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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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section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 complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. L.D., 2021 ONCA 786 DATE: 20211103 DOCKET: M52884/C69894 Trotter J.A. (Motion Judge) BETWEEN Her Majesty the Queen Respondent and L.D. Applicant/Appellant Michael Crystal, for the applicant/appellant Manasvin Goswami, for the respondent Heard: October 29, 2021 by video conference REASONS FOR DECISION [1] After a trial in the Ontario Court of Justice, the applicant was convicted of sexual assault ( Criminal Code , R.S.C. 1985, c. C-46, s. 271), uttering death threats (s. 264.1), and breaching a release order (s. 145). He was sentenced to three and a half years’ imprisonment. [2] The applicant seeks bail pending appeal. For the following reasons, the application is dismissed. Background [3] The applicant was found guilty of sexually assaulting his former intimate partner. Although they had broken off their relationship, they remained in contact. They shared the same bed when the offences took place. The victim said that she awoke to find the appellant penetrating her vagina. The appellant then moved himself towards the victim’s face and ejaculated in her mouth. [4] The next day, the victim was on the phone with a male friend. The applicant was angry because a bail condition prohibited him from having a phone. When the victim said, “It’s not my fault … that you’re not allowed a phone”, he became angry and started punching himself in the temple area. He told the victim that he would tie up his mother and step-father and slit their throats; he also said he would slit the victim’s throat. At the time, the applicant was on bail while awaiting trial on charges of uttering threats, distributing intimate messages, and criminal harassment. The Applicant [5] The applicant is 38 years old. He has an extensive criminal record. Excluding the offences for which he now seeks bail, the applicant has approximately 40 convictions, including entries for sexual assault (x 1), uttering threats (x 3), and criminal harassment (x 2). Most notably for bail purposes, he has 19 convictions for breaching various types of court orders – release orders, probation orders, and a conditional sentence order. The Release Plan [6] The applicant proposes a single surety – his new intimate partner. They have been together for over two years. The proposed surety is aware of the applicant’s most recent convictions. Although she was not his surety with respect to these offences, she swears that the applicant abided by all of his bail conditions when they were together. She also said: “I have no concerns that if this court sees fit to release him, he will comply with all conditions imposed upon his release this time. I will be there to support him and to ensure that he complies with his conditions.” Grounds of Appeal [7] The applicant submits that the trial judge erred by admitting a statement the appellant gave to the police. The trial judge rejected the submission that the police breached the applicant’s rights under s. 10(b) of the Charter by denying him access to his counsel of choice. He submits that he should not have been forced into consulting with duty counsel when he had his own lawyer. The police should have allowed him more time to consult his counsel of choice. Discussion [8] The criteria for bail pending appeal of a conviction are set out in s. 679(3) of the Criminal Code . An applicant must establish that: (a) the appeal is not frivolous; (b) he will surrender into custody in accordance with the terms of any bail order; and (c) detention is not necessary “in the public interest.” (1) Not Frivolous (s. 679(3)(a)) [9] In R. v. Oland , 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20, Moldaver J. said that the “not frivolous” test “is widely recognized as being a very low bar.” The Crown does not assert that the proposed ground of appeal is frivolous; instead, he submits that it is weak and, in any event, overcome by enforceability considerations in the public interest equation (s. 679(3)(c)). I agree that the appeal is not frivolous. (2) Surrender into Custody (s. 679(3)(b)) [10] Despite the applicant’s many breaches of court orders, absconding does not appear to be a problem. The Crown does not submit otherwise. The applicant has met his onus on this criterion. (3) The Public Interest (s. 679(3)(c)) [11] There are two components to public interest branch under s. 679(3)(c) of the Criminal Code – public safety and public confidence in the administration of justice. This bail application fails on public safety considerations. [12] As noted already, the applicant’s criminal record is extensive. The applicant has convictions for sexual assault and criminal harassment in relation to former intimate partners. This must be seen in the light of his track record for breaching court orders of various kinds. This is an important factor in gauging how the applicant can be expected to perform if released on bail pending appeal: see R. v. S.H. , 2020 ONSC 4041, at para. 33. So too is the fact that the applicant was on bail when he committed the sexual assault in this case: see R. v. Le , 2006 MBCA 68, 240 C.C.C. (3d) 130, at paras. 34-35. [13] Set against the applicant’s criminal history is the evidence of his proposed surety, being his new intimate partner. She observed no breaches during his time on bail, a factor that weighs in the applicant’s favour on this ground: R. v. Walters , 2020 ONCA 825, at para. 11. [14] Although the proposed surety has not witnessed any compliance problems, she was not his surety at the time. Like many good people willing to assume the important role of a surety, she has no track record in actually supervising the applicant. Her chances of success are considerably weakened by the applicant’s proven unwillingness or inability to comply with court orders. [15] In all of the circumstances, the applicant has failed to discharge his onus on this aspect of s. 679(3)(c). Given my finding on the public safety component of this ground, it is not strictly necessary to address public confidence considerations. However, I make the following observations. [16] I am not persuaded that reviewability interests ought to trump enforceability considerations in this case. The offence was serious. The trial judge’s thorough reasons for judgment demonstrate that, although there were inconsistencies between the applicant’s statement and his testimony, there were significant internal testimonial inconsistencies. The prospect of overturning his conviction on this basis seems doubtful. [17] Even if the applicant could establish a favourable balance between reviewability and enforceability considerations under s. 679(3)(c), this is one of those cases where “residual public safety concerns” prevent release: Oland , at para. 27. Conclusion [18] The application is dismissed. “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Kelly (Re), 2021 ONCA 782 DATE: 20211105 DOCKET: C69092 Rouleau, Huscroft and Thorburn JJ.A. IN THE MATTER OF: Cindy Kelly AN APPEAL UNDER PART XX.1 OF THE CODE Anita Szigeti and Tanner Blomme, for the appellant Khorshid Rad, for the respondent, Attorney General of Ontario Julie Zamprogna, for the respondent, Southwest Centre for Forensic Mental Health Care Heard: October 29, 2021 by video conference On appeal from the disposition of the Ontario Review Board, dated February 10, 2021, with reasons dated March 2, 2021. REASONS FOR DECISION [1] It is not contested that the appellant poses a significant risk to the safety of the public. The sole issue on this appeal is whether a detention order was the least onerous and least restrictive disposition. The appellant argues that she should have received a conditional discharge. [2] The appellant argues that the Board failed to make a number of inquiries relevant to granting a conditional discharge and that it was unreasonable to deny her a conditional discharge. For example, the Board failed to meaningfully consider or inquire into the housing of the appellant at her husband’s home in Lambton County. [3] We disagree. [4] The Board considered and rejected a conditional discharge for two primary reasons: the need to facilitate the appellant’s return to the hospital if necessary and the need to approve her housing in the community. [5] The Board found that recourse to the Mental Health Act , R.S.O. 1990, c. M.7, had been inadequate to manage the risk the appellant poses in the past and could not be relied upon in the future. The appellant had a history of supervision failure immediately prior to her NCR finding. She remains incapable of making treatment decisions and has limited insight into her mental illness and treatment requirements. She left hospital against medical advice on several occasions and on one occasion soon returned to the scene of the index offence. [6] We see no error in the Board’s decision and no basis to intervene on appeal. Contrary to the appellant’s submissions, the Board did not fail to exercise its inquisitorial function. It specifically considered the inclusion of a Young provision, but considered it inadequate because the hospital would have no power to detain the appellant unless she agreed to voluntary readmission or remained certifiable under the Mental Health Act – clearly a problem in light of the appellant’s history of refusing to stay in hospital and non-compliance. Moreover, the appellant had been unable to receive substance abuse counselling she required, as a result of the COVID pandemic. [7] As for housing, it is well established that the appellant’s residence is a relevant consideration in determining the management of risk to public safety: see e.g., Munezero (Re) , 2017 ONCA 585, at para. 9. [8] The Board found that the appellant requires professional support, supervision, and monitoring for community accommodation, as unstable housing had been a risk factor for her methamphetamine use and criminal behaviour. [9] This is not, as the appellant submits, a case such as Williams (Re) , 2021 ONCA 90, where the hospital can be faulted for failing to assess the adequacy of available housing options. First, unlike Williams , the hospital did not consider the appellant ready to live in the community. The hospital needed to know the outcome of therapy before allowing the appellant to reside in the community. [10] Second, the Board was not satisfied that her needs would be met if she lived with her husband. There was evidence that the appellant’s relationship with her husband was not good, including a prior restraining order against him. The appellant and her husband had been separated and homeless prior to her admission to the hospital. He had little in-person contact with her, and she had previously made it clear to her treatment team that she did not want her husband involved in her care until she was granted an absolute discharge. He was not designated as an approved person or as her substitute decision maker and the appellant had denied the treatment team permission to allow them to contact him. [11] In these circumstances, the Board’s finding that a conditional discharge was inappropriate cannot be said to be unreasonable. [12] The appeal is dismissed. “Paul Rouleau J.A.” “Grant Huscroft J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Pantziris v. 1529439 Ontario Limited, 2021 ONCA 784 DATE: 20211105 DOCKET: C68762 Doherty, Miller and Sossin JJ.A. BETWEEN Albert Gelman Inc., in its capacity as Trustee in Bankruptcy of Spiros Pantziris Plaintiff (Respondent) and 1529439 Ontario Limited, Aglaia Pantziris, Aspe Consulting Services Ltd., Julie Pantziris also known as Julie Taylor also known as Julie Taylor Pantziris and Ellen Bowlin Defendants (Appellants) Steven Bellissimo, Kristina Bezprozvannykh and Frank Bennett, for the appellants Lou Brzezinski and Alex Fernet Brochu, for the respondents Heard: October 28, 2021 by video conference On appeal from the judgment of Justice B. Dietrich of the Superior Court of Justice dated September 28, 2020; reported at 2019 ONSC 5531. REASONS FOR DECISION [1] In October 2013, the court made a bankruptcy order against Spiros Pantziris (the “bankrupt”) and appointed the respondent, the Trustee in bankruptcy (the “Trustee”). Subsequently, the Trustee took steps to recapture certain assets of the bankrupt. The Trustee brought a summary judgment motion seeking orders setting aside two transactions: · The transfer by the bankrupt in August 2008 of the bankrupt’s 50 per cent interest in his residence to the appellant, Julie Pantziris, the bankrupt’s wife and joint owner of the residence; and · The transfer of the bankrupt’s shares in 1529439 Ontario Limited (“the shares”) to the appellant ASPE Consulting Services Ltd. (“ASPE”) in April 2013. [2] The defendants (appellants) brought a cross-motion seeking the dismissal of the Trustee’s claims on two grounds. First, the defendants argued that the proceedings constituted a misuse of the bankruptcy process and an attempt by the main creditor, Cobalt Capital Textile Investments L.P. (“Cobalt Capital”) to obtain double recovery from the bankrupt. Second, the defendants submitted the claims were time-barred under the Limitations Act, 2002 S.O. 2002 c. 24, Sch. B . [3] The motion judge found in the Trustee’s favour on all issues. She granted summary judgment vesting the bankrupt’s 50 per cent interest in the residence in the Trustee. She also set aside the share transfer to ASPE and ordered that the Trustee be made the registered owner of the shares. [4] The motion judge’s reasons are thorough and demonstrate that the issues raised by the parties could properly be addressed by way of summary judgment. We are in substantial agreement with the motion judge’s analysis of those issues. The Residence [5] After a thorough review of the evidence, the motion judge concluded the bankrupt’s transfer of his 50 per cent interest in the residence was both an “undervalue” transfer within the meaning of s. 96(1) of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3 (“ BIA ”) and a fraudulent conveyance under s. 2 of the Fraudulent Conveyances Act , R.S.O. 1990, c. F.29 (“ FCA ”) . The motion judge’s findings of fact are fully justified on the evidence before her. There is no basis upon which this court can interfere with those findings. The Shares [6] Mr. Pantziris executed a promissory note as security for a loan purportedly made to him by ASPE. ASPE was controlled by Mr. Pantziris’ mother. Mr. Pantziris did not repay the loan and ASPE sued. ASPE obtained default judgment and moved to transfer the shares in 1529439 Ontario Limited, a corporation controlled by the Pantziris family, to ASPE. ASPE took the position that the shares were security for the loan in respect of which it had obtained default judgment. [7] The transfer of the shares to ASPE was authorized only a few days before the bankruptcy application. The face value of the shares substantially exceeded the amount of the loan purportedly made to Mr. Pantziris. [8] The motion judge was satisfied that the transfer of the shares was made with intent to prefer ASPE, a non-arms length creditor, and with intent to defeat the interest of other creditors. The motion judge’s factual findings support that conclusion. The findings include: · The value of the shares transferred far exceeded the value of the alleged debt; · Mr. Pantziris was insolvent at the time ASPE obtained default judgment and was unable to repay the loan; · ASPE was not a non-arms length creditor, apparently controlled by Mr. Pantziris’ mother; and · The transfer occurred during the 12-month period prior to the bankruptcy. [9] In addition to concluding the share transfer constituted an improper preference, the motion judge also found that ASPE had no enforceable security interest in the shares: Reasons, at paras. 92-97. In reaching that conclusion, the motion judge considered the relevant provisions of the Personal Property Security Act , R.S.O. 1990, c. P.10 (“ PPSA ”), as well as the language in the promissory note, the absence of any other documentation supporting the existence of a security interest, and the absence of any reference to a security interest when ASPE sued on the promissory note and obtained default judgment: Reasons, at paras. 87-97. [10] The appellants have demonstrated neither an error by the motion judge in her interpretation of the PPSA , nor a material misapprehension of the evidence relevant to whether ASPE had an enforceable security interest in the shares. The motion judge’s order with respect to the shares stands. The Limitations Act [11] The appellants argue that, because the main creditor was aware of the facts underlying the claims advanced by the Trustee more than two years before the Trustee advanced those claims, the Limitations Act bars the Trustee from advancing those claims. [12] The claims in issue are all claims by which the Trustee seeks, under various statutory provisions, to set aside transactions made by the bankrupt before the bankruptcy order was made. The claims are made so that certain property owned by the bankrupt may be brought back into the bankrupt’s estate for the benefit of the creditors. [13] The motion judge analyzed the limitation period argument at some length: see Reasons, at paras. 104-14. We agree with her that, for the purposes of the claims made by the Trustee in this proceeding, the Trustee could not be “the person with the claim” under s. 5(1) of the Limitations Act , until the Trustee had been appointed by the court. The limitation period in respect of the claims advanced here could not begin to run until the appointment of the Trustee in October 2013. Even then, the provisions of the Limitations Act must be read, having regard to the powers given to the Trustee to recover the assets of the bankrupt. [14] Nor does s. 12 of the Limitations Act have any effect on the Trustee’s right to bring forward the claims. The Trustee is not “a person claiming through a predecessor in right, title or interest”. The Trustee is claiming in its own right: Reasons, para. 118. [15] The appellants make one further submission with respect to the Limitations Act . They contend, that even if the limitation period runs from the appointment of the Trustee, the claim with respect to the shares was not made until the Trustee amended the statement of claim in 2018, some five years after the Trustee commenced the action and three years after the two-year limitation period would have run. [16] We do not accept this submission. A review of the substance of the amendments reveals they did not allege a new cause of action, but clarified the relief sought in the existing action. [17] The motion judge properly rejected the appellants’ submissions based on the Limitations Act . The Abuse of Process Allegation [18] The appellants argued that its primary creditor, Cobalt Capital, was using the bankruptcy process to attempt to recover losses it had already recouped from the bankrupt. In oral argument in this court, the appellants submitted that Cobalt Capital maneuvered the appointment of the Trustee for that purpose and that the Trustee was complicit in the scheme. [19] The Trustee was appointed on consent. There was no evidence before the motion judge that the Trustee was acting on anyone’s instructions. The appellants’ theory as to the Trustee’s motivation is speculation and was properly not relied on by the motion judge. [20] The appeal is dismissed. The Costs Appeal [21] The Trustee seeks leave to appeal the costs order. The motion judge awarded the Trustee costs on a partial indemnity basis. The Trustee submits the motion judge should have awarded costs on a substantial indemnity basis. Further, the Trustee argues, that even if partial indemnity costs were appropriate, the motion judge wrongly deducted certain pre-litigation costs from the award and also erred in substantially reducing the quantum claimed on a partial indemnity basis. [22] This court grants leave to appeal costs sparingly. Even if leave is granted, the court defers to costs decisions made by judges of the Superior Court. Those judges are much more familiar with the various nuances of setting costs in different litigation contexts than are members of this court. [23] The Trustee submits that the unfounded allegations made by the appellants against the Trustee amounted to an attack on the integrity of a court officer and warranted costs on a substantial indemnity basis. The motion judge did not accept the Trustee’s characterization. She said: I find that the allegations made against the Trustee in this case do not rise to the level of reprehensible, scandalous or outrageous conduct. The defendants’ conduct was more in the nature of an aggressive defence of the claim. Accordingly, substantial indemnity costs are not an appropriate sanction in this case. [24] The Trustee’s submissions invite this court to reject the motion judge’s assessment and adopt the harsher characterization advanced by the Trustee. Deference demands that we decline that invitation. Instead, we defer to the motion judge’s assessment. Given the motion judge’s finding, partial indemnity costs were appropriate. [25] Similarly, we see no reason to interfere with the motion judge’s treatment of the pre-litigation costs, or her assessment of the quantum of costs sought by the Trustee. We see no value in this court going back over the individual components of the costs claim with a view to redoing the work done by the motion judge. [26] We grant leave to appeal the costs order and dismiss the appeal. Costs of the Appeal [27] The parties were able to agree on the appropriate order with respect to the costs of the appeals. The Trustee is entitled to the costs of the main appeal on a partial indemnity basis, fixed at $33,727. The appellants are entitled to the costs on the costs appeal, fixed at $8,531. “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 complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. D.M., 2021 ONCA 780 DATE: 20211105 DOCKET: C64045 Rouleau, Huscroft and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and D.M. Appellant Michael Crystal, for the appellant Gregory J. Tweney, for the respondent Heard: October 29, 2021 by video conference On appeal from the sentence imposed on May 18, 2017 by Justice Michael J. Epstein of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant pleaded guilty and was convicted of three counts of sexual assault, four counts of making child pornography, and one count of possession of child pornography. The offences were committed while the appellant was on parole following convictions for invitation to sexual touching, assault causing bodily harm, sexual assault and sexual interference. They were committed against the appellant’s girlfriend’s son and the son of a couple who were friends with the appellant and his girlfriend. [2] In sum, the appellant has amassed 15 convictions for a range of sexual offences against five different boys, crimes of violence, child pornography, and failing to comply with court orders. [3] The Crown brought a dangerous offender application and reports from two psychiatrists were adduced. The sentencing judge found that the appellant was high risk to reoffend. He rejected the appellant’s argument that his drug use played a role in the offences and rejected the appellant’s assurance that he was amenable to treatment and supervision. The sentencing judge was satisfied the appellant will likely reoffend violently or sexually and was satisfied that there was no reasonable expectation that the appellant could be managed in the community by any means except an indeterminate sentence. [4] The appellant argues that the sentencing judge erred in designating him as a dangerous offender and in imposing an indeterminate sentence. He says the sentencing judge failed to consider his future treatment prospects and based his decision almost entirely on his past behaviour, rather than his changed circumstances. The appellant argues that the risk he posed could be managed through a determinate sentence followed by a long-term supervision order. [5] The Crown concedes that the sentencing judge erred in failing to consider the appellant’s future treatment prospects in the course of designating the appellant a dangerous offender, as required by R. v. Boutilier , 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 43. We accept this concession, though in fairness to the sentencing judge note that Boutilier was decided subsequent to his decision in this case. [6] Nevertheless, in our view this is one of those cases in which there was no reasonable possibility that the result would have been different had the error not been made: R. v. Johnson , 2003 SCC 46, [2003] 2 S.C.R. 357. The findings made by the sentencing judge in deciding whether to impose an indeterminate sentence compel the conclusion that the appellant was properly found to be a dangerous offender at the first stage of the inquiry. [7] There was broad agreement between the psychiatrists who testified for the defence and Crown. Both agreed that the appellant is a pedophile and poses a significant risk for sexual recidivism involving male children. Furthermore, they agreed on the following: pedophilia is a life-long condition with no known cure; the risk is not significantly attenuated by age; substance abuse is an important factor in managing risk; the appellant requires a sex offender treatment program; and pharmacological intervention is the best way to control the risk posed by the appellant, albeit that most sex offenders either decline the treatment or discontinue it. [8] The psychiatrists disagreed on the question of risk management. Dr. Pallandi testified that the risk posed by the appellant could be managed by a long-term supervision order if the appellant undertook intensive sexual offending therapy over a long period of time, took medication to reduce his sex drive, and was carefully monitored in the community. Dr. Klassen testified that there was at best a reasonable possibility of eventual control of the risk in the community if these measures were taken, but it would not continue beyond the 10-year supervision period that was possible under the Criminal Code , R.S.C. 1985, c. C-46 . In his view, only a dangerous offender finding with an indefinite sentence would minimize the possibility of recidivism for the entire at-risk period. [9] Plainly, the sentencing judge considered the appellant’s future treatment prospects in imposing an indeterminate sentence. He rejected the appellant’s evidence that he realized that what he did was wrong; that he could control his sexual urges towards children and his drug use; that he would abide by the terms of a long-term supervision order; and that he was prepared to take medication to reduce his sex drive. The sentencing judge’s key finding – that the appellant was simply not believable – is amply supported by the evidence. The sentencing judge aptly described the appellant’s credibility as “thoroughly destroyed”: the appellant is, by his own admission, adept at lying and manipulation. [10] Had the sentencing judge considered future treatment prospects at the designation stage, there is no doubt that his findings would have compelled the conclusion that the appellant met the criteria to be designated a dangerous offender. [11] There is no merit to the argument that the sentencing decision is unreasonable. We agree with the sentencing judge that the evidence in this case was “overwhelming”. There was no reasonable expectation that a determinate sentence with or without a long-term supervision order was adequate to protect the public from the appellant. The accused offered “nothing but his good intentions”, and he had no credibility to offer them. It was open to the sentencing judge to reject Dr. Pallandi’s evidence as based on hope rather than evidence, and to accept Dr. Klassen’s evidence that only an indeterminate sentence would suffice. [12] The appellant makes an application to admit fresh evidence concerning his psychological risk, proffering an assessment completed in 2020. He submits that the evidence should be admitted concerning his designation as a dangerous offender and the reasonableness of the decision to impose an indeterminate sentence. [13] In our view the fresh evidence could not have affected either the decision that the appellant is a dangerous offender or the decision to impose an indeterminate sentence. Among other things, the evidence indicates attempted deception and that the appellant may be prone to aggression and hostility, although he is considered a low-moderate risk for criminal conduct generally and violently. But significantly, the evidence indicates that his risk for sexual reoffending is in the high range, and it says nothing about the appellant’s willingness to take medication to reduce his sex drive, one of the key components of management of his future risk. [14] Accordingly, the application to admit fresh evidence is dismissed. The appeal is dismissed. “Paul Rouleau J.A.” “Grant Huscroft J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hoffman, 2021 ONCA 781 DATE: 20211105 DOCKET: C67769 Hourigan, Paciocco and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Gary Hoffman Appellant Delmar Doucette and Cara Barbisan, for the appellant Alexander Alvaro and Daniel Guttman, for the respondent Heard: June 22, 2021, by video conference On appeal from the conviction entered on June 19, 2019 by Justice Jennifer Woollcombe of the Superior Court of Justice, sitting with a jury. Paciocco J.A.: OVERVIEW [1] Following a trial by jury, Gary Hoffman, the appellant, was convicted of manslaughter in the beating death of Madad Kenyi. [2] The appellant pursues three grounds of appeal before this court. First, he argues that the trial judge erred in failing to give a direction pursuant to the decision in R. v. W.(D.) , [1991] 1 S.C.R 742, relating to exculpatory evidence given by key witness Peter Ojha (the “ W.(D.) direction”). Second, he contends that the trial judge erred by misdirecting the jury on double hearsay that may have been contained in a “ K.G.B. statement” made by Peter Ojha that was admitted into evidence. Finally, he submits that the trial judge erred in rejecting his constitutional ultra vires challenge to the validity of s. 4(b) of the Ontario Juries Act , R.S.O. 1990, c. J.3. [3] At the conclusion of the appellant’s oral submissions, we dismissed the latter ground of appeal, without calling on the Crown. We reserved judgment on the first two grounds of appeal. [4] The following reasons explain why I would allow the appeal based on the trial judge’s failure to give a W.(D.) direction relating to the testimony of Mr. Ojha, and on her failure to give a proper double hearsay direction. The reasons below also explain why we rejected the ground of appeal relating to the constitutionality of s. 4(b) of the Juries Act . MATERIAL FACTS (1) The Background [5] On the evening of Thursday, September 24, 2015, several people, including Madad Kenyi, were in Elmcreek Park in Malton. Mr. Kenyi had been drinking heavily that night. He initiated a dispute with others in the park, which turned violent. Mr. Kenyi was knocked to the ground and swarmed by an undetermined number of people who punched, kicked, and stomped him. Many, if not all, of those people had also been drinking heavily. While Mr. Kenyi was on the ground, someone struck him with a tree branch (the “branch”). The beating was brutal; Mr. Kenyi sustained various injuries, including multiple blunt force injuries to his face and body. [6] Tragically, Mr. Kenyi died in the ensuing days from the extensive injuries he suffered in the attack, which included a fractured skull that led to a fatal subdural hematoma. [7] Five people were charged as a result of this horrid incident. After a joint preliminary inquiry, all five were committed to stand trial for manslaughter. Andrew Ramdass was subsequently discharged, after a successful certiorari application resulted in his committal being quashed. Nathan Bell (a.k.a. “Bugz”) pleaded guilty to manslaughter and was sentenced. Brian Nelson and Emmanuel Blowes-Serrata were jointly tried and both acquitted. The appellant, who was tried alone, elected to be tried by a jury. As indicated, he was convicted of manslaughter. (2) Empanelling the Jury [8] Prior to the jury being empanelled, the appellant brought a constitutional challenge to s. 4(b) of the Ontario Juries Act , which renders ineligible for jury service anyone who has been convicted of an offence that may be prosecuted by indictment and has not been pardoned. The appellant submitted before the trial judge that this provision is ultra vires because it is inconsistent with s. 638(1) of the Criminal Code , R.S.C. 1985, c. C-46. At the time the jury was empanelled, s. 638(1), which has since been amended, permitted prospective jurors to be challenged for cause if they had been convicted of an offence for which they could be sentenced to a term of imprisonment exceeding twelve months. The appellant contended that it is necessarily implicit in s. 638(1) that, pursuant to the Criminal Code , prospective jurors with criminal records are eligible for jury service unless challenged for cause. He argued that, as federal legislation, s. 638(1) must be given paramountcy. [9] The trial judge dismissed the challenge and the jury was empanelled with the juror disqualification in s. 4(b) in play. (3) Evidence Relating to the Appellant’s Role in Mr. Kenyi’s Death [10] At the appellant’s trial, it was common ground that Mr. Kenyi initiated the altercation and threatened the appellant with a knife. It was also agreed that the appellant threw a punch at Mr. Kenyi in self-defence. [11] The key issue was whether the Crown had proved beyond a reasonable doubt that the appellant participated in the subsequent assault in which unnecessary and excessive force claimed Mr. Kenyi’s life. Witness testimony was inconsistent relating to whether the appellant had further involvement in the assault, and the nature of that involvement. As a result of the inconsistent testimony, the Crown pursued alternative paths to conviction. It argued that the appellant was a participant in the fatal assault on Mr. Kenyi, either by striking him with a branch or by participating in the swarming in which an unknown number of people punched, kicked, and stomped him. [12] Rigoberto Membreno, who had been with Mr. Kenyi prior to the altercation, testified that the appellant did nothing to Mr. Kenyi after throwing the initial punch. He identified other participants in the assault, including Mr. Blowes-Serrata, who he said hit a prostrate and helpless Mr. Kenyi in the face with a branch after he had been knocked to the ground. [13] Testimony that Mr. Membreno gave at a prior trial was also admitted into evidence. The appellant and the Crown disagree about the meaning of that testimony. The Crown contends that in his testimony at the prior trial, Mr. Membreno said that the appellant punched Mr. Kenyi during the swarming. The appellant argues that this is a misreading, and that when that prior testimony is interpreted in context, Mr. Membreno was not referring to the appellant when he described the punch. [14] Aretha Taylor also testified that Mr. Blowes-Serrata struck Mr. Kenyi with a branch, but she said that Mr. Hoffman kicked Mr. Kenyi and joined in the assault with others when Mr. Kenyi was on the ground. In other words, her evidence incriminated the appellant in the swarming, but not the assault with a branch. [15] Mr. Blowes-Serrata testified that he saw Mr. Hoffman strike Mr. Kenyi with a branch after retrieving a log from a nearby grove of trees. He also testified that the appellant kicked, stomped, and jumped on Mr. Kenyi’s head. [16] Andrew Ramdass described a circle of approximately ten people forming around Mr. Kenyi. He saw a melee in which Mr. Kenyi was being kicked, and saw someone strike Mr. Kenyi with a branch, but he could not identify who was involved. He said that prior to the attack he saw Mr. Hoffman with a stick, but not the branch that he saw used in the assault. (4) Peter Ojha’s Evidence [17] Mr. Ojha’s evidence was presented both through his in-court testimony and an out-of-court police statement he had made which the trial judge admitted pursuant to the authority of R. v. B. (K.G.) , [1993] 1 S.C.R. 740 (“the K.G.B. statement”). As I will explain in more detail below, Mr. Ojha’s in-court testimony was exculpatory, either in its entirety or on the material issue of whether the appellant struck Mr. Kenyi with a branch. However, Mr. Ojha’s K.G.B. statement to police was inculpatory, describing the appellant as repeatedly striking Mr. Kenyi with a branch. [18] Mr. Ojha was an important witness. When the jury asked to have his K.G.B. statement replayed during their deliberations, the trial judge wisely ruled that since the Crown’s “case stands or falls, to a large degree, on Mr. Ojha”, the jury should hear the pertinent parts of his in-court testimony as well. [19] Since the rulings relating to Mr. Ojha’s evidence are central to the outcome of this appeal, I will describe his evidence and how it was secured in some detail. (5) The Police Obtain Mr. Ojha’s K.G.B . Statement [20] On the early afternoon of Friday, September 25, 2015, the day after the attack, while the police were canvassing for witnesses, they found Mr. Ojha, along with his friend “Dave”. Mr. Ojha, an alcoholic, was badly intoxicated. He smelled of alcohol and told the police he was under the influence of OxyContin. He admitted to having been present during the attack on Mr. Kenyi. When Officer Dawe asked Mr. Ojha about the appellant, Mr. Ojha said, “Listen, I am no rat. But what happened last night was wrong”. He told the police that the appellant and “Bugz” – known to be Mr. Bell – were present at the time of the incident and were involved in the assault. He described the appellant, who he referred to as “G-Money”, striking Mr. Kenyi, whom he called “the African guy”, numerous times on the head with a branch. [21] Mr. Ojha then accompanied officers to the police station where he gave a videotaped interview while clearly intoxicated. He was not sworn to tell the truth before doing so, nor was he cautioned about the consequences of not telling the truth. [22] During the interview, Mr. Ojha said that he saw the appellant come out of the bush and beat Mr. Kenyi with a large branch. Mr. Ojha illustrated the length of the branch by stretching out his arms. He said Mr. Kenyi was on the ground when he was struck. Mr. Ojha said that “it wasn’t pretty” and, even though Mr. Kenyi had not yet died when the interview took place, Mr. Ojha suggested from the nature of the beating Mr. Kenyi had received he was “probably dead”. Mr. Ojha then picked the appellant out of a photo lineup. (6) Mr. Ojha’s In-Court Testimony [23] In his in-court testimony, Mr. Ojha referred to the appellant as “G”. Although his out-of-court statement incriminated the appellant as having struck Mr. Kenyi with a branch, the testimony Mr. Ojha gave at trial was inconsistent with the appellant having done so. [24] Specifically, Mr. Ojha said that he was sitting in the park during the assault. He said that the appellant was “sitting a couple [of people] distance from me at the time … about two guys down”. He said that the deceased yelled out “G, I have a knife, or something to that effect”, which he could hear because the words were spoken to “G” who was nearby. Mr. Ojha was asked whether the appellant did anything in response. He said that “G was sitting right there, like I said, a couple of people from me”. Mr. Ojha then testified, “I saw somebody pick up a log. I thought it was G, but when I looked over G was there … G was sitting down”. Mr. Ojha said there were people in front of him, and he could not see exactly what was going on during the scuffle. [25] The Crown does not dispute that this trial testimony by Mr. Ojha was exculpatory relating to the assault with the branch. [26] The appellant takes the position that Mr. Ojha’s testimony was not only exculpatory relating to the assault with a branch, but that it also exculpated the appellant from any involvement in the swarming, which was the Crown’s alternative assault theory. In the appellant’s view, Mr. Ojha was testifying that the appellant was beside him during the entire assault and therefore could not have participated in the swarming. [27] There is support for this interpretation of Mr. Ojha’s evidence in what he initially said. Mr. Ojha testified that he was sitting having a beer and stayed there until the ambulance came after the event. He described seeing a scuffle, with everyone running and fleeing in different directions. He was asked what “G” was doing. Mr. Ojha replied, “He was sitting a couple distance from me at the time”. He was then asked whether “G” got up “at any point and leave that spot?” He said, “No”. [28] The Crown disputes that Mr. Ojha’s evidence exculpated the appellant from participating in the swarming. The Crown submits that, when his evidence is read in its totality, Mr. Ojha did not testify to seeing what the appellant was doing throughout the entire incident. In support of this position, the Crown relies on an answer that Mr. Ojha provided when asked, “And when people started getting up, do you remember where G-Money went?”. Mr. Ojha replied, “No, like I said, everybody running all over”. [29] This answer by Mr. Ojha is open to interpretation. The series of questions that led up to this exchange was directed at a scuffle and then people leaving. The appellant argues with some effect that, interpreted fairly, Mr. Ojha’s evidence was that the appellant did not get up during the scuffle, but that he could not recall the appellant getting up after the scuffle when everyone fled. (7) Mr. Ojha’s K.G.B . Statement Gains Admission [30] After Mr. Ojha failed to replicate in his trial testimony what he had said in his videotaped police statement, the Crown brought a successful application pursuant to s. 9(2) of the Canada Evidence Act , R.S.C., 1985, c. C-5 to cross-examine Mr. Ojha on that police statement. However, Mr. Ojha did not adopt his police statement. He said that he had only a vague memory of being approached by the police. He testified he could not remember the specifics of what was said and that he had given “false witness” in his police statement. [31] Mr. Ojha further testified that when he gave the statement, he “was high like a kite”, and that whatever he said about who did what during the statement was “all hearsay for me”. He denied seeing the appellant grab a branch and strike Mr. Kenyi. He testified that he told the police what he thought they wanted to hear because he was anxious to leave the police station. He said he based what he said on what he had heard from several others, including Dave, who had been present during the assault. [32] Mr. Ojha’s disavowal of his prior inconsistent statement led to the Crown’s K.G.B. application and the ultimate admission of the K.G.B. statement into evidence. The necessity requirement of the principled exception was met because Mr. Ojha recanted the K.G.B. statement in his testimony. The trial judge held that the “procedural reliability” leg of the threshold reliability requirement to the principled exception was also satisfied. Specifically, she held that “there were adequate substitutes for testing the statement’s truth and accuracy”. [33] Relying on this court’s decision in R. v. Trieu (2005), 74 O.R. (3d) 481 (C.A.), she concluded that the fact that the statement was videotaped, and that Mr. Ojha was available for cross-examination, went a long way towards enabling the jury to test the reliability of what Mr. Ojha told the police. She reasoned that, despite his claim that he had little memory of the event or the interview, Mr. Ojha’s testimony during the s. 9(2) voir dire and during the trial showed that he had an adequate memory to enable effective cross-examination. Further, jurors could evaluate the impact of his intoxication on the reliability of what he was saying by viewing the videotape and considering his in-court testimony about his state of impairment. She also found that, although Mr. Ojha had not promised or sworn to tell the truth, there were clear indications based on comments he made to the police that he knew the importance of telling the truth. ISSUES [34] In his factum, the appellant raises the trial judge’s decision to admit Mr. Ojha’s K.G.B. statement as a ground of appeal. However, this ground of appeal was subsequently abandoned. Likewise, the appellant’s sentence appeal was abandoned on November 2, 2020. [35] The appellant thus pursues three issues on appeal from his conviction: A. Did the trial judge err in failing to give a W.(D.) direction relating to Mr. Ojha’s testimony? B. Did the trial judge err in failing to give a proper double hearsay direction relating to Mr. Ojha’s testimony? C. Did the trial judge err in denying the constitutional challenge to s. 4(b) of the Juries Act ? ANALYSIS A. The W.(D.) Direction Error (1) The Relevant Principles [36] W.(D.) directions are provided to ensure that jurors properly apply the criminal standard of proof when making credibility and reliability determinations relating to exculpatory evidence on vital issues, most commonly the essential elements of charged offences or applicable defences: R. v. B.D. , 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 96-97, 114; R. v. Charlton , 2019 ONCA 400, 146 O.R. (3d) 353, at para. 45. [37] In W.(D.) , at pp. 757-58, Cory J. offered a standard jury charge for communicating the relevant principles: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [38] A trial judge need not use this standard charge when directing a jury on the relevant W.(D.) principles: W.(D.) , at p. 758; R. v. J.H.S ., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 13. However, the jury direction that is used must equip the jury to deal with each of the three reasoning scenarios described. Typically, this will require a dedicated W.(D.) charge. As Binnie J. cautioned in J.H.S. , at para. 8, “A general instruction on reasonable doubt without adverting to its relationship to the credibility (or lack of credibility) of the witnesses leaves open too great a possibility of confusion or misunderstanding.” [39] Before addressing the application of the W.(D.) principles in this case, two further preliminary points should be made. [40] First, although some of the propositions articulated in W.(D.) refer only to the “testimony” or “evidence” of the accused , it is settled that the W.(D.) principles apply to the evaluation of the credibility of exculpatory evidence given by any witness, including Crown witnesses: B.D. , at paras. 105-14; Charlton , at para. 45. Therefore, the fact that Mr. Ojha was a Crown witness does not resolve whether the W.(D.) principles apply to his testimony. [41] Second, as this court’s decision in Charlton verifies, if a witness gives exculpatory evidence, a W.(D.) direction will be required even if that same witness also gives an inculpatory version of events. In Charlton , a Crown witness, Mr. Clark, gave in-court testimony that exculpated the accused. The trial judge also admitted into evidence prior statements that Mr. Clark had provided in his preliminary inquiry testimony that incriminated the accused. Even though Mr. Clark had given both an exculpatory and an inculpatory version of events, this court held, at paras. 44-49, that the trial judge erred in failing to provide a W.(D.) direction relating to the exculpatory testimony that Mr. Clark provided. [42] Similarly, in this case, if Mr. Ojha gave exculpatory evidence, the fact that he also gave incriminating evidence would not remove the need for a W.(D.) direction. (2) The Pre-Charge Conference and the Charge [43] During the pre-charge conference, both the appellant’s trial counsel and the trial Crown agreed that a W.(D.) direction was required relating to the testimony of both Mr. Membreno and Mr. Ojha. The trial judge said, “You have to leave that with me and I’ll do my best on the W.D. ” She ultimately gave a W.(D.) direction with respect to Mr. Membreno’s testimony, but not Mr. Ojha’s. In my view, she erred in making that decision. (3) The Error Explained [44] It is convenient to explain the W.(D.) error by addressing, in turn, the three arguments the Crown has made in response to this ground of appeal. The requirement to provide an express W.(D.) direction [45] First, the Crown submits that a W.(D.) direction is required only if the jury is faced with an “either/or choice” between competing narratives on vital issues – one inculpatory and the other exculpatory. The Crown argues that Mr. Ojha’s testimony did not provide an exculpatory narrative since, at best, a jury could infer from his testimony only that the appellant was not the person who struck the deceased with a branch. The Crown argues that, since Mr. Ojha’s evidence does nothing to rule out the appellant’s guilt as a participant in the swarming, his testimony is not exculpatory evidence, and therefore no W.(D.) direction was required. [46] I will begin, for the sake of analysis, by assuming that the Crown’s interpretation of Mr. Ojha’s testimony is correct. Even on the premise that Mr. Ojha offered exculpatory evidence only relating to the assault with the branch, but not the swarming, a W.(D.) direction would have been needed. Put simply, a W.