following issues:
a.
Did the trial judge err in failing to exclude the fanny pack evidence as
a remedy for the breach of the appellants right under s. 10(b) of the
Charter
?
b.
Did the trial judge misallocate the burden of proof as to whether
excessive force was used in considering whether the appellants ss. 7 and 12
rights under the
Charter
were breached, and if he did, should the
curative proviso be applied?
ANALYSIS
A.
The
Section 10(b) Issue
[41]
Section 10(b) guarantees to anyone arrested or detained the right to
retain and instruct counsel without delay and to be informed of that right.
Where, upon being informed of the right, the detained person exercises it, the
police must immediately provide the detainee with a reasonable opportunity to
speak to counsel:
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at
paras. 38, 42.
[42]
The appellant exercised his s. 10(b) right by expressing the desire to
speak to counsel immediately upon his arrest. The police breached the duty to
immediately provide him with a reasonable opportunity to speak to counsel. The
single message that was left with counsel, without any follow-up, did not
actually provide an immediate opportunity for the appellant to speak to
counsel. No such opportunity was provided for 30 hours. Nor was the single
message, without any follow-up, reasonable, judged in all of the circumstances.
The trial judge appropriately observed that it was unreasonable for the police
to consider the single message sufficient and the matter ended there − further
efforts were required. Yet the police took none. They did not explore whether
there were other means of making contact with the counsel the appellant had
specified. Nor was the appellant told that a message had been left with the
counsel he had specified, or that it had not been answered. Thus, he was not
given the opportunity to provide other contact information for that counsel if
he had it, or to specify another counsel who might be more immediately
responsive.
[43]
There are a number of ways in which the police may facilitate a
detainees right to immediate contact with counsel. Where the police assume the
responsibility of making first contact, rather than providing the detainee with
direct access to a phone or internet connection, they must be taken to have
assumed the obligation to pursue [the detainees] constitutional right to [access
counsel] as diligently as she would have:
R. v. OShea
, 2019 ONSC
1514, 372 C.C.C. (3d) 352, at para. 42;
R. v. Doobay
, 2019 ONSC
7272, 61 M.V.R. (7th) 225, at paras. 29-33. Anything less would encourage
token efforts by the police and imperil the right of those in detention to
consult a lawyer of their choosing:
Doobay
, at para. 30. In this
case, where the police undertook to contact a lawyer on the appellants behalf,
it was unreasonable for them to have left a single voicemail and ended their efforts
there.
[44]
Although there was no causal connection between, on the one hand, the
discovery of the fanny pack and its contents, and on the other hand, the s.
10(b) breach, there was, as the trial judge appropriately found, a sufficient
temporal connection to consider the evidence to have been obtained in a manner
that infringed a
Charter
right within the meaning of s. 24(2):
R.
v. Pino
, 2016 ONCA 389, 130 O.R. (3d) 561, at para. 72;
R. v.
Rover
, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 35.
[45]
I accept the argument of the appellant that, against the backdrop of
this breach, the trial judge erred in failing to find that having regard to
all circumstances, the admission of [the evidence] in the proceedings would
bring the administration of justice into disrepute within the meaning of s. 24(2),
and therefore in failing to exclude the fanny pack evidence. Although the trial
judge referenced the three-prong test articulated in
Grant
to assess
this question, he made legal errors in its application, leading to an
unreasonable determination. Appellate intervention is therefore warranted:
R.
v. McGuffie
, 2016 ONCA 365, 131 O.R. (3d) 643, at para. 64. In fairness to
the trial judge, he did not have the benefit of this courts more recent
decisions on the
Grant
analysis relating to s. 10(b) breaches.
[46]
The first
Grant
factor is the seriousness of the
Charter
-infringing
state conduct. On this factor, the trial judges findings were equivocal. He
referred to the breach as not trivial, and in one passage noted the serious
nature of the breach. But he also referred to the breach as inadvertent or
arguably inadvertent, because there had been an initial attempt to contact
counsel. Because of this latter characterization of inadvertent, he held that
this factor did not clearly require the exclusion of the evidence. In my view,
the trial judge made two interrelated errors in coming to that conclusion.
[47]
First, the breach ought not to have been viewed as anything other than
serious, given the extent the police conduct departed from the content of the
appellants constitutional right. The duty of the police was to
immediately
provide the appellant with a reasonable
opportunity to speak to counsel. Viewed from that perspective, the breach was
very substantial the delay in providing the opportunity to speak to counsel
was about 30 hours.
[4]
[48]
Second, although the breach was arguably inadvertent that is, not
intentional and there was no evidence the delay was caused by a systemic
practice the circumstances did not take the case out of the serious breach category.
The single, unsuccessful attempt to contact counsel referenced by the trial
judge pales in comparison to the length of time over which the police failed to
take any further steps to fulfill their duty. Indeed, immediately after
describing the breach as arguably inadvertent, the trial judge noted that
after their initial attempt to contact counsel, [n]o officer made any further
attempt to either contact counsel, to ascertain whether counsel had contacted [the
appellant], or to assist [the appellant] with contact from the hospital. The
police are expected to comply with the
Charter
. The absence of
evidence that the polices failure to comply with the
Charter
was
systemic is not a mitigating factor when assessing the seriousness of the
breach:
McGuffie
, at para. 67.
[49]
In
R. v. Noel
, 2019 ONCA 860, the fact that a police officer
left a message with duty counsel without following up to ensure contact
occurred did not attenuate the seriousness of a s. 10(b) breach, and was viewed
by this court as part of a somewhat cavalier attitude about a fundamental,
important, and long-settled
Charter
right to consult counsel without
delay: at para. 32. In
R. v. Pileggi
, 2021 ONCA 4, 153 O.R. (3d) 561,
this court concluded that a three-hour delay in providing the opportunity to
consult counsel, resulting from collective negligence
in allowing the
appellants s. 10(b) rights to fall through the cracks was a serious breach
even though a police officer not only contacted duty counsel, but kept the
accused informed of the efforts to engage counsel so that he was not left to
languish alone interminably: at paras. 114, 119 and 124.
[50]
In this case, the sheer length of the delay, and the fact that over that
lengthy period, nothing was done to inform the appellant that any effort to
contact counsel was made, or to follow up on the contact, should have led the
trial judge to conclude that the breach was serious and favoured exclusion of
the evidence.
[51]
Moreover, the trial judge erred in his analysis of the second
Grant
factor, the impact of the breach. He viewed the breach as one that had little
practical effect, as the appellant was aware of the reasons for his arrest, was
not requested to give a statement, and the search and seizure of the fanny pack
would have happened anyway.
[52]
Although the right to immediately consult counsel exists in part so that
the accused can obtain advice about self-incrimination and the legality of
searches, it extends to considerations beyond these, including obtaining
reassurance and advice about how long detention may last and how liberty may be
regained. The right to counsel is a lifeline for detained persons. Through
that lifeline, detained persons obtain, not only legal advice and guidance
about the procedures to which they will be subjected, but also the sense that
they are not entirely at the mercy of the police while detained. The
psychological value of access to counsel without delay should not be
underestimated:
Rover
, at para. 45;
Noel
,
at paras.
22-26. Holding a person without any explanation for why they cannot access counsel
or any indication of when that might occur compromises their security of the
person:
Rover
, at para. 46.
[53]
If the police had taken a statement or otherwise obtained evidence as a
direct result of the s. 10(b) breach, that may have made the impact of the
breach even more significant. But neither the fact that the police do not take
a statement from the arrested person while violating the right to counsel, nor that
there is no causal connection between the breach and evidence discovered, means
that the breach will always lack a significant negative impact on the
appellants
Charter
-protected rights:
Rover
, at paras. 43-47.
The impact must be considered given the nature of the interests protected by
the right to counsel, and the length of delay in providing it:
Noel
,
at para. 27.
[54]
In
Rover
, this court considered the impact on the accused to be
serious because he was held for almost six hours without any indication of
when he might be allowed to speak to someone: at para. 46.
[55]
Here, the appellant was without the benefit of the immediate right to
counsel, or any indication of when he might be allowed to speak to someone, for
about 30 hours, 20 of which he spent handcuffed to a hospital bed. The
trial judge failed to consider all of the interests the appellants immediate
right to counsel is to protect in his evaluation of the impact of this lengthy
breach. He placed undue emphasis on the lack of a causal connection between the
seizure and search of the fanny pack and the s. 10(b) breach, and on the fact
that the police did not take a statement. Moreover, his observation that the
appellant knew why he was arrested was, with respect, beside the point. The
appellant was entitled to consult counsel; he was not required to be his own
legal adviser when he wanted to speak to a lawyer.
[56]
The trial judges conclusion that the second
Grant
factor did
not favour exclusion is accordingly flawed. It did favour exclusion.
[57]
The trial judge correctly considered that the third
Grant
factor, the effect of excluding relevant reliable evidence, here pulled in
favour of admission of the evidence. However, a proper analysis of the first
two factors pulls strongly in favour of exclusion, and makes this one of those
cases in which the long-term repute of the administration of justice requires
the sacrifice of the short-term benefit of an adjudication on the merits of
this case:
Rover
, at para. 49.
[58]
The fanny pack and its contents ought to have been excluded. I would
accordingly allow the appeal and quash the convictions on counts 2, 3, 4, and
9, and substitute acquittals on those counts.
B.
The
Excessive Force Issue
[59]
The appellant argues that the trial judge, in considering whether his
Charter
rights were violated by the use of excessive force during his arrest, made the
error identified in the dissenting reasons in
R. v. Davis
, 2013
ABCA 15, 295 C.C.C. (3d) 508 (
Davis
), which were upheld by the
Supreme Court of Canada: 2014 SCC 4, [2014] 1 S.C.R. 78 (
Davis
(
SCC
)).
The error in
Davis
involved misallocating, to the accused, the burden
of proving that excessive force was used. As this error may have tainted the
assessment of the evidence as to whether excessive force was used, it could not
be saved by the application of the curative proviso in s. 686(1)(b)(iii) of the
Code
.
[60]
The appellant relies on the first sentence of the following statement in
para. 35 of the trial judges reasons to identify where he located the
burden of proof
:
I conclude that [the appellant] has not
satisfied his onus of proving on a balance of probabilities that excessive
force was used against him by the police
.
I find that the police only used
the force necessary to effect the arrest in the circumstances. Therefore, there
was no breach of [the appellants] section 7 or section 12
Charter
rights. [Emphasis added.]
[61]
Davis
establishes that an accused only has the burden of
demonstrating that a
Charter
remedy should be granted
. The accused
does not have the burden of showing that excessive force was used. Rather, once
an accused shows that the police used deadly force, a
prima facie
breach of s. 7 exists, and the evidentiary burden shifts to the Crown to prove
the force used was justified. This requires a subjective-objective analysis.
The court has to be satisfied that the police officer subjectively believed
that the use of force was necessary in the circumstances to protect the officer
or others from death or grievous bodily harm, and the belief must have been
objectively reasonable:
Davis
, at paras. 76-78.
[62]
The appellant argues that the first sentence of the trial judges
statement in para. 35 of his reasons that the appellant has not satisfied
his onus of proving on a balance of probabilities that excessive force was used
against him by the police shows he misallocated the burden of proof.
Rather
than requiring the respondent to show the force was justified, he placed the
burden on the appellant to demonstrate the force was excessive.
[63]
The appellant also submits that the error reflected in this sentence is
neither corrected nor salvageable by the next sentences in the same para
.
35, in which the trial judge said, I find that the police only used the force
necessary to effect the arrest in the circumstances. Therefore, there was no
breach of [the appellants] section 7 or section 12
Charter
rights. The
appellant points out that the trial judge in
Davis
also made a finding
on the evidence that the police officer was justified in acting as he did and
did not breach [the accuseds
Charter
] rights. In
Davis
, the
existence of that finding did not detract from the error in allocating the
burden of proof, or justify applying the curative proviso, because as a product
of misallocating the burden of proof, the trial judge did not properly process
the evidence, relying only on the police officers subjective beliefs without
addressing their objective reasonableness. This processing error may have
tainted the trial judges ultimate finding on whether excessive force was used:
Davis
, at paras. 81-82 and 86-87;
Davis
(
SCC
), at
para. 1. The appellant says the same approach should be taken here.
[64]
I would not give effect to this ground of appeal
. This is a materially
different case than
Davis
.
[65]
In
Davis
, there was no question about where the trial judge had
placed the burden of proof, and how she applied it.
She stated that the
burden of showing a
Charter
violation rests on the accused, a statement
that was correct as far as it goes:
Davis
, at para.
77. The
trial judge in
Davis
then went further to say that that meant the
burden of proving the force was excessive was on the accused, and further still
to explain exactly what that meant. She said that the burden was on the accused
to demonstrate that [the police officer] did not reasonably believe that force
was necessary to preserve himself or others from death or grievous harm and
that he could have prevented [the accuseds] flight by reasonable means less
violent. This was an error of law, as the burden was on the Crown to prove
that the force used was justified in the circumstances. To hold otherwise would
be unfair to the accused, who would have to prove a negative, i.e., that the
force was not justified. Moreover, her finding that she believed the police
officer was the product of her focussing exclusively on the officers
subjective belief, without adverting to the requirement of reasonableness. Any conclusion
drawn from it may have been tainted by the misallocation of the burden of proof:
Davis
,
at paras. 76-79 and 86-87.
[66]
Here, although the trial judge referred to the appellant not having met
a burden of showing that excessive force was used, that sentence stands alone
in the reasons as a description of the burden the trial judge was actually
applying to decide the excessive force issue
.
[5]
The reasons contain no elucidation of exactly what that burden required, as did
the trial judges reasons in
Davis
. It did not, as in
Davis
,
articulate the burden in such a way as to make it clear the appellant had been
required to prove a negative that the officers lacked a subjective belief
that the force they used was necessary, or that if they did hold such a belief,
that the belief was not objectively reasonable.
[67]
A review of the reasons as a whole does not support the view that the
sentence in para. 35 of the reasons relied on by the appellant, rather than the
one that follows, reflects the burden the trial judge actually applied in coming
to his conclusion about a
Charter
breach.
The statement relied on
by the appellant is immediately followed by a positive finding that would be
unnecessary if the trial judge was reaching his conclusion on the basis of a
failure of the appellant to have satisfied his burden. The trial judges statement
that I find that the police used only the force necessary to effect the arrest
in the circumstances is consistent with what is the evidentiary burden of the Crown
having been fulfilled: to show that the force used was justified in the
circumstances. As discussed below, unlike in
Davis
, that statement was
not the product of a singular focus on the subjective beliefs of the officers
because the trial judge did not advert to the requirement of reasonableness.
Given how the trial judge arrived at his conclusions, they cannot be taken to
have been tainted by a misapprehension of the burden of proof.
[68]
Before discussing the evidence, the trial judge referred to the
authorization in s. 25 of the
Code
for the police to use as much force
as is necessary when arresting an individual.
(Section 25 places the burden
on the Crown to justify a police officers use of deadly force on a
subjective-objective analysis:
Davis
, at paras. 41-45 and 78).
Although his analysis of it was brief, he identified the key questions to be
what force was necessary and whether the actual force was excessive after
examining all of the circumstances as they existed at the time the force was
used.
[69]
The trial judge also referred to case law, cited to him by both parties,
that identified factors to be considered in assessing the reasonableness of,
or necessity for, force used by the police in any particular situation.
Accordingly,
the trial judge was alive to the need to look at the force used through the
lens of reasonableness, not simply the subjective beliefs of the police
officers.
[70]
When analysing the evidence, and before making the statements in para. 35
of his reasons, the trial judge expressed himself more consistently with his
having been satisfied the force used was justified, rather than on the basis
that the appellant had the burden of showing the force used was not justified,
but had fallen short of meeting that burden
. He did not express himself
concerning the evidence on the basis that the appellant had been required, but
had failed, to prove a negative.
[71]
The trial judge rejected the appellants evidence that he did not resist
arrest as inconsistent with the preponderance of evidence.
He stated that
he was satisfied about what had occurred based on the evidence of the
officers that he accepted and the confirmation of Mr. Eaton. He did not limit
himself to saying he was not satisfied that what the appellant contended had occurred.
[72]
His findings, although not always broken down between what the police
officers believed and the reasonableness of their behaviour, covered matters
that pertained to both, and were responsive to the arguments that were made
before him.
He found that the police had engaged in a wrestling match with
the appellant that covered some distance because he was satisfied on the
evidence that that occurred. But he went on to find that there was no reason
for them to have done so, or to apply a taser, other than the appellants
non-compliance. On the evidence that he accepted, that non-compliance was
aggressive, physical, confrontational, and continuing, and included an assault
on one of the officers. He found, considering the height, weight, and physical
condition of the appellant, that he represented a threat to the police
officers, and stated that he accepted the officers evidence that it was not
possible to physically subdue [the appellant] despite the best efforts of [the
officers] until the Taser was applied. His positive finding that lesser
measures than the force actually used were not possible is quite different than
saying that the appellant had fallen short of proving excessive force was used.
[73]
The trial judges factual findings, read in light of his having prefaced
them by his instruction to determine what amount of force was necessary and
whether the actual force used was excessive, and to consider the
reasonableness of, or necessity for, force used by the police reflect
positive findings as to what the police believed and the reasonableness of
those beliefs, rather than about a failure of the appellant to prove an absence
of either.
[74]
All of those findings precede the impugned sentence in para. 35 of the
reasons.
In my view, taken in context of what preceded it and what follows
it, the sentence relied on by the appellant, while unfortunate, does not
indicate the burden of proof the trial judge actually applied in coming to his
decision. The better indicator of the burden of proof actually applied is in
the sentences that follow. In them, the trial judge rejected the allegation of
Charter
breach (which the appellant had the onus of proving) because he made a positive
finding, consequent on the positive findings he had made earlier in his reasons,
that the police had used only the force necessary to effect the arrest in the
circumstances. This is consistent with the Crowns onus of proof. The trial
judge was satisfied the force used was justified.
[75]
As the Crown points out, in his reasons for sentence, the trial judge
summarized what he had determined in dismissing the
Charter
application. He said: I accepted the evidence of the prosecution that [the
appellant] aggressively resisted arrest and that reasonable force was used
during the course of the arrest, including the application of a taser on three
separate occasions.
This further supports the view that the trial judge
actually decided the matter on a basis consistent with the Crowns onus of proof.
[76]
Because of the view I take on whether the burden of proof was
misallocated, it is not necessary to address the argument as to whether, if
that error had occurred, it should be viewed as harmless and the curative
proviso applied.
CONCLUSION
[77]
On consent, the guilty plea to count 4 is set aside. The appeal is
allowed as to counts 2, 3, 4, and 9, and the convictions on those counts are
set aside and acquittals are entered. The appeal is dismissed as to counts 1
and 10. Only the sentences and ancillary orders connected to counts 1 and 10
remain in place.
Released: October 22, 2021 D.W.
B. Zarnett J.A.
I agree. David Watt J.A.
I agree. L.B. Roberts J.A.
[1]
The appellant pled guilty to the oxycodone possession charge,
but the Crown consents to the admission of fresh evidence which shows that the
plea was uninformed, and consents to the plea being set aside. The Crown and
defence agreed that the appellant would preserve his appeal rights respecting
the
Charter
ruling at issue in this appeal by not contesting the Crowns
evidence relating to the drug charges, and the appellant pled guilty to the
charge without appreciating the consequences of the plea.
[2]
R. v. Jarrett
, 2018 ONSC 1178.
[3]
He also rejected the claim that the s. 10(b) breach justified
a stay under s. 24(1) of the
Charter
. That issue is not pursued on this
appeal.
[4]
In
Rover
, this court characterized a delay of almost six hours as one
that seriously impacted the rights of the arrested person: at para. 44.
[5]
The trial judge had earlier referred to the burden being on
the appellant to prove
Charter
breaches, a statement that was correct
as far as it goes:
Davis
, at para. 77.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Elguindy
v. Elguindy, 2021 ONCA 768
DATE: 20211027
DOCKET: M52719 (M52669)
Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J.
(
ad hoc
)
BETWEEN
Emad Elguindy and Irene Elguindy
Plaintiffs
and
Aziz Elguindy
and
Afrodite
Elguindy
Defendants (
Moving Party
/
Responding
Party
)
Aziz Elguindy, acting in person
Mitch Bates, for the responding party
Heard: October 22, 2021 by video conference
REASONS FOR DECISION
[1]
The moving party, Aziz Elguindy, asks that we reverse the order of van
Rensburg J.A., dated August 6, 2021. Her order refused to extend the time for the
moving party to appeal the dismissal of a motion he brought in the Superior
Court under r. 59.06 of the
Rules of Civil Procedure
, R.R.O. 1990,
Reg. 194. In his r. 59.06 motion, the moving party sought to set aside a
costs order made at trial in favour of the responding party, Afrodite Elguindy.
[2]
At the conclusion of oral argument, we dismissed the motion with reasons
to follow. These are those reasons.
[3]
The moving party did not defend the proceeding below, and was noted in
default. After the trial judge made his disposition of the action, including
making an order for costs, the moving party sought leave to appeal the costs
order to this court. Leave was denied:
Elguindy v. Elguindy
, 2020 ONCA
739.
[4]
The moving party then sought to challenge the same costs order by
applying to the trial judge under r. 59.06, alleging that he had not been given
notice of the process that led to the costs order, or that the costs order had
been obtained by fraud. On May 13, 2021, the trial judge dismissed that motion on
the basis that, having been noted in default, the moving party was not entitled
to notice, and his allegations of fraud were unfounded, unproven and
irresponsible.
[5]
The moving partys request for an extension of time to appeal the
dismissal of his r. 59.06 motion was refused by van Rensburg J.A. on the basis that
no appeal lies to this court from it. She concluded that the order dismissing
the r. 59.06 motion was an interlocutory order, not a final order, and could
therefore only be appealed, with leave, to the Divisional Court.
[6]
We see no error in this conclusion in the circumstances of this case. A final
order is one that determines the real matter in dispute between the parties the
very subject matter of the litigation or a substantive right to relief of a
plaintiff or substantive right of a defendant. The rights of the moving party
were adjudicated by the trial judge, including in the costs order, consequent
upon the moving party having been noted in default. The moving party sought and
was denied leave to appeal the costs order that he is concerned about. The
dismissal of his r. 59.06 motion in these circumstances cannot be said to have
been a final order. It was not the determination of the very subject matter of
the litigation or of any substantive right to relief or defence in the action,
all of which had already been determined. The dismissal of the r. 59.06 motion
was an interlocutory order:
Antique Treasures of the World Inc. v. Bauer
,
2003 CanLII 35349 (Ont. C.A.), at para. 4.
[7]
The moving party cites the decision in
Mehedi v. 2057161 Ontario
Inc.
, 2015 ONCA 670, 391 D.L.R. (4th) 374. There is no discussion in
that case of appeal routes and it cannot be taken to provide that the dismissal
of the motion under r. 59.06 resulted in a final order in this case.
[8]
The motion is dismissed, with costs payable to the responding party in
the sum of $750, inclusive of disbursements and applicable taxes.
G.R. Strathy C.J.O.
B. Zarnett J.A.
Wilton-Siegel J.
|
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Hassan, 2021 ONCA 769
DATE: 20211027
DOCKET: C65319
Fairburn A.C.J.O., Rouleau and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Saad Hassan
Appellant
Nicholas A. Xynnis, for the appellant
Craig Harper, for the respondent
Heard and released orally: October 26, 2021 by
video conference
On appeal from the convictions entered by Justice Grant
R. Dow of the Superior Court of Justice, sitting with a jury, dated May 25,
2017.
REASONS FOR DECISION
[1]
This is an appeal from conviction for one count of robbery, one count of
attempted robbery, two counts of using an imitation firearm while committing
robbery, and one count of uttering a threat. The offences involve the robbery
of two women. When the appellant was located by the police in the area of the
crimes not long after they occurred, the wallet of one woman and the imitation
firearm used in the robberies were located in his car.
[2]
The appellant argues that the jury charge was inadequate in the sense
that it:
1.
Failed to relate the evidence to the issues; and
2.
Failed to deal with the exculpatory evidence in the charge.
[3]
We disagree. This was a focused and straightforward trial involving only
three days of evidence, much of which was not in dispute.
[4]
The jurys attention was properly focused on the live issues. The charge
followed a two-step process. First, the trial judge outlined the legal issues
the jury had to consider. No objection is taken to how those legal issues were
expressed.
[5]
Second, the trial judge related the evidence to those issues. While the
evidentiary review was not exhaustive in nature, it need not be, particularly
in the context of a very short trial where the evidence is fresh in the minds
of jurors and closing arguments have just been made.
[6]
The adequacy of the charge in this case is reflected in the absence of
any objection. Moreover, the absence of objection exists in the face of having
pre-vetted the charge with counsel where no concerns were expressed, specifically
as they relate to the issues now raised on appeal.
[7]
We are satisfied that in this straightforward, three-day jury trial, the
jury was well equipped to decide the issues that needed to be decided.
[8]
The appeal is dismissed.
Fairburn A.C.J.O.
Paul Rouleau J.A.
Grant Huscroft J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Miragliotta
v. Zanette, 2021 ONCA 764
DATE: 20211028
DOCKET: C67414
Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J.
(
ad hoc
)
BETWEEN
Amelia Miragliotta and Francesco Di Nardo
Plaintiffs (Appellants)
and
Mark Zanette, Stephen Zanette, and Randy Zanette
Defendants (Respondents)
Patrick Di Monte, for the appellants
Brett D. Moldaver, for the respondents
Heard:
October 18, 2021 by video conference
On appeal from the order of Justice Chris de Sa of the
Superior Court of Justice
, dated
August 9,
2019, with reasons reported at 2019 ONSC 4599
.
REASONS FOR DECISION
INTRODUCTION
[1]
The appellants
[1]
appeal from a decision that addressed two matters: (i) the amount the
appellants should pay as a result of their having undertaken to be responsible
for damages caused by an interim injunction they obtained against the
respondents; and (ii) the amount that should be awarded to the appellants for
expenditures to perform work that the respondents were obliged to complete
under a 2010 court order. The appellants contend that the trial judge erred in
his assessment of both amounts.
[2]
[2]
For the reasons that follow, we dismiss the
appeal.
BACKGROUND
[3]
The appellants and the respondents own
neighbouring development lands in the City of Vaughan. They have been involved
in litigation concerning the lands for more than 10 years.
[4]
The 2010 court order provided that the parties would
enter into an Agreement of Purchase and Sale under which the respondents would
sell a small piece of land known as Block 7 to the appellants. It also provided
that the respondents would be responsible for, among other things, completing
the final coat of asphalt on a roadway known as the Appian Way by August 31,
2013, and for completing the final curbs for Block 7.
[5]
The respondents did not comply with the deadline
in the 2010 order. After giving notice to the respondents of their intention to
hold them responsible for the cost of doing so, the appellants did the work to
complete the curbs and added the final coat of asphalt to the Appian Way in May
2014.
[6]
In August 2014, the respondents proposed a plan
for their lands that involved creating, by severance, five building lots, two
of which would have 50-foot frontages, rather than the 60 feet required under a
city by-law. The respondents objected, and in October 2014, moved for an
injunction, undertaking to be responsible for any damages flowing from the
injunction. In January 2015, an injunction was granted restraining the
respondents from proceeding with the development of the two building lots of 50
feet. The injunction was set aside by a further order made on June 2, 2015,
which the appellants appealed unsuccessfully.
[3]
When the injunction was set aside, a reference was directed to determine the
damages for which the appellants were responsible as a result of their
undertaking.
The Trial Judges Decision
[7]
The trial judge heard the reference on damages
caused by the injunction, and a motion for summary judgment brought by the
appellants to recover their expenditures for work relating to the respondents
failure to comply with the 2010 order.
[8]
With respect to the damages caused by the
injunction, the trial judge accepted the evidence of the respondents that they had
obtained a commitment for new financing in September 2014, based on a five-lot
development (with 50-foot lots). The refinancing would have allowed them to pay
out their existing mortgages of $1,650,000, which were accruing interest at 9%
and 13.7% in October 2014, with a new rate of 6.85% for an 18-month term. The
motion for the injunction and the injunction itself prevented the refinancing
from being finalized until May 2015; when it was finalized, it was based on four
lots only and at a higher interest rate.
[9]
The trial judge awarded the respondents
$30,289.58, representing the interest rate differentials as a result of their
inability to refinance the property between October 2014 and May 2015; a
further $22,252.50, representing higher interest on the eventual refinancing
between May 2015 and November 2016; and a further $10,000 for [l]enders
amendment fees. He described these as amounts the appellants did not
seriously contest.
[10]
The trial judge denied the respondents claim
for a further amount of about $121,000 of [i]nterest for carrying costs on the
project due to
delays, as he found the delays complained of to support this
aspect of the claim were not clearly associated with the injunction. Instead, the
trial judge found that these costs were incurred as a result of the
respondents development choices and natural delays caused by the circumstances
surrounding the development.
[11]
The appellants claim relating to the final coat
of asphalt and the curbs was allowed by the trial judge in the amount of
$28,172.61, less $25,000 already paid. The trial judge also made an award of
interest. He disallowed the higher amounts claimed by the appellants because
they included interest calculated at 10%, rather than the
Courts of Justice
Act
, R.S.O. 1990, c. C.43 rate, and because they included amounts not
attributable to the final coat of asphalt or the curbs as contemplated by the
2010 order.
ANALYSIS
(i)
Damages Flowing from the Injunction
[12]
Before this court, the appellants argue that the
trial judge ought not to have awarded the interest differential amounts or the
lenders amendment fees. They essentially argue that the respondents did not
have any municipal or planning approvals for five lots or four lots at the time
of their planned or actual refinancing, and therefore ought not to have been approved
for refinancing based on creating either number of lots. Therefore, they say
the trial judge erred in finding the interest rate differentials, if there were
any, and the lender amendment fees were caused by the injunction. They also
argue that the respondents should have gone back to the lender and requested
different terms once the injunction was dissolved in June 2015, in essence
suggesting that there was a failure to mitigate.
[13]
We reject this ground of appeal.
[14]
The trial judge made findings of fact that the
appellants had a lending commitment at a lower interest rate, that the
injunction delayed its finalization, and that the respondents were only able to
finalize it at a higher rate while the injunction was in effect. In other
words, the respondents were deprived of the benefit of the September 2014
lending commitment by reason of the injunction. The appellants do not argue
that the trial judge made a palpable and overriding error in these findings, which
are entitled to deference on appeal. These findings support the award of
damages he made. It is immaterial whether the respondents,
vis-à-vis
their own lender, should have been approved for refinancing based
on a particular number of lots before planning approvals were obtained. The
damages flowing from the injunction were based on what the trial judge found had
actually occurred, not what the respondents lender should have committed to in
the circumstances.
[15]
Assuming that it is open to a party obligated to
pay damages for obtaining an injunction to argue a failure to mitigate, the
appellants would bear the onus of proof on that issue. The appellants pointed
us to no evidence to support the argument that if the respondents had tried to
renegotiate the refinancing after the injunction was dissolved, they would have
succeeded.
(ii)
Compensation
for Expenditures Under the 2010 Court Order
[16]
With respect to the award of compensation in
their favour, the appellants argue that the trial judge gave them an inappropriately
low sum. They say that the Appian Way road deteriorated due to the failure of
the respondents to apply the final coat of asphalt by the deadline for doing
so, and therefore they had to do additional work before they could apply the final
coat. They say the trial judge took an unduly narrow view of what the 2010 order
required.
[17]
We reject this ground of appeal as well. The
trial judges interpretation of the terms of the 2010 order (which the
appellants themselves stress was given on consent and was akin to a contract)
is entitled to deference in this court. So is his comparison of what the
appellants spent relative to what was required of the respondents under the
2010 court order, as that is a matter with a heavily factual component. We see
no error in the trial judges conclusions that would entitle this court to
interfere.
CONCLUSION
[18]
The appeal is dismissed. The respondents are
entitled to their costs of the appeal, fixed in the agreed amount of $12,500,
inclusive of disbursements and applicable taxes.
G.R. Strathy C.J.O.
B. Zarnett J.A.
Wilton-Siegel J.
[1]
The appellant, Francesco Di Nardo, died while this appeal was
pending. An order to continue the appeal under r. 10.02 of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194 was sought by his wife, Amelia Miragliotta, in the appellants
factum.
[2]
The matter proceeded below both as a trial of issues on the
damages flowing from the injunction and a motion for summary judgment for
recovery of the appellants expenditures. For ease of reference, all references
to the judge below describe him as the trial judge.
[3]
Pirpamer v. Zanette
,
2015 ONCA 723.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
Motuz
(Re), 2021 ONCA 765
DATE: 20211028
DOCKET: C69562
Rouleau, Benotto and Zarnett JJ.A.
IN THE MATTER OF: Gary Robert Motuz
AN APPEAL UNDER PART XX.1 OF THE
CODE
Erin Dann, for the appellant
Gerald Brienza, for the respondent, Attorney General of
Ontario
Julia Lefebvre, for the respondent, Person in Charge of
Waypoint Centre for Mental Health Care
Heard: October 8, 2021 by video conference
On appeal against the disposition of the Ontario Review
Board dated March 2, 2021, with reasons dated March 18, 2021.
REASONS FOR DECISION
[1]
Mr. Motuz has been in detention since June 2, 2015. He appeals the March 2,
2021, disposition of the Ontario Review Board which refused to grant an
absolute discharge. He seeks an absolute discharge or seeks to have the matter
remitted to the Board for a new hearing.
BACKGROUND
[2]
The appellant has a lengthy criminal record, dating back to 1993. Five
of these convictions were for violent offences. The most recent violent offence
was the assault of a peace officer, of which he was convicted in 2004. His
offences since then have been non-violent most are for failure to comply with
probation orders and trespass at night.
[3]
The appellant had a history panhandling. He was convicted of causing a
disturbance and was required to stay away from a certain area on Dunlop Street
in Barrie. In December 2014, police found him walking on Dunlop Street West and
he was arrested.
[4]
Following his arrest, the appellant was required to attend for
fingerprinting on January 12, 2015. He did not do so. Later in January 2015, he
moved and failed to notify his probation officer of his change of address. He
was convicted of breach of two probation orders. On June 2, 2015, he was found
not criminally responsible on account of mental disorder on charges of failure
to comply with probation order and failure to appear or comply with appearance
notice.
[5]
Every year, on his review hearing, the Board continued his detention.
His most recent hearing was February 24, 2021.
EVIDENCE AT THE HEARING
[6]
The appellants current psychiatric diagnoses are substance abuse,
schizophrenia, and antisocial personality disorder. He was deemed incapable of
making his own treatment decisions in August 2020.
[7]
The appellant has an inconsistent history of compliance with medication.
In 2011, he was admitted to the hospital because of concerns that he was going
to harm someone. He was brought to the Emergency Department where he had to be
restrained and, once restrained, continued to spit at staff. In 2013, he
appeared to throw a punch in the direction of a doctor while at the Central
North Correctional Centre.
[8]
From the time that the appellant was detained following his NCR finding,
his misconduct has been relatively minor in nature, such as slamming doors and
badgering other residents and strangers for money and cigarettes. In February
2019, the appellant was seen repeatedly picking up a chair and dropping it, he yelled
at staff to fuck off, and slammed a door. He requested the seclusion room
where he sat on a mattress and stared blankly at staff. He then began kicking
the door, punching the window, and tied a pillowcase around his neck. He
returned the pillowcase to staff when asked. This incident was later found to
be the result of hyponatremia (water intoxication), after the appellant had
consumed dangerous quantities of coffee, water, and pop.
[9]
The unanimous opinion of the treatment team was that the appellant poses
a significant threat to the safety of the public
DECISION OF THE BOARD
[10]
The
Board concluded that the appellant poses a significant threat to public safety.
[11]
He
suffers from a major mental illness which is only partially controlled by
medication. He also lacks insight into both the fact that he has a mental
illness and the benefits of medication for that illness. He suffers from an
antisocial personality disorder and has scored within the psychopathic range of
the PCL-R.
[12]
While
the appellant has not been convicted of violent offences in many years, he has
exhibited aggressive behaviour, criminal in nature more recently. There is no
doubt that if granted an absolute discharge, the appellant would cease
medication and return to criminal behaviour. Even in the appellants more
recent non-violent criminal history, he has been convicted of trespass at night
which raises significant concerns about the nature of his activity and the
potential consequences should he come across the residents of the property on
which he is trespassing.
[13]
The
appellant refuses to accept housing recommended by the hospital and has stated
that if discharged, he would cease taking medication and consume marijuana.
ISSUE ON APPEAL
[14]
Was
the boards refusal to grant an absolute discharge unreasonable?
The appellants position
[15]
The
appellant submits that the Boards refusal to grant an absolute discharge was
unreasonable for three reasons.
[16]
First,
the appellant challenges the description of his more recent history as
exhibiting aggressive behaviour that was criminal in nature. He submits that
the Board misapprehended the evidence by failing to consider the lengthy
absence of violent or aggressive behaviour by the appellant including when he
was unwell, precariously housed, and using illicit substances in assessing
whether he was a significant threat to public safety. This, the appellant submits,
is evident in the Boards reasons at paras. 21 and 22 which provide the
following:
21. The Board unanimously finds that Mr. Motuz continues to
constitute a significant threat to the safety of the public. He suffers from a
major mental illness which is only partially controlled by medication. He lacks
insight into the fact that he has a mental illness, the positive impact of
medication on that illness or the impact of marijuana use on his mental health.
Although he has no convictions for violent offences for many years, he has
exhibited aggressive behaviour, criminal in nature although not resulting in
charges, both in and out of Hospital more recently. It is also noteworthy that
for significant periods of time over the last many years he was either
hospitalized or incarcerated and receiving treatment. Should he be granted an
absolute discharge, there is no doubt that he would immediately cease
medication and resume the use of intoxicants with decompensation and a return
to criminal behaviour as a result.
22. Although Mr. Motuz' criminal record is largely nonviolent,
it does include offences of violence and there is also a history of aggressive
and threatening behaviour causing both physical and psychological harm which
although criminal in nature did not result in criminal charges. It is also
noteworthy that he has been convicted on a number of occasions of trespass at
night, offences which raises significant concerns about the nature of his
activity and the potential consequences should he come across the residents of
the property on which he is trespassing.
[17]
The
appellant submits that this also demonstrates that the Board erroneously
conflated his past behaviour with his current condition.
[18]
Second,
the appellant submits that the Board failed to consider evidence supporting a
discharge, specifically, the dated nature of the appellants violent criminal
history. The Board overemphasized the speculative concerns related to his more
recent conduct, such as concerns that trespass at night provides an
opportunity for violent behaviour that the appellant would seize on.
[19]
Third,
the appellant submits that the evidence does not support the conclusion that he
remains a significant risk to the public. Although the evidence before the
Board supported its conclusion that, absent oversight, the appellant would
likely stop taking medication, decompensate, and possibly return to criminal
behaviour, this does not itself address whether the appellant poses a
significant risk to public safety.
The Respondents position
[20]
The
Crown and the Hospital submit that the Boards conclusion was reasonable. It
should be read in combination with the evidence of Dr. Ann Jones and the
Hospital Report, which the reasons for disposition adopt. The Board found that
there was a significant threat to the public based on an holistic approach
including his violent history, his mental illness, and because the appellant
has stated that he would not comply with treatment or take medication, and
instead would take illicit substances, if he was no longer under the
jurisdiction of the Board. The appellant also continues to refuse housing
recommended by the hospital. They argue that the appellant downplays the
incidents of aggression with which he was involved when he submits that in the
past, when he took illicit substances but not medication, he still did not act
criminally or pose a danger to the public.
[21]
The
Crown and the Hospital submit that given that the appellant resists efforts to
integrate him into the community, a detention order is the least onerous and
restriction disposition available.
ANALYSIS
[22]
We
are not persuaded that the Board misapprehended the evidence concerning the appellants
history of aggressive behaviour or conflated the appellants recent behaviour
with his past. The impugned paragraphs recognized both that he has no
convictions for violent offences for many years (para.21) and that he has a
history of aggressive and threating behaviour which included more recent
incidents (para.22). Nor was there a failure to consider evidence in support of
an absolute discharge. The Board considered the dated nature of the appellants
criminal record for violent offences; however, based on the evidence as a
whole, it decided that a detention order was warranted.
[23]
Nor
are we persuaded that the record before the Board did not support its
conclusion that the appellant remained a significant risk to the public.
Although the Boards articulation of its reasons for finding significant risk
is brief, the reasons must be read as a whole, in conjunction with the record:
see
R. v. Dinardo,
2008 SCC 24, [2008] 1 S.C.R. 788, at para. 32. Even
reasons which may rise to the level of concern and lack transparency have been
considered not unreasonable when read with the evidence accepted by the Board: see
Re Marchese
,
2018 ONCA
307, 359 C.C.C. (3d) 408, at paras. 11-12).
[24]
Here,
in addition to its findings about the appellants history of violence and
aggressive behaviour the Board accepted the evidence of Dr. Jones and the
unanimous opinion of the treatment team that the appellant poses a significant
threat, and that detention is necessary to manage the risk. In particular, the
Board accepted the following:
·
He suffers from a mental illness that is only partially
controlled by medication.
·
He lacks insight into his illness and adamantly states he will
discontinue medication.
·
Compliance with medication and avoidance of illicit substances is
central to the mitigation of risk.
·
If granted an absolute discharge, he would immediately stop
taking medication, would resume using intoxicants with decompensation, and would
return to criminal behaviour.
·
His scores on psychiatric tests place him on the psychopathic
range and his score on the VRAG (Violence Risk Appraisal Guide) was elevated
suggesting he was in the high range of risk for violent recidivism.
·
He is not currently using his full privileges and is declining to
engage in meaningful discussions about community living.
[25]
The
Boards reasons, while brief, are not insufficient. When read in conjunction
with the record, the disposition is not unreasonable.
DISPOSITION
[26]
The
appeal is dismissed.
Paul Rouleau J.A.
M.L. Benotto J.A.
B. Zarnett 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. Gauthier, 2021 ONCA 767
DATE: 20211028
DOCKET: C67880
Fairburn A.C.J.O., Rouleau and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
DArcy Gauthier
Appellant
Ian B. Kasper, for the appellant
Kristen Pollock, for the respondent
Heard and released orally: October 25, 2021 by
video conference
On appeal from the conviction entered on September 19,
2019 by Justice Gary W. Tranmer of the Superior Court of Justice.
REASONS FOR DECISION
[1]
The appellant was convicted of a single count of sexual assault
committed in 1989. The trial judges lengthy reasons turned largely on his
assessment of the complainants credibility. The appeal rests on three
interrelated grounds, all of which arise from the reasons for judgment:
1.
That the trial judge reversed the burden of proof in how he approached
alibi evidence;
2.
That the trial judge erred by approaching the evidence in a piecemeal
fashion; and
3.
That the verdict is unreasonable.
[2]
We see no reversal of the burden of proof. The trial judge clearly and
correctly reviewed the applicable legal principles and applied them without
error.
[3]
Nor do we see any error in how the trial judge approached the evidence,
specifically regarding what were said to be inconsistencies and improbabilities
arising from the complainants version of events. To the contrary, the trial
judge painstakingly reviewed the alleged inconsistencies and improbabilities
and reconciled them. His reasons adequately explain how he arrived at his
credibility findings. The appellants core complaint is really that he does not
like the conclusions reached by the trial judge. It was open to the trial judge
to conclude as he did on these points. He is owed deference.
[4]
Bearing in mind the complainants evidence, the verdict was one that a
properly instructed trier of fact, acting judicially, could reach. Therefore,
the verdict is not unreasonable.
[5]
The appeal is dismissed.
Fairburn A.C.J.O.
Paul Rouleau J.A.
Grant Huscroft J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Kawaguchi v. Kawa Investments Inc., 2021 ONCA 770
DATE: 20211029
DOCKET: C68577
Feldman, Harvison Young and Thorburn JJ.A.
BETWEEN
Warren Kawaguchi, Kent
Kawaguchi, Lisa Kawaguchi, Julia
Shimoda and J. & K. Die Casting Limited
Plaintiffs/Responding Parties
(Appellants)
and
Kawa Investments Inc.,
Lori Kawaguchi, 2708699 Ontario Inc.,
Oscar Lulka, Susan Lulka,
CBRE
Limited, Carol Trattner,
Rob Ironside
, Top
Producers Real Estate Inc.
and J. Armand Ardila
Defendants/
Moving Parties
(
Respondents
)
Robert S. Choi and Adam Beyhum, for the appellants
Gavin Tighe and Anna Husa, for the respondents
Heard: April 13, 2021 by video conference
On appeal from judgment of Justice Markus Koehnen of the
Superior Court of Justice, dated August 3, 2020.
Feldman J.A.:
[1]
The motion judge prevented the appellants, the plaintiffs in the action,
from discontinuing their action against the respondents, three of the
defendants in the action. He then granted the respondents motion for summary
judgment, dismissing the action against them.
[2]
The issues on the appeal are whether the motion judge erred in law by finding
that the appellants were not entitled to serve a notice of discontinuance under
the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194 (the
Rules
)
or, alternatively, by setting aside
the notice of discontinuance as an abuse of process; if not, whether he erred
by granting summary judgment; and whether he erred by ordering substantial
indemnity costs.
[3]
For the reasons that follow, I would dismiss the appeal. While the
motion judge erred in law in his interpretation of rules 23.01(1) and 25.05, by
finding that the pleadings were closed and therefore the appellants could not
deliver a notice of discontinuance, he did not err in setting aside the notice
of discontinuance as an abuse of process and ordering the action be dismissed
on summary judgment, or in ordering substantial indemnity costs of the action
and of the motion.
A.
Background Facts and Findings by the Motion Judge
[4]
The appellants are siblings and are the cousins of the defendant Lori Kawaguchi.
The corporate appellant, J. & K. Die Casting Ltd., (J. & K.) is a Kawaguchi
family business, as is the corporate defendant, Kawa Investments Inc. (Kawa).
Both businesses had been operated by the Kawaguchi family for 55 years at the
time these proceedings arose. The respondents are a commercial real estate services
and investment firm, and two real estate agents. The defendants Lori Kawaguchi
and Kawa were not parties on the motions to set aside the discontinuance and
for summary judgment, and are not respondents on this appeal.
[5]
The dispute arose from the attempted sale of 18 Golden Gate Court in
Scarborough, the industrial property owned by Kawa, which is the location where
J. & K. operates its business. Lori Kawaguchi, as president of Kawa, entered
into a listing agreement with the respondents to sell the property. Lori
Kawaguchi claims that she owns 50.2% of the shares of Kawa, which she inherited
on the death of her father in 2012. The individual appellants own the remaining
49.8% of the shares. The appellants dispute the validity of the share transfer
to Lori Kawaguchi and therefore, her status and her authority to act on behalf
of Kawa.
[6]
The listing agreement led to a conditional agreement of purchase and
sale with a third party, but the listing was terminated when this litigation
was commenced and the conditional agreement of purchase and sale did not close.
[7]
The appellants claim against the respondents was for breach of contract
and in tort for failing to investigate and verify Lori Kawaguchis authority to
enter into the listing agreement on behalf of Kawa.
[8]
The appellants moved in the action for an interim injunction to prevent
the marketing and sale of the property. In response, the respondents
voluntarily agreed to cease marketing the property pending the outcome of the
injunction motion. The injunction was granted against Lori Kawaguchi and
against Kawa, but denied against the respondents. The judge who heard the
injunction motion indicated that she viewed the action as having little or no
merit against the respondents: there was no contract between the appellants and
the respondents, the documentary evidence showed that Lori Kawaguchi was the
majority shareholder, and in any event, the realtor respondents could rely on
the indoor management rule when accepting the listing from Lori Kawaguchi.
[1]
[9]
Following the injunction motion, when the appellants refused to dismiss
the action against the respondents, the respondents counsel advised that the
respondents would be moving for summary judgment. In response, the appellants
served a notice of discontinuance. Counsel for the appellants confirmed to the
motion judge that the appellants wished to retain the right to recommence the
action against the respondents in the future.
[10]
The
respondents proceeded to bring their motion for a declaration that the appellants
notice of discontinuance was invalid, and for summary judgment dismissing the action
against them. The issue turned on the interpretation of rr. 23.01(1) and
25.05 of the
Rules
. The appellants submitted that they were entitled
to discontinue because pleadings were not closed within the meaning of r. 25.05,
because the time for delivery of a reply had not expired as against the
defendants, Lori Kawaguchi and Kawa, who had been late in filing their joint
defence and counterclaim.
[11]
The
motion judge rejected that submission, concluding that pleadings closed at
different times against each defendant, and that as against the respondents, the
pleadings were closed.
[12]
The
motion judge found, in the alternative, that if he was incorrect about the
proper interpretation of the
Rules
, he would set aside the notice of discontinuance
as an abuse of process and grant summary judgment dismissing the action against
the respondents. The motion judge found that there was no genuine issue requiring
a trial arising from the claim that the respondents were negligent by failing
to conduct due diligence regarding Lori Kawaguchis authority to enter into the
listing agreement.
[13]
First,
the fact that Lori Kawaguchi is a director and president of Kawa entitled the
respondents to rely on the indoor management rule.
[14]
Second,
the appellant Warren Kawaguchi facilitated showing the property to potential
purchasers, including accompanying them on showings and directing when showings
could and could not occur. He never indicated any objection that the listing
was unauthorized.
[15]
Third,
the motion judge rejected the one alleged inconsistency in the evidence of one
of the respondents, Rob Ironside, which counsel identified as the only issue
that required a trial.
[16]
The
motion judge concluded that in light of the flimsy nature of the claim, the
respondents were entitled to a final resolution of the issues raised, and
should not be exposed to a new action based on the same facts. He therefore
dismissed the claim against them.
[17]
The
motion judge also awarded costs to the respondents on a substantial indemnity
basis. He found that because of the appellant Warren Kawaguchis participation
in the showing process, the respondents clearly had actual authority from 2 of
3 directors. Therefore, the action against them was frivolous and vexatious.
B.
Issues
[18]
The
appellants raise four issues on this appeal:
1.
Did the motion judge err in law by finding that the appellants were not entitled
to discontinue the action against the respondents because pleadings were closed
within the meaning of r. 25.05?
2.
Did the motion judge err by setting aside the notice of discontinuance as
an abuse of process?
3.
Did the motion judge err by granting summary judgment?
4.
Did the motion judge err by finding an abuse of process that justified
an award of substantial indemnity costs?
C.
Analysis
(1)
Did the motion judge err in law by finding that the appellants were not
entitled to discontinue the action against the respondents because the
pleadings were closed within the meaning of r. 25.05?
[19]
The
first issue before the motion judge was whether the appellants were entitled to
discontinue the action against the respondents. The issue turns on the
interpretation of rr. 23.01(1) and 25.05, and in particular, whether pleadings in
an action remain open as long as they are not complete in respect of any one of
multiple defendants, or whether they can close in respect of each defendant
separately.
[20]
The
two rules read as follows:
23.01(1) A plaintiff may discontinue all or part of an action
against any defendant,
(a) before the close of pleadings, by serving on all parties
who have been served with the statement of claim a notice of discontinuance (Form
23A) and filing the notice with proof of service;
(b) after the close of pleadings, with leave of the court;
or
(c) at any time, by filing the consent of all
parties.
25.05 Pleadings in an action are closed when,
(a) the plaintiff has delivered a reply to every defence
in the action or the time for delivery of a reply has expired; and
(b) every defendant who is in default in delivering a
defence in the action has been noted in default.
[21]
The
motion judge focused on the singular noun a reply in subrule 25.05(a), inferring
from the use of the singular that pleadings close against each defendant
separately. He accepted the submission that, were it otherwise, a defendant who
has defended a multi-defendant lawsuit would be precluded from moving the
action forward, such as to discovery of documents, until the last defendant had
defended and the time for reply had expired. With respect to the motion judge,
this interpretation is incorrect and constitutes an error of law.
[22]
The
Rules
tie the deadline for taking certain procedural steps to the
defined state of the close of pleadings in only seven contexts: the first is
determining when a plaintiff may discontinue an action (r. 23.01(1)); the
second is determining when a party may amend its pleadings without leave or
consent (r. 26.02(a)); the third is the time by which the parties shall agree
to a discovery plan (r. 29.1.03(2)); the fourth is the time by which a party
shall serve its affidavit of documents under the simplified procedure (r.
76.03(1)); the fifth is the time after which a party may set an action or a
third party claim down for trial (rr. 48.01 and 29.08(1)); the sixth is the
time when a defendant may move to dismiss for delay when the plaintiff has
failed to set the action down for trial (r. 24.01); and the seventh is the latest
time by which a party to an action may deliver a jury notice (r. 47.01).
[23]
However,
contrary to the policy justification suggested by the motion judge, there is no
general requirement that pleadings must be closed for parties to proceed with
the next steps in litigation. For example, under r. 31.04(1), either party may
serve a notice of examination after the defendant has delivered a statement of
defence and, unless the parties agree otherwise, has served an affidavit of
documents. The pleadings may still be open at this stage, but the
Rules
permit the parties to move forward and initiate examinations.
[24]
I
see no ambiguity in the wording of r. 25.05. For pleadings to be closed, the
rule requires that the plaintiff reply to every defence or that the time to
reply has expired, and that every defendant who has not defended has been noted
in default. The reference to every defence and every defendant in both
parts of the rule makes it clear that in a multi-defendant action, in order for
pleadings to be closed in that action, they must be closed against all
defendants.
[25]
I
see no unfairness or disadvantage to a defendant in giving the rule its plain
meaning. It is important to note that the timing of when pleadings are closed
is not wholly within the discretion or power of the plaintiff. In the case
where a plaintiff chooses not to reply to any defence, when the deadline for
filing a reply has gone by, that timing requirement of the rule will have been
satisfied. In addition, under r. 19.01, not only can the plaintiff note a
defendant in default, but a defendant can also move to have another defendant
noted in default. This would satisfy the second timing requirement of r. 25.05.
[26]
I
conclude that the motion judge erred in his interpretation of the requirements
of the rule for delivering a notice of discontinuance. In this case, it is not
disputed that when the appellants served the notice of discontinuance, although
the time for delivering a reply had passed in respect of the respondents, the
time for delivering a reply to the late-filed joint statement of defence and
counterclaim of Lori Kawaguchi and Kawa had not yet passed. In addition, those
defendants had not been noted in default. As a result, pleadings in the action were
not closed and, under r. 23.01(1)(a), the appellants were entitled to serve a notice
of discontinuance.
(2)
Did the motion judge err by setting aside the notice of discontinuance as
an abuse of process?
[27]
In
Holterman v. Fish
, 2017 ONCA 769, [2018] 3 C.T.C. 55, leave to appeal
to S.C.C. refused, 37889 (July 5, 2018), this court discussed when a consent notice
of discontinuance could be set aside at the request of the plaintiff, in
exceptional circumstances that arose after the notice was delivered. The
current appeal does not fall into that category.
[28]
However,
there is long-standing case law in Ontario, as well as in other provinces, that
affirms that a court has the authority, in the appropriate circumstances, to set
aside a notice of discontinuance that was properly delivered under the
Rules
as an abuse of process: see
Angelopoulos v.
Angelopoulos
(1986), 55 O.R. (2d) 101 (H.C.)
, at 109-10;
Toronto
(City) v. Abasi
, 1990 CarswellOnt 2289 (H.C.);
Glasjam Investments
Ltd. v. Freeman
, 2014 ONSC 3878, at paras. 60-62;
Smith v. Dueck
,
1997 CarswellBC 792 (S.C.), at paras. 22-23;
De Shazo v. Nations Energy Co.
,
2006 ABCA 400, 401 A.R. 142, at paras. 11-15; and
DLC Holdings Corp. v.
Payne
, 2021 BCCA 31, 456 D.L.R. (4th) 337 at paras. 31-33.
[29]
In
Angelopoulos
, Henry J. set aside a notice of discontinuance for abuse
of process. In that case, the wife had commenced a family law proceeding against
the husband. The wife then moved before a master for relief in accordance with
the action. That proceeding resulted in a consent order that dealt with much of
the requested relief, and also restrained the wife from attending at the
premises of the parties jointly owned business. Following the order, the wife
nevertheless continued to attend at and to disrupt the business.
[30]
As
pleadings remained open, the wife served a notice of discontinuance, with the intention
to avoid the effect of the consent order and to be able to recommence the
proceedings afresh. Henry J. held that while the
Rules
gave the
plaintiff the absolute right to serve a notice of discontinuance, he had the
power to set aside the notice as an abuse of process under r. 1.04, which
provides:
1.04(1) These rules shall be liberally construed to secure the
just, most expeditious and least expensive determination of every civil
proceeding on its merits.
(2) Where matters are not provided for in these rules, the
practice shall be determined by analogy to them.
[31]
In
my view, in the circumstances of this case, the motion judge was entitled to exercise
the same jurisdiction under r. 1.04 as Henry J. did in
Angelopoulos
. By
seeking an injunction to obtain interim relief based on the merits of the claim,
the appellants took a significant step in the proceeding. They were successful
against the main defendants in the action, which accomplished their goal of preventing
the sale of the property until the authority of Lori Kawaguchi is determined at
a trial. However, their claim against the respondents was found to have little
or no merit. Unhappy with that result, and faced with the respondents
indication that they intended to move for summary judgment, the appellants
sought to be free to not pursue their claim against the respondents for the
moment but to be able to recommence the same proceeding on the same facts at a
future time. In those circumstances, the motion judge was entitled to conclude
that the notice of discontinuance constituted an abusive use of the
Rules
.
[32]
In
oral argument on the appeal, appellants counsel postulated that if the
injunction were to be lifted, the respondents could again accept a listing of
the property for sale, and that was why the appellants should retain the
ability to recommence the action against them. However, in those circumstances,
the action would be based not on the same facts, but on the new facts just
described. And I would add, it is most unlikely that these respondents
would accept the listing again until the now-known corporate dispute is
resolved.
[33]
The
principle against allowing a plaintiff to discontinue an action once the action
has proceeded past a certain point has been in place in England and followed in
Canada since the late 19
th
century: see
Fox v. Star Newspaper
Company
, [1898] 1 Q.B. 636 (C.A.) at 639, affd [1900] A.C. 19 (H.L. (Eng.));
Schlund v. Foster
(1908), 11 O.W.R. 175 (H.C.), affd 11 O.W.R. 314
(Div. Ct.);
Blum v. Blum
, [1965] 1 O.R. 236 (C.A.), at 238-39;
Hennig
v. Northern Heights (Sault) Ltd.
(1980), 30 O.R. (2d) 346 (C.A.), at 353-54;
and
Sampson v. City of Kingston
, 1981 CarswellOnt 2747 (H.C.), at
paras. 6-10. In
Fox
,
Lord Chitty summarized the effect of the
Rules of the Supreme Court, 1883
(U.K.), Order 26, r. 1, which dealt
with discontinuance, as follows:
The principle of the rule is plain. It is that after the
proceedings have reached a certain stage the plaintiff, who has brought his
adversary into court, shall not be able to escape by a side door and avoid the
contest. He is then to be no longer dominus litis, and it is for the judge to
say whether the action shall be discontinued or not and upon what terms
The
substance of the provision is that, after a stage of the action has been
reached at which the adversaries are meeting face to face, it shall only be in
the discretion of the judge whether the plaintiff shall be allowed to withdraw
from the action so as to retain the right of bringing another action for the
same subject-matter.
[34]
This
principle is continued under r. 23.01(1)(a), which allows a plaintiff to
unilaterally discontinue its action until the close of pleadings. To
discontinue its action after this stage, a plaintiff must obtain leave of the
court or the consent of all parties (rr. 23.01(1)(b) and (c)). However, the
case law demonstrates that in some circumstances, particularly where there are
judicial orders or findings in the action, a court may find it to be an abuse
of process for the plaintiff to seek to discontinue the action and to be able
to recommence the same action, against the same defendant, on the same facts. In
addition, in those circumstances, issues of
res judicata
and issue
estoppel could potentially arise.
[35]
I
see no error in the motion judges exercise of his jurisdiction under r. 1.04
to set aside the notice of discontinuance in this case as an abuse of process.
(3)
Did the motion judge err by granting summary judgment?
[36]
The
appellants position is that the motion judge should have found that there was
a genuine issue requiring a trial, and declined to order summary judgment
dismissing the action against the respondents. Their action is based on an
allegation that the respondents should have done more due diligence
investigation of Lori Kawaguchis authority to enter into the listing agreement
on behalf of Kawa, and that had they done so, they would have learned about the
dispute regarding her authority. They also assert that there are other parties
at CBRE who had had previous dealings with Kawa when it sold another property and
who knew there were more family members involved, and those parties were
required to give evidence.
[37]
The
problem with the appellants position was identified by the motion judge: the
appellant Warren Kawaguchi was complicit in the respondents attempts to market
the property by facilitating some showings, and of even more significance, he
never told the respondents that he or anyone else had any objection to the
listing or to Lori Kawaguchis authority to act on behalf of Kawa. There was
therefore no basis for the respondents to suspect any problem, and no basis to
make any inquiries of Warren Kawaguchi.
[38]
Further,
any information from other parties at CBRE could have been elicited by way of an
undertaking on the cross-examination of the respondent, Rob Ironside. A trial
was not required to elicit this evidence.
[39]
Lastly,
the motion judge specifically asked counsel to identify any issue requiring a
trial. The sole issue that counsel relied on was an alleged conflict in the
evidence of Mr. Ironside, which the motion judge rejected as a conflict.
[40]
I
see no basis to interfere with the motion judges decision to grant summary
judgment and dismiss the appellants claim against the respondents.
(4)
Did the motion judge err by finding an abuse of process that justified
an award of substantial indemnity costs?
[41]
A
deferential standard applies to appellate review of a discretionary costs award,
unless it is based on an error in principle or is clearly wrong:
Hamilton v.
Open Window
Bakery Ltd.
, 2004 SCC 9, [2004] 1 S.C.R. 303, at para.
27. In this case, the substantial indemnity costs award followed the motion
judges decision on the merits. That decision was based in part on an error in
law in the interpretation of when pleadings are closed (r. 25.05), and
therefore, when a plaintiff may serve a notice of discontinuance (r. 23.01(1)).
[42]
However,
the motion judges decision to award substantial indemnity costs of the action
and of the motion was based on his finding of abuse of process in both
commencing the action against the respondents, which he found to be frivolous
and vexatious, and in resisting a summary dismissal, given the facts and
circumstances that were identified by the judge who refused to grant the
injunction against the respondents.