(D.) direction is required even where evidence is exculpatory on only one of the Crown’s theories of culpability, but not others. A simple hypothetical example derived from this case illustrates why. [47] Assume that because of credibility concerns relating to the Crown witnesses who claimed to see the appellant stomp and kick Mr. Kenyi, jurors were left with a reasonable doubt about whether the appellant joined in swarming him. Those jurors would then be left to consider the alternate Crown theory that the appellant is nonetheless guilty because he struck Mr. Kenyi with a branch. Without a functional understanding of the W.(D.) principles, those jurors would be unable to properly evaluate the impact of Mr. Ojha’s exculpatory testimony on the remaining Crown allegation that the appellant struck Mr. Kenyi with a branch. Quite simply, if a version of events is vital enough to support a conviction if it is proved by incriminating evidence, it is vital enough to require a W.(D.) direction if challenged by exculpatory evidence. [48] There is also a second and more basic flaw in the Crown’s argument. It is for jurors to interpret Mr. Ojha’s in-court testimony. That testimony was open to the reasonable interpretation that the appellant remained beside Mr. Ojha throughout the entire assault, and that he was therefore not complicit in any aspect of the fatal assault against Mr. Kenyi. Where testimony is realistically open to an exculpatory interpretation, a W.(D.) direction should be provided. The jury charge as a whole [49] Second, and in the alternative, the Crown argues that even without a W.(D.) direction relating to Mr. Ojha, the jury charge taken as a whole adequately communicated the W.(D.) principles that jurors had to consider in evaluating his testimony. [50] There are indeed some cases where the failure to give an express W.(D.) direction will not be an error because, given the issues and the evidence, jurors can derive a functional and contextual understanding of the requisite principles from the balance of the jury charge: see e.g., R. v. Ivall , 2018 ONCA 1026, 370 C.C.C. (3d) 179, at paras. 126–30. Here, however, the jury was expressly told to apply the W.(D.) principles to the testimony of Mr. Membreno . Since that direction was given only with respect to Mr. Membreno’s evidence, jurors may well have understood, incorrectly, that the W.(D.) direction applied to his evidence alone, and not to the testimony of Mr. Ojha. [51] Moreover, I see nothing in the jury charge that could adequately communicate to the jury that they could be left in doubt by Mr. Ojha’s exculpatory evidence without affirmatively believing it, or that they should not treat the conflict in Mr. Ojha’s evidence as requiring them to choose which version to accept. I would not accept the Crown’s position that the jury charge was adequate when read as a whole. In my view, it was not. The failure to object [52] Third, the Crown argues that the failure of trial counsel to object to the draft jury charge shows that counsel may have recognized that a W.(D.) direction relating to Mr. Ojha’s evidence was unimportant, or that trial counsel made a tactical decision not to raise this issue at trial and should not be permitted to do so now on appeal. [53] I would reject these arguments as well. I agree with the appellant that this is not a case of a failure to object. Trial counsel and the Crown both requested a W.(D.) charge relating to Mr. Ojha’s exculpatory testimony. The trial judge told counsel to leave the issue with her. She evidently ruled to the contrary. In my view, trial counsel cannot fairly be expected to protest a ruling the trial judge has already made by objecting. [54] In any event, Mr. Ojha was a key witness, and the principles of W.(D.) are of critical importance in the circumstances of this case. This was not the kind of error that should be disregarded because of a failure to object, even if such a failure had occurred. (4) Conclusion Regarding W.(D.) [55] I am persuaded that the trial judge erred in failing to direct jurors to apply the principles in W.(D.) when evaluating the testimony of Mr. Ojha. Without such direction, there can be no confidence that the jury understood the legal principles they were to apply. In my view, this non-direction amounted to a misdirection. [56] Accordingly, I would give effect to this ground of appeal. B. The Double Hearsay Error [57] Mr. Ojha’s K.G.B. statement was received into evidence as admissible hearsay. On its face, Mr. Ojha’s statement appears to be based on his personal observations. However, according to Mr. Ojha’s testimony, his statement, which was being offered by the Crown as admissible hearsay evidence, was itself based on hearsay from others. If this claim was true, the K.G.B. statement was “double hearsay”. As I will explain, reliance on “double hearsay” is impermissible unless both levels of hearsay are independently admissible. If Mr. Ojha’s K.G.B. statement included hearsay information that Mr. Ojha learned from others, this second level hearsay would not be independently admissible hearsay because there is no available hearsay exception that would apply to what Mr. Ojha was told. Yet, the trial judge failed to direct the jury to disregard the K.G.B. statement if it accepted Mr. Ojha’s claim that his K.G.B. statement was based on what others had said. She simply instructed them that this would be an issue of reliability. I am persuaded that this jury direction was an error. (1) The Relevant Principles [58] It is settled law that “a prior inconsistent statement [such as Mr. Ojha’s K.G.B. statement] can only be admitted for the truth of its contents under the principled approach if the evidence contained in the statement would be admissible through the witness’s testimony at trial”: R. v. Devine , 2008 SCC 36, [2008] 2 S.C.R. 283, at para. 13, citing K.G.B. , at p. 784. Further, it is trite law that a witness cannot offer hearsay evidence in their testimony unless that hearsay evidence qualifies for admission pursuant to a hearsay exception. It follows that hearsay that is itself embedded in an otherwise admissible K.G.B. statement will not be admissible unless that embedded “double hearsay” qualifies for admission pursuant to its own hearsay exception: R. v. Couture , 2007 SCC 28, [2007] 2 S.C.R. 517, at para. 75; R. v. Srun , 2019 ONCA 453 , 146 O.R. (3d) 307, at para. 135. Put simply, inadmissible double hearsay cannot ride into evidence on the coattails of admissible hearsay evidence. [59] The reason why this is so, and its implications, are made apparent by returning to first principles. As Fish J. said in R. v. Baldree , 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 31, “hearsay evidence is presumptively inadmissible because of the difficulties inherent in testing the reliability of the declarant’s assertion”. He went on, at paras. 31-32 to describe those difficulties. He explained that the demeanour with which the out-of-court declaration was made cannot ordinarily be evaluated. Moreover, the declarant’s basis for making the out-of-court factual claim contained in the hearsay statement cannot ordinarily be assessed. Specifically, there is often no way to test the accuracy of the declarant’s perception, or their memory, or the accuracy of their narration of what they observed, or their sincerity. It is arbitrary and therefore impermissible to rely upon evidence that cannot be assessed for its reliability or accuracy, hence the presumptive inadmissibility of hearsay evidence. [60] Of course, there are exceptional circumstances where the presumptive inadmissibility of hearsay evidence is overcome, such as the principled hearsay exception that was used to admit Mr. Ojha’s K.G.B. statement. Those exceptions tend to apply where it is not possible to secure the hearsay information through direct, in-court testimony of witnesses who have personal knowledge, and there are alternative bases for assessing the reliability of that hearsay statement. Where this is so, it is reasonable, not arbitrary, for a trier of fact to choose to rely upon the hearsay information. Hence the hearsay exceptions. [61] The problem with double hearsay imbedded in an otherwise admissible hearsay statement is that the indicia of reliability that a trier of fact can use to assess the otherwise admissible hearsay statement tell us nothing about the reliability of the embedded hearsay. This case illustrates the point. [62] As I have explained, the trial judge admitted Mr. Ojha’s out-of-court K.G.B. statement on the theory that his statement had indicia of procedural “threshold reliability” that would equip jurors to evaluate the credibility and reliability of what Mr. Ojha told the police. Most importantly, jurors could observe Mr. Ojha’s demeanour and judge his degree of impairment by viewing the interview on the video recording, and they could assess the accuracy of what he told the police by considering the answers he provided when he was cross-examined before them. These mechanisms for assessment would be useful if the K.G.B. statement contains only the personal knowledge of the person being interviewed. [63] But if Mr. Ojha was communicating not what he knew but what he had been told, those procedural assessment mechanisms are useless in judging the accuracy of that information. Only information relating to the real witnesses – those who told Mr. Ojha what happened – could provide a reasoned basis for assessing the hearsay information that those witnesses shared with Ojha. Without hearing from them or having alternative indicia of reliability relating to what they said, any decision by the jury to rely on what Mr. Ojha heard these declarants say would be arbitrary. (2) The Error Explained [64] I do not fault the trial judge for admitting Mr. Ojha’s K.G.B. statement into evidence, notwithstanding Mr. Ojha’s testimony that the incriminating content of that prior statement was based only on what he had heard. On its face, there was nothing in the K.G.B. statement to indicate that it was based on anything other than Mr. Ojha’s personal knowledge. The trial judge was not obliged to treat that statement as containing double hearsay based solely on Mr. Ojha’s after-the-fact testimony that it was based on hearsay. However, the jury could not ignore the claim that his police statement was based on what others had told him. It was for the jury to determine whether to accept Mr. Ojha’s testimony to this effect. The trial judge was therefore entitled to determine the admissibility of the K.G.B. statement in its own right, and to leave it to the jury to assess whether to credit Mr. Ojha’s claim that his hearsay statement was itself based on hearsay from others. [65] The judge was nonetheless obliged to direct the jury accurately on how to proceed if they accepted Mr. Ojha’s testimony in that regard. The jury should have been told that if they accepted Mr. Ojha’s testimony that the K.G.B. statement was based on what he had been told, they should disregard his K.G.B. statement in its entirety, since they would have no available means to judge the reliability of what Mr. Ojha had been told. Reliance on the K.G.B. statement would therefore be arbitrary. [66] But this is not what the jury was told. Instead, the trial judge said: First, you heard evidence of Mr. Ojha that what he told the police in this videotaped statement was simply things that he had heard on the street and things he heard in the park the morning after the incident before he went to the police statement. If you accept that Mr. Ojha was just repeating what others told him and did not tell the police what he actually saw, that would affect the reliability of his evidence . It is for you to determine whether he was or was not repeating what others told him in his videotaped statement. You will consider this evidence in making that determination, including what he said in his statement and how he said it. All of his evidence must be considered in deciding whether his statement was the product of collusion and if there was collusion, how it affects the reliability of his statement. (Emphasis added). [67] In my view, this direction was not sufficient. By telling the jury only that a double hearsay finding on their part “would affect the reliability” of his statement, the trial judge was leaving it open to the jury to act on that double hearsay evidence. As I say, without any basis for evaluating the reliability of the double hearsay information, it would be arbitrary for the jury to act upon it. The trial judge should have told the jury if they accepted that the K.G.B. statement was based on double hearsay, they must disregard it. [68] I note that the trial judge did give a general instruction to the jury that “[i]f a witness testified about something another person who was there in the park said”, this evidence could only be used “to help you understand what the witness thought or believed as a result of that”. In my view, this instruction cannot overcome the problem I have identified. First, the impugned instruction quoted above in para. 66 of this judgment is specific to the K.G.B. statement and instructs the jury to consider embedded hearsay as a reliability consideration in evaluating what was said in the statement. Second, elsewhere in the jury charge the trial judge instructed the jury specifically that in the case of Mr. Ojha they could use his previous statement “as evidence of what happened”. [69] I would therefore give effect to this ground of appeal. [70] I will make one final point before moving to the next issue. During his submissions, the appellant also took issue with the trial judge characterizing the hearsay question as one of “collusion”. He argued that there was no suggestion that Mr. Ojha engaged in collusion, such as that which occurred at a barbeque where other witnesses conspired about the story they would tell. Mr. Ojha’s evidence was simply that he repeated what he had heard. I understand the appellant’s concern, but the trial judge gave this direction almost immediately after defining “collusion” benignly as including shared stories that may result in altered versions. To be sure, given the connotation that “collusion” carries as an intentional conspiracy it would be better to avoid using this term to describe the inadvertent tainting that can occur when exposed to other versions of events, but I see no prejudice in these circumstances. C. The Juries Act Challenge [71] At the close of the appellant’s oral submissions, we dismissed his appeal of the trial judge’s decision to reject the constitutional challenge he brought to s. 4(b) of the Ontario Juries Act . I will now briefly explain our reasons for doing so. (1) The Constitutional Argument [72] Section 4(b) provides as follows: A person is ineligible to serve as a juror if the person, (b) has been convicted of an offence that may be prosecuted by indictment, unless the person has subsequently been granted a record suspension under the Criminal Records Act (Canada) or a pardon. [73] The appellant argues that by enacting s. 638(1)(c) of the Criminal Code , Parliament intended for some jurors who would be caught by s. 4(b) of the Juries Act to be eligible for jury service, subject only to being challenged for cause. It is the appellant’s position that s. 4(b) of the Juries Act is therefore ultra vires because it conflicts with s. 638(1)(c) of the Criminal Code and frustrates its purpose. [74] At the time the jury that tried the appellant was selected, s. 638(1)(c) of the Criminal Code read as follows: A prosecutor or an accused is entitled to any number of challenges on the ground that (c) a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months. [75] Section 638(1)(c) was amended on June 21, 2019, after the appellant’s trial, to restrict challenges for cause to jurors based on criminal history to those who have “been convicted of an offence for which they were sentenced to a term of imprisonment of two years or more and for which no pardon or record suspension is in effect”. [76] The appellant argues that the June 2019 amendment to s. 638(1)(c) fortifies his position, because it is evident that this amendment was undertaken to increase the opportunity for overpoliced visible minority populations to be represented on juries. (2) Analysis [77] I reject the appellant’s submission that the trial judge erred in failing to find that s. 4(b) of the Juries Act is ultra vires because it conflicts with s. 638(1)(c) of the Criminal Code and frustrates its purpose. [78] The appellant has not discharged his onus of showing that there is an operational conflict based on an impossibility of complying with both provisions, or that the provincial law frustrates the purpose of the federal law: Canadian Western Bank v. Alberta , 2007 SCC 22, [2007] 2 S.C.R. 3, at paras. 72-75. Impossibility of compliance [79] The fact that the effective enforcement of s. 4(b) of the Juries Act would remove the need or opportunity to bring challenges for cause pursuant to s. 638(1)(c) does not constitute an operational conflict. As the trial judge pointed out, an operational conflict exists where the enactments at issue require inconsistent things, such that “compliance with one is defiance of the other”, because one enactment says “yes” and another says “no”: Multiple Access Ltd. v. McCutcheon , [1982] 2 S.C.R. 161, at p. 191; Canadian Western Bank , at para. 71. [80] There is no such operational conflict here. Instead, there is a mere “duplication of norms” between the provisions at issue on this appeal, each of which operates to exclude or remove from juries, persons with criminal histories. The fact that two rules may duplicate the same outcome does not trigger paramountcy, as “the intent of Parliament would remain unaffected”: Desgagnés Transport Inc. v. Wärtsilä Canada Inc. , 2019 SCC 58, 442 D.L.R. (4th) 600, at para. 101. Nor does an operational conflict arise from the fact that the Juries Act has broader impact. Provincial legislation can add requirements that supplement federal legislation: 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town) , 2001 SCC 40, [2001] S.C.R. 241, at paras. 34-35; Canadian Western Bank , at para. 74. Frustration of purpose [81] Nor has the appellant satisfied us that s. 4(b) of the Juries Act frustrates the purpose of s. 638(1)(c) of the Criminal Code . [82] As the trial judge points out, “the provincial and federal legislation govern different aspects of jury selection.” Section 4(b) of the Juries Act addresses juror eligibility for those with criminal histories. Section 638(1) does not: it permits challenges for cause to be brought against eligible jurors who have criminal histories. The fact that Parliament has restricted the use of challenges for cause by elevating the sentence that will trigger a challenge does not mean that Parliament intended those who cannot be challenged for cause to be eligible as jurors. Indeed, it is presumed that Parliament intends its laws to co-exist with provincial laws: Alberta (Attorney General) v. Moloney, 2015 SCC 51, [2015] 3 S.C.R. 327, at para. 27; Orphan Well Association v. Grant Thornton Ltd. , 2019 SCC 5, [2019] 1 S.C.R. 150, at para. 66. We see no basis for concluding that in enacting s. 638(1)(c) Parliament intended to occupy the field of juror eligibility for those with criminal histories. Indeed, s. 626(1) of the Criminal Code provides expressly that “a person who is qualified as a juror according to…the laws of a province” is “qualified to serve as a juror in criminal proceedings in that province”. [83] We therefore find that the trial judge was correct to deny the appellant’s constitutional challenge to s. 4(b) of the Juries Act . CONCLUSION [84] For the reasons above, I would conclude that the trial judge erred in failing to give a W.(D.) direction relating to Mr. Ojha’s testimony. In my view, the trial judge also erred by inviting jurors, if they found any double hearsay to exist in Mr. Ojha’s K.G.B. statement, to act on that double hearsay after considering its reliability. [85] Accordingly, I would set aside the appellant’s manslaughter conviction and order a new trial. Released: November 5, 2021 “C.W.H.” “David M. Paciocco J.A.” “I agree. C. W. Hourigan J.A.” “I agree. 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 complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.C., 2021 ONCA 787 DATE: 20211105 DOCKET: C66566 Fairburn A.C.J.O., Doherty and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and J.C. Appellant Mark Sandler and Wayne Cunningham, for the appellant Christine Bartlett-Hughes, for the respondent Heard: April 15, 2021 by video conference On appeal from the convictions entered by Justice Paul R. Sweeny of the Superior Court of Justice, sitting with a jury, on December 18, 2018. Fairburn A.C.J.O.: A. Overview [1] The appellant’s and complainants’ families had a very close bond. They travelled together and spent a great deal of time with one another. The appellant is not related to the complainants, but they viewed one another as family. [2] The two complainants are brothers, about two years apart in age. K.M. was born in 1995 and C.M. was born in 1993. In 2016, K.M. and C.M. disclosed to the police that they had been repeatedly sexually assaulted by the appellant over about a five-year period, ranging from 2006 to 2011. The appellant was charged with one count of sexual assault, one count of sexual interference, and one count of invitation to sexual touching with respect to K.M.; and a second count of sexual assault with respect to C.M. [3] In the fall of 2018, shortly before the appellant’s trial started, the appellant’s nephew C.Y., who was born in 1999, also alleged that he had been sexually assaulted by the appellant over a lengthy period of time, ranging from about 2007 to 2013. The Crown successfully brought a pre-trial application to admit C.Y.’s similar act evidence. [4] The appellant testified at trial. While he admitted that he had engaged in “awful, embarrassing[, and] shameful” sexualized communications with K.M., he denied that he ever committed the assaults being alleged. Therefore, as the trial judge put it in his charge to the jury, “The real issue in this case [was] whether the events alleged to form the basis of the crime(s) charged ever took place.” [5] Ultimately, the jury found the appellant guilty of all three counts related to K.M. and found the appellant not guilty of the one count related to C.M. [6] The appellant appeals his convictions. This appeal requires the court to answer the following four questions: (1 )   Did the trial judge err in allowing C.Y. to testify as a similar act witness? (2)   Did the trial judge err in permitting the jury to consider cross-count similar act evidence as between K.M. and C.M.? (3)   Did the trial judge err in failing to instruct the jury on the prohibited use of bad character evidence arising from the Facebook communications between K.M. and the appellant? (4)   Did the trial judge err in refusing to permit a challenge for cause during the jury selection process? [7] The answer to each of these questions is no. B. Brief Background: The Charges (1) C.M.: Sexual Assault, from September 1, 2006 to June 30, 2010 [8] C.M. was born in 1993. He is K.M.’s older brother. He alleged that the appellant touched him inappropriately between about 2006 and 2010, when he was in grades 8 through 11. He alleged that the appellant had kissed him on the cheeks and hugged him prior to 2006, but that the appellant’s actions then progressed to touching C.M.’s buttocks (described as a “grab and lift”), kissing his lips, and touching his genital area over and later under his clothes. [9] C.M. testified about five specific incidents involving the touching of his genitals and buttocks over and under his clothes. He said that someone was either present on the premises or close by when each touching occurred. He also testified that the appellant would make sexualized jokes as he touched C.M.’s testicles, such as commenting on whether C.M.’s pubic hair was “groomed” or “ungroomed”; asking C.M., “How is it hanging?”; commenting that C.M.’s testicles were hanging “like a little to the left”; and questioning whether C.M. was circumcised. The appellant also shared with C.M. that he would trim his own pubic hair while sitting on the side of the bathtub. [10] C.M. testified that, at the time that the acts were taking place, he did not consider the touching to be sexual in nature. Indeed, he agreed during cross-examination that he perceived the touching to be a joke. The jury was instructed to take C.M.’s perceptions about the acts into account when determining whether the touching occurred in circumstances of a sexual nature. The jury found the appellant not guilty of the single count of sexual assault. (2) K.M.: Sexual Assault, Sexual Interference, and Invitation to Sexual Touching, from March 1, 2010 to March 31, 2011 [11] K.M. was born in 1995. He is a couple years younger than C.M. [12] K.M. testified that the appellant started hugging him and kissing him on the cheeks when he was in grade four or five. That conduct progressed to kissing on the lips, to “bum taps”, to “bum grabbing during hugs”, to the appellant’s “hand wrapping around to … grab [K.M.’s] … private area.” K.M. testified that, because of the progression over time, it all became somewhat “blurred”. K.M. recalled numerous sexualized conversations with the appellant, including the appellant speaking about sexual matters involving his wife and sharing a sexual fantasy he had involving K.M. [13] Eventually the touching progressed to the appellant’s hands being under K.M.’s clothes. Like C.M., K.M. testified that the appellant would make jokes while engaged in the touching, such as commenting upon K.M.’s penis size, the shape of K.M.’s genitals, and K.M.’s romantic relationships and interests. K.M. testified that the behaviour became almost normal, that he became “quite used to” it. [14] After K.M. turned 14 years of age, the touching progressed to other activities. He testified about ten specific incidents that occurred in different locations, including at K.M.’s home; at the appellant’s home, cottage, and Florida condominium; and at a rented chalet in British Columbia . [15] The first incident was at the appellant’s condominium in Florida, a trip that the two families took together in March of 2010. K.M. and one of the appellant’s children were in a bedroom when the appellant came in and started to tickle K.M. When K.M. fell between the bed and the wall, the appellant fondled him. K.M. recalls that he got an erection. [16] The appellant’s child was present for this tickling episode, yet he testified about seeing nothing inappropriate. And, as with all of the alleged incidents, the appellant denied that the fondling occurred. [17] Over the following nine incidents, the conduct progressed from fondling to mutual touching, mutual masturbation, and mutual oral sex. K.M. testified that he and the appellant would often ejaculate into tissues and then dispose of them. [18] K.M. testified that he knew or believed that at least one other person was nearby for all of the incidents, with the exception of one incident (a mutual masturbation that began in the appellant’s living room then moved upstairs to the appellant’s bedroom). [19] In March of 2011, when K.M. was 16 years of age and in grade 10, he participated in an academic exchange program. While abroad, K.M. and the appellant stayed in touch via Facebook communication. One day, after a conversation about the appellant’s sexual encounter with his wife, K.M. confronted the appellant and asked if they could stop “doing ‘stuff’” when he returned to Canada. The appellant agreed and said there would be “no more talk about it”: Appellant:    hope you have as good a time in bed as i did! haha K.M.:           ahahah! im sure! what was going on this morning? Appellant:    just a real good one last night with the [nickname for the appellant’s wife] K.M.:           yeah!? i bet! any more details? what happened? Appellant:    dangerous to share over the net but from one side of the bed to the other - making me ready again just thinking about it K.M.:           what do you mean “one side of the bed to the other”? can you just expand a little? [winking emoticon] Appellant:    different positions - up -down, sideways, standing etc yahoo you’re back - you in bed yet K.M.:           sorry! ahah and sweeet! i need to tell you something also ! Appellant:    go for itr K.M.: i know i shouldnt be saying this over net... but as you know! i’ve matured alot since ive been here! and learned many things! and one is that i shouldnt be doing “stuff” with you. So i wanted to say if it could stop, please. And if we could just [have a] normal [relationship]? does that sound alright ? Appellant:    sounds perfect !! K.M.: alright! great! so when I come back we cant do it anymore ok ? Appellant:    ok, of course , K.M.:            ok! great ! thanks for understanding ! Appellant:    no more talk about it at all [Emphasis added.] [20] A little over five years after that Facebook communication, in the summer of 2016, K.M. reported the assaults to the police. He explained that his decision to disclose the allegations was triggered by two factors. First, he was in medical school. During a rotation in psychiatry, he was exposed to the serious effects of sexual abuse on children, at which point he knew that this was something that he “wanted to finally address”. Second, he was concerned that others may still be at risk. C. Analysis (1) Did the Trial Judge Err in Allowing C.Y. to Testify as a Similar Act Witness? (a) Overview [21] As his primary ground of appeal, the appellant raises concerns over the admission of extraneous similar act evidence, namely C.Y.’s evidence. [22] I will start by summarizing C.Y.’s voir dire evidence, followed by a discussion of the general framework for the admission of similar act evidence. I will then discuss each of the alleged errors as they pertain to the C.Y. similar act ruling. (b) C.Y.’s Voir Dire Evidence [23] C.Y. was born in 1999. He is the appellant’s nephew by marriage. C.Y.’s family and the appellant’s family were very close. Like the complainants’ family, C.Y.’s family saw the appellant’s family quite often: they travelled, socialized , and attended cottages together. [24] After the appellant was charged in 2016, C.Y.’s parents asked C.Y. and his sibling whether the appellant had ever done anything sexually inappropriate to them. They both denied that anything untoward had ever occurred. [25] Two years later, shortly before the appellant’s trial was set to commence, C.Y. disclosed to his parents that he had also been sexually assaulted by the appellant. C.Y. then disclosed to the police. Charges were laid. [1] [26] As the impugned ruling rests on C.Y.’s voir dire evidence, it is there that I focus my attention. [27] C.Y. claimed that he was touched by the appellant from about the ages of 7 to 15 years old. He testified about being “groped” by the appellant whenever the families got together. He further testified about four specific incidents that stuck out in his mind. They each occurred in different locations: at C.Y.’s home; and at the appellant’s home, cottage, and Florida condominium. [28] C.Y. was not sure about the precise order of incidents. He explained that it was “difficult” to recall because they occurred “so frequent[ly]”. He knew that the Florida and cottage incidents were chronologically third and fourth but could not recall which of the other two incidents occurred first. [29] The first three incidents occurred temporally close together. C.Y. believes he was around ten years old during the first incident. C.Y. was seated on a couch in the “piano room” at the appellant’s home. The appellant entered, sat next to C.Y., and touched C.Y.’s genitals over his pants. C.Y. believes the conduct stopped when his sibling walked into the room. C.Y. does not remember thinking that the conduct was wrong. [30] The next incident was around the same time or maybe about one year later. This incident occurred in C.Y.’s own home. The appellant and his family were over for dinner. C.Y. had retreated to his bedroom following dinner. The appellant entered C.Y.’s room and touched C.Y.’s genitals over his clothing. Their families remained downstairs during the incident. [31] The third incident occurred about one year later when C.Y. was around 11 years of age. C.Y. was alone in the appellant’s Florida condominium while everyone else was at the beach. The appellant walked in and suggested that C.Y. was masturbating, which C.Y. denied. The appellant then pinned him onto the bed, took off C.Y.’s pants and underwear, and touched him on his genitals. C.Y. struggled and told the appellant to stop. The incident lasted about five minutes. C.Y. thinks the conduct stopped when someone walked into the condominium, but it is possible that the conduct just stopped on its own. [32] The final incident that C.Y. could recall occurred at the appellant’s cottage. C.Y. thought this happened when he was around 13 years of age. The appellant spoke to C.Y. about “sexual experiences” as they drove to the cottage, which made him “uncomfortable” because of “the gap between [their] ages”. C.Y. expected the appellant’s wife would be at the cottage when they arrived. She was not present upon arrival, but C.Y. knew that she would be returning. While C.Y. and the appellant were still alone, the appellant pinned him onto the couch, pulled C.Y.’s pants and underwear off, and touched him on his genitals. C.Y. asked the appellant to stop. The incident lasted five to ten minutes. During the incident, the appellant was “poking fun at the fact that [C.Y.] was growing pubic hair”. (c) Applicable Legal Principles for Admitting Similar Act Evidence [33] Similar act evidence is presumptively inadmissible. This exclusionary rule is rooted in a general prohibition against the admission of bad character evidence. To rebut this presumption, the Crown must satisfy the court on a balance of probabilities that the probative value of the evidence in relation to a particular issue or issues at trial outweighs its prejudicial effect: R. v. Handy , 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55; R. v. R.C. , 2020 ONCA 159, at para. 54. [34] Determining the admissibility of similar act evidence involves a three-step inquiry. [35] First, the court considers the probative value arising from the evidence. Probative value is derived from the “objective improbability of coincidence that more than one person (acting independently) would coincidentally give the same type of evidence”: R. v. Norris , 2020 ONCA 847, at para. 17, referring to R. v. Arp , [1998] 3 S.C.R. 339, at para. 48 ; Handy , at paras. 76, 110 ; and R. v. Durant , 2019 ONCA 74, 144 O.R. (3d) 465 , at para. 87. Despite the prejudicial quality of similar act evidence, its probative value will overtake that prejudice where it would be an “affront to common sense to suggest that the similarities were due to coincidence”: Handy , at para. 41, citing R. v. B. (C.R.) , [1990] 1 S.C.R. 717, at p. 751. [36] As a pre-condition to the assessment of probative value, the trial judge must consider whether there exist any alternative explanations for the evidence, such as whether it is tainted by collusion or otherwise. If this is the case, the foundation upon which the admissibility of similar act evidence rests – the objective improbability of coincidence – evaporates. Therefore, if there is an air of reality to the allegation of collusion, the Crown bears the onus of disproving collusion on a balance of probabilities: Handy , at paras. 99, 104, and 112. [37] If the court is satisfied that the integrity of the similar act evidence has not been undermined by collusion, then the trial judge must calculate the probative value of that evidence. This is not a theoretical exercise. It must be understood in relation to the specific issue(s) at trial which the evidence is elicited to address: Handy , at para. 69; B. (C.R.) , at p. 732. Determining the issue(s) to which the evidence relates is key to understanding the “drivers of cogency in relation to the desired inferences”: Handy , at para. 78. [38] The court in Handy set out a helpful, non-exhaustive list of factors at para. 82, which assist in determining the cogency between the proffered similar act evidence and the circumstances set out in the charges: proximity in time, similarity in detail, number of occurrences, surrounding circumstances, distinctive features, intervening acts, and any other factors supporting or rebutting the “underlying unity of the similar acts.” [39] Second, the court considers the prejudice that would result from introducing the evidence into the trial. There are two aspects to this inquiry: moral prejudice and reasoning prejudice. [40] Both forms of prejudice may cause the trier of fact to stray from its proper focus. Moral prejudice arises from concerns that the trier of fact may decide a case based on the perceived bad character of the accused: Handy , at paras. 31, 36; R. v. Lo , 2020 ONCA 622, 393 C.C.C. (3d) 543, at para. 110. Reasoning prejudice considers whether the trier of fact “may become confused by the multiplicity of incidents, and become distracted by the cumulative force of so many allegations”: R. v. Shearing , 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 68. A further detrimental consequence flowing from reasoning prejudice is the potential lengthening of criminal trials. [41] In the final stage of the analysis, the court weighs the probative value of the evidence against its prejudicial effect. The trial judge’s decision to admit the evidence “is entitled to substantial deference” when it comes to where that balance lies: Handy , at para. 153; see also Shearing , at para. 73; B. (C.R.) , at pp. 733, 739 . This is so because trial judges are best positioned to consider the overall context of the trial, taking into account all factors in determining whether they should exercise their discretion in favour of admission. [42] The appellant argues that the trial judge erred in each of his three tasks: (1) he erroneously overestimated the probative value of the evidence; (2) he erroneously underestimated the prejudicial effect of the evidence; and (3) he failed in his balancing exercise. [43] Despite the very capable submissions advanced by the appellant, and as will become clear when addressing many of the objections on appeal, they largely distill into a request for this court to consider the matter afresh. It is not the role of this court to do so. (d) The Alleged Errors Relating to Probative Value (i) Collusion [44] As set out above, the existence of collusion will rebut the very foundation on which similar act evidence is predicated: the improbability of coincidence. The trial judge rejected the suggestion that C.Y.’s evidence was tainted by collusion, finding that C.Y. “had not spoken with either KM or CM in several years” and that there was “no evidence” they had ever discussed the allegations. [45] The appellant argues that the trial judge misapprehended the defence position on this point. The appellant suggests that there was compelling support for a finding of collusion, not because C.Y. had colluded with the complainants to fabricate his allegations, but because C.Y.’s parents spoke to him about the charges which inadvertently tainted his evidence. [46] As the appellant correctly notes, if a complainant’s allegations are shared with a purported similar act witness before that witness makes their accusation, then the similar act witness’s evidence may become tainted: R. v. Dorsey , 2012 ONCA 185, 289 O.A.C. 118, at paras. 29-31. [47] While I accept that the evidence of a similar act witness can be inadvertently tainted through third-party discussions, I do not agree that the trial judge erred in his approach to this issue in this case. [48] The trial judge was factually right to note that the complainants and C.Y. had not spoken in several years. Therefore, C.Y.’s parents were the only source of potential collusion or tainting. Yet this argument was not advanced before the trial judge. He cannot be faulted for failing to respond to arguments that were not made. [49] In any event, nothing in the record supports the suggestion that C.Y.’s parents had tainted his evidence. For one thing, C.Y.’s father testified, yet he was not asked about his knowledge of the allegations or what he told C.Y. about them. [50] As for C.Y., he was not asked at the voir dire if he had discussed the details of the sexual assaults with his family. When asked that question at the trial proper, C.Y. said that his parents told him what they knew about the charges, which he did not “think was a whole lot.” When his parents first approached him, shortly after the charges had been laid, C.Y. testified that he only knew that the complainants were boys. He only later came to learn that they were C.M. and K.M., whom he had met on previous occasions. [51] Therefore, if there was any inadvertent tainting by C.Y.’s family (which is not at all evident on the voir dire evidence), it was not of the nature that would lead to a denial of admission of the evidence. There was nothing in the defence position that could not be handled through jury deliberations, assisted by a clear instruction: Shearing , at paras. 43-45; Dorsey , at para. 29. And, in fact, such an instruction was given in this case. (ii) The “Issue(s) in Dispute” [52] The appellant claims that the trial judge erred in how he described the issues which C.Y.’s evidence was tendered to prove, which were, as he put it: “(1) the complainants’ credibility; (2) addressing a defence of impossibility or the risk of discovery because others were alleged to be around at the time of the incidents; and (3) the existence of a propensity for a specific type of victim and grooming behaviour.” [53] The appellant argues that the trial judge erred with respect to each of the identified issues in question. [54] First, the appellant contends that the trial judge erred when he described the “complainants’ credibility” as constituting one of the issues in question. The appellant argues that credibility cannot constitute a specific issue that overcomes the general exclusionary rule. In support of this position, the appellant relies upon Handy , at para. 115, where Binnie J. warned that defining the issue as “the credibility of the complainant” would require “some refinement” given that it is “too broad a gateway for the admission of propensity evidence”. [55] I agree that identifying the issue in question as one of credibility can risk admitting similar act evidence on the basis of nothing more than general disposition because “[a]nything that blackens the character of an accused may, as a by-product, enhance the credibility of a complainant”: Handy , at para. 116. [56] Even so, that is not what happened here. While the trial judge spoke in brief compass about the “complainants’ credibility”, read contextually, the evidence was admitted, in part, to support the complainants’ versions as to the actus reus of the assaults. This was a live issue at trial – indeed, it was the only issue at trial – and there is nothing that precludes the admission of similar act evidence to prove that fact. This was an entirely appropriate purpose and the mere imprecision around describing the issue in dispute does not constitute reversible error: Handy , at para. 120; Shearing , at para. 46; and R. v. J.H. , 2018 ONCA 245, at para. 14. [57] Second, the appellant claims that the trial judge erred in concluding that C.Y.’s evidence was capable of addressing the defence of impossibility or risk of discovery because others were alleged to be around at the time of the incidents. The appellant contends that only two of the four incidents described by C.Y. carried the risk of discovery, while almost every incident described by K.M. and C.M. had people close by or present during the alleged acts. Therefore, C.Y.’s evidence is said to carry little probative value on this issue. [58] There is no error in the trial judge’s conclusion on this point. [59] In each of the incidents described by C.Y., there was a risk of discovery, in the sense that there was a person present or very close by or expected to arrive. For instance: (1) C.Y.’s sibling was said to have walked into the piano room during the assault; (2) C.Y.’s family and the appellant’s family were downstairs in C.Y.’s home when the assault was said to have occurred in C.Y.’s bedroom; (3) while C.Y. said that he and the appellant were initially alone during the Florida assault, C.Y. thought that someone walked into the condominium during the assault; and (4) while the appellant’s wife was unexpectedly absent from the cottage when C.Y. and the appellant arrived, C.Y. expected her to return. [60] Finally, the appellant claims that the trial judge misapprehended C.Y.’s evidence and therefore erred in his conclusion that it was capable of demonstrating the appellant’s “propensity for a specific type of victim and grooming behaviour.” Unlike K.M.’s evidence, which showed an escalation in conduct from fondling to mutual masturbation, oral sex, and ejaculation, the appellant says that C.Y. testified about forced sexual abuse. The differences between K.M.’s and C.Y.’s scenarios are said to be so profound as to rob the purported similar act evidence of any probative value. [61] I do not agree with this characterization of C.Y.’s evidence. First, the trial judge did not misapprehend the nature of C.Y.’s evidence. To the contrary, he specifically addressed the fact that the appellant was said to have applied physical force to C.Y., a factor that did not feature into either C.M.’s or K.M.’s evidence. [62] Even so, the trial judge specifically noted that C.Y.’s evidence stretched well beyond the four incidents testified to, covering many other acts that were said to have “occurred on each interaction [C.Y.] had with the [appellant]”, meaning that there was not necessarily physical force every time they interacted. Accordingly, with two exceptions, this brought C.Y.’s evidence closer to that of C.M. and K.M. It is against that context that the trial judge concluded that “the additional application of force” on two occasions did “not make the acts significantly different.” It was open to the trial judge to come to that conclusion. [63] The fact that two acts involved physical force does not undermine the trial judge’s conclusion that C.Y.’s evidence showed strong similarities between “specific type[s] of victim[s] and grooming behaviour.” In particular, C.Y.’s evidence was capable of supporting the suggestion that the appellant would create opportunities for himself to be around young boys with whom he was in a familial relationship (C.Y.) or a familial-like relationship (K.M. and C.M.). As I will discuss further, C.Y.’s evidence supported the inference that this was precisely the appellant’s modus operandi . All of the boys testified to similar experiences, including inappropriate sexual conversations. And, importantly, C.Y.’s evidence clearly demonstrated an escalation in behaviour, with the cottage incident being the last and most serious one. [64] Accordingly, I do not accept that the trial judge erred in his determination of the issues in question. (iii) Similarities and Differences [65] The appellant also argues that there are flaws in the trial judge’s assessment of the similarities and differences among the accounts of C.Y. and the complainants. [66] First, the appellant focuses upon what are said to be extreme dissimilarities between C.Y.’s and the complainants’ accounts, particularly as they relate to C.Y. being physically dominated by the appellant. In support of this proposition, the appellant points to the following paragraph in the trial judge’s reasons: The respondent points out the difference in behaviour. Specifically, CY spoke of two occasions where physical force was being applied — the respondent pinning him down. The evidence that inappropriate behaviour occurred on each interaction CY had with the respondent I take to mean that physical force was not applied on all occasions. In any event, the additional application of force does not make the acts significantly different. There was no assertion of any physical injury as a result of the application of force. [67] The appellant claims that the trial judge erred in: (1) undervaluing what is said to be a strong difference arising from the fact that C.Y. testified about two acts involving the use of force yet K.M. testified about mutuality in conduct; (2) emphasizing the irrelevant fact that there was no physical injury accompanying the assaults on C.Y.; and (3) relying on the fact that physical force was not used on every occasion. [68] The appellant suggests that the trial judge further erred in using what is described as largely “generic” aspects of the alleged acts from which to draw similarities. For instance, the trial judge identified the similarities between the ages of C.Y. and the complainants, the locations of the assaults, the extended period of time over which the incidents occurred, and the close relationships between the appellant and each of the complainants and C.Y. [69] The trial judge approached this matter correctly. In Shearing , at para. 60, the court warned trial judges not to address similar act evidence applications in an “excessively mechanical” manner: The judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied. This may result in distortion : Litchfield , supra . At an excessively macroscopic level of generality, on the other hand, the drawing of similarities may be too facile. Where to draw the balance is a matter of judgment . [Emphasis added.] [70] Similarity does not necessarily have to lie in the precise physical acts themselves. Some can be more serious than others. Sometimes, the thread of similarity will lie in the perpetrator’s modus operandi . In the context of child sexual assaults, that modus operandi may well be reflected in the very creation of sexual opportunities and the progression over time toward more serious acts: Shearing , at para. 52; R.C. , at para. 62. [71] While the trial judge did not express himself exactly in this way, that is the effect of the similarities he found. He was entitled to find C.Y.’s evidence as similar to the complainants’ evidence and to discount the force applied to C.Y. on two of those occasions. I agree with the respondent that the distinction is not meaningful as between a young boy having his genitals touched while being hugged versus being pinned down. [72] All three boys shared similar stories from the perspective of the appellant’s alleged modus operandi : connecting with young boys with whom he shared a close familial or quasi-familial relationship and exploiting that relationship in a way that carried some particular characteristics. These characteristics included : starting with touching over clothing and progressing from there; making sexual comments in connection with the touching; doing the touching in the presence of others, or at least close by, so there is a risk of discovery; and committing these acts with young boys who were part of the family or in a family-like relationship. (iv) The Strength of the Similar Act Evidence in Light of Delay [73] The appellant objects to the trial judge’s finding that C.Y.’s delay in reporting had “no impact on the probative value of the evidence.” [74] The appellant says that the trial judge misapprehended the defence position. The defence was not suggesting that C.Y.’s credibility was diminished simply by virtue of his delayed reporting. Rather, the defence position was that C.Y.’s credibility was adversely impacted by the fact that: (1) he disclosed right before the appellant’s trial; and (2) he denied the inappropriate conduct when first asked about it by his parents in 2016. The appellant argues that it was inevitable that the strength of C.Y.’s evidence would be seriously damaged as a result of these factors. [75] While the trial judge did not specifically address the fact that C.Y. denied being assaulted by the appellant when his parents addressed the issue with him in 2016, this did not change how the issue had to be approached. In my view, it was not at all inevitable that the strength of C.Y.’s evidence would be diminished by either the delayed disclosure or the initial denial. This was a matter for the jury’s determination and the trial judge was right to leave the issue with the jurors. (e) The Alleged Errors Relating to Prejudicial Effect [76] The appellant also argues that the trial judge erred when he concluded that the prejudicial effect arising from C.Y.’s evidence was “modest”. The appellant asserts that there is an inherent and well-known prejudice arising from this type of evidence; in particular, that the “poisonous potential of similar fact evidence cannot be doubted”: Handy , at para. 138. Therefore, according to the appellant, no similar act evidence is of modest prejudicial effect, and the trial judge’s observation to the contrary is said to reflect error. [77] I would not accede to this submission. [78] The trial judge’s reasons demonstrate that he was well-versed in the legal underpinnings for approaching prejudice in the context of a similar act evidence inquiry. He specifically addressed both moral and reasoning prejudice. [79] Despite C.Y.’s evidence about having been pinned down on two occasions while being sexually assaulted – a very serious matter indeed – K.M.’s evidence exceeded C.Y.’s in terms of the sheer number of serious sexual assaults, invitations to sexual touching, and sexual interferences, ranging all the way from fondling to mutual oral sex and ejaculation. [80] In these circumstances, it was open to the trial judge to conclude that the prejudicial effect of C.Y.’s evidence was “modest” in the sense that, relative to all the evidence already before the jury, accompanied by proper instructions, it was not likely to “run a risk of inflaming the jury, causing them to give the similar fact evidence more weight than it deserved”: R. v. Bent , 2016 ONCA 651, 342 C.C.C. (3d) 343, at para. 74, supplementary reasons at 2016 ONCA 722. (2) Did the Trial Judge Err in Permitting the Jury to Consider Cross-Count Similar Act Evidence as Between K.M. and C.M.? [81] The Crown successfully applied to have the evidence of K.M. and C.M. considered across all counts. During oral submissions on appeal, the appellant advanced the argument that the trial judge erred by failing to appreciate that the strength of C.M.’s evidence was significantly reduced for two reasons: (1) the circumstances under which he disclosed; and (2) the fundamental differences between his and his brother’s allegations. [82] As for the circumstances under which C.M. disclosed, it is uncontroverted that he did so after K.M. told him the details of what the appellant had done to him. This is really a suggestion of inadvertent tainting. [83] The trial judge squarely addressed this defence suggestion and dismissed it. He acknowledged that there was evidence of communication between the brothers. Even so, after reviewing the whole record and assessing the credibility and reliability of both K.M. and C.M., the trial judge was satisfied on a balance of probabilities that the evidence was “not tainted with collusion”, either conscious or unconscious in nature. I see no error in how the trial judge came to this conclusion. [84] The appellant also asserts that fundamental differences in the brothers’ accounts fatally undermined the utility of their evidence as similar acts. [85] I do not agree. The trial judge was very much alive to the differences in accounts, most significantly that the acts relating to K.M. progressed well beyond the genital touching experienced by C.M. [86] Even so, the trial judge clearly expressed what he saw as the similarities in accounts. I have already reviewed those similarities in relation to C.Y., including: the boys’ ages at the time; their close relationships with the appellant; the locations of the acts; the joking behaviour attendant to the crimes; the similarity in jokes, including about pubic hair; and the fact that others were or may have been close by. As I concluded with respect to C.Y., the similarities defied coincidence. (3) Did the Trial Judge Err in Failing to Instruct the Jury on the Prohibited Use of Bad Character Evidence Arising from the Facebook Communications Between K.M. and the Appellant? [87] The appellant claims that the trial judge erred in failing to instruct the jury about the danger of propensity reasoning arising from the sexualized Facebook communications between K.M. and the appellant. [88] Most of the content of that communication was set out earlier in these reasons. In short, the appellant described to K.M. a recent sexual encounter he had with his wife. Then K.M. said that he had come to realize that he “ shouldn[’]t be doing ‘stuff’ ” with the appellant and that he wanted “it” to stop. The appellant replied with “sounds perfect ”, “of course ”, and “no more talk about it at all ”. [89] K.M. testified that the “stuff” and the “it” were the sexual acts. In contrast, the appellant said the “stuff” and the “it” referred to nothing more than the sexualized conversations. [90] The sole question on appeal is whether the jury should have received an instruction to avoid using these sexualized communications to infer that the appellant was of bad character or disposition and, therefore, would be the type of person to have committed the crimes with which he was charged. The appellant says it was incumbent on the trial judge to provide that instruction. [91] For a number of reasons, I do not agree. [92] When deciding whether a non-direction gives rise to a misdirection, the evidence said to pose the risk of propensity reasoning must be considered within its proper context, including the other instructions given and the parties’ positions taken at trial: R. v. Calnen , 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 11, 15-18. [93] I start by observing that there was no objection taken to the absence of the instruction, notwithstanding the fact that defence counsel reviewed the proposed charge ahead of delivery. [94] While I accept that there was no strategic reason to have failed to request the instruction or to have objected in the face of the charge, counsel were undoubtedly in the best position to determine whether such an instruction was necessary. While not determinative of the result, the failure to object is relevant to determining the seriousness of any alleged omission. [95] The likely reason there was no objection is that the similar act evidence instructions filled any potential void that may have arisen from not specifically instructing the jury as to the use of the sexualized communications for propensity reasoning purposes. The jury was instructed as follows: If you conclude that [the appellant] likely committed the other acts, this may suggest to you that he has a general disposition or character to do bad things. However, you must not infer from [the appellant’s] general character or disposition that he is more likely to have committed the offences charged . Remember that [the appellant] is on trial only for the charges set out in the Indictment. It would be unfair to find someone guilty simply on the basis of a general disposition or character, since general disposition or character does not tell you anything useful about what happened on the specific occasions charged in the Indictment . [Emphasis added.] [96] Although given in the context of instructions on how to approach similar act evidence, this instruction provided the jurors with robust guidance about avoiding inappropriate propensity reasoning. To repeat that instruction in relation to the Facebook communication would have added little to the jury’s understanding of its task. [97] In any event, had the trial judge been asked to provide an instruction on prohibited propensity reasoning as it related to the Facebook communication, he would have also had to provide a clear instruction regarding how the jury could use that communication. The trial Crown relied upon the messages as a reflection of the appellant’s ongoing grooming behaviour. To highlight that position for the jury’s attention would not have inured to the benefit of the appellant. (4) Did the Trial Judge Err in Refusing to Permit a Challenge for Cause During the Jury Selection Process? [98] The appellant argues that the trial judge erred in refusing to permit the defence to bring a challenge for cause. The appellant wanted to ask prospective jurors: (1) whether they had been exposed to any form of media about the case; if so, ( 2 ) based on what they had heard, read, or seen , whether they had formed views about the appellant’s guilt or innocence; and, if so, (3) whether they could set aside those opinions and decide the case based only the evidence heard in court and the instructions given by the trial judge. [99] The evidence filed in support of the application included 18 articles in local and regional newspapers. The first article was published at the time that the charges were laid and the final one was published about a year before the trial commenced. The online articles contained comments from members of the public who had read them. [100] While the appellant acknowledges that the articles themselves were factual in nature, he emphasizes that the comments posted online in response to those articles were “overwhelmingly vitriolic” and should have resulted in the requested challenge for cause being permitted. These comments included disparaging remarks calling for extreme punishment, expressing general disdain about the alleged acts and the appellant, and using vulgar language. [101] The trial judge denied the request for a challenge for cause. He characterized the appellant’s application as akin to an “offence based” challenge. The trial judge observed that, “in the absence of evidence, it is highly speculative to suggest that emotions surrounding sexual crimes will lead to prejudicial and unfair jury behaviour.” [102] The appellant argues that the trial judge erred in two ways. First, by mischaracterizing the application as an offence-based challenge. Rather, this was a challenge based upon extreme views expressed and disseminated about the appellant, a prominent member of his community. [103] Second, by misdirecting himself as to the appellant’s primary concern. It was not the specific crimes nor the content of the articles with which the appellant took issue. According to the appellant, the danger was that the publicity had generated vitriol in the form of comments posted online, some of which were directed at the appellant as the person identified in those articles. [104] I start with the observation that deciding whether to permit a challenge for cause engages an exercise of judicial discretion: R. v. Parks (1993) , 15 O.R. (3d) 324 (C.A.), at p. 336, leave to appeal refused, [1993] S.C.C.A. No. 481. Therefore, an appellate court’s function is a narrow one, confined to inquiring into whether the decision demonstrates an error in principle or caused a miscarriage of justice: R. v. Merz (1999), 46 O.R. (3d) 161 (C.A.), at para. 31, leave to appeal refused, [2000] S.C.C.A. No. 240. [105] A challenge for cause may be made under s. 638(1)(b) of the Criminal Code , R.S.C., 1985, c. C-46, on the ground that “a juror is not impartial”, and that they will be unable to set aside their state of partiality so that they can decide the case fairly: R. v. Find , 2001 SCC 32, [2001] 1 S.C.R. 863 , at paras. 30-31. Partiality reflects a “predisposed state of mind inclining a juror prejudicially and unfairly toward a certain party or conclusion”: Find , at para. 30, referring to R. v. Williams , [1998] 1 S.C.R. 1128, at para. 9. [106] In order to demonstrate a realistic potential for juror partiality, the two factors laid out by the court in Find must be satisfied: (1) that there exists a widespread bias in the community; and (2) that, despite trial safeguards, including jury instructions, some jurors will not be able to set aside that bias. [107] The trial judge’s reasons demonstrate that he understood and applied this legal test appropriately and within the bounds of his discretion. He acknowledged that the comments made online were “intemperate, inflammatory, [and] ignorant” in nature, but concluded that they did not establish a widespread bias in the community, and that any offence-related biases could be addressed through the safeguards in place at trial. [108] The trial judge also understood precisely what drove the appellant’s concern: “The applicant’s real issue is the comments that were posted online after two articles were published.” This was a fair observation, particularly since the appellant conceded that the articles themselves were fair and representative. Moreover, the coverage was at best sporadic and had ended almost a year before the trial. [109] I accept the appellant’s submission that, given the online nature of the articles, they remained ever-present and accessible. At the same time, though, during his very first encounter with the jury pool, the trial judge instructed them that “[a]n impartial juror is one who will approach the trial with an open mind” and “decide the case based on the evidence given at trial, the instructions on the law from the trial judge, and on nothing else ” (emphasis added). He also told the jury not to do any external research, including using the internet, consulting with other people, or seeking out any sources of information, printed or electronic. He further warned them not to read, post, or discuss anything about the trial. As he put it , “You must decide the case solely on the basis of the evidence you hear in the courtroom.” [110] Not only did the trial judge instruct the jury pool at the very outset of the trial, but he also provided careful instructions in his final charge. Here, the trial judge provided the jury with multiple instructions to safeguard it from taking improper considerations into account. These included explicit instructions to “not be influenced by public opinion”, to “disregard completely any information from” various media sources, to “consider only the evidence presented in [the] courtroom”, and to decide the case only on the basis of such evidence. [111] The trial judge’s discretionary refusal to permit a challenge for cause demonstrated no error in principle and did not result in a miscarriage of justice in this case. D. Conclusion [112] I would dismiss the appeal. Released: “November 5, 2021 JMF” “Fairburn A.C.J.O.” “I agree Doherty J.A.” “I agree. Sossin J.A.” [1] There is a reference in the appellant’s factum to these charges being stayed on a later occasion. The record is silent as to the reason(s) for the stay of proceedings.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Teng, 2021 ONCA 785 DATE: 20211105 DOCKET: C66742 Fairburn A.C.J.O., Doherty and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Xiu Jin Teng Appellant Brian H. Greenspan and Michelle M. Biddulph, for the appellant John Patton and Ken Lockhart, for the respondent Heard: April 13, 2021 by video conference On appeal from the conviction entered by Justice I. MacDonnell of the Superior Court of Justice, sitting with jury, on January 11, 2017, and from the sentence imposed on January 13, 2017. Doherty J.A.: overview [1] In March 2012, the police charged the appellant with murdering her husband, Dong Huang. In January 2017, a jury convicted the appellant of first-degree murder. [2] The appellant was not represented by counsel at trial. During jury selection, the appellant made a “ Rowbotham ” application, asking the court to stay the trial until the Attorney General (Civil) agreed to fund counsel for the appellant. The trial judge dismissed the motion and the trial proceeded. The trial judge’s dismissal of the Rowbotham application is the primary ground of the appeal. [3] The appellant advances four additional grounds of appeal. She submits: · her right to a trial within a reasonable time under s. 11(b) of the Charter was breached and the proceedings should have been stayed; · the police violated the appellant’s rights under ss. 10(a) and (b) of the Charter and the statements she made while detained by the police in her apartment should have been excluded from evidence pursuant to s. 24(2) of the Charter ; · the trial judge erred in his instructions to the jury on circumstantial evidence; and · the conviction for first-degree murder was unreasonable. [4] In addition to appealing her conviction, the appellant appeals one aspect of her sentence. She submits the trial judge erred in making an order under s. 743.21 of the Criminal Code , R.S.C., 1985, c. C-46, prohibiting the appellant from communicating with her brother-in-law, the victim’s brother. The appellant submits the order was improperly made as she had no notice of the Crown’s intention to request the order and had been excluded from the courtroom during sentencing. The appellant further submits her brother-in-law has court-ordered custody of the appellant’s young daughter and it is essential that the appellant be able to communicate with the brother-in-law about her daughter’s well-being. [5] For the reasons that follow, I would dismiss the appeal. The trial judge found that the Rowbotham application was not a bona fide attempt to obtain counsel, but was rather an attempt to derail and delay the trial. That finding was open on the evidence and justified the dismissal of the Rowbotham application. [6] I would also reject the other grounds of appeal. In rejecting the s. 11(b) claim, the trial judge properly applied the transitional exception laid down in R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631. The trial judge correctly held the appellant was not detained when questioned in her apartment, meaning her s. 10 rights were not engaged. The jury instruction on circumstantial evidence was complete and correct. The evidence supporting a conviction on the first-degree murder charge was formidable and readily clears the unreasonable verdict standard. [7] I would allow the sentence appeal, but only on a narrow point. I would vary the term prohibiting communication with the brother-in-law to provide for an exception permitting communication if that communication was made in accordance with the terms of an order made in the family law proceedings involving the appellant’s daughter. the evidence (i) The Discovery of the Body [8] The appellant and her husband, Mr. Huang, lived in a basement apartment with their young daughter. They had been married for about 10 years. The appellant arrived in Canada in 2010. [9] Ms. Gu, one of the landlords, went to the apartment on February 29, 2012 to ask for the rent. She asked the appellant about her husband. The appellant told Ms. Gu her husband had gone to Hong Kong two days earlier. [10] Later the same day, Ms. Gu became suspicious when it appeared to her that the appellant was moving “a whole lot of stuff” out of the apartment. Concerned that the appellant and her husband were moving out without notification Ms. Gu decided to examine the apartment for possible damage. She and a friend entered the apartment when the appellant was not there. They did not find any damage but the friend did find two feet sticking out from under a blanket in a storage closet in the apartment. There were several boxes on top of the body. Ms. Gu immediately contacted Mr. Wang, her husband. [11] Mr. Wang arrived at the apartment a short time later and looked in the storage closet. He removed the boxes and found Mr. Huang’s body wrapped in several blankets. By this time the appellant had returned home. Mr. Wang asked her about the body in the storage closet. She told him that her husband, who had a history of heart problems, had died of a heart attack the previous week. Both the appellant and Mr. Wang called 9-1-1. [12] Two police officers arrived at the apartment separately shortly after the 9-1-1 calls. The appellant and Mr. Wang were yelling at each other. The officers separated them and spoke to each individually. The landlord told the officers that the body of the appellant’s husband’s body was in a storage closet. The police looked in the closet and saw the body. The two officers spoke with the appellant separately. She told both of them her husband had died of a heart attack a few days earlier. She told one of the officers she did not know what to do and she told the other officer she had dragged her husband’s body from the bedroom and put it in the storage closet. [13] In a statement to the police the next day, the appellant said she found her husband’s dead body in the basement. She thought he might have had a heart attack but did not really know what had caused his death. According to her, she passed out when she found his body. (ii) The Forensic Evidence [14] The doctor who conducted the post-mortem found the following: · perimortem ligature marks on the deceased’s neck; · green twine tied loosely around the deceased’s neck; · perimortem ligature marks, indicating the deceased’s wrists and ankles had been bound before death. The marks were similar to the ligature marks on the neck; · two significant perimortem blunt force impact injuries on the deceased’s skull, one on the left side and the other on the back of the right side of the skull; and · a perimortem needle puncture wound on the inside of the deceased’s elbow, a common injection site. [15] The pathologist found no evidence of a heart attack. In his opinion, the deceased was strangled to death. Green twine, like that wrapped around the husband’s neck, was found in the apartment. Death occurred between two days and two weeks before the discovery of the body. [16] A toxicologist testified that traces of a sedative called Zopiclone, prescribed for insomnia, were found in the deceased’s blood. She could not say whether the amounts found in his blood were consistent or inconsistent with the therapeutic dosage of the drug. Zopiclone is normally taken orally but it can be injected. The puncture mark on the inside of the deceased’s elbow could not be scientifically linked to the presence of the Zopiclone in the deceased’s body. (iii) The Appellant’s New Apartment [17] There was evidence, that in late February 2012, before Mr. Huang’s body was found, the appellant had begun moving items belonging to her, and some children’s toys, into a different apartment in a house not far from where the appellant lived with the deceased. There was no evidence that any of Mr. Huang’s belongings had been moved into that apartment. (iv) The Life Insurance [18] The appellant was licenced to sell life insurance in early 2011. She worked as a financial security advisor (“FSA”) for Freedom 55 Financial, starting near the end of 2010. FSAs are independent contractors and are paid by way of commission on the products they sell. Among other products, Freedom 55 Financial sells life insurance. [19] In June 2011, the appellant attempted to purchase a $1.5 million life insurance policy on her husband’s life. That policy named her as the beneficiary. The insurer wanted a higher premium than the appellant offered. That policy never took effect. [20] The appellant did, however, purchase two life insurance policies on her husband’s life in late 2011. She was the beneficiary in both policies. The first policy, purchased in October 2011, provided $972,639 in death benefits payable to the appellant. That policy came into effect in November 2011. The second policy, purchased in November 2011, provided $650,000 in death benefits, with an additional $400,000 in the event of accidental death. This policy came into effect in January 2012. At the time of Mr. Huang’s death, the appellant was the beneficiary of two life insurance policies totalling between $1.5 and $2 million. [21] It was quite common for persons starting out in the life insurance business to sell policies to friends and neighbours. The appellant earned commissions on the policies obtained on her husband’s life. She also had to pay the premiums on the policies to keep them in good standing. [22] An insurer will only pay out on a life insurance policy if there is a death certificate. The insurer will not pay if the beneficiary is responsible for the death, or if there are material misrepresentations made in obtaining the policy. If death occurs within two years of the issuance of the policy, the insurer may conduct a more detailed review of the death before paying on the policy. [23] The appellant did not make a claim on either policy. She was charged with murdering her husband within five days of the discovery of his body. [24] The appellant did not testify. Ground #1: Did the trial judge err in dismissing the Rowbotham application (Reasons reported at 2017 ONSC 277) (i) The Rowbotham Remedy [25] In R. v. Rowbotham (1988) , 41 C.C.C. (3d) 1 (Ont. C.A.), at pp. 65, 70, this court held that if an accused wants counsel and cannot retain counsel privately, through Legal Aid, or through some other means, the court should, on an application by the accused, stay the proceedings against the accused if the court concludes that representation by counsel is essential to a fair trial as guaranteed under s. 11(d) of the Charter . While the stay does not directly require the state to fund counsel to defend the accused, the stay will only be lifted for all practical purposes if the state provides the necessary funding for counsel: see R. v. Rushlow , 2009 ONCA 461, 96 O.R. (3d) 302, at paras. 14-21. [26] On a Rowbotham application, the court, in deciding whether the accused can receive a fair trial without counsel, will consider, among other factors, the seriousness of the charge, the complexity of the evidence, the accused’s familiarity with the process, any mental disorder, and any language or cognitive limitations the accused may have. [27] No one suggests the appellant had the means to hire her own lawyer for a lengthy murder trial. Factors relevant to trial fairness, such as the seriousness of the charge, supported the conclusion that the appellant should have a lawyer. In the course of the lengthy proceedings, Legal Aid had provided certificates to two different lawyers and the Attorney General (Civil) had agreed to funding orders on at least two occasions. [28] Unlike most Rowbotham applications, this application did not turn on the appellant’s financial status or her ability to obtain a fair trial without counsel. This application turned on the threshold question of the bona fides of the application itself. The trial judge held that the application was not a genuine attempt to obtain counsel funded by the Attorney General (Civil), but was an attempt to avoid a trial on the merits and derail the trial process. The trial judge said, at para. 46 of his reasons for his Rowbotham ruling: The timing of the application speaks volumes about its true nature. It could have been brought months earlier, as Justice McMahon had urged. It could have been brought at the outset of the trial. Instead, it was brought only after all of the defendant’s other efforts to halt the proceedings had failed. When the timing of the application is put into the context of all that preceded it, there is only one reasonable inference, namely that it was not in reality a funding application but rather only the latest maneuver in the campaign that began on June 30 to prevent the charge against her from being tried on the merits. (ii) The Standard of Review [29] The decision to grant or refuse a Rowbotham application turns on the application of legal principles laid down in Rowbotham to the facts of the particular case. The ultimate decision to grant or refuse the application raises a question of law reviewable on a correctness standard. However, findings of fact upon which the Rowbotham decision is made are reviewable on a more deferential standard: R. v. Shepherd , 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20. This court will reverse findings of fact only if they are unreasonable, based on a material misapprehension of relevant evidence, or a failure to consider or give proper effect to material evidence: R. v. Morrisey (1995), 97 C.C.C. (3d) 193, at p. 221 (Ont. C.A.); R. v. M.C. , 2014 ONCA 307, 308 C.C.C. (3d) 318, at paras. 31-33. [30] I have no doubt that a judge has the authority to dismiss a Rowbotham application if the judge is satisfied the application has been brought to impede or derail the trial proceedings. A motion brought for those purposes is the very definition of an abuse of process. A trial judge must be able to protect the court from attempts to use the process to defeat the proper administration of justice: see R. v. Amos , 2012 ONCA 334, at paras. 12-22, leave to appeal refused, [2014] S.C.C.A. No. 160; R. v. Phung , 2012 ONCA 720, at paras. 18-34, leave to appeal refused, [2014] S.C.C.A. No. 97; R. v. Al-Enzi , 2014 ONCA 569, at paras. 88-96, leave to appeal refused, [2014] S.C.C.A. No. 405. [31] R. v. Amos , R. v. Phung , and R. v. Al-Enzi were all cases in which trial judges ordered an accused on to trial on a first-degree murder charge without counsel. In Amos and in Phung , this court upheld those decisions because the evidence supported the trial judge’s findings that the motions to adjourn to allow the accused to obtain counsel were not bona fides , but were brought for improper ulterior purposes. In Al-Enzi , this court overturned the trial judge’s decision because there was no evidence to support two of the three reasons given by the judge for ordering the continuation of the trial despite counsel’s removal from the record. In addition, this court found the trial judge failed to consider several other relevant factors. In short, applying the standard of review applicable to factual findings, this court found the findings wanting and set aside the order predicated on those factual findings. [32] Mr. Greenspan, for the appellant, submits that this case is similar to Al-Enzi . Mr. Patton, for the Crown, contends it is much more like Amos or Phung . (iii) The History of the Proceedings [33] To assess the trial judge’s finding that the Rowbotham application was brought for an ulterior and improper purpose, it is necessary to review some of the lengthy history of this proceeding, particularly the events from June 30, 2016 forward. As the trial judge did, I divide the chronology into four segments: · The proceedings before June 30, 2016; · The proceedings on June 30, 2016; · The proceedings between June 30, 2016 and the commencement of the trial in October 2016; and · The proceedings at trial. (a) The Proceedings Before June 30, 2016 [34] The appellant was charged with first-degree murder in March 2012. She retained the law firm of Hicks Adams through Legal Aid. In May 2012, the appellant discharged that firm and sought to retain Mr. Rosen. He undertook to represent the appellant, assuming Legal Aid would approve the transfer of the Legal Aid certificate to him. By September 2012, Mr. Rosen had obtained the necessary approval from Legal Aid and had agreed to several dates between March and May 2013 for what was anticipated to be a 15-day preliminary inquiry. [35] In January 2013, about two months before the preliminary inquiry was to commence, the appellant discharged Mr. Rosen. Mr. Rosen was given no forewarning of, or any explanation for, his dismissal. He advised the appellant that Legal Aid would have to approve a second transfer of her certificate. The appellant told him she did not need Legal Aid and had a lawyer, Mr. Bains. The appellant refused to sign Mr. Rosen’s termination letter. [36] Mr. Bains was present in court. He indicated he was not available on the dates scheduled for the preliminary inquiry, and that there was no chance the appellant would be able to retain him privately. [37] In subsequent proceedings, Mr. Bains declined to set target dates for the preliminary inquiry until funding issues with the Attorney General (Civil) were resolved. Those issues appeared to have been resolved by May 2013. In August 2013, new preliminary dates were scheduled for July and August of 2014. [38] The appellant was committed for trial in August 2014. Mr. Bains continued to act for her. The appellant made her first appearance in Superior Court in September 2014. In November 2014, a trial date in September 2015 was set. The parties anticipated a six-week trial. [39] On September 1, 2015, about two weeks before the six-week jury trial was to begin, Mr. Bains applied to be removed from the record, citing ethical reasons for his inability to continue to act for the appellant. The presiding judge removed Mr. Bains from the record and vacated the September 2015 trial dates. [40] On September 4, 2015, counsel for the Attorney General (Civil) confirmed that it would continue to fund counsel for the appellant, adding that the appellant had been put on notice that any further breakdown in her relationship with counsel would require that the Attorney General revisit the commitment to fund counsel. The appellant was provided with the names of several possible lawyers. The appellant indicated she understood there was no guarantee the Attorney General would continue to fund counsel if, at some point, the appellant desired yet another different lawyer. [41] On October 2, 2015, Mr. Nuttall appeared and indicated he had consulted with the appellant. A trial date of November 2, 2015 was available, although it was not clear that Mr. Nuttall was available at that time. The appellant indicated she did not want to be represented by Mr. Nuttall. [42] In October 2015, Mr. Richardson and Mr. Moore appeared on behalf of the appellant. They asked for a brief adjournment before setting a trial date. The earliest available dates were in September 2016. Crown counsel on the case was not available until October 2016. Justice McMahon set a trial date of October 31, 2016. [43] On November 17, 2015, Mr. Richardson indicated that the funding agreement was in place and that he and Mr. Moore would be acting for the appellant at trial. [44] The matter was spoken to several times between January and June 2016. In April 2016, Mr. Moustacalis appeared for the appellant and indicated he was replacing Mr. Richardson as co-counsel with Mr. Moore. On June 3, 2016, the appellant indicated she wanted Mr. Moustacalis removed as one of her counsel. Mr. Moore remained on the record. (b) The June 30, 2016 Appearance [45] The matter came back before Justice McMahon in assignment court on June 30, 2016. Mr. Moore was on the record for the appellant. [46] Shortly before the appearance on June 30, 2016, Mr. Moore had served the appellant with an application to be removed from the record. Mr. Moore brought the application to be removed from the record only because the appellant had refused to sign the funding agreement with the Attorney General (Civil) naming Mr. Moore as counsel. Unless the appellant signed, Mr. Moore would not be paid for his defence of the appellant. [47] At the June 30, 2016 hearing, McMahon J. asked the appellant to indicate whether she would sign the funding agreement. The appellant expressed no concerns about her relationship with Mr. Moore or the quality of his services. She indicated she was concerned about delays in the pretrial and that she had just received Mr. Moore’s application to be removed from the record. McMahon J. explained that there had been no delay in the pretrial proceedings and that Mr. Moore was content to act for the appellant if she signed the funding agreement, so he could be paid, but if she did not sign the agreement, he wanted to be removed from the record. [48] Mr. Moore told McMahon J. that the funding agreement also required the appellant to undertake not to retain any counsel other than Mr. Moore, and that if she discharged Mr. Moore, she would agree to the appointment of amicus . Mr. Moore indicated that he understood that the appellant wanted Mr. Moore as one of her lawyers, but she did not want him to be lead counsel. The appellant confirmed Mr. Moore’s understanding. [1] [49] A lengthy dialogue between McMahon J. and the appellant followed. McMahon J. summarized the situation and repeatedly told the appellant her options. He asked her to indicate whether she was prepared to sign the funding agreement. The appellant answered McMahon J.’s questions with different questions. She mentioned that she had spoken to two potential lawyers. [50] Counsel for the Attorney General (Civil) briefly summarized the funding that had been provided to the appellant over the years. He said: At this point, we’re not prepared to fund any further counsel for Ms. Teng. [51] McMahon J. once again summarized the situation for the appellant. He told her that if she did not sign the funding agreement, he would grant Mr. Moore’s request to be removed from the record. He also told the appellant she could try to get another lawyer, but given the history of the matter, and the position of the Attorney General (Civil), she could end up unrepresented at trial on October 31, 2016. McMahon J. adjourned the proceeding to allow the appellant to consider her position and consult with Mr. Moore if she wished to do so. He made it crystal clear that he needed an answer to his question – would the appellant sign the funding agreement? [52] When court reconvened, the appellant continued to refuse to indicate whether she was prepared to sign the funding agreement. She continued to answer McMahon J.’s straightforward question with different questions. After McMahon J. had tried once again to get an answer to his question, and the appellant had responded with more questions, McMahon J. said: I’ve made it clear at least on five occasions this morning you either can have Mr. Moore as your lawyer and the government will pay for it or – and sign it – or don’t sign it. He will be removed as your lawyer and you can try to bring an application to have another lawyer act for you, but I am telling you that there is a risk in doing that, that you may have to represent yourself at trial. So those are the two options, your decision. [53] The appellant continued to avoid the question. McMahon J. repeated her options. He said: Okay, Ms. Teng, as I’ve said many times this morning, it is in your best interest to be represented at your trial by an experienced criminal lawyer. If you select Mr. Moore, you will have a guaranteed experienced criminal lawyer to defend you. If you decide not to have Mr. Moore, you may or may not have any lawyer at your trial. So if you want to be guaranteed of having a lawyer who’s an experienced criminal lawyer represent you at trial, then having Mr. Moore would make sense. It is for you to decide. I can’t make the decision for you. I can just explain the options. [54] Finally, the appellant answered McMahon J.’s question, indicating she would not sign the funding agreement “today”. When the trial judge stated, “Ms. Teng elected not to sign it”, the appellant immediately responded, “I was forced by your influence”. McMahon J. corrected the appellant’s misstatement, indicating it was entirely up to her. [55] Mr. Moore was removed from the record. The appellant was unrepresented from this time forward. (c) Proceedings Between June 30, 2016 and the Commencement of the Trial in October 2016 [56] On July 7, 2016, the appellant was back before McMahon J. When he indicated she had discharged Mr. Moore, the appellant immediately challenged the trial judge, indicating she had not discharged Mr. Moore. She mentioned the two counsel she had identified at the June 30, 2016 proceeding, but said they were not coming to court to represent her before they were paid. McMahon J. adjourned the matter to July 19, 2016 to allow Ms. Teng to attempt to have counsel appear for her. [57] On July 19, 2016, McMahon J. indicated that Mr. Baum had advised the court he was prepared to bring a Rowbotham application on behalf of the appellant. He had apparently faxed a copy of the application to the Crown. McMahon J. asked the appellant if she wanted Mr. Baum to bring a Rowbotham application. As occurred on June 30, 2016, the appellant did not answer the direct, simple question posed by McMahon J. Instead, she raised different, unrelated matters concerning certain transcripts, and the quality of the interpreter that had been provided for her in the proceedings before McMahon J. [58] McMahon J. appointed Mr. Litkowski as amicus . The appellant said she was totally opposed to amicus working for her. McMahon J. explained the role of amicus . He adjourned the proceeding to allow the appellant to speak with Mr. Litkowski. [59] After Mr. Litkowski spoke with the appellant, he advised the court that the appellant had requested a copy of the recent decision of the Supreme Court of Canada in R. v. Jordan . The decision had been released about a week earlier. The appellant had decided to bring a s. 11(b) application and was in the process of preparing her affidavit in support of that application. [60] McMahon J. expressed concern that if there was to be a Rowbotham application, it should be heard as soon as possible, given the pending October 31, 2016 trial date. Mr. Litkowski could only indicate the appellant “seemed to be agreeable” to Mr. Baum bringing a Rowbotham application. The appellant did not tell McMahon J. she wanted Mr. Baum to bring a Rowbotham application. There is no evidence she ever instructed Mr. Baum to bring an application even though she knew he had prepared the necessary documentation as early as mid-July 2016. [61] The appellant appeared in assignment court on a regular basis in July and August 2016. There was some indication in early August that she would be bringing her Rowbotham application on August 26, 2016. August 26 came and went. No Rowbotham application was made. [62] In an appearance on September 6, 2016, the appellant indicated she had another lawyer who was prepared to bring a Rowbotham application. That application was tentatively scheduled for September 28, 2016. McMahon J. indicated that if the application was successful, the trial might be adjourned briefly to January 2017. September 28 came and went. No Rowbotham application was made. [63] At subsequent proceedings, there was a suggestion Mr. Kerbel would bring a Rowbotham application on October 12, 2016. No application was brought. [64] In her many appearances before McMahon J. between the end of June and late October 2016, the appellant was primarily concerned with her s. 11(b) motion. In her dialogue with McMahon J., she demonstrated a firm grasp on the rules applicable to s. 11(b) motions and the materials needed for those motions. (d) Proceedings at Trial Commencing on October 31, 2016 [65] On October 31, 2016, the first day of the trial, the appellant brought a s. 11(b) motion. She was assisted in the preparation of the material and the argument of the motion by amicus . On November 3, 2016, the trial judge dismissed the motion. He provided written reasons shortly afterwards: R. v. Teng , 2017 ONSC 568. [66] On November 3, 2016, the appellant indicated she was being denied her right to a lawyer. She refused to indicate whether she was requesting an adjournment of the trial and declined to participate in the proceeding because she did not have a lawyer. The trial judge took the appellant’s submissions as a request for an adjournment because she could not have a fair trial without a lawyer. The trial judge indicated he had determined in his earlier ruling that the appellant was not actually interested in having a lawyer, but wanted to delay and derail the proceedings. He indicated the proceedings would continue. At the same time, the trial judge set out the parameters for the involvement of amicus . The appellant was opposed to any involvement by amicus . [67] On November 7, 2016, the appellant indicated she had applied to the Court of Appeal for leave to appeal the dismissal of the s. 11(b) motion. The appellant argued that the trial was stayed by virtue of her application to the Court of Appeal. The trial judge refused to stay the trial. [68] Pretrial motions brought by the Crown proceeded between November 7 and 10, 2016. When the trial judge inquired as to whether the appellant intended to challenge jurors for cause or peremptorily, the appellant explained that she needed glasses to be able to “look upon” the perspective jurors. The trial judge offered to arrange for the appellant to sit where she had a better view of the prospective jurors, but the appellant declined the trial judge’s invitation. [69] On November 14, 2016, the appellant took the position that the jury selection could not proceed, as she did not have a lawyer. The trial judge indicated jury selection would proceed on November 17, 2016. [70] On November 15, 2016, the appellant produced a notice of application to quash several search warrants and production orders. There had been no indication at any time during the litigation that the validity of the warrants and the production orders would be challenged. The appellant claimed that jury selection could not proceed until the motion to quash the warrants and production orders had been heard and decided. She told the trial judge she needed time to prepare her application record and factum. The trial judge ruled that any motion to quash the warrants or production orders would be heard after jury selection, and that jury selection would proceed as scheduled on November 17, 2016. [71] After the trial judge indicated the motion to quash the warrants would not delay jury selection, the appellant told the trial judge, for the first time, that she wished to bring a Rowbotham application. According to her, there were many lawyers willing to act for her. [72] Jury selection proceeded on November 17, 18 and 21, 2016. On the morning of November 21, 2016, the appellant renewed her s.11(b) application. The trial judge dismissed the motion. The appellant then filed a written Rowbotham application. The application did not identify any lawyer who was prepared to act for the appellant and no one appeared for the appellant or communicated with the court or the Crown. The trial judge dismissed the Rowbotham motion on November 22 and provided written reasons shortly afterwards: R. v. Teng , 2017 ONSC 277. [73] The trial proceeded over some 20 days to a verdict in January 2017. The appellant was unrepresented throughout the trial. Mr. Litkowski acted as amicus throughout the trial. (iv) The Trial Judge’s Findings of Fact on the Rowbotham Application [74] The trial judge made three important findings of fact: · The appellant “engineered” the “constructive dismissal” of Mr. Moore on June 30, 2016 (Reasons, at paras. 39, 41). · The appellant failed to “make any meaningful effort to retain any other counsel” to replace Mr. Moore between June 30 and the commencement of the trial on October 31 (Reasons, at paras. 39, 43). · The appellant’s actions were motivated by her desire to avoid a trial on the merits (Reasons, at paras. 