[43]
Given
that reasoning, I see no basis to interfere with the decision of the motion
judge on costs.
D.
Result
[44]
In
the result, I would dismiss the appeal from the order setting aside the notice
of discontinuance and granting summary judgment dismissing the action against
the respondents and from the orders for substantial indemnity costs.
[45]
I
would award costs of the appeal to the respondents on the partial indemnity
scale fixed at $8,280, inclusive of disbursements and HST.
Released: October 29, 2021 K.F.
K. Feldman J.A.
I agree. Harvison Young
J.A.
I agree. Thorburn
J.A.
[1]
On the record on the motion under appeal, the corporate documents show Lori Kawaguchi
as a director and president of Kawa, but do not show her as the majority
shareholder.
|
WARNING
THIS IS AN APPEAL UNDER THE
YOUTH CRIMINAL JUSTICE ACT
AND IS SUBJECT TO:
110(1) Subject to this section,
no person shall publish the name of a young person, or any other information
related to a young person, if it would identify the young person as a young
person dealt with under this Act.
(2)
Subsection (1) does not apply
(a) in a case where the information
relates to a young person who has received an adult sentence;
(b) in a case where the information
relates to a young person who has received a youth sentence for a violent
offence and the youth justice court has ordered a lifting of the publication
ban under subsection 75(2); and
(c) in a case where the publication of
the information is made in the course of the administration of justice, if it
is not the purpose of the publication to make the information known in the
community.
(3) A young person referred to in
subsection (1) may, after he or she attains the age of eighteen years, publish
or cause to be published information that would identify him or her as having
been dealt with under this Act or the
Young Offenders Act
, chapter Y-1
of the Revised Statutes of Canada, 1985, provided that he or she is not in
custody pursuant to either Act at the time of the publication.
111(1) Subject to this section,
no person shall publish the name of a child or young person, or any other
information related to a child or a young person, if it would identify the
child or young person as having been a victim of, or as having appeared as a
witness in connection with, an offence committed or alleged to have been
committed by a young person.
138(1) Every person who
contravenes subsection 110(1) (identity of offender not to be published),
111(1) (identity of victim or witness not to be published), 118(1) (no access
to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or
section 129 (no subsequent disclosure) of this Act, or subsection 38(1)
(identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no
subsequent disclosure by school) or (1.15) (information to be kept separate),
45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised Statutes of Canada,
1985,
(a) is guilty of an indictable offence
and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an
offence punishable on summary conviction.
WARNING
The President of the panel hearing this
appeal directs that the following should be attached to the file:
An order restricting publication in this
proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
of the
Criminal Code
shall continue. These sections of
the Criminal
Code
provide:
486.4(1) Subject to subsection
(2), the presiding judge or justice may make an order directing that any
information that could identify the victim or a witness shall not be published
in any document or broadcast or transmitted in any way, in proceedings in
respect of
(a) any of the following offences;
(i) an offence under section 151,
152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act,
as it read at any time before the day on which this subparagraph comes into
force, if the conduct alleged involves a violation of the 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 776
DATE: 20211101
DOCKET: C67417
Fairburn A.C.J.O., Rouleau and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
K.C.
Appellant
Phillip Millar, for the appellant
Hannah Freeman, for the respondent
Heard and released orally: October 26, 2021 by
video conference
On appeal from the conviction entered by Justice Norman S.
Douglas of the Ontario Court of Justice on August 20, 2019.
REASONS FOR DECISION
[1]
This is an appeal from a conviction for sexual assault. The matter
proceeded under the
Youth Criminal Justice Act
, S.C. 2002, c. 1 (
YCJA
)
. The complainant, her friend, and the
accused testified, as did a couple of other witnesses. The case turned entirely
on an assessment of credibility.
[2]
Section 142 of the
YCJA
provides that proceedings in youth
justice court are generally governed by provisions applicable to summary
conviction offences found in the
Criminal Code
, R.S.C., 1985, c. C-46,
except where they are inconsistent with the
YCJA
. The respondent
acknowledges that those provisions include s. 802(3) of the
Criminal Code
, requiring that
every witness shall be
examined under oath.
[3]
Section 14 of the
Canada Evidence Act
, R.S.C., 1985, c. C-5,
provides an
alternative to an oath by way of solemn affirmation:
14(1) A person may, instead of taking an oath, make the
following solemn affirmation:
I solemnly affirm that the evidence
to be given by me shall be the truth, the whole truth and nothing but the
truth.
(2) Where a person makes a solemn affirmation in accordance
with subsection (1), his evidence shall be taken and have the same effect as if
taken under oath.
[4]
The respondent accepts that the most critical witnesses in this trial
the complainant, her friend, and the appellant were neither sworn nor
affirmed in accordance with the statutory requirements. Even so, the respondent
argues that s. 686(1)(b)(iv) of the
Criminal Code
can be applied to
cure what is described as a procedural irregularity, given that the witnesses who
were 16 and 17 years of age at the time understood the need to tell the truth
even though they were not placed under oath or affirmed: see
R. v.
Esseghaier
, 2021 SCC 9, 454 D.L.R. (4th) 179, at para. 39.
[1]
[5]
In our view, this is not an appropriate case in which to apply the
procedural proviso.
[6]
We do not accept in this case, one that turned completely on the
credibility of the unsworn and unaffirmed witnesses, that the failure to administer
oaths or affirmations was as benign as suggested. The respondent is right to
point out that there were some limited exchanges with the Crown witnesses, who
testified by video link, about whether they would promise to tell the truth
and the legal nature of a promise. As for the appellant, he was asked if he
wanted to take an oath on the Bible or would
prefer a promise. He responded,
Yeah, promise.
[7]
While we accept the respondents observation that everyone in the
courtroom proceeded as though the witnesses had been properly affirmed, they
were not and, in our view, the casual manner in which the promises were made,
including answers such as yeah and okay in response to general questions
about whether the witnesses were comfortable with promising or whether they
understood that a promise is legally binding, did not in the circumstances of
this case act as a functional equivalent of an oath or affirmation, as the
Crown submitted.
[8]
Therefore, despite the respondents capable arguments, we are not able
to conclude that the accused suffered no prejudice in this case.
[9]
The conviction appeal is allowed and a new trial is ordered.
Fairburn A.C.J.O.
Paul Rouleau J.A.
Grant Huscroft J.A.
[1]
The respondent also acknowledges that there is some
uncertainty as to whether s. 686(1)(b)(iii) might also be used to proviso an
error relating to the swearing or affirming of witnesses. We agree, with the
respondents submission, that this issue need not be resolved in this case.
|
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.
Kaczmarek, 2021 ONCA 771
DATE: 20211101
DOCKET: C68073 & C68410
Watt, Pardu and Trotter JJ.A.
DOCKET:
C68073
BETWEEN
Her Majesty the Queen
Respondent
and
David Kaczmarek
Appellant
DOCKET:
C68410
AND BETWEEN
Her Majesty the Queen
Respondent
and
Terrell Sullivan
Appellant
Michael Hayworth, for the appellant David Kaczmarek
Mindy Caterina, for the appellant Terrell Sullivan
Samuel Greene, for the respondent Crown
Heard: June 29, 2021 by video conference
On appeal from the convictions entered by Justice John A.
Desotti of the Superior Court of Justice, dated February 13, 2019, and from the
sentence imposed on Terrell Sullivan
on May 3, 2019.
Trotter J.A.:
A.
INTRODUCTION
[1]
After a day of heavy drinking with some girlfriends, the complainant
found herself in a strangers apartment, being sexually assaulted by the
appellants.
[2]
Shortly before, the complainant was in another apartment unit in the
same building. She left that apartment, shoeless and heavily intoxicated, in
search of her friend. The complainant had a vague recollection of being in an
elevator with the two men, and then being in the apartment. The next thing she
remembered was being sexually assaulted by the appellants while she was being held
down on a couch. The complainant told them to stop on more than one occasion.
When they eventually did, she fled the apartment.
[3]
The appellants were found guilty of sexual assault. The trial judge
found that the complainant lacked the capacity to consent, and she did not
agree to the sexual activity with either man. He sentenced them both to three
years imprisonment.
[4]
The appellants appeal their convictions. They attack various aspects of
the trial judges reasons for judgment. Mr. Kaczmarek also appeals his
conviction on the basis that he received ineffective assistance from his trial
counsel. Mr. Sullivan appeals his sentence.
[5]
The following reasons explain why I would dismiss the conviction appeals
and Mr. Sullivans sentence appeal.
B.
FACTUAL OVERVIEW
(1)
Introduction
[6]
At the time of the offences, the complainant was 19 years old, 52
tall, and weighed 100 lbs.
[7]
It was not disputed at trial that the appellants engaged in sexual
activity with the complainant, at the same time. Neither could be excluded as
the sources of DNA found in the complainants vagina (Mr. Sullivan) or mouth (Mr.
Kaczmarek).
[8]
The contentious issues at trial were whether: (1) the complainant had
the capacity to consent to the sexual activity; (2) she agreed to the sexual
activity; and (3) the appellants had an honest but mistaken belief that the complainant
consented. Neither appellant testified, but as discussed below, Mr. Kaczmarek
now contends that, despite his wishes, trial counsel prevented him from doing
so.
(2)
At A.B.s Apartment
[9]
The days events started out at the apartment of A.B., the complainants
best friend. Another friend, K., came to the apartment at 9:30 a.m. and the two
went to the LCBO and purchased an assortment of alcohol. The two women started
drinking as they walked back to the apartment. A.B. said the complainant joined
them at noon; the complainant said it was 3:00 p.m., although she was not sure.
Both acknowledged having memory problems because of their alcohol consumption.
Nonetheless, they both testified that they drank a lot of alcohol, including
shots of liquor. Neither was keeping track of how much was consumed, but they
were very intoxicated.
(3)
Shelby and Austins Apartment
[10]
After spending time at A.B.s apartment, the three women left and went
to a nearby park, where they continued drinking. They eventually walked to
another building where their friends Shelby and Austin had an apartment. They
arrived between 4:00 p.m. to 5:30 p.m. A.B. testified that all three women were
drunk. She described the complainant as being hammered.
[11]
At the apartment, A.B. had a conversation with a male guest in a
bedroom, while the complainant socialized with others. At some point, K. left
the apartment. The complainant described K. as having gone missing and
remembered leaving the apartment, by herself, to look for her.
[12]
Someone told A.B. that the complainant left the apartment without her
shoes. A.B. went looking for her. When she could not find the complainant, she
went back to her own apartment. As discussed below, she was summoned back to
Shelby and Austins at 7:40 p.m. that night.
(4)
The Sexual Assault
[13]
The complainant gave a fragmented account of what transpired after she
left Shelby and Austins apartment. When asked what happened next, she
testified, I suppose I was abducted. I dont know. The complainant continued:
I guess we ended up upstairs. We mustve taken the elevator. I
dont know how I got up there. I dont even know how I met them. Just ended
upstairs and then from there, its kind of blank.
The complainant explained that she has a fear of
elevators, so she was confused as to how she ended up in the elevator in the
first place.
[14]
The complainant remembered being on a balcony and having something to
drink in the apartment, but she did not know whether it was alcohol. She said
the appellants forced themselves on me. She was with Mr. Kaczmarek and Mr. Sullivan
disappeared into what she surmised was his room or the washroom, but then
came back to the living room. The complainant testified:
I dont remember how it started. I was blackout. I dont
remember anything
and then I came to
or sobered up and realized what was
happening as it was happening. (emphasis added).
[15]
The complainant said she was bent over, face down on a sofa. She was
penetrated from behind by both appellants. While it was happening, the
complainant tried to get up but she was being pushed down into the sofa by Mr. Kaczmarek,
who was behind her. The complainant testified she said stop when I had one
behind me penetrating me from behind, and I had one in my mouth. She believed
that Mr. Kaczmarek was the former; Mr. Sullivan the latter. She was unable to
say how often or how loudly she asked them to stop. The complainant said one of
them (Mr. Sullivan) finished or got done first and walked away; then the
other one (Mr. Kaczmarek) got done or finished or gave up, I dont know, got
up, walked away.
[16]
The complainant fled the apartment as soon as she could and ran down the
stairs, trying to find Shelby and Austins apartment. She did not know what
floor she was on, or how many floors she had to descend to get back to their
apartment. When she eventually found the apartment, someone called A.B. and
asked her to return. This was at 7:40 p.m. A.B. ran back to Shelby and Austins
apartment barefoot. It took her roughly 20 to 25 minutes to get there.
[17]
According to A.B., the complainant was a mess, curled up in a ball on
the bathroom floor, crying uncontrollably and hyperventilating. A.B. and the
complainant were driven back to A.B.s apartment, where A.B. eventually
persuaded the complainant to call the police. The police arrived at A.B.s
apartment at 11:05 p.m. and spoke to the two women. The complainant was taken
to the hospital for examination.
(5)
The Note in the Apartment
[18]
The complainant was cross-examined about a note that was found in the
apartment where she was assaulted. It contained the complainants contact
details. It was not in her handwriting. The complainant could not remember
providing this information to either appellant. She said that the email address
sort of looked like hers. It was an admitted fact at trial that Mr. Kaczmarek
gave this note to the police. He told an officer that he had changed part of
the phone number on the note from 666 to 888 because he was not
comfortable with those numbers in his apartment.
(6)
The Complainants Statement
[19]
The complainant was cross-examined on a statement she gave to the police
on the night she reported the assault. In the course of making this statement,
she said I must have said yes to the first guy because there was one guy and
we were getting it on and I dont remember saying anything like stop. She also
said she would not have agreed to the other person joining in.
[20]
The complainant testified that she made this statement because I dont
remember if I said yes or not, but it was happening so
I dont remember.
(7)
The Trial Judges Reasons
[21]
As discussed in more detail below, the trial judge first addressed the
issue of the complainants capacity to consent to having sex with the
appellants. He accepted her evidence that she was unconscious and only realized
what was happening when she came to. The trial judge went on to conclude
that, based on the complainants evidence that she asked the appellants to stop
after she came to, she did not agree to the sexual activity that subsequently
occurred. Lastly, the trial judge rejected the claim that the appellants had an
honest but mistaken belief that the complainant consented to the sexual
activity.
C.
THE CONVICTION APPEAL
(1)
Capacity and Consent (Mr. Kaczmarek & Mr. Sullivan)
(a)
Introduction
[22]
Both appellants submit that the trial judge erred in various ways in
concluding that the complainant lacked the capacity to consent, and that she
did not agree to the sexual activity with the appellants. Although they
initially appealed the trial judges rejection of their claim of mistaken
belief in consent, the appellants abandoned this ground during the hearing of
the appeal.
[23]
In order to succeed, the appellants must establish that the trial judge
erred in relation to both the issues of capacity to consent and whether the
complainant agreed to the sexual activity with the appellants. In my view, this
appeal can be disposed of on the issue of capacity alone.
[24]
The appellants submit that the trial judge erred in addressing the issue
of capacity before determining whether the complainant consented to the sexual
activity with the appellants. The appellants contend that the evidence fell
short of proving that the complainant lacked the capacity to consent, largely
because it came from two unreliable witnesses: the complainant and A.B. In order
to make a finding of incapacity, more evidence was required, from other
witnesses. The appellants also submit that the trial judge erred by equating
the complainants lack of memory with a lack of capacity. Lastly, they also
submit that the trial judge reversed the burden of proof. I would reject each
of these arguments.
(b)
Evidence of the Complainants Intoxication
[25]
Before delving into these issues, I highlight the evidence concerning
the complainants sobriety that day. The evidence of her condition at the time
of the sexual activity comes from the complainant alone. However, the
complainants consumption of alcohol and her sobriety before and after the
incident are informed by the evidence of both the complainant and A.B.
[26]
As noted above, alcohol was purchased by A.B. and K. around 9:30 a.m.
that day. A.B. and the complainant were imprecise about how much they consumed.
However, they both described drinking enough alcohol to make them extremely
intoxicated. As the complainant said: I was drinking all afternoon. I was
already blackout drunk. I was walking around barefoot, without a cellphone and
no one with me.
[27]
On a scale of one to ten, she said it was ten Ive never been
blackout drunk in my life except for that day. By the time she got to the
hospital, she said it was a four. She agreed with the suggestion that
blackout describes kind of not knowing whats occurring until you come-to. As
noted, when the police asked her if she could have agreed to sexual activity
with them, she said, Well, its possible. I was completely blackout drunk so.
[28]
A.B. said the complainant was very drunk or hammered before she left
the apartment in search of K. When A.B. returned to Shelby and Austins after
the 7:40 p.m. call, she described the complainant as a mess. A.B. could not
understand what the complainant was trying to tell her because she was not
making sense.
[29]
The other witness who testified about sobriety was a police officer who
responded to the 911 call. He did not notice any overt signs of impairment in
relation to either woman. However, that was at 11:05 p.m., well after the
incident.
(c)
The Order of the Trial Judges Findings
[30]
The appellants submit that the trial judge erred in addressing the issue
of capacity before deciding whether the complainant agreed to the sexual
activity with the appellants. They say this ran afoul of the Supreme Court of
Canadas holding in
R. v. Hutchison
, 2014 SCC 19, [2014] 1 S.C.R. 346,
at para. 4. The appellants submit that this decision requires a trial judge to address
the issue of consent before considering questions of capacity.
[31]
However, in
R. v. G.F.
, 2021 SCC 20, 71 C.R. (7th) 1, at para.
50, the court clarified that
Hutchison
was concerned only with
apparent consent and whether consent had been vitiated; it has nothing to do
with incapacity. Karakatsanis J. wrote, at para. 24, that when a trial
involves the issues of capacity and whether the complainant agreed to engage in
the sexual activity in question, the trial judge is not necessarily required
to address them separately or in any particular order as they both go to the
complainants subjective consent to sexual activity.
[32]
The trial judge made no error in the order in which he chose to address
these issues.
(d)
The Finding of Incapacity Was Reasonable
[33]
The appellants submit that the trial judge erred in how he approached
the issue of capacity. First, they submit that he wrongly equated the
complainants lack of memory with incapacity. Moreover, they submit that the
trial judges finding of incapacity was unreasonable and not supported by the
evidence. I disagree with both submissions.
[34]
The trial judge did not equate lack of memory with incapacity. The trial
judge referred to this courts decision in
R. v. C.P.
, 2019 ONCA 85,
373 C.C.C. (3d) 244, affd 2021 SCC 19, 71 C.R. (7th) 118, noting that, the
appellate court affirmed the oft stated position that an inability to remember
something does not necessarily mean that the person was acting without
capacity.
[35]
More generally, the trial judge did not err in how he conceptualized the
issue of capacity. He reviewed numerous appellate decisions, including the
decision of the Nova Scotia Court of Appeal in
R. v. Al-Rawi
, 2018
NSCA 10, 359 C.C.C. (3d) 237, in which Beveridge J.A. held that capacity to
consent involves an operating mind capable of appreciating the nature and
quality of the sexual activity; knowing the identity of the person or persons
wishing to engage in the sexual activity; or understanding she could agree or
decline to engage in, or to continue, the sexual activity: at para. 66.
[36]
The trial judge accepted the complainants description of her own
sobriety, including that she was blackout drunk, which he found to be a
vivid and descriptive expression capturing the level of intoxication she was
experiencing. He ultimately found that the complainant had lost consciousness
at some point and only regained consciousness after the sexual activity was
already happening. As the trial judge said:
Forgetting for the moment that she told the two accused to stop,
but did not know how many times she told them to stop or how loud or if they
heard her. Her initial involvement in this sexual activity came about because
of her gross intoxication, her blackout.
To wake up or become conscious
and then to find oneself engaged in a sexual activity with strangers, as did
the complainant, S.D. when there is no independent memory of the how, when or
why of this sexual activity, is certainly by every objective reasoning, an
indication of the incapacity of a complainant
. [Emphasis added.]
[37]
The trial judges reasons are in accord with Supreme Court of Canada
jurisprudence concerning capacity to consent to sexual activity: see
R. v.
J.A.
, 2011 SCC 28, [2011] 2 S.C.R. 440, at paras. 3, 34-37, 66;
C.P.
,
and
R. v. Barton
, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 88.
[38]
The principles in these cases were recently discussed in
G.F.
The court underscored that, at its base, the capacity to consent requires
that the complainant have an operating mind capable of understanding each
element of the sexual activity in question: the physical act, its sexual
nature, and the specific identify of their partner: at para. 55. Karakatsanis
J. also provided the following summary, at paras. 57-58:
In sum, for a complainant to be capable of providing subjective
consent to sexual activity, they must be capable of understanding four things:
1. the physical act;
2. that the act is sexual in nature;
3. the specific identity of the
complainants partner or partners; and
4. that they have the choice to refuse
to participate in the sexual activity.
The complainant will only be capable of providing subjective
consent if they are capable of understanding all four factors.
If the Crown
proves the absence of any single factor beyond a reasonable doubt, then the
complainant is incapable of subjective consent and the absence of consent is
established at the
actus reus
stage.
There would be no need to consider whether any consent was effective in law
because there would be no subjective intent to vitiate.
[Emphasis added.]
[39]
The court reiterated what was confirmed in
J.A.
: an
unconscious complainant could not provide contemporaneous consent: at para.
56. This proposition was at the heart of the trial judges finding on
incapacity.
[40]
The evidence supported the trial judges conclusion that at some point
during the incident with the appellants, the complainant lost consciousness and
was incapacitated. It was open to the trial judge to accept the evidence of the
complainant and A.B. on the complainants general level of intoxication that
day, and the complainants own description of her level of cognition at the
time of the sexual activity. Equally, he was entitled to reject the submission
that the complainant and A.B. were unreliable witnesses.
[41]
The appellants point to other cases in which the complainants
incapacity was proved through evidence independent of the complainant. In
C.P.
,
for instance, the complainants incapacity was proved through the observations
of a friend, who came upon the complainant immediately after sexual intercourse
had occurred. The complainant
had
been vomiting, she could not get up, and she was incapable of communicatin
g
.
[42]
C.P.
must be placed in context. In that case, the complainant
did not testify because she had
no
memory of the event. As such, a
self-report about her level of sobriety was unavailable; the information had to
come from other sources.
[43]
In this case, the complainant had fragmented memories. She was able to
narrate her own situation, but only to a point. The trial judges incapacity
finding hinged on his acceptance of the complainants evidence that she only
realized what was happening to her when she came to. By definition, before
she came to, she was in a state of unconsciousness, incapable of consenting
due to a complete lack of agency.
[1]
[44]
The appellants submit that more was required to prove incapacity, such
as objective evidence of the complainants condition at the time. They point to
the fact that there was no evidence of profound intoxication after the event,
such as vomiting. This submission amounts to an insistence that the
complainants evidence had to be corroborated. Such a requirement was pruned from
the law of sexual assault many years ago:
Criminal Code
, R.S.C. 1985,
c. C-46, s. 274; Hamish C. Stewart,
Sexual Offences in Canadian Law
(Toronto: Carswell, 2021), at 7:1, 7:8 and 7:9. It is not resurrected simply
because of the evidentiary challenges that sometimes accompany incapacity
cases. Complainants are capable of self-authenticating their own incapacity, as
the complainant did in this case.
[45]
In any event, the complainants evidence did not stand alone. The
evidence of A.B. provided important context for the complainants evidence. She
gave evidence of the complainants highly intoxicated condition both before and
after the incident with the appellants. As noted above, in the aftermath, A.B.
described the complainant as crying uncontrollably, hyperventilating, and not
making any sense in describing what happened to her. A.B. said that she was
just a mess.
[46]
Based on all of the evidence, it was open to the trial judge to find
that the complainant lacked the capacity to consent to engage in sexual activity
with the appellants.
(e)
The Burden of Proof Was Not Reversed
[47]
The appellants point to certain passages in the trial judges reasons
that they say are indicative of the reversal of the burden of proof. However,
when viewed as a whole, it is clear that the trial judge did no such thing.
[48]
On the issue of incapacity, the trial judge said: The onus is correctly
stated to be on the Crown to establish that the complainant, S.D. was so
intoxicated that she was incapacitated at the material time to engage in the
sexual activity that occurred. Once the trial judge accepted the complainants
evidence that she came to and only became aware of the sexual activity as it
was happening, a finding of incapacity was inevitable. The complainants
evidence stood uncontradicted on this issue. The appellants did not seriously
challenge the evidence relating to the complainant or A.B.s alcohol
consumption and their self-reports of being very intoxicated. Instead, they
relied on this evidence to assert that both women were unreliable witnesses,
leaving room for reasonable doubt.
[49]
To the extent that the trial judge made references to the absence of
evidence at various points in his reasons, he did so partly in the context of
addressing the mistake of fact in consent issue. More broadly, the trial judge
did not err in pointing out the absence of evidence contradicting the
complainants account. These statements did not amount to a reversal of the
burden of proof, especially in light of the trial judges statement set out
above.
(f)
Conclusion
[50]
The trial judge appropriately articulated the test for incapacity. His
findings were sound. Accordingly, I would dismiss this ground of appeal. In the
circumstances, it is not necessary to evaluate the trial judges conclusion
that the complainant did not agree to the sexual activity in question.
(2)
Ineffective Assistance of Counsel (Mr. Kaczmarek)
(a)
Introduction
[51]
Mr. Kaczmarek submits that he wished to testify in his own defence but
was prevented from doing so by trial counsel.
[52]
Mr. Kaczmarek submits that he had an exculpatory narrative he wished to
share. He relies on his statement to the police in which he said the
complainant was not as intoxicated as she claimed, and that she was a willing
participant in the sexual activity with himself and Mr. Sullivan. Mr. Kaczmarek
submits his trial counsel repeatedly discouraged him from testifying and that
his reasons for giving this advice reflect incompetence. In the end, trial
counsel usurped his decision and prevented him from testifying.
[53]
Mr. Kaczmarek has failed to establish that his trial counsel provided
incompetent legal advice, or that he countermanded his decision to testify.
Trial counsels concerns about Mr. Kaczmareks anticipated performance as a
witness were well-founded. Moreover, the fresh evidence admitted on appeal
suggests that Mr. Kaczmarek followed his trial counsels advice not to testify,
but then regretted his decision when it did not work out as he had hoped. By
the time he changed his mind, it was too late; the trial was over and
sentencing submissions had been completed. An application to reopen would have
been futile.
[54]
Reaching this conclusion, however, is not without its challenges. This
is another ineffective assistance of counsel (IAC) case where trial counsel
failed to obtain written instructions from a client concerning the decision to
testify: see
R. v. Trought
, 2021 ONCA 379, 156 O.R. (3d) 481,
at paras. 76-78. Unfortunately, in order to resolve the relevant issues on
appeal, resort must be made to the duelling affidavits and cross-examinations
of Mr. Kaczmarek and trial counsel. Although failure to obtain written
instructions is not necessarily an indicium of ineffectiveness, it presents
challenges for appellate review. It is also in tension with the strong
presumption of competence in favour of counsel:
R. v. Archer
(2005),
202 C.C.C. (3d) 60 (Ont. C.A.), at paras. 140-42.
(b)
The Competing Accounts
(i)
Mr. Kaczmarek
[55]
Mr. Kaczmarek was 31 years old at the time of the offence; he was 33 at
trial. It is known from his Pre-Sentence Report (PSR) that he has a criminal
record that includes convictions for offences of dishonesty and offences
against the administration of justice. All of his convictions were registered
after the offence in this case.
[56]
Mr. Kaczmarek was in a car accident in 2007 and sustained significant
injuries, including head trauma. This resulted in an acquired brain injury and
memory loss. He reported to the author of the PSR that he has suffered mental
health problems and has been hospitalized. He was assessed as having
schizoaffective disorder and bipolar disorder and has been taking medications
for many years. The PSR also indicates that Mr. Kaczmarek has a long history of
alcohol, cannabis, cocaine, and methamphetamine use. He may have been using the
latter at the time of the offence.
[57]
Mr. Kaczmarek swore an affidavit in support of his IAC claim and
submitted to cross-examination. He agreed that he spoke to trial counsel before
his police interview and was advised to exercise his right to remain silent. He
did not. In cross-examination, he acknowledged that he should have heeded that
advice.
[58]
Mr. Kaczmarek recalled that he spoke with trial counsel a number of
times about whether he would testify at trial. He claims that, after the
complainant finished testifying (on January 31, 2019), he insisted that I
wished to testify because I had a significantly different version of events
that I wanted the trial judge to consider. He said that his trial counsel told
him that he would not look good on the stand because he tended to trail
on with [his] words and would not look credible on the stand. In
cross-examination, Mr. Kaczmarek acknowledged, And I do talk. I am a
conversationalist. Mr. Kaczmarek swore that trial counsel also told him that
his drug use and mental illness would harm his credibility.
[59]
Mr. Kaczmarek said that he protested several times against my trial
counsels refusal to abide by wish to testify during our discussion but,
despite my serious misgivings about my trial counsels advice, eventually felt
that this a discretionary decision to be made by my trial counsel. He denied
ever being told that the decision was his to make. However, in
cross-examination on his affidavit, Mr. Kaczmarek admitted that at a meeting on
February 1, 2019, the day after the complainant testified, he met with trial
counsel who advised him not to testify and he replied okay. He testified that
in my head I was thinking Ill wait til its my turn to testify. He
acknowledged that this was never conveyed to trial counsel. He said that trial
counsel told him I have a couple of tricks up my sleeve.
[60]
In his statement to the police, Mr. Kaczmarek denied ever penetrating
the complainant vaginally. He said that he only had oral sex with the
complainant. In his affidavit, Mr. Kaczmarek alleged that his trial counsel
failed to challenge the complainant on whether Mr. Kaczmarek penetrated her
vaginally and about whether she was drunk that night. During his
cross-examination, he was shown excerpts from the trial transcripts that show
that she was questioned about these issues. He acknowledged he was wrong and
said the errors were the result of the challenges of preparing his affidavit
during the COVID-19 pandemic.
(ii)
Trial Counsel
[61]
Trial counsel, a lawyer with 45 years experience in criminal
litigation, was representing Mr. Kaczmarek in respect of other criminal matters
when he was charged with the sexual assault in this case. When Mr. Kaczmarek
was arrested, trial counsel spoke with him for about 30 minutes and repeatedly
advised [him] to exercise his right to silence and say nothing because he
thought he would make inculpatory statements.
[62]
Trial counsel swore that he met with Mr. Kaczmarek approximately five
times before trial. They often spoke about whether Mr. Kaczmarek would testify.
Trial counsel told him that the decision was his to make, but advised him that
it was not in his best interest to do so. Trial counsel explained that Mr.
Kaczmarek tended to ramble and made statements regarding his relationship[s]
with women that were not helpful to his case.
[63]
Trial counsel formed this opinion from his experience in representing
Mr. Kaczmarek at a previous sexual assault trial. Mr. Kaczmarek testified
in his own defence. Although he was acquitted, the trial judge (who was not the
trial judge in this case) found Mr. Kaczmarek to be not credible. Trial counsel
said that his client had done poorly during his examination-in-chief and just
went to pieces in cross-examination. Trial counsel said, He just he
rambles, and theres no reeling him in. He was confident that he could keep
his client on track during examination-in-chief but predicted that things would
deteriorate in cross-examination. Mr. Kaczmarek has a tendency to want to
please other people and makes admission
some of them are detrimental. Trial
counsel referenced Mr. Kaczmareks police statement, in which he said,
when the complainant and Mr. Sullivan became intimate, he (Mr. Kaczmarek)
threw in a couple of moves.
[64]
Trial counsel explained that another reason he thought it was
inadvisable for his client to testify was that Mr. Kaczmareks statement
differed from Mr. Sullivans police statement. Mr. Sullivan said that both men
had penetrated the complainant vaginally, just as she had described in her
evidence. Trial counsel was under the impression that, if his client testified,
Mr. Sullivan would also testify. This would be damaging to his client who
maintained that he never penetrated the complainant vaginally.
[65]
Despite advising Mr. Kaczmarek multiple times not to testify, trial
counsel said, Up until the close of the Crowns case at trial, I believed [Mr.
Kaczmarek] would disregard my advice and testify in order to portray himself in
what he thought would be a positive light. Trial counsel agrees that he spoke
with Mr. Kaczmarek after the complainant testified (on January 31, 2019) and
his client said he wanted to testify. Trial counsel repeated his advice. That
evening, trial counsel told counsel for Mr. Sullivan that he expected his
client to testify.
[66]
The following morning (February 1, 2019) trial counsel spoke to Mr. Kaczmarek,
who was in good spirits. Trial counsel said, He was smiling, and seemed
confident. He told me he had thought the matter over and decided to follow my
advice and not testify. In cross-examination, trial counsel said that his
client told him, you never led me wrong. Im going to take your advice.
However, he denied telling Mr. Kaczmarek that he had a couple of tricks up his
sleeve.
[67]
Neither appellant called a defence. The trial judge heard submissions on
February 4 and 7, 2019. The trial was adjourned while the trial judge took the
matter under reserve. On February 13, 2019, the trial judge found both
appellants guilty. In his affidavit, trial counsel said that, upon hearing the
verdict, Mr. Kaczmarek immediately said that he wished to testify. Trial
counsel said, That was the first and only time [Mr. Kaczmarek] told me to call
him to testify. I told him it was not possible to do so at that stage, because
the trial was over, and he would have to appeal if he wished to challenge the
verdict.
[68]
Prior to trial counsels cross-examination, he sent an email to the
Crown to advise that he had in fact not been in attendance for the verdict; an
agent appeared on his behalf. He said that the incident he had previously
described occurred once sentence was passed. This too was incorrect. In
cross-examination, he said that he received these instructions after sentencing
submissions were made (on April 4, 2019), not upon the passing of
sentence. This is supported by trial counsels contemporaneous note, in which
he wrote client now wants to testify. Told him too late. Didn't understand.
Had to appeal.
[69]
Trial counsel disputes many of the claims in Mr. Kaczmareks affidavit.
He did not reference his clients drug use and mental health challenges when
attempting to dissuade him from testifying. Trial counsel only learned of this
clients mental illness when reading the PSR. Moreover, contrary to Mr.
Kaczmareks contention, he did prepare his client to testify. When trial
counsel believed that his client would disregard his advice about testifying,
he told him that he should have his prior statement straight in his mind and
stick to it. Given Mr. Kaczmareks previous performance as a witness, trial
counsel thought it would be fruitless to conduct a dry run of his testimony.
[70]
Trial counsel disputes the allegations of an inadequate
cross-examination of the complainant. He contends that he challenged her on the
important aspects of her evidence, including the sequence of events, who did
what, and her level of intoxication. As he points out, counsel for Mr. Sullivan
pursued similar lines of questioning. The two lawyers coordinated their efforts
in defending the case.
[71]
Mr. Kaczmarek contends that trial counsel ought to have moved to re-open
the case so that he could testify. Trial counsel testified that he didnt
think there was any hope of reopening at that stage of the proceedings (i.e.,
at the conclusion of sentencing submissions).
[72]
As noted above, trial counsel did not obtain written instructions from
Mr. Kaczmarek about whether he would testify. Trial counsel said that,
when his client told him that he would follow the advice not to testify, they
were due back in court and his client (who was in custody) was hustled out of
the room where they met. There was no time to obtain instructions. He also said
that obtaining written instructions slipped [his] mind. He further said that,
because he had a long-standing relationship with the appellant, he did not feel
uncomfortable in not obtaining written instructions.
[73]
Lastly, trial counsel volunteered in cross-examination that he suffers
from a medical condition that affects his memory. However, he said that it did
not affect his memory about anything to do with this case. It has never caused
him to think he remembered things that did not actually happen.
(c)
Analysis
[74]
The applicable legal principles for ineffective assistance of counsel
claims are well-established. To succeed, Mr. Kaczmarek must establish: (1) the
facts material to the claim of ineffective assistance on a balance of
probabilities; (2) that the representation provided by counsel fell below the
standard of reasonable professional assistance in the circumstances; and (3)
the ineffective representation resulted in a miscarriage of justice:
R. v.
G.D.B.
, 2000 SCC 22, [2000] 1 S.C.R. 520, at paras. 26-27;
R. v.
Joanisse
(1995), 102 C.C.C. (3d) 35, at pp. 43-46.
[75]
The decision whether to testify at a criminal trial belongs to the
accused person: G. Arthur Martin, The Role and Responsibility of the Defence
Advocate (1969-1970), 12:4 Crim. L.Q. 376, at pp. 386-87;
Trought
, at
paras. 46-47. The Crown concedes that, if [Mr.] Kaczmarek can prove trial
counsel disregarded an instruction to call him to testify, or never advised him
of his right to make that decision, his IAC claim should prevail. This is
based on the acknowledgement that the decision is fundamental and the
prejudice arising from its loss is obvious.
[76]
In making the decision whether or not to testify, an accused person is
entitled to competent advice from counsel. In
R. v. K.K.M.
, 2020 ONCA
736, Doherty J.A. said, at para. 91: An accused is denied his right to choose
whether to testify when counsel actually makes the decision, or when counsel
provides no advice or advice that is so wanting, as to preclude the accused
from making a meaningful decision about testifying.
[77]
This court has struck a cautious tone when considering a claim that
trial counsel usurped or compromised an appellants decision to testify, noting
that there is sometimes a strong motive to fabricate such an allegation after
being convicted and sentenced to jail:
Archer
, at paras. 140-42;
R.
v. Nwagwu
, 2015 ONCA 526, at paras. 11-12.
[78]
Applying these principles to this case, I am of the view that Mr.
Kaczmarek has not established on a balance of probabilities that his desire to
testify was overridden by his trial counsel, nor that the advice he was given
was wanting.
[79]
As the Crown points out, Mr. Kaczmarek has a criminal record that is
relevant to his credibility. Moreover, Mr. Kaczmarek proved himself to be a
poor historian of what occurred at trial, and this undermines his ineffective
assistance of counsel claim. As noted above, in cross-examination on his
affidavit, he was forced to back off of two allegations of incompetence leveled
against his trial counsel: (a) that trial counsel failed to question the
complainant about her assertion that Mr. Kaczmarek had vaginal intercourse with
her; and (b) that trial counsel failed to question the complainant on her
degree of intoxication that night.
[80]
Additionally, Mr. Kaczmareks apparent understanding of the nature of
the decision to testify changed over time. At one point he said that he thought
it was a matter in the discretion of his trial counsel; at other times he
said that he was simply waiting until it was his turn to testify. Beyond the
contradiction, the latter claim is difficult to accept. Although Mr. Kaczmarek
faces certain challenges in his life as detailed in the PSR, he presented as an
intelligent person in his cross-examination on his affidavit. Moreover, he had
already been through a different sexual assault trial at which he testified in
his own defence.
[81]
This case differs from
Trought
, in which the IAC claim turned
on the appellants understanding of the legal niceties of a blended
voir
dire
, or
R. v. Faudar
, 2021 ONCA 226, in which the IAC
claim concerned the appellants understanding of the complex doctrine of
constructive possession. In this case, Mr. Kaczmareks assertion that he
believed he could testify after he had already been convicted is implausible.
It is telling that his direction to trial counsel came at the end of sentencing
submissions, where the Crown had requested a sentence of three to five years
imprisonment. The circumstances reflect a change of heart, not confusion.
[82]
Trial counsels evidence, however, was not without its shortcomings. As
detailed above, he waivered on when he received Mr. Kaczmareks unequivocal
instructions that he wished to testify. To review, he originally said it was
immediately after verdict, but then remembered that he was not in court that
day. Secondly, he said that it was after sentence was imposed on May 3, 2019,
but that also turned out to be inaccurate. Ultimately, he remembered that the
discussion occurred following sentencing submissions on April 4, 2019.
[83]
Nonetheless, trial counsel was consistent on the content of the exchange
with Mr. Kaczmarek. Perhaps most importantly, this exchange was documented in
trial counsels file. This is strong confirmation of trial counsels testimony
that this was the first time he received clear instructions that his client
wished to testify.
[84]
On appeal, Mr. Kaczmareks submits that, having received these
instructions at the end of sentencing submissions, trial counsel should have
moved to re-open the proceedings to provide his client with an opportunity to
testify. After all, the case was adjourned for a month while the trial judge
reserved his decision.
[85]
There can be no doubt that the trial judge, sitting without a jury, had
jurisdiction to re-open the trial, vacate the finding of guilt, and permit a
defence to be led. However, this power may only be exercised in exceptional
circumstances:
R. v. Lessard
(1976), 30 C.C.C. (2d) 70 (Ont. C.A.),
at p. 73;
R. v. Griffith
, 2013 ONCA 510, 116 O.R. (3d) 561, at paras.
12-17. Trial counsel was aware of this line authority. However, in
cross-examination, he said that such an application would have been hopeless.
[86]
Trial counsel was undoubtedly correct. The timing of the request would
likely have been viewed as an attempt to reverse a tactical choice to not
testify. In
R. v. Tortone
(1992), 75 C.C.C. (3d) 50 (Ont.
C.A.), revd in part, but not on this point, [1993] 2 S.C.R. 973, Goodman J.A.
wrote, at p. 57: It would be disastrous to the due administration of justice
if an accused were permitted to wait until after a verdict has been rendered
before making a decision as to whether he wished to give evidence in his
defence, except in the most exceptional circumstances.
[87]
In all of the circumstances, I would accept trial counsels account of
the instructions he received from his client about his desire to testify. Trial
counsel did not usurp his clients decision on this fundamental issue.
[88]
On the related issue of whether trial counsel provided competent advice
about whether Mr. Kaczmarek should testify, it is my view that his
recommendations were sound. Trial counsels professional opinion that his
client would not perform well was based on two factors: (a) his observations of
his clients testimony, as well as the trial judges credibility findings, at a
previous sexual assault trial; and (b) his concerns with his clients statement
to the police in this case. Both were legitimate factors to take into account.
[89]
I have already discussed above, how counsel drew upon his earlier
experience and observations at Mr. Kaczmareks previous sexual assault trial.
It cannot be said that reliance on his clients previous testimony rendered his
advice incompetent. Indeed, counsel for Mr. Kaczmarek on appeal did not
question trial counsels reliance on this factor.
[90]
Mr. Kaczmareks statement to the police is somewhat more complicated. It
is true that the statement is exculpatory on certain issues, but it is concerning
in other respects, both in form and in substance. During the interview, Mr.
Kaczmarek demonstrated some of the same qualities that trial counsel described
with respect to his testimony at the previous sexual assault trial. He tended
to go on and on when giving his answers. He was voluble and tangential. Recall,
Mr. Kaczmarek participated in this interview in the face of advice given to his
counsel that he should exercise his right to remain silent.
[91]
Some of Mr. Kaczmareks comments in his statement were unhelpful to his
cause. As noted above, he described a scenario in which the complainant and Mr. Sullivan
were intimate and then he, threw in a couple of moves. Trial counsel
testified that he still did not know what his client meant by his expression. Nonetheless,
this trivializing expression was alarming in the face of the complainants
serious allegation.
[92]
More importantly, Mr. Kaczmareks statement was at odds with Mr. Sullivans
statement in an important respect. Mr. Sullivan said that the two men switched
places and Mr. Kaczmarek did penetrate the complainant vaginally. Mr. Kaczmarek
contends that DNA analysis confirms his version of events in that his DNA was
found only in the complainants mouth, whereas Mr. Sullivans DNA was found in
her vagina. However, the absence of Mr. Kaczmareks DNA in the complainants
vagina does not confirm that he did not vaginally penetrate her; it merely
fails to confirm that he did.
[93]
Thus, trial counsel had legitimate concerns that if his client testified
in a manner consistent with his statement, it would likely result in Mr.
Sullivan testifying in a manner consistent with his statement, undermining Mr.
Kaczmareks position.
[94]
Accordingly, I am of the view that trial counsels legal advice that Mr. Kaczmarek
should not testify was sound.
[95]
I would dismiss this ground of appeal.
D.
APPEAL AGAINST SENTENCE (MR. SULLIVAN)
[96]
Mr. Sullivan appeals his sentence of three years imprisonment. The
appeal, however, is contingent on this court finding that the trial judge erred
in concluding that the complainant lacked the capacity to consent, but
upholding his finding of a lack of consent in fact. The appellant submits that
continuing sexual activity after consent has been withdrawn is materially
different and less morally blameworthy than engaging in sexual activity with
someone who never consented in the first place, or who lacked the capacity to
consent.
[97]
Strictly speaking, it is unnecessary to address this argument because I
would uphold the trial judges finding on the capacity issue. However, I would
reject Mr. Sullivans submission that his moral blameworthiness would somehow be
reduced because he continued sexual activity after consent was withdrawn, as
opposed to no consent being present in the first place.
[98]
This issue was considered in
R. v. Garrett
, 2014 ONCA 734. In
that case, the complainant initially consented to kissing. However, the
situation soon evolved into one of non-consensual intercourse, during which the
complainant repeatedly told Garrett to stop, but to no avail. In allowing the
Crowns sentence appeal, this court held that failing to stop when in these
circumstances, constitutes demeaning behaviour and contemptuous disregard for
the personal integrity of the complainant and engages the predominant
sentencing principles of denunciation and deterrence: at para. 19. The court
added that, the complainants initial consent to kissing does not render less
serious the subsequent non-consensual intercourse: at para. 20.
[99]
Beyond this issue, the trial judges reasons for sentence reveal no
error. Mr. Sullivans long-standing struggles, which include addiction and
mental health issues, were properly considered by the trial judge.
[100]
Ultimately, the
sentence imposed properly reflected Mr. Sullivans moral blameworthiness for
his part in the concerted sexual exploitation of an extremely intoxicated young
woman who was a stranger to the appellants. This type of predatory conduct must
be met with a sentence that emphasizes deterrence and denunciation.
[101]
I would dismiss
the appeal from sentence.
E.
CONCLUSION AND DISPOSITION
[102]
I would dismiss
the appeals from conviction. I would grant leave to appeal to Mr. Sullivan to
appeal his sentence but dismiss the sentence appeal.
Released: November 1, 2021 D.W.
Gary Trotter J.A.
I agree. David Watt J.A.
I agree. G. Pardu J.A.
[1]
Section 273.1(2)(a.1) of the
Criminal Code
provides that no consent is obtained if the complainant is unconscious. This
provision was enacted after the appellants trial (S.C. 2018, c. 29, s.
19(2.1)) but it reflects the common law.
|
COURT OF APPEAL
FOR ONTARIO
CITATION:
Yekrangian
v. Boys, 2021 ONCA 777
DATE: 20211101
DOCKET: C68401
Fairburn A.C.J.O., Miller and Zarnett JJ.A.
BETWEEN
Seyedehzahra Delnaz Yekrangian and Elle Hariri
Cameron
Applicants (Appellants)
and
Christopher Allan Boys, Kristy Anne Boys and
Stefan Brogren
Respondents (Respondents)
Melvyn L. Solmon and Rajiv Joshi, for the appellants
Jonathan Barr and Amiri Moses Dear, for the respondents
Heard: March 3, 2021 by video conference
On appeal from the judgment of Justice Andra Pollak of
the Superior Court of Justice, dated May 12, 2020, with reasons reported at 2020
ONSC 2320, 20 R.P.R. (6th) 113.
COSTS ENDORSEMENT
[1]
On September 17, 2021, this court released its reasons in
Yekrangian
v. Boys
, 2021 ONCA 629 and invited submissions on costs of the appeal.
Having reviewed the submissions of the parties, we are of the view that the
respondents should be awarded their costs of the two pre-hearing motions. Given
the divided success on the appeal, the parties should bear their own costs of
the appeal. We would not disturb the costs order for the application below,
given that the basis for the appellants partial success regarding 176 Strachan
was an argument not advanced on the application.
[2]
The respondents are awarded costs in the amount of $1,000 for the Motion
to Expedite the Appeal, as agreed at the hearing of that motion, and $7,000 for
the Motion to Introduce Fresh Evidence, both inclusive of disbursements and
HST.
Fairburn A.C.J.O.
B.W. Miller J.A.
B. Zarnett J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION: Dimakis v. Vitucci, 2021 ONCA 778
DATE: 20211101
DOCKET: C68943
Doherty, Miller and Sossin JJ.A.
BETWEEN
Theoktiti Dimakis by her litigation guardian,
Konstantine Dimakis, Theoktisti Dimakis by her litigation guardian, Konstantine
Dimakis, Ekaterini Dimakis by her litigation guardian, Konstantine Dimakis,
Eleftherios Dimakis by his litigation guardian, Konstantine Dimakis, and
Konstantine Dimakis
Plaintiffs (Appellants)
and
Cathleen Vitucci, William Vitucci, Kristi
Collins, and Lancaster, Brooks & Welch, LLP
Defendants (Respondents)
Clifford Lloyd, for the plaintiffs (appellants)
Michael R. Kestenberg, for the defendants (respondents)
Kristi Collins and Lancaster, Brooks & Welch, LLP
Michael J. Valente, for the defendants (respondents)
Cathleen Vitucci and William Vitucci
Heard and released orally: October 25, 2021
On appeal from the decision and order of Justice
Parayeski of the Superior Court of Justice, dated December 20, 2020.
REASONS FOR DECISION
[1]
The appeal is dismissed. We are in agreement with the first reason given
by the summary motion judge for dismissing the claim (see Reasons, at para. 43).
In the circumstances in which a discovery was conducted in accordance with the
terms of a court direction, there can be no claim in negligence or otherwise
against a lawyer for conducting the discovery in accordance with those terms
despite the unfortunate event that occurred during the discovery.
[2]
We need not address the question of the applicability of absolute
privilege.
[3]
We would grant leave to appeal the costs order, but in our view, the
order made falls within the scope of the summary motion judges broad
discretion and we would not interfere with the order made by him. Consequently,
the appeal is dismissed. Leave to appeal costs is granted but that appeal is
also dismissed.
[4]
The parties have agreed on the costs of the appeal. Costs to each of the
respondents in the amount of $15,000, inclusive of disbursements and relevant
taxes.
Doherty J.A.
B.W. Miller 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. Durigon, 2021 ONCA 775
DATE: 20211102
DOCKET: C65170
Fairburn A.C.J.O., Rouleau and Huscroft JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Sean Durigon
Appellant
Anthony Marchetti, for the appellant
Stephanie A. Lewis, for the respondent
Heard: October 26, 2021 by video conference
On appeal from the sentence imposed on March 1, 2018 by
Justice Bonnie J. Wein of the Superior Court of Justice, with reasons at 2018
ONSC 1424.
REASONS FOR DECISION
[1]
The appellant was charged with possessing,
accessing, and making available child pornography. The child pornography
depicted videos of children being forced to engage in violent sexual conduct.
Some of the children were mere toddlers. The appellant was also charged with
possession of cocaine, to which he pleaded guilty at the outset of the trial.
[2]
After a judge alone trial, the appellant was
convicted on all counts. The conviction for possession of child pornography was
conditionally stayed.
[3]
This is an appeal from sentence against the
15-year prohibition order made pursuant to s. 161(1)(d) of the
Criminal
Code
,
R.S.C.,
1985, c. C-46. The order prohibits the appellant from using the internet and
other digital devices, except in accordance with a lengthy list of conditions
that formed part of the order.
[4]
The appellant claims that the order is: (1) too
long; (2) beyond that which is permitted by the statutory provisions; (3) too
onerous; and (4) insufficiently tailored to the predicate offences.
[5]
The standard of review on an appeal against
sentence is strict. Appellate intervention is only warranted if an error in
principle impacted the sentence or if the sentence is demonstrably unfit and
unreasonable in the circumstances. Sentencing judges exercise discretion in
crafting s. 161(1) orders and are owed substantial deference as a result:
R.
v. Schulz
, 2018 ONCA 598, 142 O.R. (3d) 128,
at
para. 43, leave to appeal refused, [2019] S.C.C.A. No. 537.
[6]
We see no error in how the sentencing judge
arrived at her conclusion that the order should cover a period of 15 years. This
issue was fully argued by the parties and addressed by the sentencing judge. It
was open to the sentencing judge, on the record before her, to conclude that the
prohibition order had to be in place for a substantial period of time to
represent an effective risk mitigation tool. This was particularly true given
the appellants conduct, which covered a lengthy period of time, and the fact
that he had limited insight into the harm arising from his offending conduct.
[7]
Nor do we accept the submissions that the
statutory provisions precluded the type of order made, or that it was too
onerous and insufficiently tailored to the predicate offences.
[8]
Section 161(1)(d) is aimed at protecting
children from sexual violence:
R. v. K.R.J.
, 2016
SCC 31, [2016] 1 S.C.R. 906, at paras. 44-47, 64. As s. 161(1) orders are
subject to the conditions or exemptions that the court directs, they can be
carefully tailored to the circumstances of a particular offender:
K.R.J.
, at para. 47. As noted in
K.R.J.
,
at para. 47:
The discretionary and flexible nature of s.
161 demonstrates that it was designed to empower courts to craft tailored
orders to address the nature and degree of risk that a sexual offender poses to
children once released into the community.
[9]
In our view, there is a clear nexus between the
s. 161(1)(d) order in this case and the risks posed by the appellant.
[10]
While the order is directed at online activity,
the very location from which the appellant accessed child pornography, it is
tailored to balance reasonable access to the internet while nonetheless keeping
children as safe from him as possible.
[11]
By way of example, the appellant is specifically
permitted to use the internet for employment purposes, using a device provided
by his employer. He is also permitted to access the internet from a personally
owned computer for both employment and personal purposes. With respect to a
personally owned computer, however, he must comply with the conditions imposed
by the order, including that he can only have one email address at a time and
must provide to a designated person information about any new devices he may acquire.
As well, the appellant is not to use or activate any software that prevents
computers or devices from retaining and/or displaying the history of internet
use.
[12]
We do not intend to review every clause in the
s. 161(1) order because, in the end, we see no error in how those clauses were
arrived upon. While detailed in nature, this was a carefully tailored order,
one that was specifically directed at the appellants level of risk.
[13]
Seeing no legal error, we defer to the order made
with two exceptions, both of which are conceded by Crown counsel.
[14]
We accept the Crown concession that clause 4(a),
requiring the appellant to inform a designated person of IP addresses he is or
may be using, should include a reference to
any
IP addresses
that he knows
he is or may be using. As the Crown explained, internet providers
may change IP addresses without the user being informed. We note that, in the
event that other terms in the order become unworkable due, for example, to
changes in technology, s. 161(3) provides a mechanism to vary the order.
[15]
We also accept the Crown concession that, to the
extent there are inspection and monitoring requirements in the order, they were
not sufficiently tailored in terms of their length of time. The Crown asks that
those conditions be changed to reflect a maximum duration of two years for
purposes of monitoring and inspection. As it has been longer than two years
since the start of this order, we see no need to address the appellants
submission that these requirements violated the appellants rights to privacy
and were beyond the scope of s. 161(1). Given the Crown concession, the concern
has become moot. Therefore, clauses 4(c) and (d) of the prohibition order are
to be deleted and the references to monitoring and inspection in clauses 4(f),
(g), and (i) shall be removed.
[16]
The sentencing judges original order will be
set aside and replaced by a new order drafted in accordance with these reasons.
The setting aside of the old order and the introduction of the new order will
take effect when the new order is signed. The parties will confer and provide
the draft order to this court by no later than November 15, 2021. The sentence
remains the same in all other respects.
Fairburn A.C.J.O.
Paul Rouleau J.A.
Grant Huscroft J.JA.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
R. v.
Hudson, 2021 ONCA 772
DATE: 20211102
DOCKET:
C65962
Doherty, Watt, van Rensburg, Benotto and
Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Jacinda Hudson
Appellant
Maija Martin, David Reeve and Iman Amin, for the
appellant
Sarah Shaikh, Chris Walsh and Jonathan Geiger, for the
respondent
Emily Marrocco, for the intervener, Attorney General for
Ontario
Owen Goddard and Rick Frank, for the intervener,
Criminal Lawyers Association
Heard: February 23, 2021 by video conference
On appeal from
the convictions entered by Justice Robert Charney of the Superior Court of
Justice, sitting with a jury, on August 22, 2018.
Watt J.A.:
[1]
A package for the appellant. From China. Delivered to her home by Canada
Post. At least, it looked like Canada Post.
[2]
The appellant was not home when the package arrived. Her ex-boyfriend
was there. He accepted delivery and took the package into the house. He told
the appellant about the package.
[3]
About an hour later, police officers arrived at the appellants home.
They had a search warrant. They found the package from China. They arrested the
appellants ex-boyfriend. When the appellant got home, they arrested her too.
[4]
A jury found the appellant guilty of importing fentanyl and possession
of fentanyl for the purpose of trafficking. The trial judge imposed sentences
of eight years on each conviction to be served concurrently.
[5]
The appellant appeals her convictions. These reasons respond to her
claims of judicial error in the conduct of the trial and explain why I would
allow the appeal, set aside the convictions, and order a new trial.
The Background Facts
[6]
A brief summary of the evidence received at trial will provide the
background necessary to understand the issues raised on appeal and how I
propose that they be decided.
The Package
[7]
On October 18, 2016, members of the Canada Border Services Agency (CBSA)
in Richmond, British Columbia intercepted three packages addressed to three
different persons at addresses in Southern Ontario. The sender or consignor of
each package was the same DigitalPartner UNIKO of Guangdong, China. The
packages were said to contain digital cable valued at $10. All were sent by
post.
The Contents of the Package
[8]
CBSA members opened each package. They found 323 grams of fentanyl in
the package addressed to the appellant. The others contained similar amounts of
fentanyl. The street value of the fentanyl in the package addressed to the
appellant was $320,000.
[9]
Fentanyl is toxic. CBSA members delivered the package to the RCMP who removed
the fentanyl from the package addressed to the appellant, replaced it with an
inert substance, and then sent the package by plane so that it could be
delivered to the appellant in Ontario.
The General Warrant
[10]
Police obtained a general warrant on November 1, 2016, authorizing the
RCMP to conduct a controlled delivery of the package to the appellant or anyone
acting on her behalf at her Ajax home.
The First Attempt at Delivery
[11]
At about 11:30 a.m. on November 4, 2016, an undercover police officer
approached the appellants front door. The officer arrived in a Canada Post
vehicle. He wore the uniform of a Canada Post delivery operator. He carried the
package addressed to the appellant.
[12]
The officer rang the doorbell. He knocked on the door a couple of times.
No one answered. He left. The appellant had left about an hour earlier. Her
ex-boyfriend was in the house but did not get to the front door before the
undercover officer had driven away. An immediate text exchange between the
ex-boyfriend and later co-accused, Hazare Roman, and the appellant followed.
The Text Messages
[13]
As the undercover officer attempted delivery, Hazare Roman and the
appellant exchanged texts. When Roman advised the appellant that Canada Post
was at the door, the appellant told him Answer and sign. When Roman replied
that Canada Post had left before he (Roman) could get downstairs to the door,
the appellant asked whether Canada Post had left anything. Roman said No.
[14]
About 20 minutes later, the appellant exchanged text messages with her
friend, Louisa Munro. As she had the previous day, Munro advised the appellant
O said keep eyes peeled. The appellant told Munro that Canada Post had been
at her house: Is it coming that way?. Munro said Ya. The appellant asked
Like delivery? to which Munro responded IDK well talk when you here.
The Return Home
[15]
About 20 minutes after her text exchange with Louisa Munro, the
appellant drove up to her house, slowed down, looked at her house, and drove
on. Minutes later, she returned, got out of her car, walked to the house,
opened the front door and stepped inside briefly. When she came back outside,
she looked inside the mailbox, got in her car and drove away. At trial, she
testified that she looked in the mailbox for a courier slip telling her where
to pick up the package.
[16]
A few minutes later, the appellant told Hazare Roman that the package
was important.
The Package Arrives
[17]
The undercover police officer, disguised as a Canada Post delivery
person, returned at 12:50 p.m. the same day. He rang the doorbell and knocked.
This time, Hazare Roman answered the door. When asked, Roman indicated that he
would accept the parcel for the appellant. He took the package, printed Jacinda
on the delivery bill, and signed with the appellants initials J.H..
The Appellant Gets Notice
[18]
Within minutes, Hazare Roman advised the appellant that he had her
package. About 45 minutes later, the appellant told Roman Perfect Im OMW.
The Search and Arrest
[19]
About an hour after delivery of the package, the police arrived at the
appellants home with a search warrant. The unopened package was on a front
hall table near a photograph of the appellant and her children, a sunglass
case, and 10 grams of cocaine. Three cellphones were on the bed in the master
bedroom. The closet was full of only womens clothes. The police arrested
Hazare Roman and, after she returned home, the appellant.
The Defence Case at Trial
[20]
At trial, the defence case consisted of the testimony of two witnesses.
Louisa Munro testified first. The appellant was the final witness. Pared to its
core, the defence was a denial of any involvement in importing fentanyl. The
appellant was expecting a package from Louisa Munros mother in Nova Scotia
containing books and childrens clothing, not fentanyl from China. The
appellant also sought to adduce evidence that a known third party suspect, Raza
Khan, the appellants former boyfriend and lessee of her home, was responsible
for the importation. The application was dismissed. The dismissal is a ground
of appeal.
[21]
Louisa Munro testified that her mother in Nova Scotia had collected
several childrens books and other items she planned to send to the appellant.
She thought that her mother would mail the package to the appellant. Their
exchange of messages related to this package. Unexpectedly, Munros father drove
to her home with the package after the appellants arrest. Munro had known the
appellant for about five months before her arrest. Her mother had never
previously sent a package to the appellant. Munros text reference to O, as
in O said keep eyes peeled, was a mistype for I and referred to the
package from her mother, not to a person O.
[22]
The appellant testified after Louisa Munro had given her evidence. The
appellant said that she and Munro planned to go to a basketball game. Their
text messages were about outfits to wear to the game. The Monday following her
arrest, Munro gave her the package she had been expecting.
[23]
The appellant testified that, on the day of the controlled delivery,
Roman was sleeping at her house. She called Munro to tell her that she was
going to look for outfits to wear to the basketball game. Munro told the
appellant about the package from her mother. When Roman explained that he had
missed a delivery, the appellant believed that this was the package from
Munros mother. She stopped off at home en route to Munros to see whether
Canada Post had left a delivery slip after the first failed delivery. Later,
Roman advised her of the arrival of the package. She did not hurry home to get
it.
The Third Party Suspect Application
[24]
After the case for the Crown had closed, but prior to electing whether
to call a defence, the appellant sought a ruling on an application to adduce evidence
of a third party suspect, the appellants former boyfriend, Raza Khan.