41, 44). [75] The finding the appellant took no meaningful steps to obtain counsel between Mr. Moore’s removal from the record on June 30, and the commencement of trial at the end of October, is unassailable. Although several dates were set for the Rowbotham application, no application was ever brought, even though to the appellant’s knowledge Mr. Baum had prepared the necessary material by the middle of July 2016. [76] As the trial judge pointed out, the appellant made no reference, even after the trial had started, to the possibility of a Rowbotham application until several other efforts by her to abort or delay the commencement of the trial had failed: Reasons, para. 45. At no time during the trial proceedings did the appellant identify a lawyer who was prepared to act at trial for her, or even prepared to bring a Rowbotham application on her behalf. [77] It is also significant that McMahon J. expressly told the appellant on June 30 that she could bring a Rowbotham application if she did not want to sign the funding agreement put forward by the Attorney General (Civil). If, as is submitted on appeal, the appellant’s real concern was that funding should provide for two and not just one lawyer, the appellant could very easily have sought that relief in a Rowbotham application. I have no doubt that Mr. Moore would have assisted the appellant in that regard. Instead, the appellant chose to take no steps to obtain a Rowbotham order before the trial started. Even when the trial started, the appellant did not seek a Rowbotham order, but repeatedly claimed she could not get a fair trial without a lawyer. [78] The trial judge’s finding, that the appellant had engineered the removal of Mr. Moore on June 30, is also supported by the evidence. The appellant chose to refuse to sign the funding letter, having repeatedly been advised by McMahon J. that Mr. Moore would be removed from the record, and she could well find herself unrepresented at trial. [79] In the proceedings on June 30, the appellant gave two reasons for not signing the funding agreement. Viewed reasonably, neither had any merit. It was only after Mr. Moore indicated the appellant did not want Mr. Moore as her lead counsel that the appellant advanced this explanation for refusing to sign the funding agreement. [80] As explained above, even if the appellant’s desire to have two lawyers could explain her refusal to sign the funding agreement, it offers no explanation for her failure to take any steps to have the court determine whether the funding of two lawyers was essential to a fair trial. The appellant could have brought a Rowbotham application immediately seeking a stay unless the government agreed to fund two lawyers. She brought no such motion and there is no evidence she ever made any inquiries of anyone about the possibility of an application to secure funding for two lawyers. It is a fair inference from the appellant’s actions that she was quite content to be without counsel from June 30 to the commencement of her trial. [81] The trial judge’s finding that the decision to engineer the removal of Mr. Moore on June 30 and the decision to take no meaningful steps to obtain counsel before jury selection were motivated by a desire to avoid trial on the merits is also supported by the evidence. The appellant knew full well, from prior events in the proceedings, that the removal of counsel near a scheduled hearing date could result in lengthy delays of the proceedings. The preliminary inquiry had been delayed by 15 months when the appellant fired Mr. Rosen shortly before the preliminary inquiry was to commence. The trial had been delayed by 13 months when, shortly before the scheduled trial date, Mr. Bains had to be removed from the record for ethical reasons. [82] Had the appellant’s last-minute Rowbotham application succeeded, jury selection would have been aborted, and the trial would inevitably have been delayed for many months while funding was re-negotiated, new counsel was retained, and new trial dates were found and fixed. Nor was there any reason to believe the appellant would have actually retained counsel and been prepared to go to trial with that counsel on any subsequent trial date. [83] Counsel for the appellant submits that it made little sense for the appellant to try and delay her trial. She was in custody, and would presumably remain there, as long as her trial was pending. [84] The strength of the Crown’s case on the murder charge may provide one explanation for the appellant’s desire to avoid a trial on the merits. The record also demonstrates the appellant was keenly aware of the Supreme Court of Canada’s decision in R. v. Jordan . It may be that, from the appellant’s perspective, any further delay could only add fuel to the s. 11(b) claim she had decided to bring. If that claim succeeded, she would, of course, avoid a trial on the merits. As Moldaver J. observed in Jordan , at para. 21: [W]e recognize that some accused persons who are in fact guilty of their charges are content to see their trials delayed for as long as possible. Indeed, there are incentives for them to remain passive in the face of delay. Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. [85] Counsel for the appellant also submits, that even if the trial judge correctly concluded the appellant brought the Rowbotham application to delay and derail the trial, the trial judge was still required to consider whether the appointment of counsel was necessary for a fair trial and, if it was, make a Rowbotham order. The appellant argues that fair trial concerns, and not the appellant’s motivation for bringing the Rowbotham application, should have drove the result on the application. [86] I disagree. To address a motion on its merits, having found that the motion was brought to delay and derail the proceedings, could only be seen as condoning a grave abuse of process. Furthermore, the appellant’s motive for bringing the Rowbotham application cannot be divorced from the merits of the application. On the trial judge’s findings, the appellant did not want counsel. She wanted a reason to delay the trial. It is difficult to understand how one should assess the significance of counsel to the conduct of a fair trial in the face of a strategy which contemplates using the absence of counsel to avoid going to trial. [87] Counsel for the appellant next argues, that by agreeing to fund the appellant’s defence, the Attorney General (Civil) effectively acknowledged the appellant could not get a fair trial without counsel. Counsel for the appellant describes this as a “concession by the Crown” which compels the conclusion counsel was essential to a fair trial for the appellant. [88] While the determination by the Attorney General (Civil) at an earlier stage in the proceeding that an accused should receive funding may have relevance to a judge’s determination of a Rowbotham application brought at a later stage in the proceeding, it had no relevance to the issue on which this particular Rowbotham application turned. On the trial judge’s findings, this application had nothing to do with securing counsel for the purposes of ensuring a fair trial. [89] I would not interfere with the material findings of fact made by the trial judge on the Rowbotham application. On those findings, the application was not a genuine attempt to secure counsel, but was rather an attempt to avoid a trial on the merits. The motion was an abuse of process and the trial judge properly dismissed it on that basis. (v) Did the Appellant Receive a Fair Trial? [90] Counsel correctly contends, that even if the Rowbotham motion was properly dismissed, the accused is entitled to a fair trial and can challenge the fairness of that trial on appeal. The fairness of the appellant’s trial must, however, be assessed in light of the tactical decisions made by the appellant, including her decision to use the absence of counsel to attempt to delay or derail the trial. [91] The trial was fair. The trial judge was acutely aware of the need to ensure that the accused received a fair trial. He also appreciated that the absence of counsel placed an added burden on him to protect the appellant’s fair trial rights. The trial judge took extraordinary steps to do so, including the appointment of a very experienced amicus , whose involvement in many facets of the trial helped to ensure that the Crown’s case was properly tested and arguments available to the defence were properly put before the court. [92] The trial judge not only provided detailed explanations to the appellant of rulings he made and procedures to be followed, he also provided written explanations for many of the procedures. He offered various accommodations to the accused. For example, he suggested that evidence the appellant claimed she wanted to lead in her defence from witnesses who were not available could be placed before the jury by way of the preliminary inquiry transcripts of some of those witnesses. [93] Unfortunately, as the trial progressed, the appellant became progressively more abusive toward the trial judge. She deliberately obstructed his efforts to conduct a fair and orderly trial. She made statements before the jury she had been expressly told she could not make. She refused to answer reasonable questions put to her by the trial judge which were obviously intended to assist the trial judge in ensuring that the appellant received a fair trial. [94] The various exchanges between the trial judge and the appellant concerning potential defence witnesses provides a good example of the trial judge’s patient, if not dogged, attempts to take all reasonable steps to assist the appellant and the appellant’s refusal to accept that assistance. The trial judge’s instructions to the jury when he was eventually forced to remove the appellant from the courtroom during his jury instructions epitomized the fairness with which the trial judge conducted this very difficult trial. [95] The appellant used an interpreter at times during the trial, as she was entitled to do. Nothing on the record, however, suggests any deficiencies the appellant may have had with the English language interfered with her ability to obtain a fair trial. She cross-examined witnesses in a manner that displayed her grasp of the evidence and the applicable rules governing questioning of witnesses. For example, her cross-examination of the pathologist went directly to important points for the defence. [96] Several exchanges during the trial indicate the appellant was able to follow the evidence being given in English. On several occasions, she intervened to ask that a sentence or two from a witness be repeated, as the interpreter had fallen slightly behind in providing an interpretation of the evidence. [97] The appellant addressed the jury in closing argument at great length. Most of her argument was in English. It was coherent and directed to the issues in the case. [98] The appellant’s many exchanges with the trial judge and McMahon J. indicate that she understood very well what was being said to her and was very capable of responding to those comments and setting out her position. She had obviously informed herself with respect to court procedures. She knew the kind of material that had to be filed in respect of various motions, she was able to generate that material expeditiously, and she understood the issues raised in those motions. [99] The appellant also understood what was being said to her by McMahon J. and the trial judge. On many occasions, she corrected both when she believed they had misstated or misrepresented something to her. Her corrections demonstrate an appreciation of distinctions, including legal distinctions that were sometimes relatively subtle. The appellant was clearly not intimidated by the proceedings and was in no way reluctant to speak her mind and advance her position. (vi) Conclusion [100] The trial judge properly dismissed the Rowbotham application and the appellant received a fair trial. Ground #2: The Section 11(b) Claim (Reasons reported at: 2017 ONSC 568) [101] Fifty-seven and one-half months passed between the arrest of the appellant and the scheduled completion of her trial. At the outset of her trial, the appellant brought a motion claiming that her right to a trial within a reasonable time had been violated. She sought a stay of proceedings. The trial judge dismissed the motion. The appellant re-argued the motion, again unsuccessfully, before the trial actually started. [102] The trial judge gave detailed reasons. He concluded that large parts of the total delay (57.5 months) were attributable to the conduct of the defence and should be deducted from the total delay for the purposes of the s. 11(b) analysis. The trial judge was, however, prepared to assume the net delay remained slightly over the 30-month presumptive ceiling set down in Jordan : Reasons, at paras. 82, 126. The burden therefore shifted to the Crown to demonstrate the delay was not unreasonable. [103] The Crown relies on the transitional exceptional circumstance outlined in Jordan . That exceptional circumstance will apply where the delay preceded the release of Jordan in July 2016, and it can be inferred that the parties placed reasonable reliance in the conduct of the case on the law as laid down in the pre- Jordan jurisprudence, particularly R. v. Morin , [1992] 1 S.C.R. 771: see Jordan , at para. 96; R. v. Cody , 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 67-69. [104] There is no reason to think the parties did not rely on the pre- Jordan interpretation of s. 11(b). The question is whether the delay could be said to be reasonable under the analysis laid down in Morin . The trial judge conducted a detailed Morin analysis: Reasons, at paras. 84-125. [105] The appellant submits the trial judge made two errors in his Morin analysis. First, she claims he wrongly attributed certain delays to the defence. I do not accept that submission. Specifically, the appellant argues that much of the delay in the provincial court was caused exclusively by Legal Aid and/or the Attorney General (Civil), who were unnecessarily slow in providing funding for the appellant’s new lawyer. [106] There was no evidence of any unnecessary delay by the authorities in considering the appellant’s third request for funding. The appellant went through three lawyers before she got to the preliminary inquiry. She was aware that with each lawyer she fired it would become more difficult for her to obtain public funding for yet another lawyer. Her decision to unilaterally, and without warning or explanation, fire Mr. Rosen meant that the dates for the preliminary inquiry set by Mr. Rosen were lost and new dates had to be set to accommodate new counsel. This led directly to a delay of some 15 months. I agree with the trial judge’s analysis of the delay caused by the discharge of Mr. Rosen shortly before the preliminary inquiry was to commence: Reasons, at paras. 65-69. [107] The appellant also submits the trial judge failed to give adequate weight to the actual prejudice suffered by Ms. Teng during the delay. She was in custody throughout, sometimes in somewhat difficult circumstances. The appellant submits the trial judge wrongly took into account the appellant’s desire to avoid trial when assessing whether the delay in her trial resulted in any actual prejudice. [108] Again, I cannot agree. Surely, the “exquisite agony” (see R. v. Askov , [1990] 2 S.C.R. 1199) said to be experienced by persons awaiting trial cannot be attributed to persons who are actively engaged in an attempt to manipulate the proceedings so as to avoid going to trial. The trial judge correctly held that prejudice caused to the appellant’s liberty interest while awaiting trial must be assessed in the context of the specific circumstances, including the reason for any delays in bringing the appellant to trial: Reasons, at para. 111. [109] The trial judge properly dismissed the s. 11(b) application. Ground #3: The Alleged Breach of Section 10 of the Charter (i) Overview [110] Both the appellant and Mr. Wang called 9-1-1 after Mr. Wang confronted the appellant about the body he had found wrapped in blankets in the closet. The appellant first told the 9-1-1 operator her husband had died several days ago. She next said he had died two days earlier. The appellant told the operator she did not know the cause of death. The appellant was still speaking to the 9-1-1 operator when two police officers arrived. Officer Kumar arrived first, followed shortly afterward by Officer Shearer. The appellant spoke to both officers separately and made brief statements. [111] At trial, the appellant argued the Crown had failed to prove the statements were voluntary and that the police had violated the appellant’s rights under s. 10(a) and s. 10(b) of the Charter . Amicus argued the statements should be excluded for either or both of those reasons. The trial judge rejected both arguments and ruled the statements admissible: R. v. Teng , 2017 ONSC 567 . [112] On appeal, the appellant relies only on the alleged Charter breaches. The rights created by s. 10(a) and s. 10(b) are triggered by a detention. The question is whether the appellant was detained when she was questioned at her apartment by Officer Kumar, or Officer Shearer. If she was, she was entitled to be told the reason for her detention (s. 10(a)), and advised of her right to retain and instruct counsel (s. 10(b)). (ii) The Evidence [113] When Officer Kumar arrived at the appellant’s apartment, the appellant and the landlord were yelling at each other. Officer Kumar separated the two and directed the appellant into the bedroom. [114] Officer Kumar spoke first with the landlord. Initially, Officer Kumar understood the problem to be related to landlord/tenant concerns. However, the landlord told him the appellant was hiding her husband’s body in the storage area. Officer Kumar confirmed there was a body under some blankets in the storage closet. [115] Officer Kumar’s evidence about his state of mind as the situation unfolded and his understanding of the appellant’s status when he questioned her, was, as the trial judge noted, confusing: Reasons, at para. 34. According to Officer Kumar, finding the body in the storage closet covered in boxes was suspicious. He was concerned that a crime had been committed. He did not know how the husband had died and he did not know what role, if any, the appellant may have played. As far as Officer Kumar was concerned, the appellant may have been involved in his death, or she may have been a victim, or a witness. Officer Kumar also testified that the appellant would not have been allowed to leave the apartment, had she attempted to do so, until the police had a better understanding of the situation. [116] When Officer Shearer arrived, Officer Kumar was speaking with the landlord. Officer Shearer spoke with the appellant. Officer Shearer described the situation as chaotic. He said he was trying to figure out what was going on. Officer Shearer did not know whether any crime had been committed and he did not believe he had any grounds to arrest or detain the appellant. Officer Shearer asked the appellant what happened. In his mind, the follow-up questions were the kind of questions he asks when he arrives at the scene in response to a 9-1-1 call. [117] The appellant told Officer Shearer her husband had died of a heart attack the previous Friday. She said he had many heart attacks. The appellant also told Officer Shearer she had taken the body from the bedroom and put it in the storage area. [118] Shortly after Officer Shearer spoke with the appellant, Officer Kumar spoke with the appellant. He asked her for her identification and she produced a health card. He asked her what happened and she gave him much the same information as she had provided to Officer Shearer. [119] The appellant made no attempt to leave the apartment. It is fair to say, however, that neither officer would have allowed the appellant to leave after the body was found without first speaking with the officers. (iii) Was the Appellant Detained? [120] Not every limitation imposed by the police on the physical movements of an individual amounts to a detention for the purposes of s. 10. Detention under s. 10  refers to a suspension of an individual’s liberty by a significant physical or psychological restraint: R. v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 26, 36, 44; R. v. Suberu , 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 24, 31; R. v. Mann , 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 19; R. v. Le , 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 21. [121] There is no doubt that the appellant’s movements within her apartment were curtailed by the police after they arrived. She was placed in a bedroom to separate her from the landlord. One of the officers also asked her to sit at the kitchen table. She was seated at the table when she spoke to Officer Kumar. [122] The limitations on the appellant’s movements, however, occurred in the context of the police arriving at her apartment in response to a 9-1-1 request from both the appellant and the landlord. Having arrived at the scene with a dead body seemingly secreted in a storage room, the police were understandably attempting to control the scene and sort out the somewhat chaotic and very unusual situation they had encountered. The first order of priority for the police arriving in response to the 9-1-1 call was not to investigate a crime, or target the appellant, but to gain control of the situation. [123] The trial judge correctly concluded the appellant was not physically detained by the police: Reasons, at paras. 43-46. The police had been called to the apartment by the appellant and the landlord. They had to sort out the situation they encountered, at least in a preliminary way. To do so, the police had to gain control over the scene, including the appellant and the landlord who appeared to be angry with each other. The  police had to separate them and make inquiries about the reasons for their 9-1-1 calls: see Suberu , at paras. 29-32. [124] The appellant focuses primarily on her claim that she was psychologically detained when questioned by the police. The trial judge, at para. 32 of his reasons, relying on Grant , at para. 44, described psychological detention as: [E]stablished either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply. [125] There is no suggestion the appellant had any legal obligation to speak with the officers. The appellant submits, however, that a reasonable person in her circumstances would perceive that she had no choice but to answer the officers’ questions. Consequently, her liberty was sufficiently compromised to require the constitutional protections in s. 10. [126] Grant , at para. 44, organizes the circumstances and factors relevant to whether a person is psychologically detained into three groups: (a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation. (b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter. (c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. [127] The appellant accepts that the trial judge properly addressed the circumstances and factors in the first two categories set out above: Reasons, at paras. 47-48. The appellant submits, however, the trial judge failed to consider two specific characteristics of the appellant that were relevant to how a reasonable person in the appellant’s circumstances would perceive her interaction with the police. The appellant contends that her “rudimentary English skills” and her status as a non-citizen were personal characteristics that should have been attributed to the hypothetical reasonable person when assessing whether a reasonable person in the appellant’s shoes would have felt an obligation to answer the questions posed by the police. [128] In his reasons, the trial judge did not refer to the appellant’s facility in the English language or her immigration status as relevant to whether she was detained when questioned by the police. The argument made on appeal as to the relevance of those factors was not raised at trial. [129] Although the submission made on behalf of the appellant focused specifically on the appellant’s English language skills and her status as a non-citizen, [2] I take the submission more broadly, as referring to the appellant’s status as a racialized person with less than a full command of the English language, who had recently arrived in this country. The appellant did not introduce social context evidence or ask the court to take judicial notice of any relevant facts. However, I will assume that in certain situations those features will be relevant to whether a reasonable person in the appellant’s circumstances would regard herself as obliged to comply with the directions or demands of the police. For example, those features could be relevant if the police encountered that individual on the street and asked her questions about where she lived and where she was going. [130] The encounter between the appellant and Officers Kumar and Shearer was, however, far removed from the street encounter described in the above example. The appellant called 9-1-1 for assistance and reported that her husband’s body was in the apartment. By placing the call, she clearly expected and wanted the police to come to her house in connection with her husband’s death. When the police officers arrived, they acted in a professional and non-threatening manner. They asked exactly the kinds of questions one would expect the officers to ask in that situation. In those circumstances, I see no basis upon which to find that the appellant’s status as a recently-arrived, racialized person, who has less than a full command of the English language, would have any effect on her perception of her interaction with the officers who arrived in response to the 9-1-1 calls. [131] The trial judge correctly ruled the statements admissible. Ground #4: The Instruction on Circumstantial Evidence [132] The appellant acknowledges the trial judge’s general instructions on circumstantial evidence were appropriate. She submits, however, that in reference to the circumstantial evidence relevant to the issue of planning and deliberation, the trial judge failed to tell the jury that it must consider and reject other inferences before drawing the inference of planning and deliberation. [133] I see no error in the trial judge’s instructions. He told the jury: In considering these circumstances in relation to the issue of planning and deliberation, you must take into account of course, that each of them may give rise to inferences other than the killing of Mr. Huang, other than that the killing of Mr. Huang was planned and deliberate. [134] The trial judge had reviewed the inferences inconsistent with planning and deliberation, both when explaining the concept of motive to the jury and again when outlining the position of the defence. [135] The appellant points out that the instruction on circumstantial evidence, as applied to after-the-fact conduct, stressed that the evidence could be used to infer guilt only if other explanations were rejected. The appellant submits that the absence of a similar explicit instruction in respect of the circumstantial evidence relevant to planning and deliberation may have led the jury to conclude that it could find planning and deliberation even if it did not reject other explanations for the evidence relied on by the Crown. [136] I disagree. In keeping with the authorities, the trial judge’s instruction on after-the-fact conduct, a kind of circumstantial evidence, stressed the need to consider other possible explanations before drawing the inferences urged by the Crown: see R. v. Calnen , 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 116-17 (per Martin J., in dissent, but not on this point). The instruction did not, however, detract in any way from the trial judge’s general instructions on circumstantial evidence, or his instructions on how the jury should approach the circumstantial evidence relevant to planning and deliberation. If anything, the trial judge’s instructions on after-the-fact conduct evidence would tend to emphasize what the trial judge had said in other parts of his instructions about circumstantial evidence. [137] The trial judge did not err in his instructions on circumstantial evidence. Ground #5: Was the Conviction on the Charge of First-Degree Murder Unreasonable? [138] The Crown alleged that the murder was first-degree murder because the appellant had planned and deliberated on the murder. The trial judge instructed the jury on planning and deliberation. No exception is taken to that instruction. [139] The appellant contends, however, that on the evidence, a properly instructed jury could not, acting judicially, reasonably conclude the Crown had established planning and deliberation beyond a reasonable doubt: R. v. W.H. , 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 28; R. v. Robinson , 2017 ONCA 645, 352 C.C.C. (3d) 503, at paras. 30-31. [140] There was ample evidence of planning and deliberation. That evidence included: · The appellant was the beneficiary of $1.5 to $2 million in life insurance she had placed on her husband’s life in the five months prior to his death; · The killer took several steps to disable Mr. Huang before strangling him to death; and · Before the body had been discovered, the appellant had begun to move her daughter and herself into a new apartment. [141] The appellant argues that the evidence relating to the life insurance policies is in some ways inconsistent with the Crown’s claim that the appellant had decided to murder Mr. Huang to collect on the life insurance policies. Arguments capable of refuting the Crown’s case on planning and deliberation do not render a verdict which rejects those arguments unreasonable. In addition, some of the appellant’s arguments said to contradict planning and deliberation are easily answered by the evidence. [142] For example, the appellant submits, that if the appellant murdered her husband to obtain the life insurance proceeds, why did she wait so long to kill him after the policies were in place, and why did she not make a claim on those policies? The fact is the appellant did not wait very long. The second policy was in place for something less than three months before the body was discovered and the appellant was charged with murder. Nor can much be made for the defence by the failure of the appellant to make a claim on the policies, given the circumstances in which the body was found and the appellant’s arrest on a murder charge within five days of the discovery of the body. [143] Counsel also submits that if the appellant killed Mr. Huang as alleged by the Crown, she would be unable to obtain a death certificate, a prerequisite to advancing a claim under the life insurance policies. Counsel argues that this fatal obvious flaw in the appellant’s supposed plan to kill her husband renders a finding there was a plan unreasonable. [144] There was evidence the appellant had falsely told the landlord that Mr. Huang had gone back to Hong Kong. She told this lie before the landlord discovered Mr. Huang’s body. It is not unreasonable to conclude, that if the appellant had murdered her husband and had she been able to successfully dispose of the body, she may have been able to produce a death certificate in due course. [145] The conviction on first-degree murder was not unreasonable. the sentence appeal [146] The trial judge made an order under s. 743.21 prohibiting the appellant from communicating with her brother-in-law. Her brother-in-law and his wife have custody of the appellant’s young daughter. Under the terms of an earlier family law order, the brother-in-law is obliged to provide information about the appellant’s daughter to the appellant twice a year. [147] As I read the transcript, the appellant was not given any advance notice of the Crown’s intention to seek an order under s. 743.21. When the order was sought, the trial judge had been forced to exclude the appellant from the courtroom because of her conduct. There is no suggestion he erred in doing so. However, the appellant had no opportunity to address the Crown’s request for a s. 743.21 order. [148] The order prohibited the appellant from communicating with her brother-in-law. The order made by the trial judge under s. 743.21 did not conflict with the earlier order made in the family law proceedings, requiring the brother-in-law to provide information to the appellant about her daughter twice a year. That obligation remains. [149] In my view, the order prohibiting the appellant from communicating with the brother of the person she murdered was not inappropriate. Section 743.21, however, allows the court to make an order permitting communications in “conditions specified in the order”. In my view, it would be appropriate to make the order under s. 743.21 subject to any order made in the family law proceedings permitting communication. It strikes me, that to the extent any qualification of the order under s. 743.21 is to be made, that qualification should be made in the best interests of the daughter. That determination is best made in family law proceedings. [150] I would vary the s. 743.21 order in accordance with these reasons. I would ask the parties to agree upon the appropriate wording. conclusion [151] The appeal from conviction is dismissed. Leave to appeal sentence is granted and the order is varied in accordance with these reasons. Released: “November 5, 2021  JMF” “Doherty J.A.” “I agree Fairburn A.C.J.O.” “I agree. Sossin J.A.” [1] The actual funding agreement is not in the record. [2] In their factum, counsel described the appellant’s English language skills as “rudimentary”. The record does not support that characterization, although clearly there were some limits on her ability to speak and understand English.

COURT OF APPEAL FOR ONTARIO CITATION: Restoule v. Canada (Attorney General), 2021 ONCA 779 DATE: 20211105 DOCKET: C66455 & C68595 Strathy C.J.O., Lauwers, Hourigan, Pardu and Brown JJ.A. BETWEEN Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers and Roger Daybutch, on their own behalf and on behalf of all members of the Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson Huron Treaty of 1850 Plaintiffs (Respondents) and The Attorney General of Canada , the Attorney General of Ontario and Her Majesty the Queen in Right of Ontario Defendants ( Appellants / Respondent ) and The Red Rock First Nation and the Whitesand First Nation Third Parties (Respondents) AND BETWEEN: The Chief and Council of Red Rock First Nation, on behalf of the Red Rock First Nation Band of Indians, the Chief and Council of the Whitesand First Nation on behalf of the Whitesand First Nation Band of Indians Plaintiffs (Respondents) and The Attorney General of Canada , and Her Majesty the Queen in Right of Ontario and the Attorney General of Ontario as representing Her Majesty the Queen in Right of Ontario Defendants ( Appellants / Respondent ) Lisa La Horey, Christine Perruzza, Sarah Valair, Mark Crow, Insiyah Kanjee, Richard Ogden, Julia Mc Randall and Kevin Gray, for the appellants the Attorney General of Ontario, Her Majesty the Queen in Right of Ontario, and the Attorney General of Ontario as representing Her Majesty the Queen in Right of Ontario (C66455 & C68595) Catherine Boies Parker, Q.C., David Nahwegahbow, Dianne G. Corbiere, Christopher E.J. Albinati, Daniel G. McCoy and Alexander Kirby, for the respondents Mike Restoule, Patsy Corbiere, Duke Peltier, Peter Recollet, Dean Sayers and Roger Daybutch on their own behalf and on behalf of all members of the Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson Huron Treaty of 1850 (C66455 & C68595) Harley I. Schachter and Kaitlyn E. Lewis, for the respondents the Red Rock First Nation, the Whitesand First Nation, the Chief and Council of Red Rock First Nation on behalf of the Red Rock First Nation Band of Indians, and the Chief and Council of the Whitesand First Nation on behalf of the Whitesand First Nation Band of Indians (C66455 & C68595) Glynis Evans and Scott Warwick, for the respondent the Attorney General of Canada (C66455 & C68595) Brian Gover and Spencer Bass, for the intervener the Biigtigong Nishnaabeg First Nation (C66455 & C68595) Adam S.R. Williamson and Stuart Wuttke, for the intervener the Assembly of First Nations (C66455 & C68595) Thomas Slade and Cory Giordano, for the intervener the Blood Tribe (C66455) Scott Robertson, for the intervener the Indigenous Bar Association of Canada (C66455) Halie Bruce, for the intervener the Union of British Columbia Indian Chiefs (C66455) Heard: April 13, 20-23 and 26-28, 2021; June 1-3, 2021 On appeal from the judgments of Justice Patricia C. Hennessy of the Superior Court of Justice, dated June 17, 2019, with reasons reported at 2018 ONSC 7701, 431 D.L.R. (4th) 32, and 2018 ONSC 7712 (C66455). On appeal from the judgments of Justice Patricia C. Hennessy of the Superior Court of Justice, dated June 26, 2020, with reasons reported at 2020 ONSC 3932, 452 D.L.R. (4th) 604 (C68595). Paragraph Reasons of the Court [1] I. Joint Reasons of the Court [1] Overview [1] Facts [10] Historical Context [10] Pre-Treaty Events [32] The Robinson Treaty Negotiations [43] The Terms of the Robinson Treaties [60] The Post-Treaty Payment of the Annuities [64] The Trial Judge’s Reasons [69] Trifurcation of the Case [69] The Stage One Decision [70] The Stage Two Decision [82] Disposition of the Appeals [84] II. Reasons of Lauwers and Pardu JJ.A [98] Introduction [98] Issue One: Did the Trial Judge Err in Her Interpretation of the Augmentation Clause in the Treaties? [103] The Treaty Text to Be Interpreted [104] The Governing Principles of Treaty Interpretation [105] The Trial Judge’s Interpretation of the Augmentation Clause [115] The Governing Principles Applied [123] Issue Two: Did the Trial Judge Err in Finding that the Doctrine of the Honour of the Crown Obliges the Crown to Increase the Annuities as Part of its Duty to Diligently Implement the Treaties? [231] The Governing Principles Concerning the Honour of the Crown [232] The Trial Judge’s Reasons [243] The Position of Ontario on the Honour of the Crown [246] The Position of Canada on the Honour of the Crown [248] The Principles Concerning the Honour of the Crown Applied [249] Issue Three: Did the Trial Judge Err in Finding There Was No Implied Term for the Indexation of the Annuities? [259] The Trial Decision on Indexation [260] Analysis [264] Issue Four: Did the Trial Judge Err in Her Approach to Remedies? [271] Ontario’s Arguments [277] The Language of the Judgments [278] The Definition of Net Crown Resource-Based Revenues [282] The “Fair Share” Formulation [287] Observations on Stage Three [326] Issue Five: Did the Trial Judge Err in Her Costs Award for the Stage One Proceedings? [334] The Trial Decision on Costs [339] Analysis [342] Disposition [360] III. Reasons of Strathy C.J.O. and Brown J.A. [361] Introduction [361] The Trial Judge’s Interpretation of the Treaties [364] Principles of Treaty Interpretation [388] Standard of Review [389] Position of the Parties [389] Analysis [393] Conclusion [411] Analysis of the Trial Judge’s Interpretation of the Treaties [412] First Error: Failing to Consider the Plain Meaning of the Treaties’ Text [419] Second Error: Finding Ambiguity Where There Was None [436] Third Error: Going Beyond What Was Possible on the Language of the Treaties [445] Fourth Error: Failing to Consider the Only Interpretation that Reconciled Both Parties’ Intentions [451] Reconciling the Parties’ Intentions in a Manner Consistent with the Historical Record [459] Conclusion on Treaty Interpretation [488] The Honour of the Crown [493] The Principles of the Honour of the Crown [493] The Crown’s Obligation to Honourably and Diligently Implement the Robinson Treaties [498] Disposition [505] IV. Reasons of Hourigan J.A. [508] Introduction [508] Analysis [521] Standard of Review [521] Fiduciary Duty [581] Crown Immunity [629] Limitations Defence [632] Disposition [663] APPENDIX “A”: Amended Stage One Judgments By the Court: A. Overview [1] In 1850, the Anishinaabe on the northern shores of Lake Huron and Lake Superior entered into two Treaties with the Crown providing for the cession of a vast territory in northern Ontario. As part of the Treaties, the Crown agreed to pay a perpetual annuity to the Anishinaabe. This litigation centres on the nature of that obligation. [2] The plaintiffs, who are beneficiaries of the Treaties, instituted two actions against Canada and Ontario seeking declaratory and compensatory relief related to the interpretation, implementation and alleged breach of the Treaties’ annuity provisions. The actions, which are being tried together, have been divided into three stages: Stage One involved the interpretation of the Treaties; Stage Two considered the Crown’s defences of Crown immunity and limitations; and Stage Three, which has yet to take place, will determine remaining issues, including damages and the allocation of liability between Canada and Ontario. The appeals before this court are from the partial judgments resulting from the Stage One and Stage Two decisions. [3] In her decision on Stage One, the trial judge held that the Crown has a mandatory and reviewable obligation to increase the Treaties’ annuities when the economic circumstances warrant. To carry out that obligation, the trial judge found that the Crown must: (i) engage in a consultative process to determine the amount of net Crown resource-based revenues from the territories; and (ii) pay an increased annuity amount, reflecting a “fair share”, if there are sufficient Crown resource-based revenues to allow payment without incurring loss . The trial judge further determined that the principle of the honour of the Crown and the doctrine of fiduciary duty impose on the Crown the obligation to diligently implement the purpose of the Treaties’ promise. [4] In her decision on Stage Two, the trial judge held that Crown immunity and provincial limitations legislation did not operate to bar the claims. [5] Ontario appeals. Ontario argues that the trial judge erred in her interpretation of the Treaties and in rejecting its defences of Crown immunity and limitations. [6] The appeals raise several issues. To address these issues, we are issuing both these joint reasons by the court (contained in section I of the reasons) and three sets of individual reasons by (i) Lauwers and Pardu JJ.A. (contained in section II), (ii) Strathy C.J.O. and Brown J.A. (contained in section III), and (iii) Hourigan J.A. (contained in section IV). [7] The joint reasons provide the factual background to the case and summarize the court’s conclusions on the issues arising in the appeals. As we explain, we unanimously reject the majority of the arguments raised on appeal. We dismiss Ontario’s appeal from the Stage Two proceedings in its entirety and grant the appeal from the Stage One proceedings in part, though we part company on whether the trial judge erred in her interpretation of the Treaties and the appropriate remedy. [8] The three sets of individual reasons address in greater detail the particular issues arising in the appeals and provide the rationale and analysis behind our disposition of the various issues. [9] We begin first by reviewing the facts of this case and the trial judge’s reasons. B. Facts (1) Historical Context (a) The Anishinaabe of the Upper Great Lakes (i) Territory and Language [10] The beneficiaries of the Robinson-Huron Treaty and Robinson-Superior Treaty (the “Robinson Treaties” or the “Treaties”) are known as the Anishinaabe of the upper Great Lakes. They are members of several First Nations who historically inhabited and continue to inhabit the north shores of Lake Huron and Lake Superior. Today, the beneficiaries of the Robinson Treaties live on and off reserve. [11] At the time the Treaties were made in 1850, the Anishinaabe of the upper Great Lakes occupied and harvested a territory stretching eastward from the vicinity of present-day Thunder Bay, across the northern shores of Lake Superior and Lake Huron, to Lake Temiskaming, on the present-day border between Ontario and Quebec. The Robinson Treaties cover a territory that includes the current communities of Thunder Bay, Sault Ste. Marie, Sudbury, and North Bay, among others. [12] Within this territory, the Anishinaabe were organized in Bands, occupying discrete territories. Bands considered their territories to be communal property. Band members spoke various dialects of Anishinaabemowin, the language of the Anishinaabe. (ii) Governance [13] The Anishinaabe have their own systems of governance. At trial, Elder Fred Kelly described two of the organizing principles of Anishinaabe law and governance: pimaatiziwin and gizhewaadiziwin . Pimaatiziwin is the principle that everything is alive and sacred. Gizhewaadiziwin , the way of the Creator, encompasses the seven sacred laws of creation. Anishinaabe governance also includes values of trust, responsibility, reciprocity, and renewal, and the understandings that the world is deeply interconnected, and that people must rely on one another to thrive. [14] Ishkode , or fire, is also central to Anishinaabe governance and politics. In the Great Lakes region, ishkode could refer to the place where a family lived, to small or large gatherings, or even to an entire nation. “Council fire” could refer to the location where meetings were held and where decisions and agreements were made. The Anishinaabe had a complex network of council fires, which were hosted by an Ogimaa (a Chief or leader). Ogimaa were characterized by their prior accomplishments and were expected to be responsible for and generous to their people. Ogimaa were not rulers; the Anishinaabe decision-making process was deliberative and consensus based. [15] The trial judge found that the Anishinaabe system of governance within the Treaty territories was continuous and longstanding. [1] (b) The Relationship Between the Anishinaabe and Colonial Actors (i) The Covenant Chain Alliance [16] The relationship between the Anishinaabe and the Crown was informed by the Covenant Chain Alliance. While the Covenant Chain originally referred to the alliance between the Haudenosaunee Confederacy and the British in the early 17th century, the relationship later extended to Western Nations, including the Anishinaabe of the upper Great Lakes. [17] The Covenant Chain Alliance was symbolized by a ship tied to a tree, connected with rope and iron, which later became silver. The rope represented an alliance of equals, iron represented strength, and silver represented durability and beauty. The metaphor suggested that if one party was in need, they only had to “tug on the rope” to give a signal that something was amiss and “all would be restored”. [18] The westward extension of the Covenant Chain Alliance was a strategic military decision by the British, who sought to secure the neutrality of Western Nations, including the Anishinaabe, who had previously fought alongside the French during the Seven Years War. [19] The British were not entirely successful in their efforts. In 1763, Odawa Chief Pontiac, joined by Anishinaabe warriors, led an uprising against the British. In response, the imperial government issued the Royal Proclamation of 1763 (the “Royal Proclamation”) to encourage peace, stability, and further settlement and development in the region. [20] The trial judge found that the Covenant Chain Alliance was a notable example of the cross-cultural merging of diplomatic protocols and legal orders. These shared protocols continued in the decades leading up to the Robinson Treaties. [2] (ii) The Royal Proclamation and the Council at Niagara [21] The Royal Proclamation represented a unilateral declaration of Crown sovereignty over what is now Canada, while also affirming Aboriginal title and ownership of unpurchased lands. It represented, as the trial judge described it, a “foundational moment” in the history of Canada’s relationship with Indigenous peoples. [3] [22] The Royal Proclamation created rules for the purchase and sale of “Indian lands” to prevent fraud and abuse. It prohibited private individuals from purchasing Indian lands and stipulated that Indian lands could only be surrendered to the Crown at a public meeting, in exchange for compensation. Ultimately, the trial judge found that the “motivation for and the fundamental concepts in the Robinson Treaties flow from the Royal Proclamation .” [4] [23] After the Royal Proclamation was made, a Council was held at Niagara in 1764 between Crown representatives and over 1700 Indigenous people, including representatives of the Anishinaabe. At the Council, gifts and wampum belts, including the Great sCovenant Chain Wampum, were exchanged. [24] The Royal Proclamation and the Council at Niagara communicated to the Anishinaabe of the upper Great Lakes and other First Nations that their autonomy and the title to their lands would be maintained and protected. The Royal Proclamation became a crucial part of the Covenant Chain relationship between the Anishinaabe and the British. (iii) The War of 1812 (1812-1815) [25] As members of the Covenant Chain relationship, Anishinaabe warriors fought alongside the British in the War of 1812. Some of those warriors played prominent roles in the negotiation of the Robinson Treaties. One such warrior was Chief Shingwaukonse, a key player in the events leading up to the Robinson Treaties and a participant in the Robinson Treaty Council. [26] The Anishinaabe saw their military alliance with the Crown as an important part of the ongoing relationship. (c) Civilization Policy and Annuities (i) The Annuity Model [27] Beginning in 1818, driven by increased immigration, the Crown changed the compensation model for land cession treaties. It moved from a one-time lump-sum payment or distribution to an annuity. The assumption was that land sales to settlers would generate sufficient funds to finance the annual payments in perpetuity and allow the Crown to control