[25]
Raza Khan testified on the third party suspect
voir dire
. He
gave evidence about helping the appellant obtain her home in Ajax. He had lived
with her on and off for about ten months, but did not live there with her at
that time. The lease was in his name and she paid rent directly to him. He
admitted having sold cocaine and fentanyl in the past and having previously
ordered different kinds of drugs online, including fentanyl. He neither took
responsibility for the fentanyl in the package sent to the appellant, nor did
he deny any involvement. He said he could not remember whether he had ordered
drugs delivered to the appellants home in the past. Nor did he recall whether
he had a key to the appellants home where he had not lived for a couple of
years.
The Grounds of Appeal
[26]
The appellant pursues several grounds of appeal. She contends that:
i.
the offence of importing is
complete once controlled substances enter the country;
ii.
the conviction of importing fentanyl is unreasonable;
iii.
the conviction of possession of fentanyl for the purpose of trafficking
is unreasonable;
iv.
the trial judge erred in failing to instruct the jury on circumstantial
evidence, thus reversing the burden of proof;
v.
the trial judge erred in failing to instruct the jury on evidence of
after-the-fact conduct;
vi.
the trial judge erred in permitting the jury to draw an adverse
inference against the appellant because she was the last witness to testify;
and
vii.
the
trial judge erred in dismissing the appellants third party suspect
application.
Ground #1: The Essential Elements of Importing
[27]
This ground of appeal focuses on the essential elements of importing, in
particular, on when the physical element or
actus reus
of importing is
complete. The same issue arises in the companion case of
R. v. Okojie
(C68428), the reasons in which are being released at the same time as these.
[28]
In this case, the error alleged in determining the endpoint of the physical
element or
actus reus
of importing is said to have had two
consequences at trial. The jury was misdirected on the essential elements of
the offence and, as a result, rendered an unreasonable verdict on that count.
[29]
To settle the issue raised in its proper environment, it is helpful to
recall some features of the evidence adduced at trial and what the trial judge
told the jury about importing.
The Essential Background
[30]
The appellant was the addressee of a package sent by post from DigitalPartner
UNIKO in Guangdong, China. The declaration on the package described its
contents as a digital cable and its value as $10. The package arrived at the
International Mail Centre in Richmond, British Columbia on October 18, 2016.
The package was examined. It contained fentanyl. Due to the toxic nature of
fentanyl, the controlled substance was removed, its nature confirmed by
testing. Its street value was $320,000.
[31]
The package, absent the fentanyl, was forwarded by plane by the RCMP so
that it could be delivered to the appellant at her Ajax residence. Prior to its
delivery, the appellant exchanged texts with a friend, Louisa Munro, a person
whom she had known for about five months, in which Munro said, O said keep eye
out. The appellant responded, Ok sweet. The morning of the controlled
delivery Munro sent another text: O said keep eyes peeled.
[32]
On November 4, 2016, about two weeks after the package had arrived in
British Columbia, an undercover police officer, disguised as a Canada Post
delivery person, attempted to deliver the package to the appellants home. The
delivery, which was authorized by a general warrant, failed. The appellant was
not home. Hazare Roman, an ex-boyfriend who was there, did not get to the door
before the undercover officer left.
[33]
An exchange of text messages followed with the ex-boyfriend about the
failed delivery and its importance to the appellant. The appellant returned
home, checked her mailbox for a courier slip and went into her house searching
for any sign of the package. She then left.
[34]
About an hour later, the disguised undercover officer returned. He
delivered the package to the appellants ex-boyfriend who accepted it on her
behalf. Before the appellant returned home after being told about the delivery
of the package, police executed a search warrant at the appellants home. They
found the package, unopened, on a table in the front hall. Police arrested the
appellant when she returned home. She said nothing about an important package
and denied expecting delivery of a package when questioned by police.
The Charge to the Jury
[35]
The trial judge distributed copies of his proposed instructions to the
jury to counsel and discussed their content with them. Trial counsel for the
appellant (not counsel on appeal) did not object to the instructions about
importing either before or after they were delivered.
[36]
After posing the first question for the jurors to answer as Did Jacinda
Hudson
import
a substance into Canada?, the trial judge explained:
To
import
something into Canada means to bring it into
the country, or cause someone else to bring it in, from outside Canada.
This element is proven when the substance enters Canada. Crown
counsel does
not
have to prove that Jacinda Hudson
actually
took delivery of the substance, or actually carried it in.
What is essential, however, is that Jacinda Hudson was the
person responsible for bringing it into Canada. This is the real issue for you
to decide with respect to this charge. [Emphasis added.]
[37]
Later, the trial judge framed the issue for the jury to decide in this
way:
There is no dispute that the substance was imported into
Canada. The real issue for you to decide is whether Ms. Hudson was the person
responsible for bringing the substance into Canada. The Crown relies on the
evidence that the package was addressed to Jacinda Hudson at 1 Pennefather
Lane, and on the text messages set out above as evidence from which you can
infer that Ms. Hudson was the person responsible for bringing the fentanyl into
Canada.
After reviewing the positions of the parties, the trial
judge concluded his instructions on this question:
If you are
not
satisfied beyond a reasonable doubt
that Jacinda Hudson
imported
a substance into Canada, you must find
Jacinda Hudson
not
guilty. Your deliberations would be over.
If you
are
satisfied beyond a reasonable doubt that
Jacinda Hudson
imported
a substance into Canada, you must go on to the
next question. [Emphasis added.]
The Arguments on Appeal
[38]
The appellant says that the term import has its plain meaning of to
bring in or cause a controlled substance to be brought into the country. The
fault element requires proof that an accused knew or was wilfully blind as to
the presence of the controlled substance, albeit not the nature of the
controlled substance actually imported. This requirement of knowledge or wilful
blindness must precede the entry of the controlled substance for proof of the
offence of importing to be established.
[39]
To establish the
actus reus
or physical element of importing,
the appellant continues, the Crown must prove that the accused did some
voluntary act to arrange the shipment or delivery of the controlled substance
into Canada. Establishing the point at which the offence is complete is central
since this determines whether the evidence establishes importing or some other offence
under the
Controlled Drugs and Substances Act
(
CDSA
)
,
S.C. 1996, c. 19
.
It also satisfies the coincidence principle, the
procedural requirement that the offence be committed in Canada, and whether the
evidence adduced establishes the physical element or is simply evidence of after-the-fact
conduct.
[40]
The decision in
Bell v. R
.,
[1983] 2 S.C.R. 471, is
dispositive of when the offence of importing is complete. Importing is not a
continuing offence. Its physical element or
actus reus
is complete
when the controlled substance enters the country. In cases of personal carriage
of the contraband, such as
Foster
, the physical element is complete
when the carrier and contraband clears customs. But this case-specific finding
cannot apply to controlled deliveries. This is because possession, which occurs
in the controlled delivery cases, is not an essential element of the offence of
importing. To extend the offence of importing until the controlled substance
comes into the possession of the intended recipient is unsupportable in
principle. The decisions in
Onyedinefu
,
2018 ONCA 795, and
Buttazzoni
,
2019 ONCA 645, were wrong to have done
so and should not be followed.
[41]
The definition of importing in particular, the outer boundary of its
physical element must also respect Parliaments intention to create separate
offences to criminalize post-importing conduct, such as trafficking and
possession for the purpose of trafficking. To expand the definition of
importing to take in domestic transportation and control of controlled substances
overrides Parliaments intention to distinguish among these offences. By parity
of reasoning, disparity in the sentencing ranges applicable to importing and
the other offences supports a similar conclusion.
[42]
The respondent says that no matter when the offence is considered
complete, when the fentanyl arrived in British Columbia or when the intended
recipient took possession of the package in Ontario, the appellant was guilty
and properly convicted of importing. The charge to the jury made it clear that to
find the appellant guilty of importing, the jury had to find that the appellant
had knowledge of the importing and was
responsible
for bringing or
causing the fentanyl to be brought into Canada. The jury found the appellant
guilty on the basis of these instructions. In other words, the jury was
satisfied that the appellant was a principal in the offence of importing.
[43]
The trial judge, the respondent urges, correctly outlined the elements
of the offence of importing. To find the appellant guilty, the trial judge
said, the jury had to be satisfied beyond a reasonable doubt that the appellant
was responsible for the importing. When combined with the precise language of
the
Bell
majority to bring [a controlled substance] into the
country, or cause someone else to bring it in from outside Canada, this
combination provided a proper basis to ground a conviction. No further, or more
specific instruction was sought or necessary.
[44]
The respondent points out that the failure of the trial judge to
specifically instruct the jury about when the physical element or
actus
reus
of importing was complete an instruction not sought at trial is
of no real moment. The case was left to the jury on the basis that the
appellant was responsible for bringing in the fentanyl or causing it to be
brought into Canada. Evidence of the appellants subsequent conduct afforded
cogent evidence of her earlier involvement in the importation. There was no
misdirection or non-direction amounting to misdirection in the final
instructions to the jury.
The Governing Principles
[45]
The principles that inform our decision on this ground of appeal have
been examined at length in our reasons in the companion case of
Okojie
released concurrently. It is unnecessary to repeat that analysis here. For our
purposes, it is enough to extract some basic principles against which to
measure the adequacy of the instructions given at trial.
[46]
Like all true crimes, importing consists of a physical element and a
fault element. Each element must be established by relevant, material and
admissible evidence beyond a reasonable doubt. At some point, the two elements
must coincide:
Okojie
, at para. 95.
[47]
The physical element in importing requires proof that an accused
imported a substance. That substance must be included in the same Schedule
under the
CDSA
as the substance alleged in the indictment. To import a
substance means to bring a substance, or to cause a substance to be brought
into Canada from abroad. This does not require that the accused actually
carried the substance into Canada. Nor does it require that the accused be
present when and where the substance enters Canada. The offence may be
committed in part at more than one place in Canada. But in each case, there
must be a nexus between the accused and the importation:
Okojie
, at
paras. 64, 96, 99.
[48]
The physical element of importing is complete when the controlled
substance enters the country. When a controlled substance enters the
country depends, to some extent at least, on the manner in which the importing
occurs. When the physical element of importing concludes is of importance in
determining the criminal liability of a person charged with importing. This is
so because if an accuseds only participation is
after
the offence has
been completed, their liability for importing cannot be established. However,
evidence of after-the-fact conduct, of things said and done, may help to
establish antecedent participation in importing. The physical element ends when
the controlled substance from abroad is no longer in the control of the
appropriate authorities:
Okojie
, at paras. 113-14.
The Principles Applied
[49]
Although a fuller instruction could have been provided than what was
given, I am not persuaded that what was said reflects prejudicial error. I
reach this conclusion for essentially four reasons.
[50]
This case involved a controlled delivery. The contraband was shipped by
mail. It came into Canada from China. The package was opened, its contents
inspected, and found to contain fentanyl, a highly toxic controlled substance.
The fentanyl was removed, the package forwarded, always in the control of the
authorities, until it was delivered to the appellants home. The appellant was
the addressee.
[51]
At trial there was evidence of communications to and responses by the
appellant alerting her to an impending delivery. The jury was entitled to
reject, perhaps even to find fabricated, the explanation advanced at trial by
the appellant and Munro about the nature of the delivery. The jury could
conclude from the appellants conduct between the failed first delivery and the
second completed delivery that the urgency revealed had nothing to do with a
parcel containing childrens books and clothing.
[52]
Second, the position of the appellant at trial. The position advanced by
the appellant at trial was an outright denial of any involvement with the
package that had contained the fentanyl. The only delivery with which she was involved
had to do with a package said to originate in Nova Scotia. A package of
childrens books and clothing. She did not dispute that the delivered package
from China was imported. Rather, she simply denied any involvement in its
importation. In these circumstances, it is difficult to see how an instruction
that the physical element of importing ended on delivery would have benefited
the appellant in light of the defence she advanced at trial.
[53]
Third, the terms of the instruction provided.
[54]
The instructions given on the physical element of importing are
consistent with the meaning assigned to import by the majority in
Bell
.
The trial judge instructed the jury that to find this element established, they
had to be satisfied that the appellant was
responsible
for bringing
fentanyl into Canada. The use of the term responsible adequately conveyed to
the jury that, to find this element proven, the jury had to be satisfied beyond
a reasonable doubt that the appellant was the person or at least one of the
persons who caused the importing to take place. This is the functional
equivalent of the
Bell
majoritys cause to be brought into the
country.
[55]
Fourth, the position of counsel at trial.
[56]
The trial judge provided counsel with copies of his proposed charge well
in advance of its delivery. Counsel had ample opportunity to make submissions
about errors and omissions, and to suggest any additional instructions that
should be included. Defence counsel took no objection to the instructions now
said to have been deficient. Nor did counsel suggest that anything be added to
better explain to the jury this essential element of importing.
Ground #2: Unreasonable Verdict on Importing
[57]
This is the first of two grounds of appeal that allege the jury reached
an unreasonable verdict. In large measure, my conclusion on the first ground of
appeal precludes success on this ground. This is because the complaint about
unreasonableness is dependent on a submission concerning when importing is
complete and that submission was rejected in not giving effect to the first
ground of appeal.
[58]
It is unnecessary to repeat the evidentiary background rehearsed
earlier. A convenient point of departure is the arguments advanced in this
court.
The Arguments on Appeal
[59]
The appellant reminds us that a verdict is unreasonable if it is one
that a properly instructed jury, acting judicially, could not have reached.
Since the evidence in this case is entirely circumstantial, to find the
appellant guilty of importing, the jury must have concluded that the
appellants guilt was the only reasonable inference available from the evidence
taken as a whole.
[60]
In this case, the appellant argues, the offence of importing was complete
when the package entered British Columbia. This was the date the offence was
alleged to have occurred in the indictment. The trial judge failed to properly
define when the offence was complete. The principal evidence against the
appellant, apart from being a person to whom the package was addressed, was
text messages and other conduct that took place over two weeks later. In these
circumstances, without a proper direction about when the offence was complete,
the jury could not properly have concluded that the appellants guilt was the
only reasonable inference available on the evidence considered as a whole.
Another reasonable inference was available on the evidence that the
appellants only involvement with the package occurred after the importing was over
and done with.
[61]
The respondent acknowledges the standard of review applicable generally
to claims of unreasonable verdict and that governing unreasonableness claims
when the case for the Crown consists entirely of circumstantial evidence. In
deciding whether a verdict is unreasonable, we are entitled to conduct only a
limited weighing of the evidence as a whole within the limits of appellate
disadvantage. Provided the evidence, taken as a whole, is reasonably capable of
supporting the verdict, the verdict must stand.
[62]
In this case, the cumulative effect of the evidence supports the verdict
of the jury. Several items of evidence, taken together, support the inference
that the appellant was awaiting a package from overseas and that she had agreed
to receive it before it was mailed to Canada. Among the items of evidence:
·
the appellant was the addressee at her current home address;
·
the sender was in China;
·
the appellant directed Roman to accept the package on her behalf;
·
after the failed delivery, the appellant returned home, checked
the mailbox and house and left quickly;
·
at the same time, the appellant constantly texted Roman about the
package from Canada Post;
·
after the failed delivery, the appellant texted Roman That was
an important package FK man;
·
the appellant was relieved when the package was delivered;
·
the appellant lied to the police that she was not expecting a
package; and
·
the fentanyl in the package as shipped was valued at about
$320,000.
The Governing Principles
[63]
The controlling principles spark no controversy.
[64]
First, unreasonable verdict.
[65]
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;
R. v. Biniaris
, 2000
SCC 15, [2000] 1 S.C.R. 381, at para. 36. We must conduct our review of a jury
verdict within two well-established boundaries. We must accord due weight to
the advantage of the jury as the trier of fact, present throughout the trial,
ear and eyewitness to the evidence as it unspooled. This is an advantage denied
us at one remove from the trial process. We must be resolute in our resistance
to re-try the case and to label a verdict unreasonable simply because we have
a reasonable doubt based on a lifeless printed record. But our review is not
limited to an assessment of the sufficiency of the evidence adduced at trial to
determine whether there was some evidence which, if believed by the jury,
supports the conviction. We must review, analyze, and, within the limits of
appellate disadvantage, weigh the evidence, and consider, through the lens of
judicial experience, whether judicial fact-finding precludes the jurys
conclusion:
W.H.
, at paras. 27-28.
[66]
Where the case for the Crown depends wholly or substantially on
circumstantial evidence and a conviction is impeached as unreasonable on
appeal, the issue for the appellate court is whether the trier of fact, acting
judicially, could reasonably be satisfied that the appellants guilt was the
only reasonable conclusion available on the totality of the evidence:
R. v.
Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55.
[67]
Second, proof by circumstantial evidence.
[68]
Proof of an issue of fact, such as importing a controlled substance, may
be established by direct evidence, by circumstantial evidence, by an admission
of fact, or by some combination of these various means of proof. Where
circumstantial evidence is involved, the inference-drawing process may involve
any or all of three methods of reasoning:
·
prospectant (for example, motive);
·
concomitant (for example, skill, means, opportunity);
·
retrospectant (for example, after-the-fact conduct).
The fundamental inquiry is one of relevance, whether
the claimed conclusion is a probable inference from the offered fact: John
Henry Wigmore, revised by Peter Tillers,
Wigmore on Evidence
,
vol. 1A (Toronto: Little, Brown and Company, 1983) at § 43, pp. 1138-42.
[69]
The inference involved when evidence of after-the-fact conduct is
received looks backward from the evidentiary fact offered to the act alleged.
Evidence of after-the-fact conduct refers to evidence of things done and said
by an accused after the offence charged was alleged to have been committed:
R.
v. Calnen
, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 106,
per
Martin
J. (dissenting, but not on this point). Although proof of an accuseds
involvement in collection of imported items, such as controlled substances,
does not prove, on its own, that the accused is the importer, that activity may
be circumstantial evidence tending to prove that the accused was in fact the
importer:
R. v. Toe
, [2010] SASC 39, 238 FLR 137 (South Australia
S.C.), at para. 76.
[70]
The assessment of circumstantial evidence, whether by triers of fact at
first instance or by an appellate court on a review for unreasonableness, does
not involve an examination of individual items of circumstantial evidence in
isolation and separately from the rest, adjudging them against the criminal
standard of proof and rejecting them if they are found wanting, as surely they
will be. No individual item of circumstantial evidence is ever likely to do so.
They are the building blocks of proof, not the final product. It is commonplace
that individual items of evidence adduced by the Crown examined separately and
in isolation, have not a very strong probative value. But all the pieces have
to be considered. Each one in relation to the whole. And it is the whole of
them, taken together, whose cumulative force must be considered and may
constitute a basis for conviction:
Coté v. The King
(1941), 77
C.C.C. 75 (S.C.C.), at p. 76.
The Principles Applied
[71]
I would not give effect to this ground of appeal.
[72]
At the outset, the question to be answered is whether the jury, acting
judicially, could reasonably have been satisfied that the appellants guilt was
the only reasonable conclusion available on the totality of the evidence.
Further, we must be mindful that the circumstantial evidence does not have to
totally exclude other conceivable inferences and that a verdict is not
unreasonable because the alternatives do not raise a doubt in the jurys mind.
It remains fundamentally for the trier of fact to decide whether any proposed
way of looking at the case is reasonable enough to raise a doubt:
Villaroman
,
at paras. 55-56.
[73]
An integral component of the appellants assertion of unreasonableness
is her complaint of inadequacy in the trial judges instruction about when the
physical element of importing was complete. As explained earlier, that argument
fails in this case. The instructions given and the verdict rendered make it
clear that the jury was satisfied that the appellant was responsible for
importing the fentanyl.
[74]
The appellant was the consignee of a package mailed from China. The
package contained fentanyl. Its value was $320,000. The appellant exchanged
text messages to be on the lookout for this package. She took steps to ensure
that the package was accepted when delivered. It beggars belief that anyone
would ship $320,000 worth of goods to an address thousands of miles away to
anyone who was not a participant in the importation.
Ground #3: Unreasonable Verdict: Possession of Fentanyl for the Purpose of
Trafficking
[75]
The appellant was also found guilty and convicted of possession of
fentanyl for the purpose of trafficking on or about November 4, 2016. At no
time did she have actual physical possession of the fentanyl. By November 4,
2016 when the package was delivered, the fentanyl had been removed. She
contends that her conviction was unreasonable. The focus of her submissions is
twofold. First, the failure of the trial judge to instruct the jury on the
included offence of attempting to possess fentanyl for the purpose of
trafficking. Second, the absence of evidence of the appellants possession of
the actual drug.
[76]
The background necessary to understand this ground of appeal may be
briefly stated.
The Essential Background
[77]
The package containing the fentanyl sent from China was received at the
International Mail Centre in Richmond, British Columbia. There, the package was
opened, its contents examined. Testing confirmed that a substance found in the
package was fentanyl. Because of its toxic nature, the fentanyl was removed
from the package. Not even a control sample remained. The package was put back
together and re-entered the mail system for a controlled delivery to the
appellant in accordance with the terms of a general warrant.
[78]
The controlled delivery took place. The appellant directed her
ex-boyfriend to take delivery of the package. He did so. When police arrived to
execute a search of the appellants home, they found the package, unopened on a
table in the front hall. The appellant arrived home shortly thereafter. It is
common ground that there was no fentanyl in the package.
The Charge to the Jury
[79]
At the close of the case for the Crown, the appellant did not seek a
directed verdict of acquittal. She did not seek a full acquittal to remove
possession for the purpose of trafficking from consideration by the jury, or a
partial directed verdict, removing the full offence, but leaving an attempt to
possess fentanyl for the jurys assessment.
[80]
The trial judge provided copies of his proposed charge to counsel in advance
of its delivery and invited submissions about any errors or omissions. Trial
counsel did not seek an instruction on attempted possession for the purpose of
trafficking or object to its absence.
[81]
In his charge to the jury, the trial judge explained the elements of
both actual and constructive possession. He adverted to the fact that the
police had removed the fentanyl from the package before it was received by the
appellant. The trial judge explained that a person who knowingly has a
substance in the actual possession or custody of somebody else, or in some
place for the use or benefit of him or herself or somebody else, has that
substance in his or her possession provided she has some element of control
over that substance. He went on to instruct the jury that if the evidence
satisfies you beyond a reasonable doubt that Ms. Hudson believed the package
contained fentanyl, and was aware Mr. Roman had accepted that package on her
behalf, and that Mr. Roman placed the package in her residence for her, this
will meet the legal definition of possession. You can find that Ms. Hudson was
in possession of the fentanyl. He told the jury that if they were not
satisfied that the Crown had proven all the essential elements of the offence
beyond a reasonable doubt they should find the appellant not guilty of
possession of fentanyl for the purpose of trafficking.
The Arguments on Appeal
[82]
The appellant says that the trial judge erred in law in failing to
instruct the jury on the included offence of attempt to possess fentanyl for
the purpose of trafficking. There was an air of reality to the claim that what
occurred here amounted to no more than an attempt. For the completed offence,
an accused must have control over the controlled substance itself, coupled with
knowledge of the controlled substance and an intention to traffic in it. Here, the
appellant had no control over the actual drug which had been removed in its
entirety from the shipped package.
[83]
In this case, the appellant contends, the charge to the jury ignored an
essential element of the offence possession of the controlled substance
alleged. The appellant had no control over the fentanyl, even if she could be
found to have possession of the package in which it had been contained. The
failure to instruct the jury about the absence of evidence of this essential
element of the offence whether the appellant had any control over the
fentanyl should require entry of an acquittal on the count of possession of
fentanyl for the purpose of trafficking. At worst, a new trial should be
ordered on attempt to possess fentanyl for the purpose of trafficking.
[84]
The respondent urges rejection of this ground of appeal, an argument
advanced for the first time in this court. That police removed the fentanyl, a
highly toxic controlled substance, from the package prior to completion of
delivery of the package does not preclude the appellants conviction of the
full offence of possession for the purpose of trafficking.
[85]
According to the respondent, the appellant was in constructive
possession of the fentanyl when the controlled substance was in the actual
possession of the police. The possession component of the offence of possession
for the purpose of trafficking may be established on any basis authorized by s.
4(3) of the
Criminal Code
, R.S.C. 1985, c. C-46. Possession is not
restricted to actual physical possession but includes constructive and joint
possession.
[86]
The respondent says that when the fentanyl was mailed to the appellants
home address from China, the controlled substance entered the actual possession
or custody of the postal service for delivery purposes. The postal service
maintained custody of the package and its contents for the exclusive benefit of
the appellant as its addressee. The obligation and assurance of the postal
service that it would deliver the package and its contents to the appellant at
her address and to no one else established a sufficient level of control to
establish her liability for possession. Actual delivery of the contents was not
required.
[87]
This case involves a highly toxic controlled substance. Its removal, to
avoid serious risk of harm or even death to any would-be recipient, should not
shield the persons responsible for its shipment from criminal liability. At
worst, the court should substitute a conviction for an attempt to possess
fentanyl for the purpose of trafficking. The appellant agreed to receive the
package, aware of and with the intention to possess its contents, and knowing
that the purpose of its possession would be to traffic in those contents. The
appellants liability crystallized once the package was mailed, or at the very
least, when she returned home to recoup the package her ex-boyfriend had
accepted on her behalf. The failure of the trial judge to instruct on the
inchoate offence of attempt was a harmless error in the circumstances.
The Governing Principles
[88]
Section 4(3) of the
Criminal Code
defines what constitutes
possession for the purposes of the
Criminal Code
. Section 2(1) of the
CDSA
exhaustively defines possession for
CDSA
purposes as meaning
possession within the meaning of subsection 4(3) of the
Criminal Code
.
And in s. 34(2) of the
Interpretation Act
, R.S.C. 1985, c. I-2, makes
all
Criminal Code
provisions relating to indictable offences
applicable to indictable offences created by other federal enactments, except
to the extent that the enactment otherwise provides.
[89]
Under s. 4(3) of the
Criminal Code
, thus for the purposes of s.
5(2) of the
CDSA
, possession includes personal possession,
constructive possession, and joint possession. Thus, possession need not be
personal or actual, but may be constructive, as for example under s.
4(3)(a)(ii):
R. v. Morelli
, 2010 SCC 8, [2010] 1 S.C.R. 253, at para.
15. Knowledge and control are essential elements common to both personal and
constructive possession.
[90]
Constructive possession may be established where an accused does not
have physical custody of the subject-matter in question, provided they have the
subject-matter in the actual possession or custody of another person or in
any place, whether or not that place belongs to or is occupied by him, for the
use or benefit of himself or of another person. In other words, constructive
possession is complete when an accused:
i.
has knowledge of the character of
the object;
ii.
knowingly puts or keeps the object in a particular place, irrespective
of whether the place belongs to the accused; and
iii.
intends the object be for anyones benefit, including that of the
accused.
See,
Morelli
, at para. 17.
[91]
Some authorities have considered the impact of police intervention in
shipments of contraband before those shipments reach the consignee. In
Bell
,
where a small amount of contraband was left in the shipment, all members of the
court considered that the police intervention was irrelevant to the appellants
liability for importing:
Bell
, at pp. 482, 491.
[92]
In
R. v. Bremner
, 2007 NSCA 114, 229 C.C.C (3d) 513, the
appellant appealed his conviction of possession of crack cocaine for the
purpose of trafficking. The offence occurred when Bremner was in prison. The
evidence demonstrated that the cocaine was part of a package Bremner had
ordered his drug-dealing subordinates to smuggle into the prison where Bremner
was housed. The Crown alleged that Bremner had sufficient control over his
subordinates that he was in constructive possession of the drugs which were
never delivered. The external source of the drugs was a police informer under
police control.
[93]
The Nova Scotia Court of Appeal rejected an argument by Bremner that,
since he had no control over the drugs, he could not be in possession of them,
thus could not be found guilty of possession of cocaine for the purpose of
trafficking. It followed, the appellant argued, that his conviction was
unreasonable.
[94]
The court referred to the concept of joint police-offender control and
concluded that a measure of control by one person (the police) does not necessarily
exclude the control required to establish possession by another person (Bremner):
Bremner
, at para. 54, citing
R. v. Miller et al
(1984), 12
C.C.C. (3d) 54 (B.C.C.A.), at p. 90. See also,
R. v. Harrison
(1982),
67 C.C.C. (2d) 401 (Alta. C.A.), at p. 417.
[95]
In
R. v. Bonassin
, 2008 NLCA 40, 236 C.C.C. (3d) 562, police
seized a computer from the office of a courier company under the authority of a
search warrant. Concealed in the computer were cocaine and marijuana. Police
extracted the drugs, inserted books of similar weight and had the courier
company deliver the package to its original destination. Although the appellant
was not the addressee, he was working at the delivery address and accepted the
package. Shortly after the delivery, the appellant went out of the house. He
had the package and a suitcase with him. He then returned to the house where
police arrested him.
[96]
The appellant was charged with possession of cocaine and marijuana for
the purpose of trafficking. At trial, the appellant testified that his only
purpose for being at the residence was to purchase marijuana. He had no
intention of taking the package with him. He was simply moving it out of the
doorway so that he could leave the house. The trial judge disbelieved the
appellants story and convicted him.
[97]
On appeal, the appellant argued that the trial judge erred in finding
guilt established because the package that was actually delivered contained no
drugs. The court was satisfied that the evidence disclosed that the appellant
and addressee had agreed before the drugs were removed that he would accept the
package. Thus, the appellant and addressee had knowledge of the drugs and
exercised control over them until they were seized by police. They were in joint
possession of the drugs in advance of delivery. Since joint possession was
established, the majority considered it unnecessary to determine the effect of
police removal of the drugs and delivery of an empty package.
[98]
A final point concerns the nature of offences of which possession is an
essential element. In
Bell
, McIntyre J. described a continuing offence
as an offence in which the conjunction of the
actus reus
and the
mens
rea
, which makes the offence complete, does not, as well, terminate the
offence. The conjunction of the two essential elements for the commission of
the offence continues, leaving the accused in a state of criminality while the
offence continues. McIntyre J. cited possession of goods knowing them to have
been obtained by the commission of theft as an example of a continuing offence:
Bell
, at p. 488.
The Principles Applied
[99]
As I will explain, I would not give effect to this ground of appeal. I
am satisfied that the appellant was in constructive or joint possession of the
fentanyl, that her possession was not broken by police removal of the fentanyl,
and the purpose of her possession was to traffic the controlled substance.
[100]
The package
containing the fentanyl was sent by mail to the appellant. On the evidence, the
appellant was expecting a package containing drugs, and she was the addressee of
the package. In these circumstances, the appellant had joint possession of the
package and its contents with the postal service before the drugs were removed.
The indictment alleged possession for the purpose on or about November 4,
2016. The on or about language is typical of criminal pleading and
sufficiently expansive to include the date on which the package was opened and
before its contents were removed: see
Bell
, at p. 485.
[101]
However, that
the expansive on or about language in the count encompasses possession prior
to removal of the fentanyl is not the end of the matter. I will explain why.
[102]
The indictment
included three counts: importing, possession for the purpose, and simple
possession. Each offence was alleged to have been committed on or about
November 4, 2016. The controlled delivery occurred on November 4, 2016. At
that time there was no fentanyl in the package.
[103]
In his
instructions on importing, the trial judge emphasized that to find the
appellant guilty, the jury had to find that she was responsible for bringing
fentanyl into Canada from abroad. The jury was satisfied that she was
responsible for the importation. That finding, in these circumstances, meant
that the appellant was in possession of the fentanyl under ss. 4(3)(a)(i)(ii)
or s. 4(3)(b) of the
Criminal Code
. Other evidence was available to
establish that the amount imported was for the purpose of trafficking. This was
sufficient to establish the appellants guilt of possession for the purpose and
the impact, if any, of the actual delivery of the package without fentanyl on
the appellants liability for possession for the purpose would not arise.