its cash flow. [28] Annuity payments were structured on a population model. In 1818, the Crown set the annuity amount at two and a half pounds (the equivalent of $10) per person. This amount was used until 1850 in treaties negotiated in the southern portions of Upper Canada and, after 1841, in Canada West, irrespective of the size or value of the land ceded. (ii) Civilization Policy [29] As settlement and agricultural development in Upper Canada increased, and the need for military alliances with Indigenous communities decreased, the colonial government changed its Indigenous relations policy. [30] Until 1820, the Indian Department was a military department, tasked with maintaining the Crown’s military alliance with Indigenous nations. When the Crown’s need for that alliance diminished, the department’s objectives changed from military to civil control. A “civilization” policy was implemented, seeking to “reclaim” Indigenous peoples from “barbarism” and assimilate them into a Christian, agrarian life. [31] The civilization policy influenced the Crown’s approach to treaty-making, and, more specifically, annuity payments. One result of this policy was stronger controls and guidelines for annuity payments, intended to prevent the “misuse” of the funds. In 1830, the Colborne Policy mandated that annuities be paid through a requisition system, whereby Chiefs could request items that promoted a sedentary, agricultural, European way of life. The Colborne Policy was in place during the negotiation of the Robinson Treaties in 1850. (2) Pre-Treaty Events (a) Mining in the Upper Great Lakes Region [32] During the 1840s, prospectors began exploring for valuable minerals on the south side of Lake Superior. “Copper fever” soon moved north. Despite the absence of a treaty with the Anishinaabe of the upper Great Lakes, in 1845 the Crown began to issue mining licences for the region. [33] The issuance of mining licences and the encroachment of prospecting miners onto their lands prompted vigorous complaints from the Anishinaabe. Between 1846 and 1849, Anishinaabe Chiefs, including Chief Shingwaukonse, wrote petitions and memorials and met with government leaders to assert claims over their territory and to request compensation. The Anishinaabe Chiefs reminded the Crown of their long history of treaty-making, past promises made by the Crown to respect and protect their lands, and their military support of the Crown through alliances. The Chiefs requested compensation in various forms, including payment for resources already taken and those still to be taken, and a share of the benefits from mining. [34] As the trial judge noted, the tension generated by Crown-sanctioned mining exploration was one of the triggers for the negotiation of the Robinson Treaties. [5] (b) Vidal-Anderson Commission (1849) [35] In 1849, the government appointed a commission to investigate the Anishinaabe grievances. Provincial land surveyor Alexander Vidal and Indian Superintendent Thomas G. Anderson were instructed to travel to the northern shores of Lake Huron and Lake Superior to investigate the Anishinaabe’s claims to the land, the size and dispersion of the Anishinaabe population, and their use of their territory. Vidal and Anderson were also asked to assess the Anishinaabe’s expectations for a potential treaty. During their travels, Vidal and Anderson met with 16 of the 22 Anishinaabe Chiefs. [36] The Vidal-Anderson Commission reported on December 5, 1849. The report made several observations, conclusions, and recommendations, including: · the Anishinaabe’s land claim was legitimate; · the land was unlikely to be useful for agriculture; · although neither the Anishinaabe, nor the commissioners, knew the monetary value of the territory, its value was understood to stem from revenue from mining locations and surveyed lots at Sault Ste. Marie; · despite encountering treaty demands from the Chiefs that they considered unreasonable, Vidal and Anderson concluded that the Anishinaabe were willing to treat, provided that they could remain in their communities, that they could continue to hunt and fish, and that a perpetual annuity be provided as compensation; · Vidal and Anderson recommended that the Crown seek a surrender of the whole territory, rather than compensating the Anishinaabe only for the mining locations granted because: o the land was comparatively valueless; o some land had already been taken; o going forward, this would allow the government to dispose of the land “without embarrassment” (meaning without encumbrance in modern terminology); and o this would assist the Anishinaabe who were experiencing increasing scarcity of food and clothing; · Vidal and Anderson recommended that a lower than usual annuity should be offered, given that: o the land’s only value derived from the copper deposits along the lake shores; o the Anishinaabe would retain their hunting and fishing rights, relinquishing nothing but land title; and o the Anishinaabe would be no poorer once they ceded the land to settlers, because trade with the settlers would enable them to draw wealth from their territory; · Vidal and Anderson strongly recommended that, after the first payment, subsequent payments be made in clothing, provisions, goods, and implements, and should include an annual appropriation for establishing and maintaining schools; and · because little was known about the value of the territory, Vidal and Anderson recommended including a treaty provision that would, if necessary, promise an increase of payment upon further discovery or development of new sources of wealth. [37] Vidal and Anderson proposed a compensation model that would take into account the discovery of new wealth in the territory. This was a new approach to treaty-making in Canada. While this idea had been suggested previously by Anishinaabe leaders, including Chief Shingwaukonse, the Vidal-Anderson Report is the first record of government officials engaging with it. The trial judge found that the Commissioners’ report prepared the Crown for treaty discussions “that would require an innovative solution to bridging the gap between the parties’ expectations”. [6] (c) The Mica Bay Incident (1849) [38] The Anishinaabe’s concerns about encroachments on their traditional lands were not assuaged by Vidal and Anderson’s visit. They were frustrated by government inaction after three years of discussions about a diplomatic settlement to their claims. [39] While Vidal and Anderson travelled back to Toronto from the upper Great Lakes region, Chief Shingwaukonse and Chief Nebenaigoching led a party of 100 Anishinaabe to occupy a mining site at Mica Bay. Upon learning of the Anishinaabe’s march towards Mica Bay on November 19, 1849, Governor General Lord Elgin issued an Order in Council (“OIC”) authorizing the arrest of the participants. The Governor General also directed the provincial government to make a treaty with the Anishinaabe of the upper Great Lakes to finally resolve their outstanding claims. [40] Chief Shingwaukonse and Chief Nebenaigoching, along with their lawyer, Allan Macdonell, were arrested and brought to a Toronto jail. While in Toronto, the Chiefs met with William B. Robinson. [41] Robinson was a politician and a member of the Executive Council of government, and he had experience in the fur trade, the mining sector, and the treaty-making process. The trial judge noted that Robinson had “excellent relations” with the Anishinaabe and spoke some Anishinaabemowin. [7] [42] Shortly after he met with Chief Shingwaukonse and Chief Nebenaigoching, Robinson offered his assistance to resolve the claims of the Anishinaabe of the upper Great Lakes. On January 11, 1850, the provincial government issued an OIC appointing Robinson as Treaty Commissioner for the negotiations. (3) The Robinson Treaty Negotiations (a) Instructions to Robinson [43] Robinson’s mandate was set out in two OICs. The second, dated April 16, 1850, provided detailed instructions in response to Robinson’s request for guidance. Robinson was to endeavor to secure a treaty that covered all of the territory on the northern shores of Lake Huron and Lake Superior on the following terms: · the smallest possible initial payment (less than £5000); · a perpetual annuity no higher than what could be generated through interest on the notional capital sum of £25,000 less the initial payment; and · a provision for a deduction in the annuity if the population fell below 600. [44] As a “bottom line” alternative, Robinson was to negotiate the surrender of the north eastern coast of Lake Huron and the Lake Superior Coast that included the mining operations at Mica Bay and Michipicoten. [45] The trial judge identified two concerns likely to have influenced the limited financial authority given to Robinson. [8] First, the Government was of the view that the Anishinaabe were not giving up much, given that the land was not suitable for agriculture and that they would continue to live, hunt, and fish on the territories after a treaty was signed. Second, the Province of Canada was in financial crisis. Robinson was aware, prior to the treaty negotiations, that the amounts available to him could not support the standard $10 per person annuity that had been provided in other treaties negotiated since 1818. (b) The Treaty Council [46] The treaty negotiations took place over three weeks in the late summer of 1850. As the trial judge noted, Robinson’s diary and his Official Report were the only documents identified at trial that provided details of the Treaty Council. [9] [47] Robinson first met with the Superior and Huron delegations, separately, in Sault Ste. Marie (known to the Anishinaabe as Bawaating) and Garden River, respectively. Robinson met with the Superior delegation, led by Chief Peau de Chat, for significantly longer than he did with the Huron delegation, led by Chief Shingwaukonse. The two delegations then came together in Bawaating on September 5, 1850 for the substantive treaty discussions. [48] The Treaty Council at Bawaating was conducted in Anishinaabemowin and English, and incorporated ceremonies and protocols characteristic of Great Lakes diplomacy. The trial judge noted that these ceremonies indicated that the Crown actors had developed a functional understanding of Anishinaabe law, diplomacy, and language. [10] [49] Robinson’s initial proposal regarding reasonable reservations for the Anishinaabe and continued hunting rights throughout the ceded territory was accepted without further discussion. The provisions for reserves and the protection of harvesting rights were, according to the trial judge, more expansive than the Crown’s standard practice. [11] [50] Robinson then discussed compensation. The Anishinaabe delegations preferred a perpetual annuity in exchange for the entire territory, rather than a lump-sum payment for only the existing mining locations. Given this preference, Robinson outlined the Crown’s proposal, offering the entirety of the cash he had in hand: £4,000 ($16,000) in cash, and a perpetual annuity of £1,000, both amounts to be divided between the Superior and Huron First Nations. [51] Knowing that this proposal was lower than prior treaties, Robinson sought to justify it based on the unique nature of the land and other promises included in the Treaty. As the trial judge summarized, Robinson explained that: · the land was vast and “notoriously barren and sterile” when compared to the good quality lands in Upper Canada that were sold readily at prices which enabled the Government to be more liberal with compensation; · the settlers occupied the land covered by prior treaties in a way that precluded the possibility of Indian hunting or access to them, whereas the Anishinaabe would retain such rights over the lands ceded; · in all probability the lands in question would never be settled except in a few localities by mining companies; and · the occupation by settlers would be of great benefit to the Anishinaabe, who would gain a market for selling items and access to provisions at reasonable prices. [12] [52] Chief Peau de Chat of the Superior delegation expressed his satisfaction with Robinson’s initial proposal and requested a day to reply to Robinson’s offer. Chief Shingwaukonse, from the Huron delegation, also asked for time to respond. The Chiefs both had to speak to their own Councils and determine their responses to Robinson’s offer, based on consensus. [53] The next day, Chief Peau de Chat told Robinson that the Superior delegation was prepared to sign a treaty. Chief Shingwaukonse of the Huron delegation, on the other hand, was not. Chief Shingwaukonse made a counterproposal for an annuity of $10 per head. Robinson rejected this proposal, telling Chief Shingwaukonse that a majority of the Chiefs were in favour of the terms and that he was going to write up the Treaties on the basis approved by the Superior delegation. [54] After scrutinizing the timing of Robinson’s initial offer and the Superior delegation’s response, the trial judge found that Robinson’s initial offer included the notion of an augmentation clause. [13] She found that there was “no other reasonable conclusion”. [14] The proposed augmentation clause stipulated that the annuity would increase if revenues received from the territory permitted the government to do so without incurring loss. [55] On September 7, 1850, Robinson read the Robinson-Superior Treaty aloud to the Superior delegation. Translation services were provided. Chief Peau de Chat told Robinson he understood the Treaty and was ready to sign it. [56] Robinson met with the Huron delegation later that day. Chief Shingwaukonse repeated his counterproposal. Robinson responded with an ultimatum: those who signed the Treaty would receive compensation for their people, and those who did not would receive no such compensation and would have no treaty. [57] On September 9, 1850, Chief Shingwaukonse and Chief Nebenaigoching once again asked Robinson for a $10 per person annuity and raised the subject of land grants for the Métis. Robinson rejected their requests and had the Robinson-Huron Treaty read aloud to the delegation. When Chiefs Shingwaukonse and Nebenaigoching saw that other Chiefs in the Huron delegation were prepared to accept the proposed terms, they signed the Treaty. [58] Ultimately, the Robinson-Huron Treaty was substantially the same as the Robinson-Superior Treaty, but because the Huron population was greater the initial annuity amount was set at £600, whereas the Robinson-Superior Treaty stipulated £500. [59] Once the Treaties were signed, Robinson paid the Chiefs the initial sum. The Treaties were presented to Prime Minister Louis-Hippolyte LaFontaine on September 19, 1850. Robinson’s final report, dated September 24, 1850, was delivered to Indian Superintendent Colonel Robert Bruce. An OIC, dated November 29, 1850, declared that the Treaties were to be ratified and confirmed. (4) The Terms of the Robinson Treaties [60] The Robinson Treaties each have a surrender clause, a consideration clause, and an augmentation clause, among other terms. The trial judge set out transcriptions of both Treaties from an 1891 text. [15] (a) The Robinson-Superior Treaty [61] The trial judge reproduced the following excerpts of the Robinson-Superior Treaty: The Surrender Clause [The Anishinaabe of the Lake Superior territory] from Batchewanaung Bay to Pigeon River, at the western extremity of said lake, and inland throughout that extent to the height of the land which separates the territory covered by the charter of the Honorable the Hudson’s Bay Company from the said tract [and] also the islands in the said lake … freely, fully and voluntarily surrender, cede, grant and convey unto Her Majesty, Her heirs and successors forever, all their right, title and interest in the whole of the territory above described [except for certain reservations (three in all) set out in the annexed schedule]…. [16] The Consideration Clause [F]or and in consideration of the sum of two thousand pounds of good and lawful money of Upper Canada to them in hand paid; and for the further perpetual annuity of five hundred pounds, the same to be paid and delivered to the said Chiefs and their Tribes at a convenient season of each summer, not later than the first day of August at the Honorable the Hudson’s Bay Company’s Posts of Michipicoton and Fort William.... [17] The Augmentation Clause The said William Benjamin Robinson, on behalf of Her Majesty, who desires to deal liberally and justly with all Her subjects, further promises and agrees that in case the territory hereby ceded by the parties of the second part shall at any future period produce an amount which will enable the Government of this Province, without incurring loss, to increase the annuity hereby secured to them, then and in that case the same shall be augmented from time to time, provided that the amount paid to each individual shall not exceed the sum of one pound Provincial currency in any one year, or such further sum as Her Majesty may be graciously pleased to order; and provided, further, that the number of Indians entitled to the benefit of this Treaty shall amount to two-thirds of their present number (which is twelve hundred and forty), to entitle them to claim the full benefit thereof, and should their numbers at any future period amount to two-thirds of twelve hundred and forty, the annuity shall be diminished in proportion to their actual numbers. [18] (b) The Robinson-Huron Treaty [62] The trial judge reproduced the following excerpts of the Robinson-Huron Treaty: The Surrender Clause [The Anishinaabe i]nhabiting and claiming the eastern and northern shores of Lake Huron from Penetanguishene to Sault Ste. Marie, and thence to Batchewanaung Bay on the northern shore of Lake Superior, together with the islands in the said lakes opposite to the shore thereof, and inland to the height of land which separate the territory covered by the charter of the Honorable Hudson’s Bay Company from Canada, as well as all unconceded lands within the limits of Canada West to which they have any just claim … on behalf of their respective tribes or bands, do hereby fully, freely and voluntarily surrender, cede, grant, and convey unto Her Majesty, Her heirs and successors for ever, all their right, title and interest to and in the whole of the territory above described [except for certain reservations (15 in all) set forth in the annexed schedule]…. [19] The Consideration Clause [F]or and in consideration of the sum of two thousand pounds of good and lawful money of Upper Canada to them in hand paid, and for the further perpetual annuity of six hundred pounds of like money, the same to be paid and delivered to the said Chiefs and their tribes at a convenient season of each year, of which due notice will be given, at such places as may be appointed for that purpose…. [20] [63] The augmentation clause in the Robinson-Huron Treaty is not materially different from the augmentation clause in the Robinson-Superior Treaty. It states: The Augmentation Clause The said William Benjamin Robinson, on behalf of Her Majesty, Who desires to deal liberally and justly with all Her subjects, further promises and agrees that should the territory hereby ceded by the parties of the second part at any future period produce such an amount which will enable the Government of this Province, without incurring loss, to increase the annuity hereby secured to them, then and in that case the same shall be augmented from time to time, provided that the amount paid to each individual shall not exceed the sum of one pound Provincial currency in any one year, or such further sum as Her Majesty may be graciously pleased to order; and provided further that the number of Indians entitled to the benefit of this treaty shall amount to two-thirds of their present number, which is fourteen hundred and twenty-two, to entitle them to claim the full benefit thereof; and should they not at any future period amount to two-thirds of fourteen hundred and twenty-two, then the said annuity shall be diminished in proportion to their actual numbers. [21] (5) The Post-Treaty Payment of the Annuities [64] Based on the population of the Anishinaabe in 1850, the annuity (£600 for the Robinson-Huron Treaty and £500 for the Robinson-Superior Treaty) was approximately $1.70 and $1.60 per person, respectively. The method of distribution of the annuities was slightly different as between the Superior and Huron beneficiaries. [65] Throughout the 1850s the Hudson’s Bay Company distributed the Robinson-Superior Treaty annuity payments in cash to the head of each family for nearly 25 years. [66] Between 1851 and 1854, the Robinson-Huron Treaty annuities were paid in goods to each Band. No individual cash payments were made. Beginning in 1855, the Crown paid the annuity, in cash, to the Robinson-Huron Treaty beneficiaries. [67] In 1875, the annuity was increased to $4 (£1) per person. This was the first and only time the annuity has been augmented; it has not changed since. In 1877, the Chiefs petitioned for arrears for the period of 1850-1874, arguing that the economic circumstances for an increase to $4 existed long before 1875. Payment of arrears eventually began in 1903. [68] Part of the reason for the delay in the payment of arrears was a dispute about who was constitutionally required to pay them. In 1895, an arbitration panel determined that Ontario became responsible for paying augmented annuities after Confederation. Ontario appealed that decision to the Supreme Court, which granted the appeal. [22] Canada’s further appeal to the Judicial Committee of the Privy Council was dismissed. [23] C. The Trial Judge’s Reasons (1) Trifurcation of the Case [69] As noted above, the litigation surrounding the Robinson Treaties has been divided into three stages. Stage One proceeded by way of summary judgment motions and considered the interpretation of the Treaties. Stage Two, which also proceeded as summary judgment motions, considered Ontario’s defences of Crown immunity and limitations. Stage Three, which has yet to take place, will determine the remaining issues, including damages and the allocation of liability between Canada and Ontario. (2) The Stage One Decision (a) Overview of the Trial Judge’s Decision [70] In her decision on Stage One, the trial judge held that the Crown has a mandatory and reviewable obligation to increase the Robinson Treaties’ annuities. [24] She found that the Crown must engage in a consultative process with the Treaty beneficiaries and pay an increased annuity amount, reflecting a “fair share”, if there are sufficient Crown resource-based revenues to allow payment without incurring loss. [25] The trial judge interpreted the £1 (or $4) limit in the Treaties’ augmentation clause to apply only to “distributive” payments to individuals, not as a limit or cap on the total collective annuity. [26] [71] The trial judge also found that both the principle of the honour of the Crown and the doctrine of fiduciary duty impose on the Crown the obligation to diligently implement the purpose of the Treaties’ promise. [27] Further, the trial judge provided guiding principles for what constitutes relevant Crown revenues and expenses. [28] Finally, the trial judge rejected Ontario’s submission that an indexation term could be implied in the Treaties. [29] (b) Treaty Interpretation [72] The trial judge sought to engage in a purposive interpretation of the Treaties, to find the common intention of the parties, pursuant to the three steps set out in Marshall . [30] [73] At step one, the trial judge found that the Treaties were ambiguous with respect to whether the annuity was a “collective” or an “individual” entitlement, and whether the parties intended to limit the collective annuity to £1 ($4) per person. [31] [74] At step two, the trial judge considered the historical and cultural context leading up to the Treaties. She analyzed the perspective of the Anishinaabe and the Crown, as well as the post-Treaty evidence. [32] She concluded that the Anishinaabe understood the Treaties as an agreement to live in harmony with settlers and to maintain a relationship in evolving circumstances. [33] At the same time, the trial judge acknowledged that the Crown was in a dire financial situation but knew that it needed the consent of the Anishinaabe to fully access the wealth and benefits of the territory. [34] The trial judge also concluded that the post-Treaty record was vague and inconsistent and was therefore of limited assistance to understanding the parties’ common intention. [35] [75] At step three, the trial judge laid out three possible interpretations of the augmentation clause, based on her understanding of the positions of the parties in 1850: 1. the Crown’s promise was capped at $4 per person; once the annuity was increased to an amount equivalent to $4 per person, the Crown had no further liability; or 2. the Crown was obliged to make orders “as Her Majesty may be graciously pleased to order” for further payments above $4 per person when the economic circumstances permitted the Crown to do so without incurring loss; or 3. the Treaties were a collective promise to share the revenues from the territory with the collective; the Crown was obliged to increase the lump sum annuity so long as the economic condition was met; the reference to $4 in the augmentation clause was a limit only on the amount that may be distributed to individuals. [36] [76] The trial judge concluded that the third interpretation best reflected the common intention of the parties in 1850. [37] She noted that an augmentation clause linked to revenues was an innovative solution that reconciled the diverging expectations of the Anishinaabe and the Crown. [38] Ultimately, the Treaties were intended to renew and reinforce an ongoing relationship. (c) Crown Obligations and Discretion [77] The trial judge concluded that the principle of the honour of the Crown and the doctrine of fiduciary duty impose an obligation to diligently implement the Treaties’ promise to achieve their purpose. [39] Specifically, the trial judge held that the Crown has a duty to engage in a process to determine whether the annuities can be increased without incurring loss. [40] Further, the Crown does not have unfettered discretion on whether or how to make increases to the annuities but does maintain significant discretion in implementing the Treaties. [41] [78] The trial judge found that a sui generis fiduciary duty did not arise from the Treaties’ promise. [42] However, she held that the Crown has an ad hoc fiduciary duty because: (i) the Crown undertook to act in the best interests of the Anishinaabe and had no other conflicting demands when engaging in a process to implement the augmentation clause; (ii) the beneficiaries constitute a defined class of persons vulnerable to the Crown’s control; and (iii) the beneficiaries stood to be adversely affected because of the discretionary control of the Crown over the annuity increase. [43] The purpose of this duty is to “facilitate supervision of the high degree of discretionary control assumed by the Crown over the lives of Indigenous peoples”. [44] (d) Implementation of the Treaty Promise [79] The trial judge largely left the practical aspects of implementation to Stage Three of the litigation. However, she provided some general principles as a “starting point”, subject to further clarification and direction from the court. [45] She outlined the following guiding principles to aid the parties in determining what constitutes relevant Crown revenues and expenses, what constitutes a fair share of net Crown revenues, and the Crown’s duties of disclosure and consultation: · Crown resource-based revenues are those that arise directly or in a closely related way to the use, sale or licensing of land (including water) in the Treaty territory, including mineral and lumber revenues and other analogous revenues. Personal, corporate, and property tax revenues are not included; · Crown expenses are expenses related to collecting, regulating and supporting relevant revenues, but do not include the costs of infrastructure and institutions built with tax revenues; · it is impossible to gauge what a “fair share” of new Crown revenues is, but a fair share does not include the Treaty beneficiaries taking 100 percent of the net benefits from the Crown; · the Crown has a duty to disclose sufficient information for the purpose of determining net Crown resource-based revenues; and · the Crown may have a duty to consult when implementing the Treaty promise, given that its conduct may have an adverse impact on a Treaty right. [46] (e) Implied Indexation Term [80] The trial judge rejected Ontario’s claim (and the Huron and Superior Plaintiffs’ alternative claim) that a term should be implied that the Treaty annuities would be indexed for inflation. The Huron and Superior Plaintiffs and Ontario accepted that the phenomenon of persistent inflation was not within the contemplation of the parties at the time the Treaties were signed, but argued that the parties would have included such a term had they known that the purchasing power of the annuities would be eroded over time. The trial judge found that this would effectively be “imputing knowledge of one historical fact in the absence of the constellation of other historical facts”. [47] Moreover, the effects of inflation could be addressed adequately through the augmentation of the annuity. [48] The trial judge acknowledged, however, that if an appellate court were to find that the augmentation clause does not operate as she found, a second look at the indexing claim would be necessary. [49] (f) Costs [81] The trial judge awarded costs to the Huron Plaintiffs and the Superior Plaintiffs on a partial indemnity basis, fixed at 85 percent of their fees and 100 percent of disbursements. [50] The Huron Plaintiffs were ultimately awarded a total of $9,412,447.50 and the Superior Plaintiffs were awarded $5,148,894.45. (3) The Stage Two Decision [82] In her decision on Stage Two, the trial judge held that Crown immunity and provincial limitations legislation did not operate to bar the Huron Plaintiffs’ and Superior Plaintiffs’ claims. First, she rejected Ontario’s argument that Crown immunity shielded the Crown from claims for breach of fiduciary duty arising prior to September 1, 1963, being the date of the coming into force of the Proceedings Against the Crown Act (“ PACA ”). [51] Second, she dismissed Ontario’s argument that claims for treaty breaches are properly characterized as claims on a “simple contract” or a “speciality”, or as an “action of account”, and therefore statute barred by the former Limitations Act (the “1990 Limitations Act ”). [52] Third, the trial judge discussed in obiter that, had it been necessary to do so, she would have held that the Nowegijick principles and the principle of the honour of the Crown applied when interpreting the Crown’s statutory defences. [53] [83] The trial judge accordingly granted partial summary judgment for the Huron and Superior Plaintiffs on the questions of limitations and Crown immunity. She deferred until Stage Three the issue of whether Ontario and Canada a re jointly and severally liable or in the alternative whether Canada is the paymaster. D. Disposition of the Appeals [84] As noted at the outset, we have written these joint reasons to summarize the background to this case and our disposition of the appeals. Our individual reasons further explain the basis of our disposition of the various issues raised. These issues are the following: 1. What is the standard of review for treaty interpretation? 2. Did the trial judge err in her interpretation of the augmentation clause in the Treaties? 3. Did the trial judge err in finding that the honour of the Crown requires the Crown to act honourably in fulfilling the Treaties’ promise? 4. Did the trial judge err in finding that the Crown’s discretion to augment the annuities is justiciable and not unfettered? 5. Did the trial judge err in finding that the Crown is under a fiduciary duty regarding the augmentation clause in the Treaties? 6. Did the trial judge err in finding that the Crown is not immune from breaches of fiduciary duty prior to 1963? 7. Did the trial judge err in finding that provincial limitations legislation does not bar the claims for breach of the Treaties? 8. Did the trial judge err in finding that there was no implied term for the indexation of the annuities? 9. Did the trial judge err in her costs award for the Stage One proceedings? 10. Did the trial judge err in her approach to remedies in the Stage One proceedings? [85] First, on the issue of the standard of review for treaty interpretation, Strathy C.J.O. and Brown J.A. conclude that the trial judge’s interpretation of the Treaties is reviewable on a correctness standard. Lauwers J.A. concurs. Hourigan J.A., in contrast, concludes that treaty interpretation is reviewable on a standard of palpable and overriding error, absent extricable errors of law, which are reviewed on a correctness standard. Pardu J.A. concurs with Hourigan J.A. [86] Second, on the issue of the trial judge’s interpretation of the Treaties, Lauwers and Pardu JJ.A. hold that the trial judge did not err in her interpretation of the Treaties’ augmentation clause. Hourigan J.A. concurs. Conversely, Strathy C.J.O. and Brown J.A. hold that the trial judge committed errors of law in her interpretation of the Treaties, leading to an unreasonable interpretation. [87] Third, on the issue of the honour of the Crown, we unanimously agree that the doctrine is engaged in this case. Lauwers and Pardu JJ.A., with whom Hourigan J.A. concurs, conclude that the honour of the Crown obliges the Crown to increase the annuities as part of its duty to diligently implement the Treaties. Strathy C.J.O. and Brown J.A. conclude that the honour of the Crown requires, at a minimum, that the Crown turn its mind from time to time to consider increasing the amount of the annuities. [88] Fourth, on the issue of the Crown’s discretion to augment the annuities, Lauwers and Pardu JJ.A., with whom Hourigan J.A. concurs, conclude that the Crown’s discretion to augment the annuities is justiciable and not unfettered. Strathy C.J.O. and Brown J.A. agree that the Crown’s discretion is justiciable and not unfettered. [89] Fifth, on the issue of fiduciary duties, Hourigan J.A., writing for a unanimous court, holds that the trial judge erred in finding that the Crown is under a fiduciary duty regarding the implementation of the augmentation clause in the Robinson Treaties. We therefore agree that this finding should be set aside. [90] Sixth, on the issue of Crown immunity, Hourigan J.A., writing for a unanimous court, concludes that it is not necessary to consider whether the Crown is immune from breaches of fiduciary duty prior to 1963 given the court’s conclusion that the Crown does not owe a fiduciary duty regarding the implementation of the augmentation clause. [91] Seventh, on the issue of limitations, Hourigan J.A., writing for a unanimous court, holds that provincial limitations legislation does not preclude the breach of Treaty claims. [92] Eighth, on the issue of indexation, Lauwers and Pardu JJ.A., writing for a unanimous court, conclude that the trial judge did not err in rejecting the argument that the annuities paid pursuant to the Robinson Treaties should be indexed to mitigate the impact of inflation. [93] Ninth, on the issue of costs, Lauwers and Pardu JJ.A., writing for a unanimous court, conclude that Ontario’s costs appeal from the Stage One proceedings should be allowed in part. We grant leave to appeal from the award of $9,412,447.50 in favour of the Huron Plaintiffs; we uphold the disbursements allowed by the trial judge, but set aside the fees allowed and remit the matter of the Huron Plaintiffs’ costs to the trial judge for reconsideration in accordance with the reasons of Lauwers and Pardu JJ.A. We deny leave to appeal from the costs award in favour of the Superior Plaintiffs in the sum of $5,148,894.45. [94] Finally, on the issue of remedies in the Stage One proceedings, Lauwers and Pardu JJ.A., with whom Hourigan J.A. concurs, conclude that the trial judge erred in directing, as part of the judgments for the Stage One proceedings, the payment of annuities corresponding to a “fair share” of the value of the resources in the territory. Further, the trial judge also erred in directing in the judgments that tax revenues and the costs of infrastructure and institutions should be excluded from the calculation of net Crown resource-based revenue. Lauwers, Hourigan and Pardu JJ.A. therefore direct that the Stage One judgments should be amended as set out in Appendix “A” to these reasons by: · deleting “with the amount of annuity payable in any period to correspond to a fair share of such net revenues for that period” in para. 1(a); · deleting “and the fiduciary duty which the Crown owes to the First Nation Treaty parties” in para. 1(c); · deleting “so as to achieve the Treaty purpose of reflecting in the annuities a fair share of the value of the resources, including the land and water in the territory” in para. 1(d); · deleting “but not including personal, corporate or property tax revenues” in para. 3(b)(i); · deleting “but do not include the costs of infrastructure and institutions that are built with Crown tax revenues” in para. 3(b)(ii); · substituting “that are fairly and reasonably equal to a fair share of” with “to be disbursed pursuant to the augmentation promise from” in para. 3(c); and · with respect to the Huron Plaintiffs only, setting aside para. 5 of the partial judgment in the Huron action and remitting the matter of costs to the trial judge for determination in accordance with these reasons. [95] Strathy C.J.O. and Brown J.A. would vary the judgments on different terms, as set out in their reasons. [96] The Stage One appeal is therefore granted in part. The Stage One judgments are amended as set out in Appendix A; leave to appeal the costs award in favour of the Superior Plaintiffs is denied; and leave to appeal the costs award in favour of the Huron Plaintiffs is granted, the disbursements allowed by the trial judge are upheld, and the fees allowed are set aside and remitted to the trial judge for reconsideration. The Stage Two appeal is dismissed in its entirety. [97] If the parties cannot agree on costs for the appeals, they may provide the court with written submissions no more than 10 pages in length, along with their bills of costs. The Huron Plaintiffs, the Superior Plaintiffs and Canada are to provide their submissions within 15 days of the release of these reasons. Ontario is to provide its submissions within 30 days of the release of the reasons. Lauwers and Pardu JJ.A.: A. Introduction [98] The primary issue raised in Ontario’s appeal from the Stage One judgments turns on the interpretation of a provision in the Robinson Treaties known as the augmentation clause. Briefly stated, the trial judge found that the augmentation clause obliges “the Government of this Province” to “increase the annuity” to the First Nations “from time to time” when it can do so “without incurring loss”. [99] Ontario asserts that the trial judge made errors in the interpretation of the Treaties that we would group into four issues: 1. the interpretation of the augmentation clause; 2. the finding that the doctrine of the honour of the Crown obliges the Crown to increase the annuities as part of its duty to diligently implement the Treaties; 3. the finding that the Treaties do not contain an implied term to index the annuities; and 4. the approach to remedies. [100] We would largely reject Ontario’s submissions for reasons that can be summarized in seven statements: 1. the trial judge correctly instructed herself on the governing principles of treaty interpretation set out in Marshall and other cases; [54] 2. the trial judge’s interpretation of the augmentation clause is grammatically and contextually correct; 3. the trial judge did not make any palpable and overriding errors of fact, errors in principle, or extricable errors of law in her consideration of the evidence, contrary to Ontario’s argument; 4. the trial judge did not err in her analysis of the form and content of the Crown’s discretion, or the First Nations’ understanding of the scope of that discretion, contrary to Ontario’s argument; 5. the trial judge correctly found that the honour of the Crown obliged the Crown to increase the annuities as part of its duty to diligently implement the Treaties; 6. the trial judge correctly rejected Ontario’s proposal to supplant the augmentation clause by implying a judicially created indexing term into the Treaties; and 7. despite our agreement with the trial judge thus far, her interpretation of the Treaties fell short on the “fair share” issue. [101] Before turning to our analysis, we note that these appeals raise a number of other issues that are addressed in the reasons of our colleagues. We concur with the reasons of Hourigan J.A. on the issues of fiduciary duty, Crown immunity and limitation defences. On the issue of the standard of review for treaty interpretation, Lauwers J.A. concurs with Strathy C.J.O. and Brown J.A., and Pardu J.A. concurs with Hourigan J.A. [102] We now turn to the four interpretation issues and also address the issue of costs, then conclude with our disposition. B. Issue One: Did the Trial Judge Err in Her Interpretation of the Augmentation Clause in the Treaties? [103] We begin by setting out the Treaty text. We next address the governing principles and the trial judge’s interpretation of the text, and then apply the governing principles to Ontario’s arguments. (1) The Treaty Text to Be Interpreted [104] For convenience, we will use the text of the Robinson-Huron Treaty, which is almost identical to the text in the Robinson-Superior Treaty. The analysis applies equally. Particularly pertinent text is underlined and we have inserted several guideposts. The other text provides context. The Robinson-Huron Treaty provides: [F]or, and in consideration of the sum of two thousand pounds of good and lawful money of Upper Canada, to them in hand paid, and [the collective annuity] for the further perpetual annuity of six hundred pounds of like money, the same to be paid and delivered to the said Chiefs and their tribes at a convenient season of each year , of which due notice will be given, at such places as may be appointed for that purpose, they the said Chiefs and Principal men, on behalf of their respective Tribes or Bands, do hereby fully, freely, and voluntarily surrender, cede, grant, and convey unto Her Majesty…. And the said William Benjamin Robinson of the first part, on behalf of Her Majesty and the Government of this Province, hereby promises and agrees to make, or cause to be made, the payments as before mentioned; and further to allow the said Chiefs and their Tribes the full and free privilege to hunt over the Territory now ceded by them, and to fish in the waters thereof, as they have heretofore been in the habit of doing ; saving and excepting such portions of the said Territory as may from time to time be sold or leased to individuals or companies of individuals, and occupied by them with the consent of the Provincial Government. [the augmentation clause] The said William Benjamin Robinson, on behalf of Her Majesty, Who desires to deal liberally and justly with all Her subjects, further promises and agrees that should the territory hereby ceded by the parties of the second part at any future period produce such an amount which will enable the Government of this Province, without incurring loss, to increase the annuity hereby secured to them, then and in that case the same shall be augmented from time to time, [the first proviso] provided that the amount paid to each individual shall not exceed the sum of one pound Provincial currency in any one year, [the graciousness clause] or such further sum as Her Majesty may be graciously pleased to order; and [the second proviso] provided further that the number of Indians entitled to the benefit of this treaty shall amount to two-thirds of their present number , which is fourteen hundred and twenty-two, to entitle them to claim the full benefit thereof; [the diminution clause] and should they not at any future period amount to two-thirds of fourteen hundred and twenty-two, then the said annuity shall be diminished in proportion to their actual numbers. Within the first proviso to the augmentation clause is the clause, “or such further sum as Her Majesty may be graciously pleased to order”. The parties called this the “ ex gratia clause” or the “graciousness clause”. [55] We will use the latter term. (2) The Governing Principles of Treaty Interpretation [105] The trial judge correctly instructed herself on the principles governing the interpretation of historical treaties. [56] No one argues to the contrary. [106] Principles related to common intention, text, context and purpose inform the interpretation of historical treaties. These principles are well settled, although the facts of any particular case will make some more salient than others. [57] The principles work to instantiate the constitutional principle of the honour of the Crown in the service of the reconciliation of Aboriginal and non-Aboriginal Canadians. (a) Common Intention [107] In interpreting a treaty, the court must “choose from among the various possible interpretations of the common intention [at the time the treaty was made] the one that best reconciles” the interests of the First Nations and the Crown. [58] The common intention is that of both treaty partners, not one alone. [59] (b) Text, Context and Purpose [108] A court must attend to both the written text of a treaty and the evidence about the context in which it was negotiated, consistent with the principle that extrinsic evidence is always available to interpret historical treaties. Mackinnon A.C.J.O. stated in Taylor and Williams , “if there is evidence by conduct or otherwise as to how the parties understood the terms of the treaty, then such understanding and practice is of assistance in giving content to the term or terms.” [60] He accepted the common submission of counsel before him that “recourse could be had to the surrounding circumstances and judicial notice could be taken of the facts of history.” [61] He added: “In my opinion, that notice extends to how, historically, the parties acted under the treaty after its execution.” [62] The court need not find an ambiguity in a treaty before admitting extrinsic evidence. [63] [109] Binnie J. explained in Marshall : The special rules are dictated by the special difficulties of ascertaining what in fact was agreed to [in historical treaties]. The Indian parties did not, for all practical purposes, have the opportunity to create their own written record of the negotiations. Certain assumptions are therefore made about the Crown’s approach to treaty making (honourable) which the Court acts upon in its approach to treaty interpretation (flexible) as to the existence of a treaty, the completeness of any written record (the use, e.g., of context and implied terms to make honourable sense of the treaty arrangement, and the interpretation of treaty terms once found to exist. [64] McLachlin J. added cultural and linguistic differences to this non-exhaustive list of contextual considerations. [65] [110] Unlike modern treaties, historical treaties are not a “product of lengthy negotiations between well-resourced and sophisticated parties.” [66] The historical record of the negotiations shows how quickly the Treaties at issue in these appeals were negotiated and how much they left undefined. The trial judge rightly characterized the Treaties as “lean on details”, particularly respecting the future operation of the augmentation clause. [67] [111] The court must take a purposive approach to the interpretation of a treaty obligation, informed by the honour of the Crown, [68] recognizing that treaty promises are “solemn promises” and that treaties are “sacred”. [69] (c) Reconciliation and the Honour of the Crown [112] The reconciliation of Aboriginal and non-Aboriginal Canadians is the “grand purpose” of s. 35 of the Constitution Act, 1982 , [70] and the “first principle” of Aboriginal law. [71] This “fundamental objective” [72] flows from “the tension between the Crown’s assertion of sovereignty and the pre-existing sovereignty, rights and occupation of Aboriginal peoples” [73] and the need to reconcile “respective claims, interests and ambitions.” [74] [113] Reconciliation is also the objective of the legal approach to treaty rights and the “overarching purpose” of treaty making and, perforce, treaty promises. [75] Reconciliation underpins the doctrine of the honour of the Crown, [76] which operates as a “constitutional principle.” [77] Hence: “The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake.” [78] [114] We will consider the honour of the Crown more closely in addressing the second issue. (3) The Trial Judge’s Interpretation of the Augmentation Clause [115] As noted, in the task of treaty interpretation, in addition to the treaty text, the court must advert to the larger context in which the treaty was negotiated. T he Indigenous perspective is to be considered and given due weight. [79] That perspective was fairly established on evidence that Ontario does not dispute. The trial judge stated: From the Anishinaabe perspective, the central goal of the treaty was to renew their relationship with the Crown, which was grounded in the Covenant Chain alliance and visually represented