[104]
On the other
hand, if the jury were to have had a reasonable doubt that the appellant was
responsible for the importation of the fentanyl and to have found her not
guilty of that offence, then they would have had to consider the impact of the
removal of the fentanyl on her liability for possession for the purpose. Absent
possession of the fentanyl, the appellant could not be convicted of the full
offence of possession for the purpose of trafficking in it.
[105]
Since there is
to be a new trial on the indictment, it will fall to counsel and the trial
judge to consider this prospect and determine whether it will be necessary to
instruct the jury on the availability of a verdict of attempted possession for
the purpose of trafficking on the count charging the completed offence.
Ground #4: The Instruction on Circumstantial Evidence
[106]
The evidence on
which the Crown relied to establish the appellants guilt was entirely
circumstantial. This ground of appeal asserts that the charge to the jury
failed to equip the jury with the tools necessary to evaluate this evidence in
determining whether, taken as a whole, it satisfied the standard of proof
necessary in such cases.
[107]
The only
background necessary to evaluate this claim of error is a brief reference to
the charge itself and the process leading up to its final form.
The Essential Background
[108]
The trial judge
distributed drafts of his proposed instructions to counsel for review and
discussion at pre-charge conferences. The first draft, distributed when Hazare
Roman was a co-accused, included a specific instruction about the standard of
proof required when the case against an accused rested entirely on
circumstantial evidence. The instruction was expressly limited to the case
against Hazare Roman.
[109]
When the second
draft was circulated, Hazare Roman was no longer a co-accused. He had changed
his plea and played no further part in the trial. The second draft pointed out
the difference between direct and circumstantial evidence and provided a
typical example explaining the difference between the two types of evidence.
The instruction also advised the jury that it should consider both direct and
circumstantial evidence in deliberating on its verdict and that the law treated
each equally as a means of proof. The instruction about circumstantial evidence
which had been included previously in relation to the former co-accused, Hazare
Roman, was not included. Nor was any instruction in equivalent terms included
about the case against the appellant.
[110]
The final
version of the instructions included a passage describing the difference
between direct and circumstantial evidence, illustrated by a commonplace
example, and a direction that both kinds of evidence direct and
circumstantial were treated equally by the law.
[111]
The charge also
included instructions on the presumption of innocence, the burden and standard
of proof, and a
W.(D.)
-compliant direction on the testimony of the
appellant.
[112]
At no time
during the pre-charge conference or after the charge had been delivered did defence
counsel or for that matter, Crown counsel ever seek a circumstantial
evidence-specific instruction on the standard of proof.
The Arguments on Appeal
[113]
The appellant
says that where the case for the Crown consists entirely or substantially of
circumstantial evidence, the standard of proof requires that the jury be
satisfied beyond a reasonable doubt that the guilt of the accused is the only
reasonable inference to be drawn from the evidence taken as a whole. The trier
of fact must also understand that inferences inconsistent with guilt need not
be based on proven facts but can arise from the absence of evidence.
[114]
In this case,
the appellant submits, the trial judge failed to instruct the jury properly
about the requirements of the standard of proof necessary in cases consisting
entirely of circumstantial evidence. As a result of this omission, the
presumption of innocence was undermined and the burden of proof reversed. The
judge fell short of what
Villaroman
requires in two significant
respects. First, he failed to tell the jury that inferences inconsistent with
guilt need not arise from the evidence but may also emerge from the absence of
evidence. Second, he omitted to tell the jury that even if they were satisfied
that the Crown had negated the exculpatory explanation advanced by the
appellant, they had to consider the whole of the evidence, including the
testimony of the defence witnesses, to determine whether the appellants guilt
had been proven beyond a reasonable doubt.
[115]
The appellant
acknowledges that trial counsels failure to object to the omission of these
instructions is a relevant factor for us to consider in our assessment of this ground
of appeal. However, this failure is not fatal. This is so because a proper
instruction on the onus and standard of proof is essential to a fair trial.
[116]
The respondent
contends that no particular form of instruction is required to ensure jurors
understand the onus and standard of proof in cases consisting entirely or
substantially of circumstantial evidence. The essential requirement is that the
jury understand that they must be satisfied beyond a reasonable doubt that
guilt is the only reasonable inference that can be drawn from the evidence as a
whole. That message was adequately conveyed to the jury in this case.
[117]
In this case,
the respondent points out, the trial judge explained to the jury and
illustrated by example the difference between direct and circumstantial
evidence. He told them that both types of evidence count in assessing whether
guilt has been proven beyond a reasonable doubt. From these instructions, the
jury would understand that, since both direct and circumstantial evidence were
equals as means of proof, both had to meet the standard of proof beyond a
reasonable doubt before a finding of guilt could be made. In addition, the jury
were told that a reasonable doubt could arise from the evidence or the absence
of evidence. No distinction was drawn between circumstantial and direct
evidence in this respect.
[118]
The appellant
testified. She, together with her friend, Louisa Munro, provided an alternative
explanation. They said that a different package was being delivered. From Nova
Scotia, not from China. The jury rejected that explanation. No other
explanation was advanced. None emerged from the evidence. No further
instructions were necessary.
The Governing Principles
[119]
An instruction
about circumstantial evidence alerts jurors to the dangers of the path of
reasoning involved in drawing inferences from circumstantial evidence. The
danger is the risk that jurors will fill in the blanks or jump to
conclusions. As a result, it is generally helpful that the jury, in a case
where proof of one or more essential elements of the offence depends
exclusively or largely on circumstantial evidence, be cautioned about too
readily drawing inferences of guilt. However, the message may be delivered in
different ways. No particular language is required. Instructing the jury that
an inference of guilt drawn from circumstantial evidence should be the only
reasonable inference that the evidence permits is often a succinct and accurate
way of helping the jury to guard against the risk of filling in the blanks by
too quickly overlooking reasonable alternative explanations:
Villaroman
,
at para. 30.
[120]
In cases such as
this, where proof of guilt depends entirely or substantially on circumstantial
evidence, a trial judge may assist the jury in understanding the risk of
jumping to conclusions from the evidence in different ways. How this end is
achieved in any particular case is left largely to the discretion of the
presiding judge:
Villaroman
,
at para. 31. There are different
ways in which to assist the jury. This includes instructing the jury in the
traditional language of reasonable doubt and charging the jury in accordance
with that language, then pointing out the contrary inferences advanced by the
defence and the necessity of acquittal if any of the contrary inferences leave
a reasonable doubt about the accuseds guilt:
R. v. Fleet
(1997), 36 O.R. (3d) 542 (C.A.), at para. 20;
R. v. Griffin
, 2009 SCC
28, [2009] 2 S.C.R. 42, at para. 33;
Villaroman
, at paras. 18, 20.
The Principles Applied
[121]
In my respectful
view, this ground of appeal cannot prevail despite the absence of an
instruction in language typical of most instructions given in this province
about the standard of proof required in cases involving circumstantial
evidence.
[122]
To begin, we
have long abandoned any legal requirement that a specific instruction be
given on circumstantial evidence. No particular language is required. To be
certain, telling the jury that an inference of guilt drawn from circumstantial
evidence should be the only reasonable inference the evidence permits, as the
Villaroman
court noted, will often be a succinct and accurate way of helping the jury
guard against the risk of filling in the blanks by too quickly overlooking
reasonable alternative inferences:
Villaroman
, at para. 30. But, as
Villaroman
,
and
Griffin
before it, emphasized, the
Hodge
s Case
(1838), 2 Lewin 227, 168 E.R. 1136,
formula the
historically provided special instruction on the application of the burden of
proof in cases of circumstantial evidence is not the only way:
Villaroman
,
at para. 31;
Griffin
, at para. 33.
[123]
In this case,
the trial judge instructed the jury about the differences between direct and
circumstantial evidence. He illustrated the difference between the two types of
evidence with a commonplace example that 21st-century jurors could not fail to
understand. The judge explained that both types of evidence were available for
the jury to consider in deciding the case and of equal value in making that
decision. The judge instructed the jurors on their task: to decide what
conclusions they would reach based upon the evidence, as a whole, both direct
and circumstantial.
[124]
Earlier in his
charge, the trial judge instructed the jury on the presumption of innocence and
the burden and standard of proof. Among the specific instructions on reasonable
doubt, was a direction that a reasonable doubt could arise not only from the
evidence, but also from the absence or lack of evidence. The trial judge also
included a
W.(D.)
instruction based on the appellants testimony that
she had nothing to do with the package of fentanyl addressed to her and no
knowledge that the package was being shipped to her. He told the jury that if
they could not decide whom to believe, they must find the appellant not guilty.
[125]
In this case,
the trial judge charged the jury in accordance with the traditional language of
proof beyond a reasonable doubt. He made it clear that it was the evidence as a
whole, both direct and circumstantial, that the jury was required to consider
to decide whether the standard of proof beyond a reasonable doubt had been met.
The trial judge also pointed out the alternative inference advanced by the
defence on the basis of the appellants testimony that she was expecting another
package that had nothing to do with fentanyl. The charge contains repeated
reference to the obligation of the Crown to prove each essential element of the
offence beyond a reasonable doubt before the jury could find the appellant
guilty of any offence.
[126]
The procedure
followed by the trial judge in settling upon his final instructions provided
counsel with ample opportunity to seek instructions of the nature now said to
have been required. No such request was ever made. Not before the charge. And
not after. This, despite inclusion of such an instruction in relation to the
former co-accused.
[127]
I do not gainsay
the value of what has become the traditional instruction which
Villaroman
characterizes as helpful. In cases such as this, where the case for the Crown,
as a whole or on a particular essential element, consists exclusively or
substantially of circumstantial evidence, the traditional instruction should be
given. But, as the authorities have repeatedly said, no specific language is
required. In this case, taking the charge as a whole, I am satisfied that the
jury was properly instructed.
Ground #5: Instructions on After-the-Fact Conduct
[128]
The appellant
next argues that the trial judge erred in his instructions on evidence of
after-the-fact conduct. The error is said to arise because the trial judge
mischaracterized evidence of after-the-fact conduct as evidence of the offence
itself. This, coupled with a failure to properly define when the offence of
importing was complete and to define the case as entirely circumstantial,
resulted in a failure to properly instruct the jury on evidence of
after-the-fact conduct.
The Background
[129]
The evidence
which is said to have attracted an instruction that was not given has already
been summarized and need not be repeated. It consists of things done and said
by the appellant on being advised of the attempted delivery and the later
completed delivery.
The Charge to the Jury
[130]
No specific
instruction was sought or given on evidence of after-the-fact conduct.
The Arguments on Appeal
[131]
The appellant
argues that the failure of the trial judge to properly instruct the jury on
evidence of after-the-fact conduct is the result of two other errors in the
charge. The failure to properly define when the offence of importing was
complete. And the failure to characterize or define the case as one consisting
entirely of circumstantial evidence. In combination, these errors led the trial
judge to characterize what was evidence of after-the-fact conduct as evidence
of the offence itself.
[132]
Where the case
for the Crown consists of or includes evidence of after-the-fact conduct, it is
incumbent on the trial judge to explain to the jury that this evidence should
be approached cautiously. The jury should be instructed to determine first
whether the accused engaged in the after-the-fact conduct, then whether the
conduct related to the offence charged. And finally, to consider the conduct,
together with all the other evidence, before deciding whether the accuseds
guilt has been proven beyond a reasonable doubt.
[133]
In this case,
the trial judge erred in failing to identify this evidence as evidence of
after-the-fact conduct and instruct the jury in such a way as to protect
against the dangers that they would jump too quickly from this conduct to
guilt. This omission resulted in a further reversal of the burden of proof.
[134]
The respondent
disputes the characterization of this evidence as evidence of after-the-fact
conduct. Regardless of when the importing offence was complete, evidence of the
text messages and related conduct was circumstantial evidence of the
appellants involvement in the importing offence. Nor was it evidence of
after-the-fact conduct in relation to the count charging possession of fentanyl
for the purpose of trafficking. It afforded evidence of the appellants
constructive possession of the package.
[135]
Even accepting
the appellants characterization of the evidence as evidence of after-the-fact
conduct, the respondent says, does not command a special caution. Evidence of
after-the-fact conduct is not some special category of evidence. It is not
subject to a specific instruction or caution. It is circumstantial evidence
that invokes a particular chain of reasoning. No more. No less. No special
instruction was necessary. None given. No harm. No foul.
The Governing Principles
[136]
Evidence of
after-the-fact conduct encompasses evidence of what an accused said and did
after the offence with which the accused is charged is alleged to have been
committed. Its boundaries are co-extensive with the limits of human experience.
It is not offence-specific, but rather is non-discriminatory in relation to
offences and legal settings. Its proper legal treatment is highly context and
fact-specific:
Calnen
, at para. 106,
per
Martin J. (dissenting,
but not on this point).
[137]
Evidence of
after-the-fact conduct is not some special category of evidence. It is
circumstantial evidence. Nothing more. Nothing less. Granted, it invokes a
chain of reasoning different from other circumstantial evidence
retrospectant, rather than prospectant or concomitant. But that it does so does
not alter its fundamental nature. And like other items of evidence received in
a criminal trial, evidence of after-the-fact conduct is received if it is
relevant, material, admissible under the applicable rules of evidence, and not
excluded because its prejudicial effect exceeds its probative value:
Calnen
,
at para. 107,
per
Martin J. (dissenting, but not on this point).
[138]
As with other
forms of circumstantial evidence, evidence of after-the-fact conduct allows the
trier of fact to draw inferences grounded in an accuseds words and conduct.
There is nothing new or unique about this. To draw inferences, the trier of
fact invokes logic, common sense, and human experience. As with all
circumstantial evidence, evidence of after-the-fact conduct sponsors a range of
inferences each of which must be reasonable according to the measuring stick of
human experience. The inferences available depend on the nature of the conduct,
the inference sought to be drawn from it, the positions of the parties, and the
totality of the evidence. Evidence of after-the-fact conduct is not nullified
simply because it may generate a range of inferences. For the most part, it is
for the trier of fact to choose among those reasonable inferences which
inference will be drawn:
Calnen
, at para. 112,
per
Martin J.
(dissenting, but not on this point).
[139]
Evidence of
after-the-fact conduct may give rise to imprecise reasoning. It may encourage
triers of fact to jump to questionable conclusions. It may seem more probative
than it is. And so it is that judges should instruct juries to take into
account any alternative explanations advanced for the accuseds behaviour. And
in some cases, further specific limiting instructions or cautions may be
necessary to counteract any specific reasoning risks associated with the
particular evidence:
Calnen
, at para. 118,
per
Martin J. (dissenting,
but not on this point).
[140]
As a general
rule, evidence of after-the-fact conduct does not require any specific caution about
its use in proof of guilt:
R. v. White
, 2011 SCC 13, [2011] 1 S.C.R.
433, at paras. 21-22;
R. v. Adamson
, 2018 ONCA 678, 364 C.C.C. (3d) 41,
at para. 58. Evidence of after-the-fact words and conduct often comprises
several individual incidents, whether of things said, done, or both. The
evidence should be considered as a whole, not in a piecemeal fashion, and
together with the rest of the evidence received at trial:
R. v. McLellan
,
2018 ONCA 510, 362 C.C.C. (3d) 183, at para. 47.
The Principles Applied
[141]
For several
reasons I am not persuaded that this ground of appeal is well founded.
[142]
To begin, the
evidence to which the appellant points, of text messages and conduct prior to
delivery of the package, is not evidence of after-the-fact conduct. The offence
of importing was not complete until the actual delivery to Hazare Roman of the
package, thus removing the package but not the fentanyl from the control of the
authorities. Thus viewed, this evidence cannot reasonably be characterized as
evidence of after-the-fact conduct. It is simply circumstantial evidence of
things done and said which is relevant to a material issue at trial whether
the appellant caused the fentanyl to be brought into Canada. As such, no
special caution was required. It was part of the evidence the jury was entitled
to consider in deciding whether the evidence as a whole satisfied the standard
of proof required.
[143]
Second, inherent
in this submission of error is that evidence of after-the-fact conduct is some
special category of evidence that requires some special caution to be included
in jury instructions. This is not consistent with the prevailing authorities.
Evidence of after-the-fact conduct is not some special category or species of
evidence. It is circumstantial evidence. It does not command any particular
form of instruction apart from a direction that jurors should take into account
any alternative explanations for the accuseds behaviour. That was done here.
[144]
Third, while not
dispositive, trial counsel did not seek any specific instruction about this
evidence or any particular direction about circumstantial evidence and the
standard of proof. This, despite ample opportunity to do so at various
pre-charge conferences when proposed final instructions were being discussed.
[145]
Fourth, in this
case there was no dispute about the behaviour in question. The texts were sent
and received. The conduct between the failed and successful delivery well
established. The only alternative explanation advanced that the behaviour
related to an entirely different package the appellant expected to receive and
not a drug delivery was put to the jury and plainly rejected by their
verdict.
[146]
Finally, there
was nothing in the nature of this evidence which required any specific caution,
as for example may be necessary where the evidence consists of an accuseds
demeanour, lies, refusal to participate in an investigation or extrinsic
misconduct.
Ground 6: Adverse Inference from Order of Defence Witnesses
[147]
This ground of
appeal arises out of a submission made by the trial Crown in his closing
address to the jury and the trial judges response in his charge. The
subject-matter is the order in which the defence witnesses testified at trial.
To be more specific, the fact that the appellant testified as the second,
rather than the first, defence witness.
The Background
[148]
Prior to the
closing addresses, the trial Crown indicated in the absence of the jury that he
proposed to invite the jury in his closing address to draw an adverse inference
against the appellant because she testified after Louisa Munro had testified.
Defence counsel objected. The trial judge decided that the Crown was entitled
to advance this argument.
[149]
Since the
defence called evidence, defence counsel addressed the jury first. In
anticipation of what the Crown would later say, defence counsel explained in
his closing address that counsel decided which witnesses to call and the order
in which they would testify. He added that various reasons influenced the order
in which witnesses testified, including the availability of the witness, and in
some cases, the availability of the witness counsel.
[150]
In his closing
address, Crown counsel (not counsel on appeal) told the jury that there was a
convention that an accused who testifies in their own defence testifies first
before any other defence witnesses give their evidence. The Crown explained
that an accused had the right to be present at their trial. However, the fact
that an accused heard the evidence of other witnesses, in this case including
Munro, was a factor that should affect the weight the jury should assign to her
evidence. The Crown submitted that the appellant was simply trying to parrot in
her testimony what Munro had said in her evidence.
The Jury Instructions
[151]
In his charge to
the jury, the trial judge said nothing about Crown counsels invitation to the
jury to draw an adverse inference against the appellant from having testified
second after having heard the evidence all other witnesses including Munro. The
judge did tell the jury that there was no evidence why Munro brought a lawyer
to court with her when she testified.
[152]
The trial judge
also instructed the jury that the decision to call the appellant to testify
last was a decision for counsel to make. There could be many reasons why
counsel made that decision to call Munro first, none of which emerged from the
evidence at trial. The jury were told to ignore the hypothetical reasons
advanced by defence counsel in his closing address.
The Arguments on Appeal
[153]
The appellant
begins with the uncontroversial. As the accused in a criminal trial, she was
statutorily required and constitutionally entitled to be present at her trial. To
see the witnesses testify. And to hear their evidence. It is legally wrong for
a trial judge sitting as a trier of fact, to reject the testimony of an accused
on the ground that it appeared to be tailored to testimony heard in court or
structured to meet the case for the Crown. Equally inappropriate is a
suggestion that an adverse inference can be drawn from the failure of an
accused to testify before other defence witnesses.
[154]
It is well
settled, the appellant says, that an accuseds choice and constitutional right
to testify after hearing the evidence marshalled against them cannot be turned
into an evidentiary trap, a basis upon which to reject their evidence or a
makeweight to shore up the case for the Crown. What happened here, through the
comments of the trial Crown and the absence of corrective direction by the
trial judge, was that the jury were invited to be suspicious of the appellants
testimony because of the place in the witness lineup in which she testified.
What was needed, but lacking, was a clear direction that no adverse inference
could be drawn from the order in which the appellant testified.
[155]
The respondent
concedes that the trial judge erred in permitting the trial Crown to invite the
jury to consider the timing of the appellants testimony in assessing her
credibility. There should have been no mention of a convention that an
accused testifies before other defence witnesses. It is inappropriate for
either the Crown or the trial judge to suggest that the trier of fact draw an
adverse credibility inference based on the order in which the accused
testifies.
[156]
However, the
respondent continues, an error such as this does not automatically lead to the
conclusion that the trial was unfair. In this case, the comment of the trial
Crown was made in the context of a submission that the appellant and Munro
fabricated their evidence about a different expected package with benign
contents. This was a permissible line of argument on the evidence adduced at
trial. Trial fairness was not compromised.
The Governing Principles
[157]
The governing
principles are well known.
[158]
First, the order
of witnesses.
[159]
A trial judge
has no authority to direct an accused to call witnesses in any particular order
or to give evidence before any other witnesses:
R. v. Sabir
, 2018 ONCA
912, O.R. (3d) 465, at para. 39. The order or sequence in which defence
witnesses testify is for counsel or the accused to determine:
R. v. Smuk
(1971), 3 C.C.C. (2d) 457 (B.C.C.A), at p. 462.
[160]
Second, the
evidentiary significance of an accuseds right to be present at trial and to
determine the sequence of defence testimony. A person accused of a crime is
statutorily required and constitutionally entitled to be present at their
trial:
R. v. G.V.
, 2020 ONCA 291, 392 C.C.C. (3d) 14, at para. 24,
citing
R. v. Laws
(1998), 128 C.C.C. (3d) 516 (Ont. C.A.), at para.
79;
Criminal Code
, s. 650(1). And at their trial, an accused is
entitled to make full answer and defence:
G.V.
, at para. 24.
[161]
To give proper
effect to this obligation and their entitlements, additionally an accuseds
right to a trial that is at once apparently and actually fair, it is legally
wrong for the Crown or the trial judge to invite the jury to impugn or discount
the credibility of the accused on the basis that they have tailored their
evidence to the testimony heard in the courtroom:
G.V.
, at para. 25.
Despite the logic in the suggestion that, as a person who gets full advance
notice of the case for the Crown and testifies last, an accused is in a
position to tailor their evidence to fit the case presented. However, the logic
notwithstanding, no such inference can be invited or drawn without turning
fundamental constitutional rights into a trap and exacting an evidentiary price
for their exercise:
G.V.
, at para. 26, citing
R. v. White
(1999),
42 O.R. (3d) 760 (C.A.), at para. 20.
The Principles Applied
[162]
As I will explain,
I would accede to this ground of appeal.
[163]
The respondent
acknowledges that the trial judge erred in permitting the trial Crown in his
closing address to invite the jury to consider, in assessing the appellants
credibility, that she testified last as a witness at trial. But the respondent
says this error and the substance of the Crowns closing did not render the
trial unfair. I reach a different conclusion about the effect of the error on
the fairness of the trial.
[164]
In his closing
address, the trial Crown told the jury that it was the convention in criminal
trials that the accused testifies first before other defence witnesses. This is
to ensure that the accuseds evidence is not tainted by hearing other defence
witnesses before they (the accused) testify. The fact that, unlike other
witnesses, the accused has the right to be present for the whole of their trial
is another reason for the convention. The appellant heard Munros evidence. She
knew what she had to say. This ought to affect the weight the jury should
assign to the appellants evidence. The jury could not be sure that the
appellant had not simply tried to parrot what Munro had said. As a result, the
jury should be extra skeptical when reviewing the tale of the care package.
[165]
The trial judge
permitted the Crown to advance this argument and Crown counsel did so. Despite
objection, the trial judge took no corrective action.
[166]
It is common
ground that Crown counsels reference to a convention that an accused testifies
as the first defence witness is simply wrong. No such convention exists. The
order of defence witnesses is for the defence to determine. It is not subject
to bright-line rules. There is no set list. This erroneous statement of the law
remained uncorrected.
[167]
The trial
Crowns closing invited the jury to reject the appellants evidence because, as
the accused who was present throughout the trial, she was in the unique
position of having heard the storyline from Munro. This permitted her to parrot
Munros version and made her evidence unworthy of belief.
[168]
The closing
address of Crown counsel invited the jury to use the appellants statutory
obligation to be present at her trial, as well her constitutional entitlement
to make full answer and defence, as a basis for skepticism about and rejection of
her testimony. This turned the appellants statutory obligation and fundamental
constitutional rights into a trap and imposed an evidentiary penalty for their
exercise.
[169]
Defence counsel,
aware of this aspect of Crown counsels closing, attempted to blunt its impact.
Required to address the jury before Crown counsel, defence counsel offered some
possible explanations about why defence witnesses might testify in a particular
order. The trial judge instructed the jury to ignore these explanations.
[170]
In this case,
the errors in Crown counsels closing address were not corrected. The jury was
never told that there was no legal convention about the order of defence
witnesses, in particular, that if an accused chose to testify in their own
defence, they had to testify first. Further, the jury was never instructed that
the fact that the accused was present throughout the trial and heard all the
evidence before testifying was not a factor for the jury to consider in
assessing the weight to be assigned to her testimony.
[171]
In combination,
these errors compromised the fairness of the appellants trial.
Ground #7: The Third Party Suspect Issue
[172]
The final ground
of appeal originates in a failed attempt at trial to adduce evidence about a
known third party suspect as the person who caused the fentanyl to be mailed
into Canada. The trial judge rejected the application after conducting a
voir
dire
at which the alleged third party suspect testified.
[173]
A brief
reference to the application and the trial judges ruling will provide the
background necessary for an evaluation of this claim of error.
The Essential Background
[174]
Raza Khan is a
former boyfriend of the appellant. The lease for the appellants residence, where
the package in which the fentanyl had been secreted was delivered, was in Raza
Khans name. Although Khan did not live with the appellant at the relevant
time, she paid her rent to him by electronic money transfer. He forwarded the
payment to the landlord. The appellant testified she had the only key to the
home. She was not asked whether she ever saw Raza Khan or whether he ever came
to her home.
[175]
Raza Khan
testified on a
voir dire
to determine whether the appellant would be
permitted to adduce evidence in support of a third party or alternate suspect
defence. He acknowledged that:
i.
he sold cocaine and fentanyl;
ii.
he had ordered drugs online;
iii.
the drugs ordered online were shipped or mailed; and
iv.
he has ordered drugs in the names of other persons, not his own.
[176]
Raza Khan has a
significant criminal record including two convictions in 2009 for possession of
Schedule I and II controlled substances for the purpose of trafficking. In each
case, he was sentenced to brief terms of imprisonment, one of which took into
account more than seven months of pre-trial custody.
[177]
Raza Khan said that
he could not recall whether he had ordered drugs to be delivered to the
appellants home or whether he had a key to her house. He was not asked whether
he had previously ordered drugs in the appellants name.
The Rulings of the Trial Judge
[178]
The trial judge
gave two brief oral rulings on the alternate or known third party suspect
issue. The first was based on the appellants testimony, the second after Khan
had testified on a
voir dire
.
[179]
In his first
ruling, the trial judge recognized that the application involved a known third
party or alternate suspect whom defence counsel wished to call as a witness.
The trial judge underscored the burden on the defence to adduce evidence of a
nexus between the third party and the alleged offence. In the absence of any
such evidence to support the required nexus, the trial judge considered it
necessary to hold a
voir dire
to hear the evidence of Raza Khan before
finally ruling on the application.
[180]
After receiving
the testimony of Raza Khan on the
voir dire
, the trial judge concluded
that there was no air of reality to the third party or alternate suspect
defence. In particular, there was no evidence that Khan had ever ordered drugs
in the appellants name. Although Khan admitted having ordered drugs online,
among them cocaine and fentanyl, and having had them mailed or shipped to other
houses, he could not recall having ordered a delivery to the appellants home.
Although there was evidence that Raza Khan had a propensity to commit the
offence with which the appellant was charged, the record revealed no nexus
between Khan and the offence charged. There was no air of reality to the
proposed defence. The application was dismissed.
The Arguments on Appeal
[181]
The appellant
accepts that to advance a third party or alternate suspect defence, the
evidence relied upon in support must meet the air of reality standard.
Appellate review of a decision on the issue applies a standard of correctness. The
burden on an accused is evidentiary. What is required as an evidentiary
threshold is any evidence on the basis of which a properly instructed jury,
acting judicially, could acquit. If this burden is met, the trial judge must
also be satisfied that the probative value of the evidence in support of the
defence is not substantially outweighed by its prejudicial effect.
[182]
The appellant
also acknowledges that there must be a sufficient connection between the third
party or alternate suspect and the alleged offence to furnish the essential air
of reality. This may be supplied by evidence that the third party had the
opportunity, motive, or propensity to commit the offence. The disposition of a
third party to commit the offence is probative and admissible provided there is
other evidence connecting the suspect to the offence. Just because a third
party does not admit culpability does not mean that there is no air of reality
to the defence. Provided the inferences available from the evidence are capable
of raising a reasonable doubt about the defence, the defence should be left to
the jury.
[183]
Here, the
appellant urges, there was an air of reality to the defence. The trial judge
failed to consider the possibility that Raza Khan was lying on the
voir
dire
. The judge also ignored the cumulative effect of several items of
evidence. Raza Khan was the leaseholder of the appellants residence and
collected the rent from her, sometimes at the residence. Raza Khan had lived at
the residence with the appellant and may have received two keys. He was a convicted
drug dealer who had ordered drugs online in the past and had trafficked in
fentanyl. He had previously ordered drugs online in the names of others and
only offered a tepid failure to recall when asked about ordering them delivered
to the appellants home.
[184]
The respondent
says that evidence about a third party or alternate suspect is not
prima
facie
admissible. Here, the proposed third party suspect was Raza Khan.
But the only evidence advanced in support was his criminal record, drug
trafficking practices, and a limited connection to the appellants home. This
does not satisfy the air of reality standard.
[185]
Evidence about
an alternate suspect may only be admitted where there is a significant
connection between the third party and the offence alleged. Absent this link,
evidence about the third party is neither relevant nor material. To connect the
alternate suspect to the crime, something more than evidence of bad character
or of offence-specific propensity is required. Evidence of motive or
opportunity may be sufficient, but speculative evidence will not do.
[186]
In this case,
the respondent concludes, the trial judge applied the proper test. He
considered the evidence. He made a finding that was open to him on the
evidence. Nothing connected Raza Khan to the package, its order, or its
delivery. The trial judges ruling was correct in law and fully supported by
the evidence.
The Governing Principles
[187]
The principles
governing introduction of evidence about a known alternate or third party
suspect are not in dispute. The parties divide on the impact of their
application in the circumstances of this case.
[188]
It is open to an
accused charged with an offence to adduce evidence that tends to show that
another person committed the offence with which the accused is charged. The
evidence offered in support may be direct, or circumstantial, or a combination
of both:
R. v. McMillan
(1975), 7 O.R. (2d) 750 (C.A.), at p. 167, affd
[1977] 2 S.C.R. 824. The evidence must be relevant and of sufficient probative
value to warrant its reception. As a result, courts have been disinclined to
admit evidence about alternate or third party suspects unless the suspect is
sufficiently connected by other circumstances with the crime charged to give
the proposed evidence some probative value:
McMillan
, at p. 757;
R.
v. Grandinetti
, 2005 SCC 5, [2005] 1 S.C.R. 27, at paras. 46-47.