on wampum belts with images of two figures holding hands as part of two links in a chain. [80] [116] She added: These principles of respect, responsibility, reciprocity, and renewal were fundamental to the Anishinaabe’s understanding of relationships. For the Anishinaabe, the Treaties were not a contract and were not transactional; they were the means by which the Anishinaabe would continue to live in harmony with the newcomers and maintain relationships in unforeseeable and evolving circumstances. [81] [117] The trial judge considered whether the augmentation clause distinguishes between a collective annuity payable to each First Nation as a whole, on the one hand, and the annuity paid to individual band members, on the other hand. She found that the augmentation clause does make a distinction between “ the collective annuity (either £500 or £600) paid to the Chiefs and their Tribes and a distributive amount that is paid to individuals from the collective amount and is limited to £1 (equivalent to $4) or such further sum as Her Majesty may be graciously pleased to order”. [82] [118] The trial judge set out her conclusion at the beginning of her reasons : I find that the Crown has a mandatory and reviewable obligation to increase the Treaties’ annuities when the economic circumstances warrant. The economic circumstances will trigger an increase to the annuities if the net Crown resource-based revenues permit the Crown to increase the annuities without incurring a loss. [83] [119] In working her way to that conclusion, the trial judge posited three possible interpretations of the augmentation clause. The first, which Ontario still advances, is that: “the Crown’s promise was capped at $4 per person; in other words, once the annuity was increased to an amount equivalent to $4 per person, the Crown had no further liability.” [84] The trial judge rejected this interpretation. [85] [120] The second interpretation was that “the Crown was obliged to make orders ( “as Her Majesty may be graciously pleased to order” ) for further payments above $4 per person when the economic circumstances permitted the Crown to do so without incurring loss.” [86] The trial judge noted that this interpretation had a “certain logic”, although she rejected it. [87] [121] Instead, the trial judge accepted the third interpretation: “that the Treaties were a collective promise to share the revenues from the territory with the collective; in other words, to increase the lump sum annuity so long as the economic condition was met.” [88] In her view, the third interpretation “includes the second interpretation”. [89] She added: “The reference to £1 (equivalent of $4) in the augmentation clause is a limit only on the amount that may be distributed to individuals.” [90] [122] The trial judge held: “Applying the approved treaty interpretation principles, including the honour of the Crown, and examining the full context in which the Treaties were made, only the third interpretation comes close to reflecting the parties’ common intention.” [91] She added: This interpretation holds the parties in a relationship, looking toward the future together. I find that the interpretation that imposes a $4 per person cap on the annuities does not reflect either the common intention nor reconcile the parties’ interests; it suggests that the Treaties were a one-time transaction. As the historical and cultural context demonstrates, this was not the case; the parties were and continue to be in an ongoing relationship. [92] (4) The Governing Principles Applied [123] We stated at the outset that, in our view, having properly instructed herself on the principles, t he trial judge’s interpretation of the augmentation clause is grammatically and contextually correct. In this section, we address and reject two of Ontario’s arguments. We address Ontario’s textual argument in the section of these reasons on Crown discretion. [93] [124] Ontario takes the position that the $4 per person amount specified in the Treaties fixes the total amount of the annuity payable by the Crown, which is calculated by multiplying the number of eligible individual recipients by $4. While the Crown is obligated to pay that amount, it has “unfettered discretion” as to when and whether to increase the per person annuity beyond this hard cap and therefore to increase the total annuity paid. The Crown has not done so since 1875. [125] Ontario makes two basic arguments. First, the trial judge erred in her findings on the common intentions of the Treaty parties because she failed to take into account certain evidence of Crown intention. Second, she erred in finding that the Crown discretion in the augmentation clause to increase the annuity was not unfettered. These arguments are linked because Ontario asserts that the Crown would never have agreed to fetter its discretion. The idea was unthinkable. (a) The Trial Judge Did Not Err in Her Findings on the Common Intentions of the Treaty Parties [126] Ontario stated in its factum: There were few disputes at trial regarding primary facts disclosed by the historical record: what was done, said and written, and who was involved in events. Ontario does not challenge the facts set out by the trial judge in the Reasons, although the judge’s summary of the facts is materially incomplete; important evidence indicating how the Treaty parties actually understood the annuity promise was ignored. Partly on that basis Ontario challenges certain key inferences drawn by the trial judge. However, it became clear in oral argument that Ontario does challenge the trial judge’s material findings root and branch. [127] Ontario argues that the trial judge failed to take certain crucial evidence into account. The trial judge acknowledged that her task was to discern the parties’ common intention, but Ontario asserts that she failed to accord due weight to the evidence of Crown intention before the Treaty negotiations, during the negotiations, in their immediate aftermath, and later in the post-Treaty period. The trial judge also unreasonably discounted evidence of Anishinaabe intention that was contrary to her interpretation of the Treaties. Ontario labels these as errors in law or palpable and overriding errors of fact that oblige this court to set aside the judgment and either render judgment in the terms that Ontario seeks or order a new Stage One trial. [128] The standard of appellate review related to a palpable and overriding error is very deferential: “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall. [94] [129] Ontario argues that Crown actors and other non-Indigenous individuals understood the Crown’s obligation to augment the Treaties to be limited to or capped at a maximum of $4 per person, the amount Ontario has been paying since 1875. The trial judge misapprehended the common intentions of the Treaty parties by unreasonably discounting or ignoring certain historical evidence. [130] Ontario identifies evidence that contradicts the trial judge’s interpretation. In analyzing this evidence, we are mindful of the surfeit of evidence reviewed by the trial judge. To achieve the result Ontario seeks, the countervailing evidence must go to the very core of the trial judge’s reasoning and reveal it to be mistaken. With respect, the countervailing evidence falls far short of demonstrating a palpable and overriding error of fact, an error in principle, or an error of law. [131] Several of the documents that Ontario relies upon were created close to the time of Treaty formation, some by individuals that were present – or nearby – when the Treaties were negotiated. The rest of the documents, some of which were not expressly addressed by the trial judge, were penned years, even decades, after the Treaties were signed. They are of limited value in discerning the Crown’s intentions when the Treaties were signed. The trial judge did not err in her treatment of this evidence. (i) The Proximate Evidence [132] Each document in the proximate evidence requires careful evaluation to discern what it reveals about Crown intention when the Treaties were signed. Ontario refers to the Orders in Council (“OICs”) instructing Robinson, his Treaty Report, a letter from a Hudson Bay Company factor, correspondence between Robinson and Colonel Robert Bruce, and a newspaper article. (i) The Orders-in-Council Instructing Robinson [133] Robinson received instructions in two OICs. The first, dated January 11, 1850, appointed him as Treaty Commissioner and authorized him to negotiate treaties with the Anishinaabe of Lake Superior and Lake Huron. The second, dated April 16, 1850, described Robinson’s mandate in more detail. Ontario argues that the trial judge failed to advert to the implications of the second OIC in determining Crown intention. [134] In describing the instructions to Robinson in the second OIC, the trial judge noted that “the Executive Council intentionally sent Robinson to the Treaty Council without the financial authority to offer to match annuity provisions from previous treaties.” [95] She observed that this might well have reflected the financial crisis then facing the Province of Canada. [96] [135] The trial judge did not mention the second OIC explicitly when she discussed Crown intention, but she implicitly referred to it in her comment that “ Robinson’s instructions were flexible enough that his augmentation clause proposal could fit within their scope.” [97] She added that, in her view, the augmentation clause’s “novelty would have compelled him to discuss the idea and seek approval before making it an official offer.” On this basis, the trial judge found it reasonable to conclude that when Robinson met Governor General Lord Elgin in Sault Ste. Marie on August 30 and August 31, 1850, he received approval to propose the augmentation clause. [98] [136] Ontario argues that under any interpretation, the augmentation clause went beyond the instructions in the second OIC. In the context of those instructions, Robinson was unlikely to have been seeking authorization to promise uncapped annuities, or annuities that could ever rise above $10 per person, as provided in earlier treaties. [137] The augmentation clause did depart from Robinson’s instructions in the second OIC. But the historical circumstances when the Treaties were signed – including the Crown’s financial situation and the low expectations for the future productivity of the Treaty territories – do not make Ontario’s interpretation of a very low cap, from the First Nations perspective, more likely to have found Lord Elgin’s approval. Moreover, the augmentation clause took the approach recommended in the report of the Vidal-Anderson Commission by including a provision “for an increase of payment upon further discovery and development of any new sources of wealth.” [99] The augmentation clause would not have been a bolt out of the blue. The trial judge did not err in her consideration of the second OIC. (ii) Robinson’s Treaty Report [138] Ontario argues that the trial judge failed to give any weight to Robinson’s Treaty Report, dated September 24, 1850. To the contrary, it is clear that the trial judge took the Treaty Report into account. She quoted from the following section: I trust his Excellency will approve of my having concluded the treaty on the basis of a small annuity and the immediate and final settlement of the matter, rather than paying the Indians the full amount of all moneys on hand, and a promise of accounting to them for future sales. The latter course would have entailed much trouble on the Government , besides giving an opportunity to evil disposed persons to make the Indians suspicious of any accounts that might be furnished. Believing that His Excellency and the Government were desirous of leaving the Indians no just cause of complaint on their surrendering the extensive territory embraced in the treaty; and knowing there were individuals who most assiduously endeavored to create dissatisfaction among them, I inserted a clause securing to them certain prospective advantages should the lands in question prove sufficiently productive at any future period to enable the Government without loss to increase the annuity. This was so reasonable and just that I had no difficulty in making them comprehend it, and it in a great measure silenced the clamor raised by their evil advisers. [100] [139] Robinson did not refer to a $4 cap. His silence cannot be taken to mean, as Ontario argues, that the operation of such a cap is obvious. Focussing on the second section of the text set out above, the trial judge found that augmentation capped at $4 could not have achieved Robinson’s purpose in securing the Treaties: When Robinson reported that the augmentation clause was so “reasonable and just”, it is my view that he could not have been referring to an annuity capped at $4. Chief Shingwaukonse and the other Anishinaabe Chiefs would not have found a $4 cap to their annuities either reasonable or just; it was far less than half of what other bands received as fixed sum annuities and, additionally, it did not respond to their demand for a share of the future wealth of the territory. [101] As noted earlier, this approach was consistent with the recommendations of the Vidal-Anderson Commission. This factual finding was open to the trial judge. [140] Ontario argues that this part of Robinson’s Treaty Report suggests that he could not have intended an uncapped annuity because the trial judge’s interpretation requires “precisely the endless accounting and ‘trouble’ that Robinson reports he avoided.” [141] We would not give effect to this argument for three reasons. First, some rough form of accounting was required in order to determine whether the augmentation clause was triggered, under any interpretation. This is undeniable. [142] Second, the historical context tells a more nuanced tale. The augmentation clause is not “a promise of accounting … for future sales.” Robinson’s “trouble” was likely related to the onerous task of tracking each sale of land on the territory and the interest gained on the proceeds of those sales, as the practice had been in other areas of the Province. [102] By contrast, monitoring the overall revenue and expenses linked to the territory would then have been a relatively simple task, whether or not the annuity was capped at $4 per person. [143] Third, Robinson does not appear to have expected that significant revenues would be generated from the territory. He stated, “these lands now ceded are notoriously barren and sterile, and will in all probability never be settled except in a few localities by mining companies.” Given this, it is unlikely that he would have viewed the ongoing monitoring of total revenues and expenses from the Treaty territories as a particularly complex or troublesome task. The reference to “trouble” is not, therefore, inconsistent with the trial judge’s interpretation. (iii) Buchanan’s Letter to Simpson [144] Ontario points to two accounts from individuals who were in the vicinity when the Treaties were signed, neither of which the trial judge referred to in her reasons. On September 11, 1850, mere days after the Treaties were signed, A.W. Buchanan, the Hudson Bay Company Post Factor at Sault Ste. Marie, wrote to George Simpson, the Governor of the Hudson Bay Company: The terms of the treaty are that the Indians are to receive £4,000 now to be divided amongst the whole of them, and £1,000 are to be paid them annually for ever, liable to be increased until the sum amounts to £1 for each Indian should sales of land be made to afford that sum. [145] Jean-Philippe Chartrand, Ontario’s expert witness, testified that while Buchanan was nearby and was responsible for provisioning the Anishinaabe encamped at the Treaty Council, he was not a witness to the negotiation or execution of either Treaty. Mr. Chartrand agreed that Buchanan “seems to be recording not what happened but … Robinson’s first offer”, which was not the one the First Nations accepted. [103] The trial judge did not err in not referring to this document or in arriving at an interpretation inconsistent with it. (iv) Correspondence Between Bruce and Robinson [146] The second account to which Ontario refers is from Colonel Robert Bruce, dated October 16, 1851. Bruce forwarded to Robinson a petition from the Lake Huron Chiefs asking the government to consider distributing annuities based on traditional land areas rather than on population. Bruce did not appear to support the petitioners. He commented: “The following extract from the Treaty seems to show conclusively that the distribution was to be per capita & not as suggested by the Petitioners” (emphasis in the original). Bruce stated that his impression was “gathered from your report, the treaty itself and the numerical lists transmitted as a guide for the distribution of annuities.” According to the editors of the British Colonist Newspaper, Col. Bruce did not “attend the treaty.” [147] Robinson responded to Bruce: I can only say that the Treaty made by me with the Indians last year was based on the same conditions as all preceding ones I believe. These conditions even fully explained in Council & are also clearly expressed in the Treaty. Nothing was said by the Chiefs [illegible] of the nature mentioned in the extract you sent me & all seemed satisfied both at the signing of the Treaty & payment of the money with the terms on which I concluded the Surrender by them to Her Majesty. [148] Robinson’s response does not support Ontario’s interpretation. His answer addressed the manner of distribution of annuities among the Chiefs, which is what he was asked about. Robinson confirmed that the distribution was to be based on the population of each Chief’s community, not the area of land that each Chief had surrendered on behalf of his community. [104] The model of distribution that Robinson described is not inconsistent with the trial judge’s interpretation. More importantly, neither Bruce’s inquiry nor Robinson’s response addressed the operation of the alleged cap in the augmentation clause. (v) The Newspaper Article [149] Ontario points to an article published in the British Colonist Newspaper on October 1, 1850, containing an account of the Treaty Council, provided by an individual who was present. An extract from an American newspaper, with details of the Robinson Treaties, was printed in the same edition. Below the eyewitness account, the editor comments: The terms, as mentioned in the [American] extract first alluded to are, we believe, nearly correct, except that any future increase to the annuity, which the sale of the ceded territory may enable the Government to make, is limited to four dollars a head. [150] The provenance of this information is unclear. The fact that it follows an eyewitness account does not mean that this comment came from the eyewitness. In the absence of evidence about where the editor got this impression, it sheds no light on the Crown’s intention in entering the Treaties. (ii) The Post-Treaty Evidence [151] The post-Treaty evidence consists of records of requests that the annuities be increased to $4 per person, consideration of those requests by officials, petitions for the payment of arrears, requests for further increases, the 1893 Affidavit of John Mashekyash, and records of the arbitration between Canada, Ontario and Quebec. [152] According to Ontario, the documents it relies on show that Crown actors and other non-Indigenous individuals unequivocally understood the Crown’s obligation as being limited to $4 per person, subject to the possibility of a discretionary increase. Ontario argues that the trial judge failed to take these documents into account and that her interpretation is inconsistent with this evidence of the Crown’s intentions and understanding. Ontario argues that this is an error in principle that requires reversal. (i) The Governing Principles on the Use of Post-Treaty Evidence in Treaty Interpretation [153] Temporal proximity is not required for post-treaty evidence to be admissible, but evidence from shortly after treaty formation is more likely to reveal the parties’ interests and intentions. As Lamer J. noted, “the subsequent conduct which is most indicative of the parties’ intent is undoubtedly that which most closely followed the conclusion of the document.” [105] [154] Post-treaty evidence and evidence of the parties’ subsequent conduct can play a role in treaty interpretation but must be treated with “extreme caution.” [106] I n West Moberly , Smith J.A. (dissenting) referred to post-treaty events and conduct but noted that they mostly had “limited relevance to the issue of the common intention of the parties to the Treaty in 1899 unless they involve the Treaty parties or conduct that is probative to the intention of a Treaty party.” [107] [155] In Lac La Ronge , Vancise J.A. adopted the trial judge’s statement in that case: It is very useful to read what a signatory said about a treaty provision at or about the time when the document was executed. It is equally useful to know whether or not subsequent conduct by other people accorded with what was said. However, it is of no value to learn that some person, fifty years later, acted differently based on his or her own personal reading of the provision in the treaty. That conduct has no link to the contemporaneous historical circumstances and therefore should not be admitted. [108] [156] The intervener Biigtigong Nishnaabeg First Nation argues that the risks of relying on subsequent conduct in interpreting contracts, as identified by Strathy C.J.O. in Shewchuk , [109] are also present in the treaty context. Tools developed by the court for interpreting contracts are to be applied to treaties only cautiously, particularly historical treaties. We do not find it necessary to borrow from the contract context in this instance. (ii) The Principles Applied [157] The trial judge recognized that post-treaty evidence can assist in depicting “how the parties understood the terms of the Treaties.” [110] However, she noted that “[t]he weight to be attributed to the post-treaty record will vary in each case and will depend on the nature and context of the accounts and conduct.” She considered the frailties of the post-Treaty evidence and concluded: [T]he post-Treaty record, both written and conduct, is vague, inconsistent, and conflicting. It is of limited assistance to the exercise of searching for the parties’ common intention. It shows that different people at different times and places held different understandings of the Treaties’ promise. [111] [158] The trial judge did not err in her assessment of the post-Treaty evidence. She was not obliged to refer to every document on the record, which would have been virtually impossible given the volume of evidence before her. [112] More importantly, the evidence that Ontario now attempts to rely upon is incapable of establishing that the trial judge erred in determining Crown intention. [159] The Robinson Treaties were signed in 1850. Of the remaining post-Treaty documents that Ontario relies upon, only two were written prior to 1873. The arbitration documents, on which Ontario places particular emphasis, date from the 1890s. This lack of temporal proximity renders most of the post-Treaty evidence of doubtful probative value, an assessment that is borne out upon consideration of other factors. [160] Ontario has not demonstrated any connection between the post-Treaty evidence it relies upon and the Crown’s intentions or interests on the date the Robinson Treaties were signed. The documents do not recount Treaty negotiations or conversations with Robinson before or after the Treaty Council. They do not describe the problems facing the Crown in 1850 or the policies the Crown was pursuing in response. [161] Instead, much of Ontario’s evidence consists of personal interpretations of the augmentation clause made by individuals who had no connection with the formation of the Treaties. [162] In a letter written in 1858, Richard Carney, an Indian Agent, described visiting the Garden River settlement and talking with the Chiefs there. Carney reported explaining to the Chiefs that the annuity “was not to exceed Four Dollars”. He stated that he gave this explanation after he “asked for a sight of the Treaty”. This was his interpretation of the Treaty, nothing more. [163] Post-Treaty evidence must also be read carefully in its particular context, which includes the wider historical context and the specific context in which a document was created. [164] The 1858 Pennefather Report cited the Treaty text and expressed “decided regret, that a Treaty shackled by such Stipulations, whereby a vast extent of Country has been wrung from the Indians for a comparatively nominal sum, should have received the sanction of the Government.” [113] [165] Ontario argues that no such regret would have been necessary if the augmentation clause was to operate as the trial judge found. But this is an anachronistic reading; the reference to “a comparatively nominal sum” must be read in its historical context. The authors appeared to believe, eight years after the Treaties were signed, that no increase in the annuity was yet warranted. [114] There was, at that point, no reason to believe that revenues would ever warrant a significant increase in the annuity. Viewed in that historical context, the Treaties were not seen as a good deal for the Anishinaabe, even with the prospect of future, uncapped augmentation. [166] Context is also relevant to post-Treaty evidence relating to Anishinaabe requests for increases in the annuities. T he trial judge correctly found that the petitions must be read in their historical and cultural context: Dr. Bohaker testified, and Mr. Chartrand agreed, that these petitions could be labelled “pity speeches”, a term historian[s] use to describe the use of metaphor to ask relations to meet their obligations within the ongoing relationship. One would not expect a pity speech to set out the full scope of the obligations arising from the treaty relationship, but rather to make modest requests that would remind the treaty partner of their promise to care for the other. [115] [167] The trial judge cited Mr. Chartrand’s evidence that “the Anishinaabe were ‘modest’ and ‘diplomatic’ when making requests under the Treaties.” [116] That the Anishinaabe, in 1873, asked only for $4, and that non-Indigenous actors responded to those requests, cannot demonstrate that the Anishinaabe were not ever entitled to more. [168] Simon Dawson, a Member of Parliament, wrote to the Governor-General’s Secretary in 1873 that “the lands ceded have become sufficiently productive to warrant the increased payment of at least $4; if not, of such further sum (over and above the $4) as Her Majesty may be graciously pleased to order, as provided for in the above cited clause of the treaty.” [169] Letters from E.B. Borron, a Member of Parliament, in 1874 and 1875, urged Ministers in the Department of the Interior to pay the “full amount of annuity stipulated for” in the Treaties, at $4. It is unclear how he reached this interpretation. Justice Minister Edward Blake responded with his opinion on July 7, 1875, based on “the papers laid before the undersigned, as well as oral information of the Minister of the Interior” (to whom Borron had written). [117] D. Laird, Minister of the Interior, then advised, on July 12, 1875, that he “concurs in the views expressed in the annexed report of the Honorable the Minister of Justice” and referred to Blake’s opinion that the Anishinaabe were “entitled, under the Treaty of 1850, to the maximum amount of annuity thereby stipulated, namely $4 per head.” The resulting federal OIC, which increased the annuities “to the maximum amount of annuity thereby stipulated, namely, $4.00 per head”, was expressly based on both Blake’s opinion and Laird’s report. These writers appear to take their interpretations either directly from the Treaty text, or from one another, not relying on information about the intentions or interests of the Crown when the Treaty was formed. [170] Eight years after his first letter, Dawson wrote again. In his letter to Col. C. Stuart, dated October 7, 1881, he referred to the “full amount” of the available annuity, and to the payment of arrears on the $4 amount as providing “the full benefit of the stipulation throughout the whole period”. He did so based on his own interpretation of the text and other interpretations he had read. He began his letter with the words: “By this Treaty … it was stipulated as follows”, before quoting the augmentation clause. He then continued: The language is clear and on reference to the official correspondence, it will be seen that it is nowhere denied, but on the contrary, admitted on all hands, that from the time the payment of four dollars per head could have been made from the revenue of the ceded territory, without loss to the Government, the Indians were clearly entitled to have their annuities augmented to that amount. Dawson did not base his interpretation, as reflected in either his 1873 or 1881 letters, on any evidence, beyond the Treaty text, as to the interests or intentions of the Crown at the time of Treaty formation. [171] Next, on January 9, 1884, Charles Skene, an Indian Agent, recounted his discussion with Chief Solomon James and other Chiefs. He told them that “$4 was the utmost sum to be given as annuity”, and their response “was that it is not so”. He then “referred to the written copy of the Treaty sent to me by the Department”. Again, it appears likely that his interpretation of the Treaties came from reading the text. This evidence is equivocal, in any event, since the First Nations representatives denied the cap. [172] Ontario argues that the interpretations expressed by these writers are relevant because, in order to find the Crown intention to have been contrary to these interpretations, “one would have to accept (in the absence of evidence) that this interpretation was intended by the Crown at the time of ratification, but then almost immediately forgotten by the bureaucracy charged with implementing the Treaties.” [173] On the contrary, there is no evidence to show, and no reason to believe, that in the 23 years between the promise being made and the Anishinaabe complaints that sparked discussion and action, knowledge relevant to the Crown’s intentions and interests was communicated, discussed, or passed among bureaucrats. [174] Instead, the evidence suggests that the Treaties were set aside and largely forgotten for two decades. Only in 1873, when they were faced with complaints, did the responsible bureaucrats read the augmentation clause and reach their own understanding of the text. The resulting documents are therefore of very little probative value in determining what the Crown’s intentions were in 1850. [175] Ontario points to the 1893 affidavit of Elder John Mashekyash, of Batchewana First Nation, who was present at the Treaty negotiations. The trial judge assessed that evidence and concluded that “it would be risky to give much weight” to it given the frailties of memory and Mashekyash’s presence only in the Huron negotiations. [118] She added that his was not evidence of “ any widespread understanding of the Huron Chiefs at the time the Robinson Huron Treaty was signed.” This assessment was well within the trial judge’s remit. [176] Finally, Ontario placed particular emphasis on documents relating to the financial dispute between Canada, Ontario and Quebec regarding responsibility for the Crown’s annuity obligations. The decisions of the arbitrators in that dispute were reviewed by the Supreme Court of Canada and the Judicial Committee of the Privy Council. [119] The trial judge did not refer to this group of documents, and for good reason. They provide little, if any, assistance in understanding the Crown’s intentions or interests at the time of Treaty formation. The documents exhibit the frailties of being neither proximate nor connected to Treaty formation. The context in which they were written calls for particular caution in relying on them. [177] Vancise J.A. cautioned, in Lac La Ronge , against reading subsequent conduct “not directly related to the interpretation of the Treaty”, including “compromise” decisions, as a “demonstration of the intention of the parties at the time the treaty was negotiated and signed.” [120] Records that were not aimed at interpreting the augmentation clause must be read with a sensitivity to the context of the documents and the objectives the writer sought to achieve. [178] The main issue in dispute in the arbitration was which of Canada, Ontario or Quebec bore responsibility for paying the Robinson Treaty annuities. The parties to the arbitration referred to $4 as the “full” or “maximum” amount of the annuity, and Justice Burbidge, one of the arbitrators, found that “[a]ny increase beyond that would have been a matter of grace.” [121] Neither party raised the possibility that the $4 stipulation did not cap the annuities. While there might have been “careful scrutiny” of the augmentation clause in the arbitration, that scrutiny was, on the part of the paying parties, aimed at advancing each party’s case against the others and, on the part of the arbitrators, limited to considering the arguments of the parties. They were not focused on Anishinaabe entitlements. [179] There was a lively debate during the arbitration as to whether the $4 per person limit was based on the Anishinaabe population at the time the Treaties were signed or on the population at the time the annuity was paid. Mr. Clark, counsel for Ontario at the arbitration, argued that “it is apparent on the face of the Treaty that the maximum liability of the Province under that covenant in any event is 1422 [population at the time of Treaty formation], multiplied by 4”, all of which would be paid to the Chiefs, who then “divided it as they chose”. [122] [180] Mr. Clark’s understanding, which differs from the one Ontario now claims to be self-evident, was earlier expressed by William Spragge in 1873. Spragge’s report, drafted in response to petitions from the Anishinaabe, referred to $4 as the “maximum amount per head named in the treaties”. Ontario argues that Spragge, having been a Crown official since 1847, was aware of the circumstances of the Treaty negotiations. However, in a letter preceding his report, he gave his opinion that the annuities were only to be augmented based on the First Nations’ population when the Treaties were signed. [123] His adoption of this interpretation, which no party to these appeals currently endorses, significantly undermines the value of his report as an aid in interpreting the Treaties. It also suggests that Spragge had no special knowledge of the Treaty negotiations. [181] It is also worth noting that, to the opposite effect, some Crown actors expressed, albeit cautiously, the view that more might be owed to the Anishinaabe. Dawson, in his 1881 letter, wrote that the sum of the arrears on the $4 annuity, “although considerable, is not all the Indians may fairly claim or are justly entitled to”, before referring to the graciousness part of the augmentation clause. He then referred to other bands who receive a higher annuity and also “carpenters’ tools, twine for nets, farming implements and cattle.” [182] On June 17, 1893, E.L. Newcombe, a Deputy Minister, wrote to Lawrence Vankoughnet, Deputy Superintendent General of Indian Affairs, in reference to the augmentation clause. Newcombe stated, after quoting from the augmentation clause: The portion of the above excerpt to which I wish to have particular attention called is that which describes the additional annuity, over and above one pound per caput which may be paid as “such further sum as Her Majesty may be pleased to order.” The Department has for some years past paid the Indians under these treaties $4 per capita, the mount necessary to enable it to do so having been voted annually by Parliament, but it is considered that, owing to the immense revenue derived from the sales of land and timber within the territory ceded by the Indians under the above treaties to the Crown, the amount of annuity might fairly be increased to such further sum as Her Majesty may be pleased to order. [183] In response, Vankoughnet stated that “the point to which you refer will not be lost sight of” but stated also that “it is very questionable whether the provision in these treaties to which you refer can be made the basis of any legal claim against the Province of Canada.” [184] While these documents do not support the trial judge’s interpretation, they do undermine Ontario’s argument that the post-Treaty evidence demonstrates one unequivocal understanding of the augmentation clause among Crown officials. (iii) Conclusion on the Trial Judge’s Treatment of the Evidence Concerning Crown Intention [185] The trial judge did not err in her treatment of the evidence of the Crown’s intentions upon entering the Robinson Treaties or in determining the common intentions of the Treaty parties. [186] To be helpful, post-treaty evidence must be capable of shedding light on the intention or interests of one or more of the parties at the time the treaty was signed. The extent to which a document does so will depend not only on its contents, but on its temporal proximity to treaty formation, its connection to treaty negotiations, and the context in which it was created. Taking these factors into account, the post-Treaty evidence upon which Ontario relies provides little assistance and the trial judge did not err in not relying on it. [187] The documents proximate to Treaty formation on which Ontario relies are consistent with the trial judge’s interpretation of the augmentation clause. The post-Treaty evidence, on which Ontario largely focused its submissions, is incapable of establishing a contrary Crown intention. The trial judge did not make a palpable and overriding error in her treatment of this evidence. (b) The Trial Judge Did Not Err in Her Determinations on the Existence and Extent of Crown Discretion in the Augmentation Clause [188] Ontario’s second basic argument on the trial judge’s interpretation of the augmentation clause is that she erred in finding that the Crown’s discretion under the augmentation clause was not unfettered. [189] To recall the context, Ontario’s position is that the $4 per person amount specified in the Treaties is a “hard cap” that fixes both the annuity paid to entitled individuals and the total amount of the annuity payable. Ontario submits that the Crown has unfettered discretion as to when and whether it will increase the per person annuity, and therefore the total annuity paid, beyond the $4 per person cap. [190] At trial, both Ontario and Canada submitted that the law gave them “unfettered discretion concerning how they will meet their treaty obligations.” [124] Canada has not appealed the judgments below. On appeal, Canada agrees with the trial judge’s finding that the Crown is obliged, under the Treaties, to increase the annuities beyond $4 per person. Canada now submits that the Crown retains discretion in fulfilling this obligation but that this discretion is not unfettered. [191] We begin by setting out the governing principles concerning the existence and scope of governmental discretion. We next summarize the trial judge’s decision concerning Crown discretion and then apply the governing principles to Ontario’s arguments. (i) The Governing Principles Concerning Discretion [192] In the seminal Baker decision, L’Heureux-Dubé J. noted: “The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries.” [125] It is now trite law that “there is no such thing as absolute and untrammelled ‘discretion’”. [126] Where discretion is granted by statute, that discretion, said L’Heureux-Dubé J., “must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter .” [127] These boundaries set a reasonable “ margin of manoeuvre” for a decision-maker exercising discretion. [128] [193] These principles apply with necessary modifications to the exercise of Crown discretion related to treaties with First Nations. The most significant constraints on the Crown in the context of this case are the Treaty promises made by the Crown, s. 35 of the Constitution Act , 1982 , including its reconciliatory imperative, and the honour of the Crown. (ii) The Trial Judge’s Treatment of Crown Discretion [194] The trial judge found that the promise in the augmentation clause to increase the annuity is not discretionary but mandatory; the $4 cap is only a cap on annual payments to individuals and does not limit the total annuity payable under the Treaties; and the Crown has discretion in the implementation of the Treaty promise, including when and how it provides information to the Anishinaabe to assess the reasonableness of the Crown’s calculations of net Crown revenues [129] and whether to raise the $4 cap on the annuity payable to individuals. [130] She stated: “The discretion is not unfettered and is subject to [judicial] review”, and noted that Crown discretion in the implementation process “must be exercised honourably and with a view to fulfilling the Treaties’ promise.” [131] (iii) Ontario’s Arguments [195] Ontario makes four arguments in support of its position that the power to increase annuities is unfettered: the first is based on the text of the graciousness clause and its location in the augmentation clause; the second is that the decision to increase the annuities is not justiciable; the third is that the trial judge erred in her evidentiary finding on the role of discretion in determining the common intention of the Treaty parties; and the fourth relates to the honour of the Crown. We address the first three in turn and the honour of the Crown under the second issue, which follows immediately. (i) The Textual Argument [196] Ontario argues that the phrasing of the graciousness clause in the augmentation clause is a particularly potent conferral of unfettered discretion on the Crown. The graciousness clause provides: “or such further sum as Her Majesty may be graciously pleased to order”. This language evokes the royal prerogative. Ontario argues that the language of the graciousness clause modifies the entire augmentation clause, making any increase to the annuity beyond its current level completely discretionary. [132] [197] We disagree for textual reasons and for reasons of principle. [198] The trial judge’s interpretation of the augmentation clause is consistent with and is supported by the text of the augmentation clause. The structure of the augmentation clause makes it clear that the graciousness clause applies only to the per person annuity, not to the collective annuity. It does not modify the entire augmentation clause. To see this, it is helpful to depict the structure of the augmentation clause in its constituent parts, with some explanatory notes and emphasis added. [199] The collective annuity promise comes first: [F]or the further perpetual annuity of six hundred pounds of like money, the same to be paid and delivered to the said Chiefs and their Tribes at a convenient season of each year Her Majesty and the Government of this Province, hereby promises and agrees to make, or cause to be made, the payments as before mentioned…. [200] The main text of the augmentation clause states: Her Majesty , Who desires to deal liberally and justly with all Her subjects, further promises and agrees that should the territory hereby ceded by the parties of the second part at any future period produce such an amount as will enable the Government of this Province, without incurring loss , to increase the annuity hereby secured to them , then and in that case the same shall be augmented from time to time , [201] Then comes the first proviso, which specifies the amount paid to individuals and contains the graciousness clause: provided that the amount paid to each individual shall not exceed the sum of one pound Provincial currency in any one year, or such further sum as Her Majesty may be graciously pleased to order ; [202] Then comes the second proviso followed by the diminution clause: and provided further that the number of Indians entitled to the benefit of this treaty shall amount to two-thirds of their present number, which is fourteen hundred and twenty-two, to entitle them to claim the full benefit thereof; and should they not at any future period amount to two-thirds of fourteen hundred and twenty-two, then the said annuity shall be diminished in proportion to their actual numbers. [203] Structurally, the textual breakdown shows plainly that the graciousness clause does not apply to the entire augmentation clause but only to the first proviso, which sets the annuity for individuals. [204] Textually, in terms of the language, Crown compliance with the augmentation clause is mandatory because the clause expressly states that “should” the ceded territory produce sufficient revenue to enable increasing the annuity “without incurring loss”, “then and in that case the same shall be augmented from time to time”. Up to that point in the text of the augmentation clause, the only antecedent to which “the same” could relate is the collective annuity already mentioned, being “the further perpetual annuity of six hundred pounds of like money”. In our view, because the graciousness clause is part of the first proviso, it cannot dominate the augmentation clause and reduce its mandatory wording (“shall be augmented”) into a gratuitous exercise of the Crown’s unfettered discretion (“such further sum as Her Majesty may be graciously pleased to order”), as Ontario argues. The graciousness clause applies only to the per person annuity in the first proviso (“the amount paid to each individual”), which is capped in the text at $4. [205] As a matter of principle, there is, in any event, no such thing as an unfettered discretion, as we have already established. (ii) Justiciability [206] To set the context for this issue, we first set out Ontario’s position, next the governing principles on justiciability, and then apply the principles to Ontario’s argument. Ontario’s Position on Justiciability [207] Ontario invokes the doctrine of justiciability, in part, to reinforce its claim that Crown discretion under the augmentation clause is unfettered. Ontario attacks the trial judge’s finding that the augmentation clause requires the Crown to pay a “fair share” of net Crown resource-related revenues on the basis that “[n]othing in the historical record suggests that this abstract concept was discussed during the Treaty negotiations, much less agreed upon.” Accordingly, Ontario argues: “The absence of common intention on what constitutes a ‘fair share’ also implies that should the parties fail to reach agreement on this concept, the courts will have to create a definition in a legal vacuum.” Ontario asserts: “What is ‘fair’ in the abstract, considered apart from legal principles or common intention, is not a justiciable question; it is a moral or policy question on which many different views and perspectives are possible.” The question does not have “a sufficient legal component to be justiciable.” [208] Ontario’s argument concludes dramatically: In defining what is a “fair share” under the judgments below, the courts would be making policy decisions with respect to limited Crown finances, thereby entering a field that Canadian courts have appropriately viewed as being outside the proper function of the judiciary. In the result, a Crown discretion to increase annuities has been replaced in the judgments below by a judicial discretion in relation to Crown finances that is not grounded in common intention or legal principles. The Governing Principles Concerning Justiciability [209] The doctrine of justiciability imposes limits on judicial review of executive action. It is based on the sense that there are public policy issues that are beyond the jurisdiction of the courts. Stratas J.A. noted: In rare cases … exercises of executive power are suffused with ideological, political, cultural, social, moral and historical concerns of a sort not at all amenable to the judicial process or suitable for judicial analysis. In those rare cases, assessing whether the executive has acted within a range of acceptability and defensibility is beyond the courts’ ken or capability, taking courts beyond their proper role within the separation of powers. [133] Examples of such rare cases would include the deployment of military assets, entering into foreign treaties, and addressing homelessness. [210] The issue of addressing homelessness was raised in Tanudjaja , where the court found that there was “no sufficient legal component to engage the decision-making capacity of the courts”, and that “[i]ssues of broad economic policy and priorities are unsuited to judicial review.” [134] The application in that case asked the court “to embark on a course more resembling a public inquiry into the adequacy of housing policy.” [135] The court noted, “the issue is one of institutional competence [and] whether there is a sufficient legal component to anchor the analysis” and concluded that the application was not justiciable. [136] The Principles Concerning Justiciability Applied [211] In our view the doctrine of justiciability has no application to this case, for three reasons. First, here the court is not reviewing executive action in the abstract. The court’s task is to interpret the augmentation clause in the Treaties in the context in which they were negotiated. The interpretation and enforcement of treaty obligations is core judicial business. [137] [212] Second, Ontario’s justiciability argument does not turn on the language of the augmentation clause but on the trial judge’s adoption of the expression “fair share”. However, Ontario’s justiciability argument cannot be based on the result of the trial judge’s interpretation. Either a question is justiciable or it is not. If it is justiciable, then the court’s answer might be wrong, but the result cannot logically convert the question from one that is justiciable into one that is not. [213] Ontario’s argument must be treated as an assertion that the trial judge erred in adopting the term “fair share”, not that the interpretation is not justiciable. As we will explain below, we agree that it was unhelpful for the trial judge to adopt the concept of “fair share”, but her doing so cannot form the basis of a justiciability argument. [214] Third, and relatedly, there is a sense in which Ontario is making an argument based on the possibly catastrophic impact of a large judgment on the fiscal state of the Province, thereby reducing its capacity to deal effectively with its other responsibilities. We draw this inference from the language of Ontario’s factum: “the courts would be making policy decisions with respect to limited Crown finances, thereby entering a field that Canadian courts have appropriately viewed as being outside the proper function of the judiciary.” But this is not what the court is tasked to do nor what it will do. In the end there might be a financial judgment that Ontario will have to pay, like any party that is in breach of an agreement. The court is simply requiring the Crown to comply with the Treaties. Accordingly, Ontario is making an argument based solely on consequences, which is not a true justiciability argument. [215] For these reasons, we do not consider justiciability to be a viable basis on which to find that the augmentation clause gave the Crown unfettered discretion over whether and when to increase the annuities. (iii) The Argument on the Evidence as to the Nature of the Crown’s Discretion [216] The trial judge found that the promise in the augmentation clause to increase the annuity is mandatory, not discretionary, but that the Crown has a measure of discretion in the implementation of the Treaty promises. Ontario attacks the evidentiary basis for her finding that the promise to increase the annuity is not discretionary. [217] In the course of her reasoning, the trial judge found there to be no historical record that Robinson explained the notion of discretion to the Anishinaabe. She stated: The Robinson Treaties use formal English and legal terminology. I am not at all convinced that the presence of interpreters could or should have given Robinson confidence that the Chiefs understood the concepts of discretion, royal prerogative, or Her Majesty’s graciousness, if such concepts had been embedded into the Treaties. And, therefore, such concepts could not have informed the common intention of the parties. [138] [218] Ontario bases its challenge on the last sentence: “such concepts could not have informed the common intention of the parties.” Ontario asserts that the trial judge’s finding that discretion was not understood by the Chiefs is inconsistent with her plain finding that the augmentation clause gave the Crown discretion over increases to the $4 cap on distribution to individuals and discretion in implementation. Read literally, that sentence (“such concepts could not have informed the common intention of the parties”) would mean that no element of the Treaties could engage the Crown’s discretion because Crown discretion did not form part of the common intention of the Treaty parties. [219] Seeking to avoid the risk that such a reading would pose to its argument that the Crown has plenary discretion under the Treaties, Ontario essentially makes a two-step argument. The first step is that the trial judge was palpably wrong and Robinson successfully conveyed the concept of Crown discretion at the Treaty Council. The second step is that Crown discretion, the meaning of which Robinson correctly conveyed and which then formed part of the common intention of the parties, was unfettered. We agree with the first step, but Ontario’s argument falters at the second. [220] Relevant to the first step, Ontario submits that the concept of discretion in a leader is not inherently difficult to explain, that there were interpreters and advisers at Treaty Council who were not Crown actors, and that the evidence from Elder Rita Corbiere, a contemporary witness, contradicts the trial judge’s assertion that the Anishinaabe would not have understood the concept of discretion. We agree that Robinson is likely to have conveyed, and the Anishinaabe are likely to have understood, the concept of discretion. [221] However, this is not a palpable and overriding error that undermines the trial judge’s interpretation. Instead, in our view, the correct analysis is simple: the trial judge simply misspoke. What she meant to say was not, “such concepts could not have informed the common intention of the parties” but instead, “such concepts of unfettered discretion could not have informed the common intention of the parties.” Most obviously, in light of her numerous references to ongoing Crown discretion, the trial judge did not intend to exclude all Crown discretion, just unfettered discretion. [222] This reading of the trial judge’s reasons is supported by the record. In its written closing submissions on the motions, under the heading “Common Intention”, Ontario argued that Robinson would not have understood the augmentation clause as creating an obligation to increase annuities beyond an amount equal to $4 per person under any circumstances. [139] Because Robinson was motivated to accurately communicate the meaning of the Treaties at Treaty Council, he took steps through skilled interpreters to explain the Treaties so as to avoid any misunderstanding. Ontario argued that he was successful in doing so. Ontario pointed to Robinson’s statement, in his Treaty Report, that he “had no difficulty in making [the Anishinaabe] comprehend” the augmentation clause. Ontario argued that Robinson was better placed than anyone alive today to assess whether he had successfully communicated the meaning of the augmentation clause. [223] The trial judge asked: “What can we take from Robinson’s many references in his diary and Official Report that the Chiefs were satisfied after the Treaties were read out, interpreted and explained to them?” [140] Contextually, we read this section of the trial judge’s reasons as her response to Ontario’s arguments that Robinson’s supposed understanding of the augmentation clause – that the Crown’s discretion to augment was unfettered – should be assumed to have been communicated successfully to the Anishinaabe. [224] The trial judge noted Ontario’s submission that “the Anishinaabe had the benefit of multiple interpreters who were skilled cross-cultural translators.” [141] According to one expert, the interpreters at the Treaty Council “were a genuine part of the multicultural world of the upper Great Lakes region.” The trial judge accepted that the interpreters explained the “shall not exceed £1” provision in the augmentation clause and that there is no record of any complaints. [142] She added: “There is no record of Robinson himself explaining the ‘cap’, the notion of discretion, or royal prerogative.” [143] [225] The trial judge then described the difficulties of interpreting legal terms to lay people and the large cultural gap between the Treaty parties, before making the comments, quoted earlier, in which Ontario claims she erred. [226] Contextually, however, in making these comments, the trial judge is best understood to be noting that the fact that the augmentation clause was interpreted or explained to the Anishinaabe does not mean they would have understood discretion in the augmentation clause as operating in the manner Ontario now claims, that is, as an unfettered Crown discretion, “not subject to any defined set of factors”, over increases beyond $4 per person. [144] [227] The trial judge cited Elder Corbiere’s testimony “that the Anishinaabe lived with notions of what they expected of their leaders: to be generous, to live in a good way, to do right by the people.” [145] Elder Corbiere’s testimony strongly suggested that the Anishinaabe would not have understood sole or unfettered discretion in a leader, which is the form of discretion that Ontario argues was embedded in the augmentation clause and successfully communicated to the Anishinaabe. This concept, of a leader choosing to act arbitrarily without regard for the needs, requests, or expectations of others, could not have been communicated to the Anishinaabe because it is not consistent with Anishinaabe conceptions of leadership or their expectations of the Crown. It is therefore unlikely to have been what the Anishinaabe understood from an interpretation and explanation of the augmentation clause. [228] The trial judge was entitled to rely on this evidence and to draw from it the inference that the Anishinaabe could not have understood the concept of a leader exercising discretion arbitrarily because it would have been incomprehensible to the Anishinaabe that a leader, including the Queen, would assert unfettered discretion, and be empowered to act in a manner unbound by the principles described by Elder Corbiere. [146] The trial judge did not accept that the Anishinaabe would have understood the augmentation clause as permitting the Crown to refuse to increase the annuity after it reached the equivalent of $4 per person, no matter the revenues produced by the land. [229] The trial judge did not err in assessing the Anishinaabe understanding of Crown discretion. Her findings on common intention and her interpretation of the augmentation clause to the effect that Crown discretion was not unfettered were not based on Elder Corbiere’s statements alone, but on a careful examination of the historical and cultural context in which the Treaties were negotiated and signed. This was completely within the trial judge’s remit and we do not discern an error. [230] The trial judge did not err in her analysis of the form and content of the Crown’s discretion, or the First Nation’s understanding of the scope of that discretion, contrary to Ontario’s argument. C. Issue Two: Did the Trial Judge Err in Finding that the Doctrine of the Honour of the Crown Obliges the Crown to Increase the Annuities as Part of its Duty to Diligently Implement the Treaties? [231] We begin with the governing principles, next set out the trial judge’s reasons, the positions of Ontario and Canada, and then our analysis. The context is set by Ontario’s position that, in the circumstances, the honour of the Crown is procedural only and does not give rise to fiduciary duties to the Treaty First Nations. (1) The Governing Principles Concerning the Honour of the Crown [232] The honour of the Crown has been recognized as a legal principle applying to treaties since at least 1895, [147] but its roots are far deeper. [148] It is historically linked to the Royal Proclamation of 1763 (the “Royal Proclamation”) [149] and engaged by s. 35 of the Constitution Act, 1982. [150] In Haida Nation , McLachlin C.J. explained: The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”…. [151] [233] We repeat McLachlin C.J.’s strong statement: “The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake.” [152] The honour of the Crown is “always at stake” in the Crown’s dealings with Aboriginal people. [153] According to McLachlin C.J., this statement “is not a mere incantation, but rather a core precept that finds its application in concrete practices.” [154] [234] The honour of the Crown “infuses” the process of treaty interpretation, [155] and is “an important anchor”. [156] Further: “The Crown’s honour cannot be interpreted narrowly or technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1).” [157] The honour of the Crown gives rise to justiciable duties. [158] While not a cause of action in itself, [159] the honour of the Crown can also be the subject of a declaration. [160] [235] Brian Slattery argues that in Haida Nation and Taku River , “we witness the emergence of a new constitutional paradigm governing Aboriginal rights” built around the doctrine of the honour of the Crown. [161] In his book, The Honour and Dishonour of the Crown: Making Sense of Aboriginal Law in Canada , Jamie D. Dickson makes an extended argument that since Haida Nation , the doctrine of the honour of the Crown has begun to displace fiduciary duty as the principal means by which the court assesses Crown actions under treaties. He states: [T]he fundamental conceptualisation of Crown obligations in Aboriginal contexts was entirely reset upon (a) explicitly, the core principle that the Crown is legally mandated to always act honourably in its dealings with Aboriginal peoples, and (b) implicitly, the notion that the regulation of the mischief of Crown dishonour involving Aboriginal peoples is the predominant, if not the exclusive, function of Aboriginal law. [162] [236] The caselaw bears out Dickson’s prediction, flowing from Haida Nation , that in giving content to sparsely defined treaty promises courts will utilize the doctrine of the honour of the Crown, not fiduciary duty. He notes: As the doctrinal anchor of Aboriginal law — as it was described by Justice Binnie in Little Salmon/Carmacks — the honour of the Crown principle describes the core mandate of this area of law — that the Crown is to act honourably in its dealings with Aboriginal peoples — and operates to give rise to specific and enforceable obligations, the breach of which by the Crown violates the anchor principle. [163] [237] In Mikisew Cree (2018), Karakatsanis J. noted: This Court has repeatedly found that the honour of the Crown governs treaty making and implementation, and requires the Crown to act in a way that accomplishes the intended purposes of treaties and solemn promises it makes to Aboriginal peoples…. Treaty agreements are sacred; it is always assumed that the Crown intends to fulfill its promises. No appearance of “sharp dealing” will be permitted…. [164] [238] In Haida Nation , McLachlin C.J. pointed out that: “The honour of the Crown gives rise to different duties in different circumstances.” [165] In Manitoba Metis , McLachlin C.J. and Karakatsanis J. note that “[w]hat constitutes honourable conduct will vary with the circumstances”, and that “the duty that flows from the honour of the Crown varies with the situation in which it is engaged.” [166] The incidents of the honour of the Crown that may apply include “a fiduciary duty when the Crown assumes discretionary control over a specific Aboriginal interest”. [167] It is instructive that in Manitoba Metis the court found that the honour of the Crown did not give rise to a fiduciary duty [168] even though the honour of the Crown was breached. [169] [239] As an example of the more nuanced approach, McLachlin C.J. noted in Haida Nation that: [W]hile the Crown’s fiduciary obligations and its duty to consult and accommodate share roots in the principle that the Crown’s honour is engaged in its relationship with Aboriginal peoples, the duty to consult is distinct from the fiduciary duty that is owed in relation to particular cognizable Aboriginal interests. [170] [240] The most common cases in which the court has imposed fiduciary duties on the Crown as an incident of its honour are those where the Crown controls the disposition of reserve property, including the taking up of reserve lands or lands subject to a treaty. Examples include Guerin , Grassy Narrows , and Southwind . [171] There are also cases where the court did not rely on fiduciary duty in which the complaint was that the Crown had not given full effect to a treaty, including Marshall , or had not complied with the duty to consult. [172] [241] The honour of the Crown demands the purposive interpretation of treaties by the courts and by the Crown. [173] The Crown must act “diligently in pursuit of its solemn obligations and the honourable reconciliation of Crown and Aboriginal interests” [174] and “diligently pursue implementation” of treaty promises [175] in order to achieve their intended purposes. [176] This duty of diligent implementation is “narrow and circumscribed”. [177] Like the duty to consult, it is distinct from fiduciary duties. To fulfil the duty of diligent implementation, “Crown servants must seek to perform the obligation in a way that pursues the purpose behind the promise.” [178] Implementation need not be perfect, but “a persistent pattern of errors and indifference that substantially frustrates the purposes of a solemn promise may amount to a betrayal of the Crown’s duty to act honourably in fulfilling its promise.” [179] [242] These are the duties that arise from the honour of the Crown in relation to the promises made in the Robinson Treaties. The question then becomes whether the concept of fiduciary duty has any work to do that is not done by the honour of the Crown and its duty of diligent implementation. We address this question below. (2) The Trial Judge’s Reasons [243] The trial judge stated: The honour of the Crown requires that the Crown fulfil their treaty promises with honour, diligence, and integrity. The duty of honour also includes a duty to interpret and implement the Treaties purposively and in a liberal or generous manner. The Defendants accept this characterization of their duties. [180] [244] She added immediately: “As I have found, there is also an ad hoc fiduciary duty on the part of the Crown.” [181] The trial judge often linked the honour of the Crown and fiduciary duties in her reasons without making any distinction between the two. [182] The issue was squarely raised in argument [183] but she sidestepped it, taking the view that it was not necessary to decide which of the honour of the Crown or fiduciary duty “has primacy over the other.” [184] Her concern appears to be to leave open the possibility of equitable damages. [185] [245] Finally, the trial judge noted: “Whether the Crown has consistently fulfilled its duties to purposively and diligently interpret and implement the Treaties or whether the Crown has breached its duties are not Stage One issues.” [186] But she overcame this diffidence, making several strong statements: Since 1850 the Crown has acted with unfettered discretion in their interpretation and implementation of the Treaties, in a way that has seriously undermined their duty of honour. This left the Treaties’ promise completely forgotten by the Crown. [187] It seems to me that the real problem is not so much that the financial circumstances changed in the 168 years since the Treaties were signed; the real problem is that the augmentation promise was ignored for that entire period. [188] [N]or should the Crown benefit from their neglect of the Treaties’ provisions for over 150 years and thereby escape their obligation of honourable implementation of the Treaties’ terms. At the implementation stage, the Crown is obliged, by virtue of the doctrine of the honour of the Crown, to purposively interpret and implement the Treaties’ terms. [189] (3) The Position of Ontario on the Honour of the Crown [246] Ontario makes two arguments concerning the honour of the Crown. The first is linked to its primary argument that the Crown has unfettered discretion to augment the annuities or to decline to do so. Consistent with that position, Ontario asserts that in exercising its discretion under the aegis of the honour of the Crown, the Crown has only procedural duties, which Ontario sets out in four propositions: · the Crown must engage in the exercise of the discretion upon request by a Treaty First Nation, and from time to time in any event; · the Crown should engage honourably with the Treaty First Nations in the exercise of the discretion, meaning that the process the Crown chooses to follow must uphold the honour of the Crown, and can be challenged on the basis that it failed to do so; · the Crown must engage with Treaty First Nations in relation to the analysis of net Crown resource-based revenues, including providing sufficient information to allow them to independently assess the analysis performed by the Crown; and · an honourable process includes providing Treaty First Nations with an explanation of any decision reached, though this would not require formal reasons. [247] Ontario’s second argument is that the honour of the Crown does not require the imposition of fiduciary duties on the Crown respecting these Treaties and that the trial judge erred in imposing them. (4) The Position of Canada on the Honour of the Crown [248] Canada did not appeal the judgment and agrees that the Crown has Treaty obligations “to increase the promised annuity payments from time to time if Crown resource-based revenues from the Treaties’ territories permit.” Canada submits that the Crown “retains discretion with respect to the implementation and fulfilment of those obligations; but its discretion is not unfettered” and is subject to judicial review. The constraints include the terms of the Treaties, the duty of purposive treaty interpretation, the honour of the Crown, and the reconciliatory imperative of s. 35 of the Constitution Act, 1982 . Canada did not address the relationship between the honour of the Crown and fiduciary duties. (5) The Principles Concerning the Honour of the Crown Applied [249] The trial judge stated that the honour of the Crown requires the Crown to fulfil the Treaty promises with honour, diligence, and integrity, including the duty to interpret and implement the Treaties purposively and in a liberal or generous manner. [190] This is consistent with the authorities. [250] The trial judge correctly found that “the Crown has a mandatory and reviewable obligation to increase the Treaties’ annuities when the economic circumstances warrant.” [191] She specified that: “The economic circumstances will trigger an increase to the annuities if the net Crown resource-based revenues permit the Crown to increase the annuities without incurring a loss.” [192] This is the core Treaty promise that must now be diligently implemented by virtue of the honour of the Crown. [251] Consequently, we would not accept Ontario’s argument that, in this case, the honour of the Crown can be reduced to a series of procedural requirements. Where the honour of the Crown is involved, “fairness to the Indians is a governing consideration.” [193] As Thomas Isaac notes, “[t]he notion of fairness in interpretation seemed to indicate, even at a relatively early stage, that the honour of the Crown was meant to ensure just outcomes, rather than solely procedural fairness.” [194] [252] We agree with Ontario that the honour of the Crown does impose procedural requirements at least equal to those Ontario proposes. We would not go further in specifying these procedural requirements. They are properly the subject of rulings to be made in Stage Three of these proceedings. [253] However, these procedural requirements are not all that the honour of the Crown requires. The honour of the Crown, together with s. 35, requires that the Crown diligently implement the Treaty promise. This is the standard against which the Crown’s incidental discretionary decisions in the implementation process are to be assessed. All of those decisions are subject to judicial review. The relevant question, on review, will be: “Viewing the Crown’s conduct as a whole in the context of the case, did the Crown act with diligence to pursue the fulfillment of the purposes” of the Treaty promise? [195] [254] We turn to the issue the trial judge declined to resolve, which she expressed as which of honour of the Crown or fiduciary duty “has primacy over the other.” [196] With respect, the honour of the Crown and fiduciary duty are not in competition. The honour of the Crown can give rise to fiduciary duties in circumstances where such duties are necessary and appropriate. [255] The trial judge found the imposition of a fiduciary duty necessary, in part, to ensure the availability of equitable remedies. She noted that, in addition to the obligations imposed by the honour of the Crown, “a finding of a fiduciary duty may impose additional duties on the Crown, as well as open up an array of equitable remedies.” [197] These are remedies that, the trial judge suggested, “at this time are not available under the principle of the honour of the Crown.” [198] She found that the question of fiduciary duties could not “be ignored because a different model may be developed at some future point.” [199] [256] In the particular circumstances, does the concept of fiduciary duty have any work to do that is not already being done by honour of the Crown? In Peter Ballantyne Cree Nation , the Court of Appeal for Saskatchewan endorsed Dickson’s view, set out above, that “the generalized fiduciary obligation (in form, a principle that calls for honourable conduct) has been largely replaced by the honour of the Crown principle which effectively mandates the same thing.” [200] We agree. [257] The “different model” to which the trial judge refers appears to be the honour of the Crown and the duty of diligent implementation. While the duty of diligent implementation has received only recent and isolated application as a basis for remedies in the treaty context, [201] it “is not a novel addition to the law” and is “recognized in many authorities”. [202] Where the duty is breached, a court may order remedies aimed at ensuring that the Crown fulfills its treaty promises. [258] We agree with Hourigan J.A. that fiduciary duty has no work to do in this case that cannot be done by honour of the Crown alone. The development of the doctrine counsels against imposing fiduciary duties where they are not required, and they are not required in this case. D. Issue Three: Did the Trial Judge Err in Finding There Was No Implied Term for the Indexation of the Annuities? [259] Ontario submits that the trial judge erred in refusing to accept that the annuities paid pursuant to the Robinson Treaties should be indexed to mitigate the impact of inflation. Ontario argues that, although the Treaties do not contain any legally enforceable obligation to increase the annuities beyond a contractual $4 per person “cap”, applying the common-law test for implication of contractual terms, so as to add a proviso indexing that cap, would restore the purchasing power intended by the Treaty partners and would be consistent with the honour of the Crown. Canada takes the position that the trial judge was correct in declining to imply such a term. The Huron and Superior Plaintiffs see no need to imply indexing if the Treaties oblige the Crown to increase the annuity from time to time, when the revenues generated by the ceded lands permit the Crown to do so without incurring a loss. (1) The Trial Decision on Indexation [260] As noted, the Treaties provide that the annuity “… shall be augmented from time to time, provided that the amount paid to each individual shall not exceed the sum of one pound Provincial currency in any one year, or such further sum as Her Majesty may be graciously pleased to order” (emphasis added). [261] At trial, Ontario pleaded that “one pound Provincial currency”, equivalent to $4, should be indexed to mitigate inflation but, as discussed, took the position that this sum was a “cap” and that it has no obligation other than to consider augmenting the individual annuity over this indexed amount. The precise inflation-adjusted value of the cap would be left for the trial judge to determine at Stage Three of these proceedings. On appeal, Ontario acknowledges that an inflation-adjusted cap would be relevant both to Ontario and Canada’s continuing obligations under the Treaties and to any calculation of damages. [262] Both the Huron and Superior Plaintiffs agreed that “one pound Provincial currency” should be indexed, but only if their principal argument – that the Treaties oblige the Crown to increase a collective annuity in step with increases to territorial revenue – were to fail. Canada took the position that, given inflation was unknown in 1850, the parties would not have turned their minds to the question of indexation and, thus, implying a term would be inappropriate. [263] The trial judge was not persuaded that the parties would have agreed to an indexation clause, had the then-unknown concept of persistent inflation and erosion of purchasing power been explained to them at the time of the Treaties. [203] This was just one of many unforeseen changes affecting the Treaty partners over the following 170 years. [204] She observed that the Treaties contained both an augmentation clause and a diminution clause, intended by the parties to deal with changing circumstances. [205] The Robinson Treaties were unique in providing for an augmentation of the annuities which, she found, were linked to increases in the territorial revenue and which would thereby adjust the future value of the annuities. [206] She accordingly refused to imply a Treaty term for indexation of the annuities but noted that “[i]n treaties without an augmentation provision, different considerations could quite possibly result in different responses to this claim.” [207] (2) Analysis [264] There is no doubt that courts may imply terms into treaties on the basis of the presumed intentions of the parties, where necessary to give effect to treaty promises or where doing so meets the “officious bystander test”. In Marshall , the accused – a Mi’kmaq man – was charged with offences under federal fishery regulations. He asserted a treaty right to fish. The treaty contained a Mi’kmaq promise not to trade any commodities except with the managers of certain trading posts, known as truckhouses, or persons appointed by the Crown. The treaty did not contain any reference to a continued right to fish. [265] Binnie J. observed: Here, if the ubiquitous officious bystander had said, “This talk about truckhouses is all very well, but if the Mi’kmaq are to make these promises, will they have the right to hunt and fish to catch something to trade at the truckhouses?”, the answer would have to be, having regard to the honour of the Crown, “of course”. [208] [266] And further: This was not a commercial contract. The trade arrangement must be interpreted in a manner which gives meaning and substance to the promises made by the Crown. In my view, with respect, the interpretation adopted by the courts below left the Mi’kmaq with an empty shell of a treaty promise. [209] [267] The court concluded the treaty at issue, in restricting the trade of fish, implied a continued right to fish in a manner sufficient to produce a moderate livelihood. As Binnie J. put it, “nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi’kmaq people to secure their peace and friendship”. [210] [268] In the commercial context, courts will consider whether an implied term is “necessary to give business efficacy” to the agreement. [211] As noted in Energy Fundamentals Group Inc. : Implication of a contractual term does not require a finding that a party actually thought about a term or expressly agreed to it. Often terms are implied to fill gaps to which the parties did not turn their minds…. On the other hand, a court will not imply a term that contradicts the express language of the contract or is unreasonable…. [212] Courts will generally not imply a term where the agreement’s language addresses the particular contingency addressed by the proposed implied term. [269] In this case, the trial judge was correct to reject the proposal to imply an indexing term in the face of the parties’ choice, in the Treaties, to link increases in the annuities to the revenues generated by the ceded lands. There is no basis to supplant the augmentation clause with a judicially created indexing term which, over 170 years, could produce widely different results, particularly given the various possible formulae for indexation. [270] Here, the Treaty beneficiaries are not left with “an empty shell of a treaty promise” in the absence of the proposed implied term. [213] As we explain elsewhere, the Huron and Superior Plaintiffs retain a meaningful and enforceable Treaty right, subject to substantive judicial review, that accommodates the risk of inflation. The honour and integrity of the Crown demand that it uphold this promise, not the implied promise Ontario advances in its stead. E. Issue Four: Did the Trial Judge Err in Her Approach to Remedies? [271] We begin with several observations to set the remedial context facing the trial judge. First, the trial judge cited the patent deficiencies and omissions in these historical Treaties. Even though they were meant to establish relationships in perpetuity, the Treaties are “lean on details.” [214] The trial judge noted that: [T]he Treaties do not prescribe a protocol or a guide for the mechanics of implementing this promise (i.e. the frequency, method, or factors to be considered, the corresponding duties that arise, or the scope or limits of review) . Therefore, while it is not controversial that the duties flowing from the honour of the Crown bind the Crown (irrespective of the nature of the promise), the specific duties that arise in this case are undefined on the face of the Treaties. [215] [272] The trial judge observed that because the Treaties are perpetual, they “are not frozen at the date of signature.” [216] But the lack of any effort to implement the augmentation clause in the Robinson Treaties, apart from the increase to the annuities in 1875, has resulted in a lack of guidance for future implementation: The annuities were last increased in 1875. Therefore, regrettably, there is no set protocol, mechanism, or precedent for the process of considering increases to the annuities. Hence, the court and the parties must return to the shared goals, expectations, and understandings of the parties in 1850 and, based on those shared goals, expectations, and understandings, devise processes and procedures for the implementation of the Treaties’ promise in the modern era. [217] [273] Binnie J. commented in Little Salmon : The historical treaties were typically expressed in lofty terms of high generality and were often ambiguous. The courts were obliged to resort to general principles (such as the honour of the Crown) to fill the gaps and achieve a fair outcome. [218] [274] Second, the trial judge expressed dismay at the positions taken in this litigation by Ontario and Canada, [219] implicitly echoing McLachlin C.J.’s comment in Taku River that “[t]he Province’s submissions present an impoverished vision of the honour of the Crown and all that it implies.” [220] The trial judge noted that “both Ontario and Canada reject the proposition that they have duties of disclosure or consultation in the implementation process.” [221] This hard position, she said, “flies in the face” of Supreme Court authority on the honour of the Crown, leading her to note that: “The duty of honour must find its application in concrete practices and in legally enforceable duties.” [222] Those duties include both a duty to consult and a duty to disclose at least “sufficient information to allow the parties to calculate net Crown resource revenues.” [223] [275] Third, these observations about the recalcitrance of both Ontario and Canada [224] led the trial judge to doubt the prospect of successful negotiations: However, when negotiation fails to achieve a resolution or if the Crown refuses to negotiate, the Treaties’ beneficiaries are entitled to ask for judicial intervention. And if the Treaties’ beneficiaries issue a claim after 168 years of no action on the part of the Crown, the court cannot simply accept the Crown’s acknowledgment of their duty of honour and permit the Crown to carry on without further direction. [225] [276] The trial judge went on to craft the judgments under appeal with no confidence that a simple declaration without more judicial direction would trigger good faith negotiations. On the record before her, this was not an unreasonable assessment. (1) Ontario’s Arguments [277] Ontario makes three arguments on remedies. First, the trial judge erred in excluding the costs of infrastructure and institutions from the calculation of net Crown resource-based revenues. Second, her “fair share” formulation is not supported on the evidence. Third, as framed, the remedy in the judgments is not justiciable. We found earlier that the justiciability argument has no merit. We address the remaining two issues in turn after setting out the relevant language of the judgments. We conclude with some observations on Stage Three in light of the matters addressed in this section of the reasons. (2) The Language of the Judgments [278] The context for all three issues is set by the terms of the formal judgments from the Stage One proceedings. For convenience, in our analysis, we will use the text of the judgment from the Huron action, which is materially the same as the text of the judgment from the Superior action. Our analysis applies equally to both judgments. [279] The trial judge found that the Treaties require the payment of a “fair share” of net Crown resource-based revenues to the First Nations. Paragraph 1(a) of the operative part of the judgment from the Huron action provides: Pursuant to the Robinson Huron Treaty of 1850, the Crown is obligated to increase, and the First Nation Treaty Parties have a collective treaty right to have increased, from time to time, the promised annuity payment of £600 (or $2,400) if net Crown resource-based revenues from the Treaty territory permit the Crown to do so without incurring loss, with the amount of annuity payable in any period to correspond to a fair share of such net revenues for that period[.] [Emphasis added.] [280] The trial judge added, at para. 1(d) of the judgment: “ The Crown must diligently implement the augmentation promise, so as to achieve the Treaty purpose of reflecting in the annuities a fair share of the value of the resources, including the land and water in the territory ” (emphasis added). [281] The trial judge included guidance on the definition of “net Crown resource-based revenues” in paras. 3(b) and (c) of the judgment: (b) For the purpose of determining the amount of net Crown resource-based revenues in a particular period: i. relevant revenues to be considered are Crown resource-based revenues arising directly or in a closely related way to the use, sale, or licensing of land (which could include the waters) in the Treaty territory, including mineral and lumbering revenues and other analogous revenues as received by the Crown both historically and in the future, but not including personal, corporate or property tax revenues, ii. relevant expenses to be considered are Crown expenses related to collecting, regulating, and supporting relevant revenues, but do not include the costs of infrastructure and institutions that are built with Crown tax revenues, with these definitions to be applied as general principles that are subject to clarification and further direction by the Court in a future stage of this proceeding; and (c) Failing agreement amongst the parties, the principles to be applied for purposes of determining amounts that are fairly and reasonably equal to a fair share of net Crown resource-based revenues are subject to further direction by the Court in a future stage of this proceeding. (3) The Definition of Net Crown Resource-Based Revenues [282] Ontario argues that the trial judge erred in excluding the costs of infrastructure and institutions built with Crown tax revenues from the calculation of net Crown resource-based revenues. To be fair to the trial judge, she embarked on this exercise at the behest of the Huron and Superior Plaintiffs [226] and against the opposition of Ontario and Canada, who urged her to “proceed cautiously”, arguing that the questions of what constitutes a revenue and an expense were better dealt with in Stage Three. [227] The trial judge’s ambivalence about deciding the issue is signalled by her comment that: “I agree, to some extent, with both positions.” [228] However, the trial judge accepted the Huron and Superior Plaintiffs’ argument that there was sufficient evidence before the court to “articulate general principles”. [229] [283] The trial judge accepted the arguments of Ontario and Canada that tax revenues should not be considered in calculating net Crown resource-based revenues [230] and on that basis excluded the costs of “the infrastructure and institutions that are built with Crown tax revenues.” [231] But her uncertainty is revealed in this statement: With respect to further principles guiding the definition of relevant revenues and expenses, I suggest that more or better evidence at Stage Three of this litigation may be of further assistance. The above general principles should be considered as a starting point only. [232] [284] The trial judge encouraged the parties to “come to an agreement on specific revenue and expense categories”. [233] The same hedging for uncertainty is found in paras. 3(b) and (c) of the judgment quoted earlier. [285] Ontario argues that the hedging language “appears to leave open the possibility that some tax revenues may be relevant, creating the potential for inconsistency.” Ontario appears to fear a form of tracing as the basis for establishing relevant revenues and expenses and notes that the ruling “failed to take into account uncontested evidence that by far the majority of provincial revenues and expenses flow through Ontario’s consolidated revenue fund.” Ontario expects that “there likely will be no ‘infrastructure and institutions’ that have been built exclusively with tax revenues” (emphasis in the original), and argues that if “applied categorically, this ‘general principle’ may exclude expenses that should be included, at least in part.” [286] The trial judge’s desire to give some guidance was well-intentioned, but, in our view, the counsel of caution should have prevailed. A prescriptive paragraph in a judgment should not be framed as only a first foray into a complex and difficult issue already scheduled to be heard. We would, as an exercise of prudence, excise the words, “but not including personal, corporate or property tax revenues,” from para. 3(b)(i) of the judgments, and the words, “but do not include the costs of infrastructure and institutions that are built with Crown tax revenues” from para. 3(b)(ii) of the judgments. (4) The “Fair Share” Formulation [287] Ontario argues that the trial judge erred in interpreting the Treaties as promising the payment of annuities corresponding to a “fair share” without defining “fair share” or articulating related principles. Ontario acknowledges that “[a]ll parties to the Robinson Treaties likely intended the annuities agreed upon to be ‘fair’ in context”, but argues that the concept of “fair share” was not discussed or agreed upon in Treaty negotiations and that there is no basis to infer any common intention that the promise be for a “fair share”. [288] The judgments provide that the Treaties require the payment of annuities corresponding to a “fair share of the value of the resources, including the land and water in the territory ”. We would deconstruct the judgments into two possible promises for analytical purposes. The first is that the augmentation clause was a promise to share in the value of the land. The second is that a “fair share” was promised. [289] The first form of promise – to share in the value of the land - is supported on the evidence and was woven through the trial judge’s interpretation of the augmentation clause. The same cannot be said for the second form of the promise – the elusive promise of fair share. We address each in turn. (a) The Promise to Share [290] At the most obvious level, the concept of sharing was built into the augmentation clause. Any future increase in the annuities will be funded out of net Crown revenues – revenues from the ceded lands in excess of costs. In that simple sense, the revenues would literally be shared. [291] But the concept of sharing is more fundamental. It was integral to the interpretation of the augmentation clause that the trial judge adopted, to quote it again for convenience: A third interpretation, which includes the second interpretation, is that the Treaties were a collective promise to share the revenues from the territory with the collective ; in other words, to increase the lump sum annuity so long as the economic condition was met. [234] [292] The trial judge found that “[a] plan to share the wealth on an ‘if and when’ basis through an augmentation clause was always central to the understanding, the aspiration, and the intent of both the Anishinaabe and the Crown.” [235] [293] From the Anishinaabe perspective, the principles that the trial judge found “fundamental to the Anishinaabe’s understanding of relationships”, [236] particularly the principle of reciprocity, suggest that the Treaties would have been viewed as an agreement to share in the value of the territory. But the word “value” is notoriously vague, as a review of the evidence shows. [294] In her careful recounting of the evidence on this issue, the trial judge described the Anishinaabe’s “established tradition of sharing their territory with others, provided that the use or occupation was authorized.” [237] She described the “ubiquitous” practice of gift giving among the Anishinaabe, which was considered “an act of moral imperative, rather than an economic necessity.” [238] Within Anishinaabe society, “hunters shared their bounty knowing that in turn, another hunter would reciprocate and share his when needed.” [239] Gift giving occurred “in accordance with the principle of reciprocity, which holds that items of value are given with the expectation that the gift will be returned.” [240] [295] The practice of gift giving became part of alliances between Euro-Canadians and the Anishinaabe: Prospective allies demonstrated their ability to take care of each other through the mutual exchange of gifts. Reciprocal gift giving was representative of the alliance that included the possibility of shared spaces and resources, embodying the principle of mutual interdependence. An alliance included the mutual promise of responsibility for each other. [241] [296] Sharing was inherent in the Anishinaabe practice of gift giving and in the principle of reciprocity. The trial judge found that, upon ceding their land to the Crown, “[t]he Anishinaabe Chiefs and leaders had every reason to expect that their ‘gift’ attracted a reciprocal ‘gift’, commensurate with the value of what they had provided.” [242] [297] The trial judge also grounded her finding that the augmentation clause promised some form of sharing in specific expressions by Anishinaabe leaders, such as the specific request for a “share” in a petition from Chief Shingwaukonse to Governor General Lord Cathcart, dated June 10, 1846. The trial judge found that this petition, in which Chief Shingwaukonse protested mining activities, “proposes to share the benefits derived from the territory.” [243] Chief Shingwaukonse wrote: I see Men with large hammers coming to break open my treasures to make themselves rich & I want to stay and watch them and get my share. Great Father – The Indians elsewhere get annuity for lands sold if ours are not fit in most places for cultivation they contain what is perhaps more valuable & I should desire for sake of my people to derive benefit from them… I should much wish to Great Father to see you & take your hand and ask you to tell me of these things, and also open to you my mind for tho’ I can write yet I could speak it better to you I want always to live and plant at Garden River and as my people are poor to derive a share of what is found on my Lands. [Emphasis added.] [298] The trial judge found that Chief Shingwaukonse “eloquently argued for a share of the wealth for over four years” and did not abandon this idea during treaty negotiations. [244] On another occasion, Chief Shingwaukonse expressed the desire for “pay for every pound of mineral that has been taken off of our lands, as well as for that which may hereafter be carried away.” [245] The trial judge also quoted Chief Peau de Chat’s words: “A great deal of our mineral has been taken away. I must have something for it. I reflect upon it, as well as upon that which still remains.” [246] [299] These “demands from the Anishinaabe for a share of the proceeds of [the mining] activity” were a significant part of the context that the trial judge took into account in interpreting the augmentation clause. [247] She found that the concept of sharing could be traced from the Chiefs’ expressions and petitions to the recommendation in the Vidal-Anderson Report that provision be made, “if necessary, for an increase of payment upon further discovery and development of any new sources of wealth.” [248] [300] The word “value” is used in different ways in the evidence and by the trial judge in her reasons. The trial judge described Anderson’s visit in 1848. She stated: “Chief Peau de Chat also sought information on the value of the mineral wealth. He stated that he wanted a fair evaluation of his land’s worth and arrears for the loss of minerals”. [249] This suggests a monetary conception of value. That conception is also invoked in the Vidal-Anderson Commissioners’ belief “that the Lake Superior Anishinaabe had been led ‘to form extravagant notions of the value of their lands’”. [250] Both this conception of value, and the fact that it was not familiar to the Anishinaabe, were