[189]
Evidence of the
disposition of a known alternate or third party suspect is admissible to
establish commission of the offence charged by that person provided that person
is connected to the offence by other evidence. Absent such a nexus, the
disposition evidence would lack any probative value:
McMillan
, at p. 758;
R. v. Murphy
, 2012 ONCA 573, 292 C.C.C. (3d) 122, at para.
19.
[190]
To put the third
party or alternate suspect issue in play at a criminal trial, the defence must
show that there is some basis upon which a reasonable jury properly instructed,
could acquit on the basis of the defence. Absent a sufficient connection
between the third party and the offence, the defence will lack the required air
of reality and fail
in limine
:
Grandinetti
, at para. 48.
[191]
The requirement
to show some nexus or connection between the third party and the offence
applies whether the proposed evidence is direct or circumstantial or a
combination of both. However, where the defence proposes to call direct
evidence from another who admits responsibility for the offence, that proposed
evidence itself constitutes a sufficient nexus or connection:
Murphy
, at
paras. 24-25.
[192]
Among the items
of evidence that an accused may rely upon in support of an alternate or third
party suspect defence is evidence of that persons disposition or propensity to
commit offences of the nature charged. One method of establishing disposition
is to adduce evidence of the third partys criminal record disclosing
convictions of cognate offences. A single conviction may suffice:
R. v. Arcangioli
,
[1994] 1 S.C.R. 129, at p. 141.
[193]
A final point
concerns the principles governing the admissibility of defence evidence in a
criminal trial. The exclusion of relevant, material, and otherwise admissible
defence evidence may only be justified on the ground that the potential
prejudice to the trial process of admitting the evidence substantially
outweighs its probative value:
Murphy
, at para. 17, citing,
R. v.
Seaboyer
, [1991] 2 S.C.R. 577, at pp. 611-12.
The Principles Applied
[194]
In my respectful
view, the trial judge erred in failing to permit the defence to call Raza Khan
as an alternate or third party suspect. Thus, I would give effect to this
ground of appeal.
[195]
This case
involves delivery of a package containing fentanyl from China to the appellant
at her home in Ajax. The package was mailed, arrived in Canada in British
Columbia where the fentanyl was removed and the package forwarded to the
addressee.
[196]
For the proposed
evidence to be admitted in this case, it must be relevant and of sufficient
probative value to warrant its reception. And there must be a sufficient
connection or nexus between the third party and the offence charged. The nexus
may be established by direct or circumstantial evidence or combination of both.
[197]
Raza Khan
testified on the
voir dire
. He did not admit that he had ever ordered
drugs to the appellants address. He said he could not recall having done so,
although he had ordered drugs online before and had them delivered to other
addresses. Disbelief of his faulty memory explanation does not equate to an
admission that he committed the offence.
[198]
On the other
hand, I am satisfied that there was sufficient circumstantial evidence to put
the alternate or third party suspect issue in play.
[199]
Raza Khan was an
admitted and convicted trafficker. He acknowledged ordering drugs online from
various sources. The drugs included fentanyl, the same controlled substance at
issue here. He had ordered fentanyl online. He ordered that delivery of his
online purchase be made to addresses other than his own to recipients other
than himself. In other words, he had a disposition to do the very thing the
appellant was alleged to have done here.
[200]
Raza Khan was
also connected to the place of delivery and the recipient. He was the lessee of
the property. He had lived there for several months with the appellant. He
collected the rent money from her. And this is not a case in which, as his
previous dealings show, he needed to be at the address at a specific time to
order the fentanyl online and have the appellants name appear as addressee and
the package delivered to her residence.
[201]
The cumulative
effect of this evidence was sufficient to meet the evidentiary threshold to
engage the alternate or third party suspect defence. The trial judge erred in
ruling otherwise.
Disposition
[202]
The combined
effect of the errors I have identified leads me to conclude that the
convictions entered at trial cannot stand. I would allow the appeal, set aside
the convictions, and order a new trial on both counts of the indictment.
Released: November 2, 2021 D.D."
David Watt J.A.
I agree. Doherty J.A.
I agree. K. van Rensburg
J.A.
I agree, M.L. Benotto J.A.
I agree. I.V.B. Nordheimer
J.A.
|
COURT OF APPEAL FOR ONTARIO
CITATION:
R. v.
Okojie, 2021 ONCA 773
DATE: 20211102
DOCKET: C68428
Doherty, Watt, van Rensburg, Benotto and
Nordheimer JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Justice Okojie
Appellant
Chris Sewrattan, Ashley Sewrattan and Raj Vijan, for the
appellant
Sarah Shaikh, Christopher Walsh and Jonathan Geiger, for
the respondent
Emily Marrocco, for the intervener, Attorney General for
Ontario
Owen Goddard and Rick Frank, for the intervener,
Criminal Lawyers Association
Heard: February 23, 2021 by video conference
On appeal from the conviction
entered by Justice Jennifer Woollcombe of the Superior Court of Justice on
December 2, 2019, with reasons reported at 2019 ONSC 6898, and the sentence imposed
on January 31, 2020.
Watt J.A.:
[1]
The label on the FedEx package said Beauty products. The sender was
Lucy Shighara of Malindi, Kenya. The package was addressed to Abel Morrison
of 10 Haynes Ave., North York.
[2]
The package was delivered to the appellant. At 10 Haynes Avenue in North
York. From a person wearing a FedEx uniform and driving a FedEx truck.
[3]
The appellant paid the duty owing to the delivery operator. He paid in cash,
signed for the package, got a receipt, and drove away.
[4]
About an hour later, in another town several miles away from where he
got the package, the appellant was arrested on four charges having to do with
the contents of the package. Heroin. Importing and having possession of heroin
for the purpose of trafficking. And conspiracy to commit both offences.
[5]
After a trial before a judge of the Superior Court of Justice sitting
without a jury, the appellant was convicted of the counts charging importing
and possession for the purpose of trafficking but acquitted of both conspiracy
counts. He appeals those convictions and the sentence imposed.
[6]
The reasons that follow explain why I would dismiss both appeals.
The Background
[7]
The underlying circumstances are largely uncontroversial.
The Package
[8]
The package with which we are concerned was sent by FedEx. Affixed to it
was a document that designated the consignor as Lucy Shighara in Malindi,
Kenya. The consignee was Abel Morrison of 10 Haynes Avenue in North York. The
contents were described as Beauty products.
The Interception
[9]
The package arrived at the FedEx consignment hub in Memphis, Tennessee
on February 18, 2018. There, it was intercepted by officials at U.S. Customs
and inspected. The contents of the package were contained in four smaller boxes:
96 tubes of mascara. Each tube contained heroin.
The Transfer
[10]
Three days later, the package was turned over to the Canadian Border
Services Agency (CBSA) in Mississauga, and thereafter to the RCMP who removed
all but one gram of the heroin from the tubes and substituted it with regular
mascara.
The Value of the Heroin
[11]
The true value of the heroin contained in the package varied according
to how it was sold. When sold at the kilogram level, the street value varied
from $30,200 to $41,525. At the gram level, the value increased to between $67,
950 and $83,050.
The Controlled Delivery
[12]
Arrangements were made for a controlled delivery to the consignee, or
anyone accepting delivery on the consignees behalf.
[13]
Around mid-day on February 23, 2018 an undercover police officer wearing
the uniform of a FedEx delivery operator drove a FedEx delivery truck to 10
Haynes Avenue in North York. After parking the vehicle, the officer approached
the home and rang the doorbell. No one answered. She rang the doorbell again.
And waited. No one answered the door.
The Appellant Arrives
[14]
The undercover officer noticed a vehicle travelling towards the FedEx
truck. The vehicle stopped and parked behind the FedEx truck. The appellant was
in the front passenger seat of this vehicle.
[15]
The undercover officer asked the appellant whether he lived at that
address. The appellant said Yes, got out of the vehicle, and approached the
officer. He had crumpled currency in his hand. The undercover officer said A-bell,
deliberately mispronouncing the name of the consignee. The appellant corrected
the mispronunciation, confirmed his identity as Abel Morrison, and repeated
his name.
[16]
The officer did not ask the appellant for any identification.
The Exchange
[17]
The undercover officer explained that $38.87 was owing for duty and
taxes on the package. She required either exact change or a credit card in
payment. The appellant said that he did not have a credit card. He retrieved
$40 in cash from his vehicle, gave the money to the officer, and told her to
keep the change.
[18]
The officer gave the appellant a receipt for the package. She explained
that her scanner was not working. She gave the appellant a delivery tag and
asked him to sign it to confirm receipt of the package. The appellant wrote
four illegible letters on the tag.
[19]
The officer gave the appellant the package. He took it to the vehicle in
which he had arrived as a passenger and put it on his lap.
The Surveillance and Arrest
[20]
Surveillance officers followed the vehicle in which the appellant was a
passenger. They arrested him and his then girlfriend, who was driving the
vehicle, in a parking lot in Newmarket.
The Investigation
[21]
Advised of his right to counsel on arrest, the appellant told
investigators that his girlfriend had nothing to do with this. In a satchel
in the vehicle, police found three chequebooks and a banking client card in
different names. They also found a credit card and health card in the
appellants own name. When processed at the police station, the appellant told
the police that he lived at 329 Cook Road in North York.
[22]
The appellant showed police his cellphone which contained a text message
exchange with Chucks 3. An incoming text read Abel Morrison, 10 Haynes Ave.
The appellant had replied ok. No evidence was given about the date of this
exchange.
The Grounds of Appeal
[23]
The appellant urges two grounds of appeal against conviction. He
contends that:
i.
the offence of importing was complete before his involvement in picking
up the package at the North York address; and
ii.
the
convictions of importing and possession for the purpose of trafficking are
unreasonable because it was not the only reasonable inference from all the
evidence that the appellant knew the package contained a controlled substance.
Ground #1: When Importing is Complete
[24]
This, the principal ground of appeal, is also raised in the appeal in
R. v. Jacinda
Hudson
(C65962). The appeals were heard together by a five-judge panel because
the appellants allege that some prior decisions of this court are in conflict
with the decision of the Supreme Court of Canada in
Bell v. R.
, [1983]
2 S.C.R. 471. The reasons in both appeals are being released concurrently.
[25]
The circumstances of the offences of which the appellant was convicted
have already been described. Repetition is unnecessary. Brief reference to the
reasons of the trial judge will provide a suitable footing for the discussion
that follows.
The Reasons of the Trial Judge
[26]
The first issue the trial judge considered on the importing count was
whether the Crown had proven beyond a reasonable doubt that the appellant had
any involvement in the act of importing the heroin. She described the positions
of the parties in these terms:
The Crown says that the importation of the package with the
heroin continued until Mr. Okojie took delivery of the package.
It is the defence position that in order to establish that the
accused imported, the Crown must prove the accuseds involvement in either
bringing the controlled substance into Canada or causing it to be brought into
Canada. Counsel relies on the Supreme Court of Canadas decision in
R. v.
Bell
, 1983 CanLII 166 (SCC), 1983, SCJ No. 83. It is the defence position
that the Crown has adduced no evidence that the accused had any personal
involvement in bringing the package with the heroin into Canada. The defence
says that the
actus reus
, or act of importing, was complete before he
had any connection to the package and thus he must be acquitted.
[27]
The trial judge considered that the importing offence did not require
the accused to have been involved with actually bringing the package into
Canada. This was because that, although the importing offence is complete in
law when the contraband enters Canada, the offence is not complete in fact
until the contraband reached its intended recipient. Relying on the decisions
in
R. v. Onyedinefu
, 2018 ONCA 795 and
R. v. Buttazzoni
, 2019
ONCA 645, the trial judge concluded that the importation was completed in fact
when the appellant took delivery of the package.
The Arguments on Appeal
[28]
In addition to the parties, we also heard submissions from two
interveners, the Attorney General of Ontario (AGO) and the Criminal Lawyers
Association (CLA). Neither intervener advanced argument on the disposition of
this or the grouped appeal. Each offered assistance on the scope of the
importing offence and the precedential value of the decision in
R. v.
Foster
, 2018 ONCA 53, 360 C.C.C. (3d) 213, leave to appeal refused [2018]
S.C.C.A. No. 127, and its progeny.
The Position of the Appellant
[29]
The appellant says that he could not have been found guilty of importing
because the offence was complete before he became involved with the package
containing the heroin. The decision in
Bell
governs when the importing
offence is complete. Importing is not a continuing offence. The offence is
complete at the time the contraband enters Canada.
Bell
left open the
question of when contraband enters Canada. In this province, binding precedent
holds that contraband enters Canada when it clears customs. Thus, the appellant
should be acquitted of importing.
[30]
The failure of the court in
Bell
to explain when contraband
enters the country has produced disparate conclusions in appellate courts in
Canada. In this court, the decisions in
R. v. Tan
(1990), 44 O.A.C.
324 (C.A.) and
Foster
interpret the enters the country mandate of
Bell
as clears customs. But the later decisions in
Onyedinefu
and
Buttazzoni
have erroneously extended enters the country to transport to the domestic
destination or recipient. This has created confusion and yielded inconsistent
results.
[31]
The appellant assigns the blame for this ball of confusion to
Foster
which got the result right, but the reasoning wrong. The result is correct
because it is consistent with
Tan
in its statement that contraband
enters the country when it clears customs. But the reasoning in
Foster
is incorrect, premised on three errors:
i.
the disposition in
Bell
ordering a new trial does not
indicate that the importation was completed in the trial venue, Mirabel,
Québec;
ii.
a non-continuing offence
, such as
importing, is not distinguishable as complete in law and fact; and
iii.
this court cannot anticipatorily
overrule
Bell
.
[32]
The disposition in
Bell
, the appellant urges, was controlled by
the evidence found in Bells
Québec home. This evidence was capable
of supporting an inference that
Bell was involved in causing the
contraband to be brought into Canada, thus making him
a party to the
importing. The error
in
Foster
was in concluding that the disposition in
Bell
meant that the
Supreme Court majority concluded that the importing occurred or ended at
Mirabel. Extending the
actus reus
of importing beyond customs clearance
violates the binding precedent of
Tan
and invites courts to extend the
endpoint in cases involving controlled delivery.
[33]
The second flaw in this courts reasoning in
Foster
is that it
distinguishes completion of the offence in law, on the one hand, and completion
of the offence in fact, on the other. This is a valid distinction in continuing
offences. But, as
Bell
teaches, importing is
not
a continuing
offence.
Foster
, the appellant argues, was at once overambitious and
wrong to apply this distinction between completion in law and in fact unique
to continuing offences to the non-continuing offence of importing. The same
result could have been achieved without error simply by following the binding
precedent of
Tan
.
[34]
In addition, the appellant continues,
Foster
was wrong because
it appears to have anticipatorily overruled
Bell
. Vertical precedent
demanded adherence to
Bell
. Even the Supreme Court would be unable to
overrule the horizontal precedent of
Bell
. We should reconsider
Foster
and its progeny because the reasoning in
Foster
is unlawful, running
contrary to
Bell
s vertical precedent; illogical, because importing is
not a continuing offence; and undemocratic, because Parliament should correct
any perceived error arising from the Supreme Courts interpretation of its
criminal legislation.
The Intervener CLA
[35]
The CLA adopts the appellants argument that
Bell
must be
followed. The decisions in
Foster
,
Onyedinefu
, and
Buttazzoni
effectively render the concurring judgment of Dickson J. in
Bell
the
law in Ontario. This will result in convictions of importing for those whom the
evidence fails to establish played any role in bringing controlled substances
into Canada or causing those substances to enter Canada from abroad.
[36]
The CLA says that the plain meaning of import and the legislative
intention underlying the creation of the offence support a narrow definition of
the term. Other jurisdictions have expanded the definition to include dealing
with controlled substances in connection with their importation. But Parliament
has not done so, and it is not open to this court to do so indirectly. Further,
this unprecedented extension stigmatizes conduct that is properly the subject
of discrete offences as importing. Such an expansion disproportionately harms
marginalized groups and perpetuates discrimination in the justice system.
The Respondent
[37]
The respondent sees no need to reconsider the recent authorities in this
court impugned by the appellant. Adherence to precedent enhances the legitimacy
and acceptability of judge-made law and by so doing enhances the appearance of
justice. The first consideration for the court in deciding whether it should
overrule a prior precedent is whether the earlier decision is wrong. Absent
error, no basis exists to overturn prior precedent.
Foster
correctly
applied
Bell
. Likewise, the authorities that apply
Foster
. No
case for departure has been established.
[38]
The functional approach that characterizes this courts approach in
Foster
is not only faithful to the reasons of the majority in
Bell
, but also
makes sense. It takes into account the myriad ways in which controlled
substances may be imported and that crossing the border into Canada is a
process, not something that happens in an instant or by crossing over an
imaginary line.
[39]
The
Bell
majority adopts the ordinary meaning of import to
bring or cause a controlled substance to be brought into Canada. The offence is
complete when the substance enters the country. The physical and fault elements
coalesce. But the
Bell
majority created no bright-line rule that
defines
when
contraband enters Canada. This was left for the trial and
intermediate appellate courts to determine in individual cases. This court did
so in a manner consistent with, and in no way misapprehended the effect of, the
disposition in
Bell
.
[40]
The respondent contends that the analysis in
R. v. Vu
, 2012 SCC
40, [2012] 2 S.C.R. 411 which distinguishes between offences complete in
law and those complete in fact is
not
confined to any particular
type of offence. The court did
not
restrict this analysis to continuing
offences, nor is such a submission sound in principle. A non-continuing offence
may take time to commit. It may be committed at different points in time by
different people. When an offence is completed should be determined on the
facts of each case.
[41]
The reasoning in
Foster
, the respondent contends, is a sensible
approach to complex border-crossings. But the
Foster
approach is not
limited to airports. All border-crossings can be a complex matrix of
checkpoints and regulations. The
Foster
approach that importing is
not factually complete until the contraband clears customs and thus becomes
available to the importer effectively manages these complexities. It permits
an assessment of what it means to truly enter the country on a case-specific
basis. Both
Onyedinefu
and
Buttazzoni
represent a logical
application of
Foster
in the controlled delivery framework because the
object of the importation had not concluded when the importation was alleged to
have occurred.
[42]
The respondent says that the appellant has failed to establish any
justifiable reasons for this court to overrule the precedents challenged on
appeal. We do not lightly depart from prior precedent. We only overrule prior erroneous
decisions if there are sufficient reasons to do so. When invited to do so, we
weigh the advantages and disadvantages of correcting the error. We focus on
several factors. The nature of the error. The effect on the parties and future litigants.
And the administration of justice.
[43]
In this case, as the respondent puts it, the analysis in
Foster
does not expand the scope of liability for importing beyond what the majority
in
Bell
authorizes. The Crown must prove not only that an accused intentionally
brought a controlled substance into Canada, or caused such a substance to be
brought into the country, but also intended to do so with knowledge of the
nature of the substance and its origins. These elements were established on the
evidence adduced at trial. The legal principles in cases of importing are not
in any state of uncertainty, nor are they inconsistent with the intention of
Parliament to prevent devastating drugs from landing on Canadian streets.
The Intervener AGO
[44]
The AGO submits that the common law of the offence of importing requires
no revision or reconsideration in this province. The elements of the offence
are being articulated and applied consistently with governing jurisprudence of
the Supreme Court of Canada and with the plain meaning of the verb import.
The applicable definition stigmatizes as importers only those persons who
knowingly bring contraband into Canada from outside Canada, or who knowingly
cause contraband to be brought into Canada as principals or parties to the offence
of others. This is as it should be.
[45]
The meaning to be assigned to the term import is important for the
purpose of prosecutions conducted by the Attorney General of a province. These
include importing firearms and related accessories under s. 103 of the
Criminal
Code
,
R.S.C. 1985, c. C-46.
And importing child pornography, contrary to s.
163.1(3).
The correct definition of import must consider its meaning through the
broad lens of evolving and changing methods of bringing contraband into Canada.
The meaning assigned should not focus on a discrete moment when a border is
crossed, customs cleared, or contraband is received.
[46]
Section 84(1) of the
Criminal Code
provides an exhaustive
definition of import for the purposes of Part III of the
Criminal Code
(Firearms and Other Weapons)
. For those purposes, the term means import
into Canada and,
, includes the importation of goods into Canada that are
shipped in transit through Canada and exported from Canada. Sophisticated
firearms importing schemes succeed because of the different roles played by
various participants in the scheme. A definition of importing that would
exclude some because their actions are not sufficiently linked to the event of
border-crossing would fail to address the practical heart of the offence. Those
who have the
mens rea
for the offence and whose actions are part of
the process of moving the contraband to the intended recipient are properly
convicted of importing. This is so regardless of the time of their involvement
or the role they played concerning border-crossing arrangements.
[47]
The AGO submits that when the offence of importing ends will be a
question of fact to be determined on the evidence in each case. That point will
be when the trier of fact determines that the contraband has arrived in the
hands of the intended recipient. This will be the point at which importing
becomes possession, or possession for the purpose of trafficking in the
contraband.
[48]
Nor does the correct definition of importing ensnare too many
unsophisticated offenders. This argument overlooks the fact that to convict,
the Crown must prove
all
the essential elements of the offence
beyond a reasonable doubt. This includes the fault element. An intention to
import. Knowledge of the nature of the contraband. And knowledge that it has
come from outside Canada. The simple reality is that importing is a process.
The current scope of the offence ensures that those essential to the success of
importing schemes, including key domestic distributors and those who take
receipt of internationally shipped packages of contraband, are properly
convicted of what they do importing.
The Governing Principles
[49]
Some basic principles inform our decision in connection with this ground
of appeal. Although the focus of the argument has been on the correctness of a
series of decisions in this court and their compatibility with the decision of
the Supreme Court of Canada in
Bell
, other principles none of which
are unique to the offence of importing are of service in the analysis that
follows. Some have to do with what is required to establish criminal liability.
Others with the manner in which the essential elements of an offence may be
proven. And the remainder with trial jurisdiction.
The Coincidence/Concurrence Principle
[50]
Crimes consist of a physical element and a fault element. A variety of
terms are used to describe these elements. Among them are
actus reus
and
mens rea
. Not only must each of these elements be proven beyond a
reasonable doubt, the prosecution must establish that, at some time, these
elements were concurrent. In other words, the physical element must be
contemporaneous or coincident with the fault element: Glanville Williams,
Criminal
Law: The General Part
, 2nd ed., (London, UK: Stevens, 1961), at para. 1,
p. 2 (
CLGP
); Glanville Williams,
Textbook of Criminal Law
, 4th
ed., (London, UK: Sweet & Maxwell, 2015), at para. 10-037, p. 276 (
TCL
).
It follows that it is not enough that a mentally innocent act is followed later
by
mens rea
. Nor does a later intent amount to a crime without another
act in which it becomes manifest:
CLGP
, at para. 1, p. 2.
[51]
On the other hand, it is not always essential that the physical and
fault elements be completely concurrent. The determination of whether the fault
element or
mens rea
coincides with the physical element or
actus
reus
will depend to a large extent on the nature of the physical element.
A series of acts may form part of the same transaction and so comprise the
physical element of an offence. This is so irrespective of whether the offence
involved is a continuing offence:
R. v. Cooper
, [1993] 1
S.C.R. 146, at p. 157-8. See also,
Meli v. The Queen
,
[1954] 1 W.L.R. 228 (P.C.);
TCL
,
at paras. 10-037-10-039, pp. 276-78.
The Modes of Participation
[52]
Our criminal law does not distinguish among the modes of participation
in an offence in determining criminal liability. Section 21(1) of the
Criminal
Code
makes principals, aiders and abettors equally liable. A person
becomes a party to an offence when that person, knowing of a principals
intention to commit the crime, and with the intention of assisting the
principal in its commission, does something that helps or encourages the
principal in the commission of the offence:
Vu
,
at para. 58, citing
R. v. Briscoe
,
2010 SCC 13, [2010] 1 S.C.R. 411,
at paras. 14-18.
[53]
Section 21(2) is a form of parasitic criminal liability capturing
participants in a common unlawful purpose in specified circumstances. The
accused is party to an offence that is committed by another participant in
carrying out the common unlawful purpose provided the accused has the required
degree of foresight that the incidental crime would be committed:
R. v.
Simon
, 2010 ONCA 754, 263 C.C.C. (3d) 59, at para. 43.
Establishing Criminal Liability
[54]
To establish the essential elements of an offence, thus the criminal
liability of an accused for its commission, the Crown introduces evidence that
is relevant, material and admissible. This evidence may be direct or
circumstantial in nature. Or it may consist of a combination of both types of
evidence.
[55]
Circumstantial evidence gives rise to inferences, deductions of fact
that may logically and reasonably be drawn from another fact or group of facts
found or otherwise established in the proceedings at trial.
[56]
As a means of establishing a fact, thus an essential element of an
offence and ultimately guilt, circumstantial evidence may invoke one or more
chains of reasoning:
·
prospectant, such as evidence of motive;
·
concomitant, such as evidence of opportunity, means, or skill;
and
·
retrospectant, such as evidence of after-the-fact conduct.
[57]
Evidence of after-the-fact conduct is circumstantial evidence that
invokes a retrospectant chain of reasoning. The process of reasoning is that
the subsequent occurrence of an act, state of mind, or state of affairs
justifies the inference that an act was done, or state of affairs or of mind
existed at a material time in the past, when the charged offence is alleged to
have been committed:
R. v. Adamson
, 2018 ONCA 678, 364 C.C.C. (3d) 41,
at para. 56.
[58]
The reasoning process involved in the retrospectant use of
circumstantial evidence is not offence-specific or limited to certain offences.
As with any item of circumstantial evidence, evidence of after-the-fact conduct
is receivable if it is relevant, material, and compliant with any applicable
rules of admissibility:
R. v. Calnen
, 2019 SCC 6, [2019] 1
S.C.R. 301, at para. 107.
Trial Jurisdiction
[59]
As a general rule, the courts of one province have no jurisdiction to
try an offence committed entirely within another province:
Criminal Code
,
s. 478(1). However, the
Criminal Code
recognizes that, in some
circumstances, offences may be committed in more than one territorial division.
As a result, the
Criminal Code
makes provision for the jurisdiction of
courts to try offences extending over more than one territorial division as
defined in s. 2 of the
Criminal Code
.
[60]
Offences commenced in one territorial division and concluded in another
are deemed to have been committed in each:
Criminal Code
, s. 476(b).
In the result, the courts of either jurisdiction have the authority to try
these cases.
[61]
The offence of importing controlled substances may be committed anywhere
in Canada. And one offence may occur in whole or in part at more than one place
in Canada. For example, an importer from one territorial division may make all
the arrangements and do all the acts necessary to bring about the importation
of the controlled substance at another. In these cases, we can say that the
importer has committed an offence which has occurred at two places, or an
offence which has begun in one territorial division and has been completed in another.
These offences may be tried where the contraband entered the country or where
the acts or arrangements leading to the importation occurred:
Bell
, at
p. 491.
The Importing Offence
[62]
Importing a scheduled controlled substance is an offence under s. 6(1)
of the
Controlled Drugs and Substances Act
(
CDSA
), S.C. 1996,
c. 19. The punishment and mode of procedure depends on the Schedule in which
the controlled substance is included.
The Statutory Definition
[63]
The offence-creating provision, s. 6(1) of the
CDSA
, does not
define or set out the essential elements of the offence of importing. Nor is
import, in any of its forms, defined in the
Interpretation Act
,
R.S.C. 1985, c. I-21. The
CDSA
does not incorporate by reference the
definition of import as it may appear in any other federal enactment, as for
example in s. 84(1) of the
Criminal Code
where import is defined for
the purpose of Part III of the
Criminal Code
.
The Ordinary Meaning of Import
[64]
The term imports in s. 6(1) of the
CDSA
is used as a
transitive verb, its object, a scheduled controlled substance. In ordinary
speech, import means to bring or introduce something from an external source
to another place or destination. More specifically, imports means to bring in
goods from another country. Importing posits a relationship between a source
and a destination, a nexus more causal than temporal. The ordinary meaning of
the term says nothing about when importing begins or when it ends.
The Authorities
[65]
The principal source of assistance in assigning meaning to the term
imports in s. 6(1) of the
CDSA
, more specifically to its temporal
limits, is the jurisprudence commencing with the decision of the Supreme Court
of Canada in
Bell
.
The Decision in
Bell
[66]
Bell was charged with importing
cannabis
and two related counts of possession of cannabis for the purpose of trafficking
and simple possession of the same drug. The offence was alleged to have been
committed at Mirabel,
Québec, on
or about April 18, 1979. The contraband was hidden in four gift-wrapped
footstools shipped by air from Jamaica on Air Canada. Bell was the consignee of
the shipment at his home address in St-Hubert, Québec.
[67]
The shipment containing the
footstools arrived in Toronto on April 10 or 11, 1979. On inspection, Customs
officials found 6.7 pounds of
cannabis
secreted in the footstools. The RCMP
were notified and, on their instructions, the footstools were shipped to their
designated destination at Mirabel Airport. The RCMP removed all but 5 grams of
the
cannabis
, re-assembled the footstools, and
after someone inquired about the parcels at the airport repackaged and
returned them to the airport. On April 18, 1979, the appellant picked up the
parcels, paid the freight charges, signed an entry form at customs, obtained a
customs release and took the parcels to his home.
[68]
Bell was arrested at his home amid discarded wrapping paper and a
dismantled footstool with its covering material removed. Police also found a
piece of paper near the telephone on which was written a number corresponding
to that of the Air Canada way-bill for the shipment and an address in Jamaica
on the way-bill. The way-bill described the footstools as a gift.
[69]
The trial judge directed a verdict of acquittal, not because the act of
importation was complete when the contraband entered at Toronto, but because
the conduct of the RCMP in extracting the
cannabis
broke the chain of possession and completed the act of importation before Bell
obtained the goods.
[70]
The
Québec Court of Appeal
set aside the acquittal entered at trial and directed a new trial on the count
of importing. The court concluded that importing was a continuing offence that
extended to the time the consignment was released from custody at Mirabel to Bells
possession. The court also held that the intervention of the RCMP was
irrelevant.
[71]
Bell appealed to the Supreme Court of Canada as of right. There, he
argued that the act of importation was complete when the shipment entered
Canada on April 10 or 11, 1979. He had no involvement there. Bell also
submitted that if any offence had been committed, it had occurred in Toronto,
not within the jurisdiction of the
Québec
superior court.
[72]
The majority judgment of four justices was given by McIntyre J. He
concluded:
i.
that importing a (then) narcotic is not a continuing offence;
ii.
that
importing bears its ordinary meaning of to bring into the country or to cause
to be brought into the country;
iii.
that the
offence of importing is complete when the goods (narcotics) enter the country;
iv.
that once
the importing offence is complete, the possessor or owner of the contraband may
be guilty of other offences, but the offence of importing has been completed
and the importer, in keeping or disposing of the drug, has embarked on a new
criminal venture;
v.
that
conviction of importing does
not
require that an accused carried the
contraband into the country or was present at the point of entry; and
vi.
that
importing may be committed anywhere in Canada and the offence may occur in
whole or in part at more than one place in Canada. The importer, from one part
of Canada, may make all the arrangements and do all the acts necessary to bring
about the importation at another place. Thus, the importer could be said to
have committed an offence which has occurred at two places, or an offence committed
in one jurisdiction and completed in another. The courts in either jurisdiction
have authority to try the case.
See,
Bell
, at pp. 488-91.
[73]
Dickson J. (as he then was) wrote separate reasons in which he reached
the same result as the majority. He began his analysis by ascribing to import
its ordinary and natural meaning: to bring in (goods or merchandise) from a
foreign country. This means to bring in goods from anywhere outside Canada to
anywhere inside Canada:
Bell
, at p. 477.
[74]
For his part, Dickson J. saw no reason in principle or precedent to
restrict the relevant location of importing to the actual point of border-crossing.
Importing is a process. Although importing necessarily includes the act of
crossing the border, importing extends to the point of intended final
destination. The test is whether a direct link exists between the place of
origin outside Canada and the destination inside Canada:
Bell
, at p.
477.
[75]
As a principal in importing, an accused must bring in or cause to be
brought into Canada goods from a foreign country. By definition, this requires
crossing the Canadian border. A person who becomes involved only after the
border-crossing may be an aider or abettor of the principal who brings the
goods from outside Canada to a destination inside Canada:
Bell
, at p.
478.
[76]
The essence of the reasons of Dickson J. appears in this passage:
The elements of an offence of importing are present as soon as
the goods cross the border, but the offence is not over and done with until the
goods have reached their intended final destination within Canada. Accordingly,
a charge could be laid relating to the point of entry or of destination or
anywhere in between. In this case there was evidence that the intended and
actual destination within Canada was St-Hubert, but there were stops along the
way at Toronto and Mirabel. In my view it was open to the Crown to charge
importing at Toronto or at Mirabel or at St-Hubert.
See,
Bell
, at p. 481.
[77]
Of some significance to the arguments advanced here is Dickson J.s
conclusion that it was of no consequence to his analysis whether importing is
or is not regarded as a continuing offence:
Bell
, at p. 481. Dickson
J. did not conclude that importing was a continuing offence. Rather he expressly
found it unnecessary to do so. Nor did he say that his distinction between
completion of an offence in law and completion of an offence in fact applies
only to continuing offences.
The Decision in
Foster
[78]
Unlike
Bell
,
Foster
was not a case of controlled
delivery. Foster brought 1.2 kilograms of cocaine into Canada hidden in her
bra. CBSA officers located it after she was referred for secondary inspection following
disembarkation from a flight from Jamaica at Pearson International Airport. At
trial, she advanced the excuse of duress. The Crown resisted duress on the
basis that Foster had a safe avenue of escape by reporting her predicament to
law enforcement officials before the offence of importing was complete when she
cleared customs. The jury rejected the excuse of duress and found Foster guilty
of importing. This court dismissed her appeal from conviction.
[79]
The
Foster
court expressed a preference for the reasoning of
Dickson J. in his minority opinion concurring in the result in
Bell
.
But, mindful of its obligation, despite this preference, the court followed the
reasons of the majority to conclude that in
Foster
, the importing
offence was not complete until the cocaine and its carrier had cleared customs
at the conclusion of the secondary inspection. This conclusion is consistent
with the prior decisions of this court in
Tan,
at para. 8, and
R.
v. Valentini
(1999), 43 O.R. (3d) 178 (C.A.), at para. 54.
[80]
In
Foster
, this court, faithful to the majority decision in
Bell
,
did
not
conclude that importing was a continuing offence. In reaching
our conclusion in
Foster
about when the importing ended, a point not
determined by the
Bell
majority, we relied on not only what the
Bell
majority wrote, but also its conclusion, as the
Québec Court of Appeal had decided, that a new trial should be
ordered. This could only have occurred if there were evidence that the offence
was committed
in
Mirabel. And there was evidence that supported an inference that
Bell
, in Mirabel, had caused, or been
involved in causing, the
cannabis
to be brought into Canada. That
evidence included items, found on a search of Bells residence, capable of
supporting an inference that Bell was involved in causing delivery of the
packages to Canada.
[81]
The
Foster
court also found support for its
conclusion in the distinction drawn by Dickson J. in
Bell
between an offence complete in law and
an offence complete in fact. This distinction was adopted by Moldaver J. in
Vu
, a case involving the continuing
offence of kidnapping. The analogy was not intended and should not be taken as
a conclusion that importing is a continuing offence, or that the
Foster
court was following the minority,
rather than the majority, in
Bell
.
The Decision in
Onyedinefu
[82]
In
Onyedinefu
, the
appellant admitted he obtained a box delivered by FedEx. The box, which was
sealed, contained 146 grams of heroin. It originated in India and came to
Canada from the United States. At trial, the appellant testified that he was
involved in several schemes to import goods from various countries. He posed as
a realtor to gain access to empty houses where drop-offs of the imported goods
could be made. He believed the package containing the heroin actually contained
electronics for which he was to receive a fee of $800. The trial judge rejected
the appellants version of events and convicted him of importing heroin and
possession of heroin for the purpose of trafficking.
[83]
In this court, the appellant argued that the offence of importing was
complete before he took possession of the package, thus he could not be found
guilty of that offence. This court disagreed, and observed that importing is a
process that begins with the procurement of the contraband, its transport to a
port of entry, and ultimately to a domestic destination or recipient. The
offence was not factually complete until the appellant took possession of the
package. He was an aider of the principals of the scheme:
Onyedinefu
,
at paras. 7-8.
The Decision in
Buttazzoni
[84]
At trial, the appellant Buttazzoni was acquitted of importing, but
convicted of conspiracy to import and possession of cocaine for the purpose of
trafficking. The principal issue on appeal was whether the conviction of
conspiracy to import was well grounded in law and in fact.
[85]
A container was shipped from Guyana, its destination, Moes Island
Grocery in Mississauga. When the container arrived by ship in Saint John, New
Brunswick, CBSA staff inspected the container. It contained a quantity of
canned and prepared food products, together with 20 empty skid pallets which
served as space fillers. In the wood of 19 of these pallets were 112 kilograms
of cocaine valued at between $3,920,000 and $8,960,000. Police removed the
cocaine except for 1 gram and arranged for a controlled delivery.
[86]
Police delivered the container to a railyard in Brampton. A man had
leased a storage facility several days earlier. The only other person
authorized to access the unit was the appellant. The other man arranged for a
truck to deliver the container from the railyard to the storage facility. The
appellant drove the other man to the storage facility to meet the truck. The
appellant punched in the code to open the gate. Both men re-attended later that
day and took delivery of the container. There was evidence of the appellants
involvement with the shipment before it entered the railyard, as well as of his
conduct at the storage facility when the container was delivered.
[87]
The appellant argued that the importation ended when the drugs entered
Canada and cleared customs at Saint John on May 28, 2012 about two weeks
before delivery of the container to the railyard in Brampton and its subsequent
transport to the storage facility. The Crown was required but failed to prove
that the appellant joined the conspiracy before it ended by the completion of
its object, the importation of the cocaine.
[88]
The
Buttazzoni
court rejected the argument. The court held
that, following
Onyedinefu
, the importation was not factually complete
until its Canadian recipient took possession of it on June 13, 2012, after it
became available at the railyard.
The Decision in
Anderson
;
Cumberbatch
[89]
In
R. v. Anderson; Cumberbatch
, 2020 ONCA 780; leave to appeal refused 2021
CarswellOnt. 7082, CBSA officers intercepted a package addressed to Harley
Eckert at an address in St. Catharines. The package, apparently sent from
Jamaica, was labelled with a customs declaration listing various non-perishable
food items as its contents. On inspection, cocaine was discovered. Police
became involved. They removed all but one ball of cocaine and reassembled the
package after installing a tracking device that would also trigger and alert
the police when the package was opened. Police then obtained a general warrant
to authorize a controlled delivery.
[90]
The controlled delivery took place. The
consignee signed for the package and put it in the trunk of his vehicle. A few
hours later, the package was transferred to the rear seat of the Andersons vehicle
by Cumberbatch, who had received the package from the consignee. The two appellants
remained together for about an hour at the place of transfer before Anderson drove
home and took the package with her into the house. About an hour later, the
tracking device alerted police that the package had been opened. They entered Andersons
home and found her standing by the opened package. The bags in which the
cocaine had been found had been removed. They were being examined by another
man in a backyard shed.
[91]
The appellants and Eckert were convicted
of importing and possession of cocaine for the purpose of trafficking. On
appeal, Anderson and Cumberbatch contended that the conviction of importing was
unreasonable because the offence was complete when the package was delivered to
the consignee. Since their involvement occurred after the offence was complete,
they could not be convicted of importing. At best, possession for the purpose
of trafficking, provided the required elements of knowledge and control could
be proven beyond a reasonable doubt.
[92]
This court rejected the argument, which
was different than the argument that the appellants had advanced at trial.
There, the appellant had urged that the importation was complete when the drugs
entered the country, even before the consignee took delivery. On appeal the
appellants contended that the importation was complete when the consignee, as
the first domestic recipient, received the package:
Anderson
;
Cumberbatch
,
at paras. 14, 16.
[93]
In
Anderson
;
Cumberbatch
, the court held that
Buttazzoni
did
not
stand for the principle that it is always the first domestic
recipient who is the importer. It is the identity of the ultimate domestic
recipient that is important. The offence of importing was not factually
complete until the package was received by the ultimate recipient. In
Anderson
;
Cumberbatch
, the ultimate recipient was the man in Andersons backyard
shed who was apparently searching for the cocaine in the packaging in which
police had found it secreted:
Anderson
; Cumberbatch, at paras. 20-22.
The Current State of the Law
[94]
This survey of
Bell
and subsequent decisions of this court in
the ensuing decades leads me to several conclusions about the principles that
govern the essential elements of importing and their proof.
[95]
As with all true crimes, importing a controlled substance consists of a
physical and a fault element. Each element must be established by relevant
material and admissible evidence beyond a reasonable doubt. At some point, the
two elements must coincide.
[96]
The
physical
element in importing requires that an accused
import a substance. That substance must be a controlled substance included in a
Schedule under the
CDSA
.
[97]
The
fault
element in importing requires that the accused intended
to import a substance and knew that the substance was a controlled substance,
though not necessarily the precise substance alleged.
[98]
The majority decision in
Bell
teaches that the term
import, in its various forms undefined in the
CDSA
, has no special
or restricted meaning. It bears its ordinary meaning of bringing, or causing a
controlled substance to be brought into the country. We also learn from the
Bell
majority
that the offence is complete
when the controlled substance enters the country and that importing is not a
continuing offence, as for example, is possession, or as later determined in
Vu
, kidnapping.
[99]
What we do not know from
Bell
,
is what enters the country
means or more accurately put, when the enters the country requirement is
completed or ends. We do know that the offence may be committed anywhere in
Canada and, in all or in part, at more than one location. And that the courts
in each place where it occurs have jurisdiction to try those charged there.
[100]
Since
Bell
doe
s not define enters the country, or at least its
endpoint or outer limit, it has fallen to this and other intermediate appellate
courts to do so at a minimum in cases in which controversy exists about
whether the evidence of an accuseds involvement satisfies the physical element
of the offence.
[101]
Any meaning assigned to enters the country, thus
the endpoint or temporal limit of the physical element in importing, must be consistent
with the decision of the majority in
Bell
.
But it must also keep a weather eye on
the purpose of the legislation to prohibit dangerous drugs becoming available
to the population of Canada and the myriad ways, bounded only by the limits
of human ingenuity, in which controlled substances may be brought in from
abroad. Personal carriage. Mail or courier service. By air. By water.
[102]
When the
physical element in importing has been completed, its endpoint is important in
the demonstration of an accuseds criminal liability. But, as we know, evidence
of things said and done by an accused after an offence has been committed may
assist in proof of that accuseds participation in the antecedent offence and
demonstrate the fault element that accompanied it. Completion of the physical
element is not the final curtain on proof of criminal liability.
[103]
The appellant
acknowledges that binding precedent in this province requires that we hold that
contraband, such as controlled substances, enters the country when it clears
customs. In this case, he says, that means the appellant should be acquitted.
But if the appellant paid the duties owed to the impersonated FedEx employee,
as the evidence shows, is he not hoisted on his own petard? The package cleared
customs when he paid the duties owing, otherwise it would have remained under
Customs control.
[104]
Not every
importation involves clearance through Customs. Consider an act of smuggling to
an isolated location. Guns and drugs across the St. Lawrence River from New
York State into Ontario. Or Quebec. The precise purpose to avoid customs and
its rigours. What clearance through Customs does is to result in the cessation
of control over the contraband by the appropriate authorities, with the
consequence that the contraband becomes available to the carrier, consignee,
addressee, or their delegate and remains in Canada. Perhaps a more felicitous
expression of the endpoint of importation is that it occurs when contraband
from abroad enters Canada and is no longer under the control of the appropriate
authorities.
[105]
The appellant
does not challenge the correctness of the decision in
Foster
. It is
consistent with binding precedent. But, he says, its reasoning is flawed. The
descriptives the appellant applies vary. Unlawful. Undemocratic. Anticipatorily
over-ruling the binding precedent of
Bell
. Stripped of hyperbole and
pejorative characterization, I take this to mean that the reasoning is legally
wrong.
[106]
The decision in
Foster
applies and is consistent with the majority decision in
Bell
. Left
unanswered by
Bell
, by the appellants own admission, is the meaning
to be assigned to the phrase enters the country. This,
Foster
concludes, in a case of personal carriage of the contraband, of bringing it
into Canada, occurs when the contraband (and its carrier) clear Customs. This
concludes the physical element of the offence. This endpoint does not mean that
importing is a continuing offence. Nor is it inconsistent with what the
majority in
Bell
decided. It reflects the law in this province as
expressed in post-
Bell
authorities, the integrity of which is not
challenged here.
[107]
The decision in
Foster
involved a courier who brought the drugs into Canada from Jamaica. Although the
drugs were physically in Canada when she arrived at Pearson International
Airport, they and she remained in the control of the relevant authorities until
she cleared Customs. It was only when she and the drugs cleared Customs that
the drugs were no longer in the control of the relevant authorities and the
offence of importing was complete.
[108]
The
circumstances here differ from
Foster
. The drugs were sent from Kenya
by FedEx. When the package arrived in the United States, heroin was detected on
customs inspection. The package and its contents were forwarded to Canada where
authorities removed most of the drugs but retained control over the package and
the drugs remaining in it. A warrant authorizing a controlled delivery was obtained.
The authorities did not give up control over the package and its contents until
the appellant, posing as the consignee, Abel Morrison, took delivery. It was at
that time that the offence of importing was complete. The drugs were physically
in Canada and apparently out of the control of the authorities. The
circumstantial evidence, taken as a whole, established the appellants
liability for importing.
[109]
In some cases, as
the example given in para. 104 illustrates, the drugs may be physically in
Canada but never in the control of the authorities because of the manner in
which the drugs have been brought into the country. In these cases, the offence
of importing is complete when the drugs are physically in Canada. It will be
for the Crown to establish that any person charged brought the drugs into
Canada from abroad, or caused them to be brought into this country from abroad.
The evidence relied upon to establish liability may be direct, or
circumstantial, or a combination of both.
[110]
A final point
about the decision in
Foster
: the reference to the distinction between
an offence being complete in law, on the one hand, and in fact, on the other.
[111]
This distinction
was referred to with apparent approval by Moldaver J. on behalf of the court in
Vu
in deciding that kidnapping was a continuing offence. Neither
Moldaver J. in
Vu
, nor Dickson J. in his minority reasons in
Bell
,
confined the distinction to continuing offences. In
Foster
, the
reference to
Vu
and the distinction between completion of an offence
in law and in fact was not essential to the decision that the importing was not
complete until Foster and her contraband cleared Customs. Whether the
distinction extends beyond continuing offences is best left to another day and
should not form part of the analysis in importing cases until that decision has
been made.
[112]
The other
authorities whose continued vitality and precedential value are challenged here
Onyedinefu
and
Buttazzoni
may be considered together.
Each applied the principles of
Foster
to controlled deliveries. In
each case, the argument was the appellants involvement occurred only
after
the
importation was complete. It followed, the submission continued, that the
appellant could not have been convicted of an offence that was complete before
he became involved.
[113]
To the extent
that each applied the completion in law completion in fact distinction from
Foster
,
as I have already explained, that reasoning may be flawed, applicable only to
continuing offences of which importing is not one. It should not be followed in
determining whether liability for importing has been established. The standard
that should be applied in connection with the physical element of the offence
is whether the contraband has cleared Customs. Or, more generally, whether the
contraband, having entered Canada from abroad, is no longer within or under the
control of the Customs authorities.
[114]
Without more, the
mere fact that the principal evidence against an accused consists of things
done or said
after
the physical element of the offence of importing
has been completed does not mean that an acquittal will inevitably follow. Each
case falls to be decided on its own facts. As is well known, evidence of
after-the-fact conduct, including things done and said, may support an inference
of prior participation and its accompanying fault element.
[115]
Foster
applied the standard I have described to a case in which the appellant brought
the cocaine physically into Canada. She did so by secreting it on her person.
She and the cocaine were and remained in the control of the authorities. Her
conviction was consistent with
Bell
,
Tan
and
Valentini
.
The importing offence was not complete until she and her cargo cleared Customs
since only then was the contraband beyond the control of the authorities.
[116]
The decisions in
Onyedinefu
and
Buttazzoni
both involved controlled deliveries
where drugs had been detected prior to their arrival in Ontario. The conviction
under appeal and in
Onyedinefu
was importing and in
Buttazzoni
conspiracy to import. Each applied the complete in law/complete in fact distinction
from
Foster
. As I have already explained, that reasoning should not be
followed unless it is approved by the Supreme Court of Canada.
[117]
In
Onyedinefu
,
the drugs were present in a package that the appellant admittedly brought into
Canada but which he claimed he thought contained electronics. The package
remained under the control of the authorities until the appellant picked it up.
It was only at that point that the authorities gave up control. It was at that
point that the importation ended. Despite the trial judges use of the complete
in law/complete in fact analysis, the result would have been no different had
the analysis followed the proper standard.
[118]
In
Buttazzoni
,
another case of controlled delivery, the appellant was acquitted of importing,
but convicted of conspiracy to import. The court considered when the
importation was complete because the Crown had to prove and the trial judge had
to find that the appellant had joined the conspiracy before its object
importation of cocaine was complete. The court concluded that the importation
did not end until the co-accused picked up the container on behalf of the
consignee, a grocery store. In reaching this conclusion, the court applied the
complete in law/complete in fact reasoning.
[119]
The conclusion
reached by the
Buttazzoni
court would not have been different had the
analysis applied the proper standard. There was ample evidence of Buttazzonis
involvement with the shipment from Guyana
before
it arrived at the
railyard to support an inference that his agreement with his co-accused
included an agreement to import drugs into Canada. The court also concluded
that the importation ended on the date the cargo was picked up at the railyard.
The same result would fall on the correct analysis since the drugs remained in
the control of the authorities until the consignee picked them up in the
railyard.
[120]
It follows from
what I have said that, apart from rejecting the complete in law/complete in
fact reasoning in
Foster
,
Onyedinefu
, and
Buttazzoni
,
I would not overrule or otherwise qualify the decisions rendered in those
cases. In each case it is for the trier of fact to determine on the whole of
the evidence whether the Crown has proven beyond a reasonable doubt that the
accused was responsible for the importation alleged, that is to say, that the
accused brought the controlled substance into Canada or had it brought here
from outside the country.
[121]
Neither
appellant invited us to overrule or otherwise qualify our previous decision in
Anderson
;
Cumberbatch
. In particular, we were not asked to reject its reference
to the ultimate recipient as extending the offence of importing beyond what
Bell
and the other authorities would permit. In these circumstances, we consider it
best to leave to another day whether that decision requires reconsideration.
The Principles Applied
[122]
As I will
briefly explain, I would not give effect to this ground of appeal.
[123]
The first issue
the trial judge considered was whether the appellant had been involved in the
physical element of the offence the act of importing the heroin. This was a
contested issue at trial. The position of the appellant was that the physical
element of the offence was complete before he had any connection to the package.
[124]
The trial judge held
that the offence of importing was not complete in fact until the contraband
reached its intended recipient. She relied on the decisions in
Foster
,
Onyedinefu
, and
Buttazzoni
to support her conclusion.
[125]
To the extent
that the reasoning of the trial judge invoked the complete in law complete in
fact distinction, it is in error. But her conclusion, that the importation was
completed when the appellant obtained the package from the impersonated FedEx
delivery operator, was correct. It was only then that the packages were in
play in Canada. It was only then that the controlled substance in the package
heroin was no longer under the control of the appropriate authorities, thus
became available to the consignee or addressee or their delegate and reached
the point that would result in them remaining in Canada.
[126]
The trial
judges findings of fact were at once faithful to the evidence adduced at trial
and supportive of the appellants participation in causing the heroin to be
brought into Canada.
[127]
When asked by
the impersonated FedEx delivery operator whether he lived at 10 Haynes Avenue,
the appellant responded affirmatively. He got out of the vehicle in which he
had arrived there. He had crumpled currency in his hand. He asked how much he
owed. He corrected the officers deliberate mispronunciation of the first name
of the consignee. He repeated the full name of the consignee, Abel Morrison,
twice without even having been advised of it by the officer. The appellant did
not in fact live at 10 Haynes Avenue. He misled the officer into thinking that
he did live there and that his name was Abel Morrison. He had received a text
from Chucks 3 that read: Abel Morrison, 10 Haynes Ave. The heroin in the
package had substantial value. On arrest and after
Charter
advice, the
appellant told investigators that his girlfriend, who was with him when he took
delivery of the package, had nothing to do with this.
[128]
This ground of
appeal fails.
Ground #2: Unreasonable Verdict
[129]
The core of this
complaint is that the appellants belief that the package imported from Kenya
contained a controlled substance was not the only reasonable inference from the
whole of the evidence admitted at trial.
[130]
The appellant
acknowledged that the evidence, taken as a whole, was sufficient to support an
inference that the appellant believed the package contained a controlled
substance. However, that was not the only reasonable inference available, as is
required by the authorities to sustain the finding.
[131]
A brief reference
to the trial judges reasons provides sufficient background to evaluate the
merits of this claim.
The Reasons of the Trial Judge
[132]
The trial judge
explained why she was satisfied that the only reasonable inference from the
totality of the circumstantial evidence received at trial was that the
appellant knew that the package contained a controlled substance. She wrote:
First, I rely on the fact that the accused received a text
message that provided him with the name Abel Morrison and the address of 10 Haynes
Avenue. He responded ok. I view this as an indication that he knew that there
was a delivery for Abel Morrison that he was to take receipt of at that address
using a false name. This is some indication that he knew that there was
something illicit about what he was doing.
Second, I consider the value of the package. As Hill J.
explained in
R. v. Ukwuaba
, 2015 ONSC 2349, at para. 112, heroin
trafficking is a commercial business for profit. Common sense dictates that
those who own this sort of valuable illegal item seek to protect it against the
risk of detection or loss. It makes sense, therefore that they would protect
their investment by insuring that they have trusted insiders handling the drugs
where possible. This necessitates that those who receive packages into Canada
with valuable narcotics appreciate what it is they are receiving. Common sense
powerfully suggests that Mr. Okojie knew what he was receiving.
Third, I consider the level of sophistication of the importing
operation. Both parties agree that concealing the small heroin packages in the
top of the mascara was sophisticated. This packaging would have been time
consuming. The package with the mascara was shipped from Kenya. Given the
amount of effort spent concealing the drugs and then getting them from Kenya
into Canada, it just makes sense that the person receiving the package would
know what is in it.
Fourth, I consider the words and actions of Mr. Okojie at the
time that he took possession of the package, knowing that it was not addressed
to him. I view his conduct as demonstrative of the fact that he was aware that
there was a controlled substance in the package and that he was determined to
ensure that he took possession of it, even if doing so required misleading the
officer as to who he was. More specifically:
a. Mr. Okojie knew that there was a FedEx package being
delivered to 10 Haynes Avenue. When Sgt. Gorgichuk first asked him if he lived
there, he said he did. Given that he provided a different home address to Cst.
Rimanelli at the police detachment after his arrest, it appears that he lied to
Sgt Gorgichuk so that she would deliver the package to him.
b. Mr. Okojie also intentionally misled the officer into
believing that he was Abel Morrison, the person to whom he knew the package was
sent. When she mis-pronounced the first name of the person to whom the package
was sent, he immediately corrected her and provided the last name Morrison. I
find that he did this with the intention of making her believe that was who he
was, even if he did not say so directly. I have no doubt that the accused was
trying to appear to be the intended recipient of the package.
c. Mr. Okojie signed the door delivery tag to acknowledge
taking possession of the package. What he wrote on the document is not really
clear. I cannot conclude, as the Crown suggests, that he used a signature
different from what he later used at the detachment. But, I do find that the
act of signing for the package was a further step taken in his effort to hold
himself out as the proper recipient of the package, Abel Morrison.
Fifth, I find that Mr. Okojies statement after his arrest that
his girlfriend had nothing to do with this is some evidence that he knew that
there was a controlled substance in the package when he took it. While the
package was not addressed to his girlfriend, his utterance suggests that he
knew that there were a small number of people who would be aware of its
contents, that he was within that circle, and that he knew that his girlfriend
was not in that circle. While I accept that Mr. Okojie could have been trying
to mislead the police, I view his statement as a further piece of
circumstantial evidence that he knew that there was a controlled substance in
the package.
The Arguments on Appeal
[133]
As I have said,
the appellant accepts that the requisite belief that the package contained a
controlled substance was a reasonable inference from the whole of the evidence
received at trial. But that is not enough to prove this essential element
beyond a reasonable doubt, much less to establish the appellants guilt. The required
belief was not the only reasonable inference available on this evidence. Other
reasonably possible beliefs were available. Explosives. Counterfeit money.
Fraudulent banking instruments. Poison.
[134]
The respondent
accepts the standard of proof required when a finding of fact about an
essential element of an offence, as well as the ultimate issue of guilt, rests
solely on circumstantial evidence. Further, the respondent acknowledges that
inferences consistent with innocence may be grounded on the absence of
evidence, as well as unproven facts. However, the respondent reminds us, the
other reasonable inferences consistent with innocence must find their footing
in logic and experience applied to the evidence or lack of evidence, not
speculation.
[135]
In this case,
the respondent continues, the proposed alternative inferences inconsistent with
guilt explosives, poisons, counterfeit money, and the like are speculative,
far-fetched theories, unmoored from logic and human experience. What is more, a
relevant factor in evaluating the merit of this ground of appeal is that the
appellant did not testify nor adduce any evidence in support of any alternative
reasonable inference consistent with innocence.
The Governing Principles
[136]
The governing
principles are beyond debate.
[137]
In a case in
which proof of one or more essential elements of an offence depends exclusively
or largely on circumstantial evidence, the inference of guilt or of an
essential element of the offence must be the only reasonable inference to be
drawn from the evidence as a whole:
R. v. Villaroman
, 2016 SCC 33,
[2016] 1 S.C.R. 1000, at paras. 30, 34.
[138]
Inferences
consistent with innocence may, but need not, arise from proven facts. This is
because these inferences may also arise from a lack of evidence:
Villaroman
,
at paras. 35-36. To establish guilt, the Crown is required to negative these
reasonable possibilities consistent with innocence, but need not negative every
possible conjecture, no matter how irrational or fanciful, which might be
consistent with the innocence of an accused:
Villaroman
, at para. 37.
These other plausible theories or reasonable possibilities must be based on
logic and experience applied to the evidence, or absence of evidence, not on
speculation:
Villaroman
, at para. 37.
[139]
To support a
finding of guilt based entirely or substantially on circumstantial evidence,
the circumstantial evidence, taken as a whole, and assessed in the light of
human experience, must exclude any other
reasonable
alternatives:
Villaroman
,
at para. 41;
R. v. Ali
, 2021 ONCA 362, at paras. 97, 98.
[140]
A verdict is
reasonable if it is one that a properly instructed jury, acting judicially, could
reasonably have rendered. Where the verdict of the trial court challenged as
unreasonable on appeal is based entirely or substantially on circumstantial
evidence, the issue for the appellate court to determine is whether the trier
of fact, acting judicially, could reasonably be satisfied that the appellants
guilt was the only reasonable conclusion available on the evidence taken as a
whole:
Villaroman
, at para. 55. It is fundamentally for the trier of
fact to decide whether any proposed way of looking at the case is sufficiently
reasonable to raise a doubt about the accuseds guilt:
Villaroman
, at
para. 56.
[141]
When a
conviction based wholly or substantially on circumstantial evidence is
challenged as unreasonable on appeal, the appellate court may consider the
appellants failure to testify as indicative of the absence of any inference
alternative to guilt:
R. v. Corbett
, [1975] 2 S.C.R. 275, at pp.
280-81;
R. v. George-Nurse
, 2018 ONCA 515, 432 D.L.R. (4th) 88, at
para. 32, affd, 2019 SCC 12, [2019] 1 S.C.R. 570.
[142]
A final point
concerns the manner in which circumstantial evidence is to be assessed. Neither
triers of fact at first instance, nor appellate courts on review for
unreasonableness, examine individual items of circumstantial evidence
separately and in isolation, adjudging them against the criminal standard and
rejecting them should they fail to measure up to that standard. No individual
item of circumstantial evidence is ever likely to do so. They are bricks with
which to construct a wall, not the wall itself. In circumstantial cases, it is
commonplace that individual items of evidence adduced by the Crown, examined
separately and in isolation, have not a very strong probative force. But all the
pieces of evidence have to be considered, each one in relation to the whole,
and it is the whole of them taken together whose cumulative force must be
considered and may constitute a basis for conviction:
Coté v. The King
(1941), 77 C.C.C. 75 (S.C.C.), at p. 76;
R. v. Morin
, [1988] 2 S.C.R.
345, at pp. 361-62.
The Principles Applied
[143]
I would not
accede to this ground of appeal.
[144]
The appellant
acknowledges that the cumulative force of the items of evidence relied upon by
the trial judge can support the inference of knowledge of a controlled
substance drawn by the trial judge. As
Villaroman
teaches, fundamentally, it was for the
trier of fact to decide whether the proposed alternative inference was
reasonable enough to raise a reasonable doubt about the appellants guilt.
[145]
The trier of
fact was not entitled to speculate about other plausible theories or
possibilities. She was constrained by logic and experience that she was required
to apply to the evidence or lack of evidence. The appellant did not testify. He
did not otherwise provide any basis for an inference inconsistent with guilt.
Nothing about explosives. Or poison. Or counterfeit money. Or fraudulent
banking instruments, as are now said to have been reasonably possible
inferences.
[146]
This ground of
appeal fails and with it the appeal from conviction.
The Sentence Appeal
[147]
The appellant
indicated that he also challenged the fitness of the sentence imposed upon him
in the event that we set aside his conviction of importing, but not his
conviction of possession of heroin for the purpose of trafficking. Since I
would dismiss the appeal from both convictions, I do not reach the prospective
sentence appeal.
Disposition
[148]
For these reasons,
I would dismiss the appeal in its entirety.
Released: November 2, 2021 D.D."
David Watt J.A.
I agree. Doherty J.A.
I agree. K. van Rensburg
J.A.
I agree, M.L. Benotto J.A.
I agree. I.V.B. Nordheimer
J.A.
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