also suggested by Chief Shingwaukonse’s comments to the Commissioners, regarding his lawyer: “[W]e have appointed Macdonell to arrange our affairs… I know nothing of the value of the land, - we thought of our ignorance and employed Macdonell.” [251] [301] It is clear that a monetary conception of “value” was being employed and that the “value” in question related to revenue produced from activities in the territory (both revenue from mining locations and proceeds from sale of lots). [252] [302] T he trial judge asked: “What did the Commissioners Mean by ‘Value of the Land’?” This question arose from the fact that “no prior treaty linked compensation to value.” [253] The trial judge pointed out that there was “no market for any Indian land” after the Royal Proclamation of 1763; only the Crown could buy such land. The trial judge stated: “Consequently, the Government controlled, or arbitrarily set, the entire market for Anishinaabe land ‘sales’. There was no way for Anishinaabe leaders to know ‘the value’ of the land, if value was measured as a function of future revenue.” [254] [303] The trial judge stated: The Commissioners’ repeated statements on this issue of “ignorance of value” leads to three possible inferences concerning the Commissioners’ assumptions: first, that “value”, however it was defined, was going to be an important factor to consider to reach a mutually acceptable agreement on annuity amount; second, that the Anishinaabe would be in a compromised position without knowledge of the value of the land or the wealth that the territory could produce; and third, that the Commissioners believed the Crown was in a superior position to predict the “value of the land” and that this superior position in negotiating imposed certain duties on the Crown. [255] [304] The trial judge accepted that it was the monetary concept that the Anishinaabe sought to have included and that the Commissioners proposed inserting into the Treaties: The Commissioners proposed a compensation model that took into consideration “the actual value” of the territory. In a recommendation that reverberates today, the Commissioners made a novel proposal for the new treaty to make “terms in accordance with present information of its resources” while adding a provision for an increase to the annuities “upon further discovery and development of any new sources of wealth” (emphasis added). This recommendation was based on the knowledge the Commissioners acquired during their extensive consultations with the Anishinaabe, as well as their understanding of the challenges facing the Colonial Government at the time. [256] [305] She added: “Since at least 1846, Chief Shingwaukonse spoke of tying the mineral wealth or monies collected in connection to the mining activity to compensation.” [257] [306] From this evidence, the trial judge concluded that the Treaties created a revenue sharing model: For the Crown, the idea of sharing revenues was novel, but reflected their goal to obtain access to the land and resources, limit their liability, and deal honourably with the Anishinaabe. A treaty that linked the future revenue of the territory to the annuities payable to the Anishinaabe answered the uncertainties and risks present. A revenue sharing model was consistent with the perspective that the Anishinaabe Chiefs held about their relationships with the newcomers and the land. It was also consistent with the Anishinaabe’s duties of responsibility as leaders toward their people. In addition, the sharing model invited renewal as circumstances changed. Most importantly, a sharing model was consistent with the principle of reciprocity. [258] [307] This analysis and the trial judge’s finding that the Treaties created a revenue sharing model are well supported and were not effectively challenged by Ontario. The trial judge did not err in characterizing the Treaties in this way. (b) The Concept of “Fair Share” [308] We turn now to the second promise identified by the trial judge as part of her interpretation of the augmentation clause, the promise of a “fair share”. The judgments set out what the trial judge considered to be the consequences of her interpretation of the augmentation clause, which is constructed around the concept of a fair share. [309] To recapitulate, para. 1(a) of the operative language of the formal judgments provides that: “ the amount of annuity payable in any period [will] correspond to a fair share of such net revenues for that period” (emphasis added). Paragraph 1(d) of the judgments add that the Treaty purpose is to reflect in the annuities “a fair share of the value of the resources, including the land and water in the territory” (emphasis added). Paragraph 1(e) addresses the graciousness clause and obliges the Crown to consult with the Treaty parties “to determine what portion, if any, of the increased annuity amount is to be distributed by the Crown to the individual Treaty rights holders in addition to the $4 per person per year they are already being paid”. Finally, p ara. 3(c) leaves things somewhat more open: “the principles to be applied for purposes of determining amounts that are fairly and reasonably equal to a fair share of net Crown resource-based revenues are subject to further direction by the Court in the future stage of this proceeding” (emphasis added). [310] In terms of the trial judge’s reasons for decision, the expression “fair share” first emerged in her summary of the position of the Huron Plaintiffs, who argued for “renewing the treaty relationship and moving to a fair sharing agreement of the land and its resources.” [259] The trial judge next referred to the “fair share of the net revenues” as an implementation issue in dispute. [260] In argument, both the Huron Plaintiffs and the Superior Plaintiffs suggested that a fair share would be 100 percent of net Crown revenues. [261] The trial judge rejected this proposition stating, “[s]haring, by definition, does not include taking 100% of the net benefits from the Crown.” [262] She addressed and rejected the Huron Plaintiffs’ and Superior Plaintiffs’ claims to all of the revenues. [263] Finally, the trial judge noted that it was not yet possible to specify what a fair share would be: It is not possible to articulate the principles for a fair share in a vacuum. There was very little evidence before the court on post-Treaty economic activity in the territories. In a later stage of these proceedings it will be up to the parties to demonstrate what division of revenues is supportable on the evidence. [264] (c) Ontario’s Position [311] As noted, Ontario argues that the trial judge erred in interpreting the Treaties as promising the payment of annuities corresponding to a “fair share” without defining “fair share” or articulating related principles. (d) Analysis [312] We agree with Ontario that the trial judge’s interpretation of the Treaties fell short on the “fair share” issue. As we will explain, the trial judge’s interpretation of the Treaties as giving the Anishinaabe a “fair share” of the value of the territory went beyond a generous construction of the Treaties. (i) The “Fair Share” Error [313] The expression “fair share” is not an actual interpretation of the augmentation clause. The “promise to share the revenues from the territory” gains nothing substantive from the addition of the words, “fair share”. The concept of a “fair share” is neither drawn from the evidence nor is it especially useful in understanding the Crown’s obligations under the Treaties. The expression is a rhetorical gloss that adds nothing substantive but has the potential to work mischief. [314] The trial judge’s interpretation of the Treaty promises has two elements. The first is that “the Treaties were a collective promise to share the revenues from the territory with the collective; in other words, to increase the lump sum annuity so long as the economic condition was met.” [265] The second relates to the graciousness clause and obliges the Crown to consult with the Treaty parties to determine how much of any increase was to be paid directly to the individual Treaty rights holders. [266] [315] We recognize that at one level, no one can quarrel with the idea of a “fair share”. We instill the virtue of sharing in our children. As the trial judge noted, sharing is what the Treaties are built on. No reasonable person would oppose an arrangement that was “fair”. Ontario acknowledges that “[a]ll parties to the Robinson Treaties likely intended the annuities agreed upon to be ‘fair’ in context.” So, on this reading, “fair share” seems quite innocent. But that would downplay the effectiveness of a rhetorical figure of speech. It was introduced by the Huron and Superior Plaintiffs’ counsel for that reason. [267] [316] The trial judge’s judgment that the Treaties promise a “fair share” of net Crown revenues is not supported by evidence. This phrase does not appear in any of the historical records. It seems to have originated with counsel. The Huron Plaintiffs, in their Amended Statement of Claim, seek “[j]udgment … that the Crown is to forthwith provide payment of a fair share of the net profit, said share to be the subject of a negotiated agreement between the Crown and the Plaintiffs.” [268] They state: The Robinson Huron Treaty Territory has been considerably taken-up since the signing of the Treaty in 1850. The Robinson Huron Treaty Anishinabek were not meaningfully consulted by the Crown with regard to the taking-up of those lands. Nor were they accommodated, as provided in the Treaty, by way of being paid a fair share of resource revenues as promised by Robinson in 1850. [269] [317] The expression “fair share” was repeated many times by counsel for both the Huron and Superior Plaintiffs, in oral and written submissions. The “fair share” concept was advanced as part of Robinson’s understanding of the augmentation clause (“Mr. Robinson himself must have believed that the augmentation clause was capable of providing the Anishinaabe with a fair share of the proceeds of the land”); [270] as the desire of Chief Shingwaukonse (“He wants his fair share”) [271] and other Anishinaabe leaders (“[W]e have the Fort William Chief and principal man concerned that they want their fair share”); [272] as the core purpose of the augmentation clause (“[W]e say that that is an approach that’s entirely consistent with the purpose of the augmentation clause, which is to provide the Anishinaabe with a fair share of the revenues”); [273] and – in its absence – as the basis of later complaints (“They’re complaining they’re not getting their fair share”). [274] [318] At one point, the trial judge asked counsel about the origin of the phrase, “fair share”. At first, counsel agreed that this phrase originated in the Vidal-Anderson report. Counsel then corrected himself and said, instead, that it came from Chief Shingwaukonse’s 1846 petition, stating, “He says, I want my fair share.” [275] But this too was an error by counsel. There is no evidence on the record that Chief Shingwaukonse ever used the phrase “fair share”. He said that he wanted to “get my share”, and that he desired “as my people are poor to derive a share of what is found on my Lands.” [276] (ii) The Impact of Adopting “Fair Share” [319] Introducing the concept of “fair share” into the judgments is not without consequences. It might seem obvious that the share owed to the Anishinaabe ought to be a fair one. However, as can be seen from the trial judge’s attempt to determine what constitutes a fair share, the concept tends to focus the mind on the amount or percentage of revenue that ought to be redirected to the Treaty First Nations, rather than on the state of affairs that this promise to share sought to, and ought to, achieve. The Anishinaabe were not focused on subsistence in the Treaty negotiations but on sharing the wealth. [277] They sought the ability to live as they had so long as possible but also sought to benefit from the rise in living standards that would accompany development, especially if that development impaired their traditional way of life. They were not aiming at mere subsistence. (iii) What Kind of Sharing is Required by the Treaty Promise? [320] The trial judge’s task in Stage Three is to determine what kind of sharing the augmentation clause requires and what increase is necessary in the annuities to fulfil the Treaty promise. [321] In describing the Anishinaabe principle of responsibility, the trial judge stated: The Anishinaabe Chiefs and leaders came to the Treaty Council with a responsibility to ensure that their people could enjoy continued dependence on the land for their sustenance, their medicines, and their spiritual well-being, and, equally, that they could continue to be responsible for that land. [278] [322] Based on the trial judge’s reasoning, the common intention of the parties was to share in such a way that would provide for both communities. This would suggest that the “share” promised is to be determined not only based on the extent of Crown revenues but also with reference to the relative wealth and needs of the different communities. Obviously, the Anishinaabe would not have expected their communities to suffer a range of deprivations, including substandard housing and boil water advisories, while non-Indigenous communities thrived. Nor was it likely, based on the Anishinaabe principles discussed by the trial judge, that the Anishinaabe would have wished to enjoy great personal wealth while their fellow Canadians suffered deprivation. [323] The trial judge noted: [T]he court and the parties must return to the shared goals, expectations, and understandings of the parties in 1850 and, based on those shared goals, expectations, and understandings, devise processes and procedures for the implementation of the Treaties’ promise in the modern era. [279] The parties in negotiations, or the trial judge in Stage Three, must determine the form, level, and aim of the sharing that the augmentation clause requires. The parties and the court should be led, in doing so, by the Treaty parties’ “shared goals, expectations, and understandings” in 1850, including the Anishinaabe principles of respect, responsibility, reciprocity, and renewal, identified by the trial judge, and the Crown’s commitment to being both liberal and just. [324] The remaining task of interpretation, and the basis of implementation, lies in determining what the sharing relationship envisioned by the Anishinaabe and the Crown in 1850 would look like today and how that relationship can be brought about. This is the task of reconciliation. [325] The trial judge observed that “questions regarding implementation remain subject to dispute”. [280] The precise form of sharing required by the Robinson Treaties remains to be determined. Because of our concerns about the possible misuse of the concept of “fair share” as a figure of speech, we would amend the formal judgment to delete it, as set out in Appendix “A”. (5) Observations on Stage Three [326] We make two observations. First, the staging of this case has introduced some uncertainties into the process. There is a functional trifurcation but the stages have become somewhat confused. Broadly conceived, Stage One was dedicated to the interpretation of the Treaties, the identification of the Treaty promises, and the determination of the duties of the Crown, while Stage Two related to the Crown’s defences, and Stage Three to the Huron and Superior Plaintiffs’ remedies. However, as matters progressed, some elements of interpretation seem to have been reserved for Stage Three. The trial judge also seems to have reserved a decision on whether the Crown breached the Treaties for Stage Three. [281] In some ways, Stage Three has become a basket for unresolved issues carried forward from Stages One and Two. [327] The second observation is that the implementation of the Treaty promises in Stage Three presents unusual complexities that will be difficult to manage. It would be far better for the parties to negotiate, rather than litigate, the remaining issues. [328] Negotiations also allow the court to step back from “[c]lose judicial management” that “may undermine the meaningful dialogue and long-term relationship that these treaties are designed to foster.” [282] Although written about a modern treaty, these words would apply equally to a negotiated agreement on how the promises in the Robinson Treaties are to be implemented. [329] The careful language of modern treaties, having been negotiated by competent, sophisticated and adequately resourced parties, has the advantage of creating precision, continuity, transparency and predictability, [283] and is due judicial deference. [284] In our view, this would also be true of negotiated agreements for the implementation of historical treaties. [330] Neither the trial judge nor this court has any information as to whether and to what extent the parties have engaged in negotiations. [285] But there appear to have been three barriers to successful negotiations. The first is the position taken by Ontario and Canada before the trial judge that the Crown has unfettered discretion as to whether, when, how, and in what amount the annuities might be increased. This court’s decision clarifies the Crown’s obligations. There is something to negotiate about. [331] The second barrier to negotiation was the trial judge’s insertion of the concept of “fair share” into the interpretation of the augmentation clause, which we addressed earlier. This court’s decision eliminates this barrier. [332] The final barrier is the ongoing struggle between Ontario and Canada over which government will pay the annuities and, if both are obliged to contribute, in what proportion. The panel requested that the parties consider having the trial judge hear and determine the allocation issues on an expedited basis, before the Stage Three hearing. Ontario and Canada were opposed to doing so. In the absence of their consent, this court has no jurisdiction under the Rules of Civil Procedure to require that the allocation issue be dealt with separately and in priority. [286] [333] We urge both Crown parties to reconsider their stance on expediting the allocation issue in order to facilitate the negotiation of an agreement on the implementation of the Robinson Treaties. In our view, the best way to accomplish the task of reconciliation is through negotiation. Compared to continued litigation, with its attendant close judicial management, a modern agreement on the implementation of the Robinson Treaties, negotiated by the Treaty parties, is more likely to produce a strong, renewed Treaty relationship. [287] True reconciliation will not be achieved in the courtroom. [288] F. Issue Five: Did the Trial Judge Err in Her Costs Award for the Stage One Proceedings? [334] Ontario also appeals from the costs awards in favour of the Superior and Huron Plaintiffs for the Stage One proceedings. The trial judge awarded costs and disbursements to the Superior Plaintiffs of $5,148,894.45 and $9,412,447.50 to the Huron Plaintiffs, with Ontario and Canada each to pay one half of those amounts. [335] Canada does not appeal from the costs awards. [336] Ontario argues that the trial judge erred in awarding 85 percent of actual legal fees after concluding that partial indemnity costs were appropriate. Ontario submits that partial indemnity costs cannot exceed 67 percent of fees paid. It submits that the trial judge erred in principle by giving no weight or insufficient weight to Ontario’s reasonable expectations in awarding disproportionately high costs to the Superior and Huron Plaintiffs, and argues that she erred by failing to scrutinize the costs they claimed in a substantive and meaningful way. [337] For the Superior Plaintiffs, Ontario asks that the costs be fixed at the rate of 67 percent of the fees found by the trial judge to be recoverable, that the manner in which the trial judge dealt with costs awarded for an earlier motion be varied, and that these plaintiffs recover their disbursements as awarded by the trial judge. The Superior Plaintiffs claimed $5,151,448.21 in fees. The difference between an award of 85 and 67 percent of claimed fees is $927,267.88, of which $463,630.34 would be paid by Ontario. Inclusive of disbursements, Ontario says the total award ought to be $4,166,381.06. [338] For the Huron Plaintiffs, Ontario submits that the hours claimed are excessive, asks that they be reduced by 50 percent, and requests that costs be fixed at 67 percent of that amount plus the disbursements allowed by the trial judge. The Huron Plaintiffs claimed $8,383,930.00 in fees. The difference between an award of 85 percent of claimed fees and 67 percent of the proposed reduced-hours fees is $4,317,723.95, of which $2,158,861.98 would be paid by Ontario. Inclusive of disbursements, Ontario says the total award ought to be $5,094,724.55. (1) The Trial Decision on Costs [339] The trial judge found that the Huron Plaintiffs and the Superior Plaintiffs were entitled to costs on a partial indemnity basis fixed at 85 percent of their fees and 100 percent of their disbursements. [289] [340] Before the trial judge, Ontario and Canada agreed that it was appropriate to award the Huron Plaintiffs and the Superior Plaintiffs their costs for Stage One and the summary trial, including pleadings and case management. Ontario and Canada also agreed that they each should be liable for half of the costs award. They disagreed, however, with the Huron Plaintiffs and the Superior Plaintiffs on the quantum of costs, in addition to other issues that are not pursued on appeal. [341] The trial judge first found that the Huron Plaintiffs and the Superior Plaintiffs were entitled to costs at a higher-than-typical rate of 85 percent based on the factors set out in r. 57.01 of the Rules of Civil Procedure , including: 1. Amount Claimed – The amount claimed in the litigation is substantial; [290] 2. Complexity of the Proceedings – The litigation is on the high end of complexity (i.e., the interpretation of two historic Treaties will re-shape the Crown-Indigenous relationship for a vast area of northern Ontario), the procedural history of the litigation is complex and evolving, and certain legal and strategic decisions by Ontario and Canada prolonged or complicated the proceedings; [291] 3. Importance of the Issues – The issues raised in the case are of central importance to the entire Anishinabek Nation and central to the broad national public interest in reconciliation with Indigenous peoples of the upper Great Lakes Territories; [292] 4. Principle of Indemnity – All parties retained teams of highly specialized and experienced counsel and should be fairly compensated for the increased costs associated with specialized and experienced counsel; [293] and 5. Context of Indigenous Legal Issues – The fiduciary relationship forms an important consideration for the award of costs in this matter and, in these circumstances, the small, remote and historically economically marginalized First Nations plaintiffs should not have to assume 40 percent of the costs in this litigation. [294] (2) Analysis [342] Stage One of these proceedings was of the utmost importance to the Treaty partners. The trial of this part continued over 78 days. The parties filed twenty expert reports and nineteen witnesses gave oral evidence. The trial time was the tip of the iceberg in comparison to the years of preparation. [343] Leave to appeal costs is not granted lightly. As this court observed in Barresi : The test for leave to appeal costs is high: there must be “strong grounds upon which the appellate court could find that the judge erred in exercising his [or her] discretion”: McNaughton Automotive Limited v. Co-Operators General Insurance Company (2008), 95 O.R. (3d) 365 (C.A.), at para. 24, citing Brad-Jay Investments Ltd. v. Szijjarto , 218 O.A.C. 315 (2006) (C.A.), at para. 21. A costs award should be set aside on appeal “only if the trial judge has made an error in principle or if the costs award is plainly wrong”: Hamilton v. Open Window Bakery Ltd . , 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. [295] [344] Costs awards are “quintessentially discretionary.” [296] They are accorded a very high degree of deference. [297] [345] In Frazer , this court observed: A trial judge has extremely broad discretion in the awarding of costs, which is entitled to a very high degree of deference and [is] not to be taken lightly by reviewing courts. A reviewing court can only review a trial judge’s award of costs where he or she has considered irrelevant factors, failed to consider relevant factors or reached an unreasonable conclusion. And finally, a reviewing court will not interfere with a trial judge’s disposition on costs on the grounds that the members of the appellate court would have exercised their discretion differently: Canadian Pacific Ltd. v. Matsqui Indian Band , [1995] 1 S.C.R. 3 at para. 39. [298] [346] As this court noted in Bondy-Rafael : [P]artial indemnity fees are not defined in terms of an exact percentage of full indemnity fees under the Rules of Civil Procedure . While representing a portion of full indemnity costs, that portion has never been defined with mathematical precision but generally amounts to a figure in the range of more than 50 percent but less than 100 percent. This is as it should be given the myriad factors that the court must consider in the exercise of its discretion in fixing costs. [299] [347] Similarly, this court has repeatedly noted that the extent of the reduction associated with partial indemnity costs is a matter within the trial judge’s discretion. [300] As observed in Wasserman, Arsenault Ltd. : The degree of indemnification intended by an award of partial indemnity has never been precisely defined. Indeed, a mechanical application of the same percentage discount in every case where costs are awarded on a partial indemnity scale would not be appropriate. In fixing costs, courts must exercise their discretion, with due consideration of the factors set out in rule 57.01(1), in order to achieve a just result in each case. [301] [348] The trial judge did not err in principle by taking into account the burden it would place on the Huron and Superior Plaintiffs were they to recover only two thirds of their legal fees. This is in the context of admitted neglect by the Crown of its Treaty promises for many decades, and the extreme difficulty of bringing proceedings like these for recognition of Treaty rights by people who have been marginalized by that neglect. [349] In Okanagan Indian Band , the Supreme Court noted with approval the Court of Appeal for British Columbia’s reasoning that “constitutional principles and the unique nature of the relationship between the Crown and aboriginal peoples were background factors that should inform the exercise of the court’s discretion to order costs.” [302] [350] Nor can it be said that the trial judge erred in the manner in which she treated the costs paid by Canada on an earlier motion, for which Ontario now seeks some credit. Ontario’s materials do not permit this court to independently calculate what amount any credit should be. If Ontario’s submissions are correct, the Superior Plaintiffs say that Ontario would be entitled to a further credit of $31,845.40. However, this court is unable to conclude that there was an error in principle or that the trial judge was clearly wrong in the manner in which she dealt with the costs paid by Canada. She did deduct the former costs paid from the costs awarded. [351] Leave to appeal from the costs award in favour of the Superior Plaintiffs is refused. [352] Ontario argued at trial that the hours claimed by the Huron Plaintiffs were excessive. Ontario’s cost outline noted 11,956 hours of legal work for both actions. [303] The Superior Plaintiffs started their action in 2001 and proceeded through discovery. Their costs summary claimed 7,644 hours of legal work. The Huron Plaintiffs started their action in 2014, relied in part on the discovery in the other action, and yet claimed for 28,211 hours of legal work which the trial judge allowed in full. [353] The trial judge dealt with the controversy regarding the hours spent briefly: Canada accepts the reported hours, hourly rates and disbursements as reasonable, subject to an assurance that the fees and disbursements claimed for Stage One do not include any time or expenses either already advanced. This assurance was provided. Ontario challenges the number of hours, size of the team and travel disbursements of the Huron claim based upon comparison to their own hours and costs. I am satisfied the Huron claim survives these challenges. [304] [354] Given the position on appeal, the hourly rates and the travel disbursements are no longer in issue, but Ontario says the hours claimed and the size of the Huron Plaintiffs’ legal team – including 22 lawyers – was excessive. [355] The trial judge did not address the substantial difference between the hours claimed as between the Huron and the Superior Plaintiffs. The material before her did not permit her to come to a conclusion as to the amount of time reasonably required by the Huron Plaintiffs to deal with all aspects of the action. Was there over-lawyering or unnecessary duplication of legal work? There may be logical explanations for the substantially greater amount of legal time claimed or there may not. For example, the Huron Plaintiffs claimed more than 6,000 hours of law clerk, paralegal and student work. In contrast, Ontario’s archival research was performed by an independent contractor, Public History, whose time was reflected in a disbursement rather than billable hours. It may also be that the Superior Plaintiffs were able to rely on some of the work done by the Huron Plaintiffs. [356] After coming to a conclusion as to the time reasonably spent on this matter the trial judge would then be required to “step back and consider the result produced and question whether, in all the circumstances, the result is fair and reasonable.” [305] [357] As noted in Murano , this overall sense of what is reasonable “cannot be a properly informed one before the parts are critically examined.” [306] [358] Leave to appeal from the costs award in favour of the Huron Plaintiffs is granted. The disbursements allowed by the trial judge are upheld. The fees allowed are set aside and remitted to the trial judge for reconsideration in light of these reasons. This assessment will have to proceed with caution, given that these proceedings are continuing, and privileged matters must be protected from disclosure. [359] It will be up to the trial judge to devise a procedure to deal with the manner in which evidence as to the reasonableness of the time spent is presented to her. G. Disposition [360] For these reasons, as summarized in the seven propositions set out above, [307] we would grant the Stage One appeals in part, direct that the Stage One judgments be amended as set out in Appendix “A” to these reasons, and remit the matter of the Huron Plaintiffs’ costs for the Stage One proceedings to the trial judge for reconsideration in accordance with these reasons. We would dismiss the Stage Two appeal. We would award costs of the appeals in the manner set out in the joint reasons. “P. Lauwers J.A.” “G. Pardu J.A.” Strathy C.J.O. and Brown J.A.: A. Introduction [361] We concur with the reasons of Lauwers and Pardu JJ.A. on the issues of costs and indexing. We also agree with the reasons of Hourigan J.A. on the issues of fiduciary duty, Crown immunity and limitation defences. [362] We issue these reasons to explain: (1) why the standard of review set out in Marshall applies when reviewing the trial judge’s interpretation of the Robinson Treaties; [308] (2) why, applying that standard, we conclude the trial judge committed reversible error in her interpretation of the Robinson Treaties; (3) how the honour of the Crown informs the Crown’s obligation to implement the Treaties; and (4) the appropriate remedy is in this case. [363] To set the stage for our analysis, we begin by reviewing the trial judge’s interpretation of the Treaties, the principles governing treaty interpretation, and the standard of appellate review in treaty interpretation cases. We then explain how the trial judge erred in her interpretation of the Treaties, including by failing to consider both the plain meaning of the Treaties’ texts and the only interpretation of the Treaties that reconciled the parties’ intention in a manner consistent with the historical record. We then explain why, notwithstanding these errors, we agree with the trial judge and the majority of this court that, after 150 years of inaction, the Crown can be compelled to exercise its discretion about whether to increase the annuities to address an injustice that brings dishonour to the Crown. Finally, we outline the judgment we would grant in light of our conclusions. B. The Trial Judge’s Interpretation of the Treaties [364] At paras. 70-80 of this court’s joint reasons, we summarized the trial judge’s interpretation of the Treaties. Briefly stated, the trial judge interpreted the Treaties as imposing a “mandatory and reviewable obligation” on the Crown “to increase the Treaties’ annuities when the economic circumstances warrant.” [309] She held that the principle of the honour of the Crown and the doctrine of fiduciary duty imposed on the Crown “the obligation to diligently implement the Treaties’ promise” to reflect the value of the territories in the annuities. [310] The court’s formal judgments provided that the Crown is required to increase the annuities without limit, “so as to achieve the Treaty purpose of reflecting in the annuities a fair share of the resources, including the land and water, in the territory”. [311] [365] The majority of our colleagues conclude that the trial judge’s interpretation of the Treaties was reasonable and free from legal error, though they do conclude she erred in her approach to remedies. As we do not share that same opinion on the treaty interpretation issue, we will review the trial judge’s reasons in more detail in order to explain our disagreement. [366] Prior to engaging in the interpretative exercise, the trial judge described the context of Anishinaabe political and social life, both before and after their contact with Europeans. [312] She identified some of the important milestones on the road to the Robinson Treaties, from the Royal Proclamation of 1763 (the “Royal Proclamation”) and the Council at Niagara in 1764 to the Vidal-Anderson Commission and the “Mica Bay Incident” in 1849. [313] She also described the events leading up to the Treaty Council in September 1850 and the activities and negotiations at the Council itself. [314] Referring to Marshall , she noted that this history was “necessary for the interpretation of the Robinson Treaties in their full historical, cultural, linguistic, and political context”. [315] In so doing, the trial judge appropriately set the stage for the consideration of the Treaties in the context of the broader historical relationship between the Crown and First Nations in Canada and the specific relationship between the Crown and the Anishinaabe of the upper Great Lakes. [367] The trial judge also examined the post-Treaty record, which Ontario argued was instructive concerning the parties’ understanding of the Treaties’ promise. [316] She ultimately found that the record was “vague, inconsistent, and conflicting” and “of limited assistance to the exercise of searching for the parties’ common intention.” [317] [368] The trial judge then turned to the principles of treaty interpretation, which she summarized from Marshall . [318] These are set out below and are not in dispute. She described what she called a “two-step approach” to treaty interpretation proposed by McLachlin J. (as she then was) in Marshall . [319] McLachlin J. identified the first step as examining “the words of the treaty text and not[ing] any patent ambiguities and misunderstandings arising from linguistic and cultural differences.” [320] This would “lead to one or more possible interpretations and will identify the framework for a historical contextual inquiry to enable the court to ascertain a final interpretation.” [321] [369] The trial judge described the “second step” of the Marshall approach as “a consideration of the possible meanings of the text against the treaty’s historical and cultural context. These various meanings may arise from the text or the contextual analysis.” [322] She pointed out that contextual evidence assists the court in ascertaining the full extent of the agreement of the parties. [323] [370] Finally, the judge identified what she called the “third step”: examining the historical context to determine which interpretation comes closest to reflecting the parties’ common intention. [324] Citing Marshall , she described this as choosing “from among the various possible interpretations of the common intention the one which best reconciles the parties’ interests.” [325] [371] The trial judge found that the purpose of the augmentation clause was to bridge the gap between the expectations of the parties by promising future annuities that would reflect the value of the territory. [326] [372] She noted that the parties did not agree about two features of the augmentation clause. [327] The first and primary dispute, she said, was whether the augmentation clause included a mandatory promise to increase the annuity payments above £1 ($4) per person, in step with the revenues received from the Treaty territories, or whether that decision was discretionary. [328] The second point of contention was whether, as the Huron and Superior Plaintiffs alleged, the “perpetual annuity” of £500 or £600 to be paid to the Chiefs and their Tribes was a “collective amount”, from which a “distributive amount”, limited to a maximum of £1 per person, was to be paid to individuals. [329] [373] After setting out the positions of the parties on these and other issues, the trial judge turned to the interpretation of the augmentation clause. [330] She described this exercise as finding the common intention that best reconciled the parties’ interests. [331] [374] She set out her conclusion at the outset of her analysis, namely that the parties did not intend to cap the annuity and that the reference to £1 in the augmentation clause was a “limit only on the annuity amount that may be distributed to individuals, and this distributive amount is a portion of the collective lump sum annuity payable to the Chiefs and their Tribes.” [332] [375] The trial judge began her analysis with “step one” of the Marshall framework, which she described as determining the “[p]resence of [a]ny [p]atent [a]mbiguities or [m]isunderstandings”. [333] She found that the “first and most confounding ambiguity is whether the parties intended that the promise of a perpetual annuity would be a collective, as opposed to an individual, entitlement.” [334] This, she said, was “key to understanding the parties’ intentions with respect to the existence of a ‘cap’.” [335] She noted that there was no reference to a per capita payment in the “consideration clause”, which stated: [T]hat for and in consideration of the sum of two thousand pounds of good and lawful money of Upper Canada to them in hand paid; and for the perpetual annuity of five hundred pounds, the same to be paid and delivered to the said Chiefs and their Tribes…. [336] [376] She observed that there was a provision in the augmentation clause to increase the annuity, which was triggered if a condition was met: [I]n case the territory hereby ceded by the parties … shall at any future period produce an amount which will enable the Government of this Province, without incurring loss, to increase the annuity hereby secured to them, then and in that case the same shall be augmented from time to time.... [337] [377] She also concluded that the “sub-clause” that followed set out a further condition on the increase: [P]rovided that the amount paid to each individual shall not exceed the sum of one pound Provincial currency in any one year, or such further sum as Her Majesty may be graciously pleased to order.... [338] [378] The trial judge stated that from her reading of this clause, the text caused a “real risk of misunderstanding or different understandings”: namely, whether the entire lump sum annuity was to be capped by an amount paid to each individual, or whether it was to be increased without limit, while any individual distributions from the lump sum would be subject to a cap. [339] The Huron Plaintiffs and the Superior Plaintiffs argued that the “cap” was either inapplicable or applied only to individual distributions, whereas Canada and Ontario argued that the £1 ($4) was a “cap” or limit on the obligation to increase the collective annuity and that any increases beyond that level were discretionary, in “Her Majesty’s graciousness”. [340] [379] After reviewing the historical and cultural context, including the different perspectives of the Treaty partners, the historical record and the records of the Treaty Council, the challenges of interpretation, transcription and drafting of the treaty documents, the post-Treaty record and the principle of the honour of the Crown, the trial judge returned to the interpretation of the augmentation clause and the common intention that best reconciled the intentions of the parties. [341] [380] She found that “[o]n the words of the text alone”, there were three possible interpretations of the augmentation clause: 1. the Crown’s promise was capped at $4 per person, and once the annuity was increased to that amount, the Crown had no further liability; 2. the Crown was obliged to make orders (“as Her Majesty may be graciously pleased to order”) for further payments above $4 per person when the economic circumstances permitted the Crown to do so without incurring loss; or 3. the Treaties were a collective promise to share the revenue from the territory with the collective – to increase the lump sum annuity so long as the economic condition was met, and the reference to £1 ($4) was a limit only on the amount that could be distributed to individuals. [342] [381] The trial judge found that, having regard to treaty interpretation principles, the honour of the Crown and the context in which the Treaties were made, “only the third interpretation comes close to reflecting the parties’ common intention.” [343] [382] She found that the parties did not intend to cap increases to the annuities at $4 per person and that: The best possible interpretation of the parties’ common intention, the one that best reconciles their interests, is that the Crown promised to increase the collective annuities, without limit , in circumstances where the territory produces an amount as would enable the Government to do so without incurring loss. [344] [383] The common intention, the trial judge said, was that the reference to £1 in the augmentation clause was “a limit only on the amount that may be distributed to individuals, and this distributive amount is a portion of the collective lump sum annuity payable to the Chiefs and their Tribes.” [345] She found that the “first interpretation”, which put a £1 per person cap on the annuities, “does not reflect either the common intention nor reconcile the parties’ interests; it suggests that the Treaties were a one-time transaction. As the historical and cultural context demonstrates, this was not the case; the parties were and continue to be in an ongoing relationship.” [346] [384] The trial judge found that the “third interpretation” satisfied the goals of the parties, by sharing the wealth on an “if and when” basis. [347] This reflected the Anishinaabe tradition of sharing with others. [348] While the sharing of revenues was “novel” for the Crown, it permitted access to the land and resources, limited Crown liability, and reflected their goal to deal honourably with the Anishinaabe. [349] [385] The trial judge identified a “fourth interpretation” proposed by the Huron and Superior Plaintiffs, which she said the parties did not fully develop. [350] The fourth interpretation characterized the £1 amount as a “placeholder” for a temporary or permanent cap on the collective entitlement; it was not the true extent of the consideration the parties’ agreed on. [351] The trial judge did not explore that interpretation any further. [386] As we will explain, we conclude that the trial judge’s interpretation of the Treaties was the product of extricable errors of law in the application of the principles of treaty interpretation. We find that the fourth interpretation, which the trial judge did not explore in any meaningful way, provides the only reasonable interpretation consistent with the common intention of both parties. While that interpretation contemplates an ongoing relationship between the Crown and the Anishinaabe, and a potential sharing of the wealth of the Treaty lands, it did not provide for a mandatory and unlimited “fair share” as expressed in the court’s judgments. Instead, the sharing was intended to take place through the exercise of Her Majesty’s graciousness. [387] Before turning to the interpretation of the Treaties, we will briefly summarize the core principles of treaty interpretation. C. Principles of Treaty Interpretation [388] The principles applicable to treaty interpretation are not in dispute. Those principles were expressed in Marshall and were summarized by the trial judge as follows: 1. Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation; 2. treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the Aboriginal signatories; 3. the goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed; 4. in searching for the common intention of the parties, the integrity and honour of the Crown is presumed; 5. in determining the signatories’ respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties; 6. the words of the treaty must be given the sense which they would naturally have held for the parties at the time; 7. a technical or contractual interpretation of treaty wording should be avoided; 8. while construing the language generously, the court cannot alter the terms of the treaty by exceeding what “is possible on the language” or realistic; and 9. treaty rights of Aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core treaty right in the modern context. [352] D. Standard of Review (1) Position of the Parties [389] The parties disagree about the standard of review applicable to the trial judge’s interpretation of the Treaties. [390] Ontario submits that the interpretation of treaties ultimately is a legal issue, reviewable on a standard of correctness, even when informed by findings of fact that will be reviewable on a deferential standard. [391] The Huron and Superior Plaintiffs and two of the interveners, Assembly of First Nations and Biigtigong Nishnaabeg First Nation, argue that treaty interpretation involves a question of mixed fact and law, analogous to the process of contract interpretation that attracts the deferential standard of review adopted in Sattva . [353] [392] Canada takes no position on the issue. (2) Analysis (a) The Marshall Standard of Review [393] The Supreme Court’s decision in Marshall remains the seminal case on the applicable standard of review for treaty interpretation. [394] Marshall ’s standard of review analysis drew on the court’s earlier decision in Van der Peet , where the issue was whether the claimant enjoyed an Aboriginal right to exchange fish for money or for other goods. [354] Just as the two-step common intention process for interpreting a treaty provision involves considerable fact-finding about the historical and cultural context in which the treaty was made, so too the “integral to a distinctive culture” test used to assess a claim to an Aboriginal right involves a factual inquiry into the practices, customs, and traditions of Aboriginal cultures. [355] [395] In Van der Peet , the Supreme Court recognized that appellate review would engage a consideration of the evidence presented at trial, as well as the findings of fact made by the trial judge, and that considerable deference was owed to a trial judge’s findings of fact. [356] Nevertheless, the Supreme Court held that a trial judge’s determination of the scope of Aboriginal rights, based on the facts as found, involves a question of law to which deference is not owed, stating: In the case at bar, Scarlett Prov. Ct. J., the trial judge, made findings of fact based on the testimony and evidence before him, and then proceeded to make a determination as to whether those findings of fact supported the appellant’s claim to the existence of an aboriginal right. The second stage of Scarlett Prov. Ct. J.’s analysis — his determination of the scope of the appellant’s aboriginal rights on the basis of the facts as he found them — is a determination of a question of law which, as such, mandates no deference from this Court.  The first stage of Scarlett Prov. Ct. J.’s analysis, however — the findings of fact from which that legal inference was drawn — do mandate such deference and should not be overturned unless made on the basis of a “palpable and overriding error”. This is particularly the case given that those findings of fact were made on the basis of Scarlett Prov. Ct. J.’s assessment of the credibility and testimony of the various witnesses appearing before him. [357] [396] In Marshall , the Supreme Court applied the Van der Peet standard of review to the interpretation of a provision in an Aboriginal treaty. At issue in that case was whether a right existed under a 1760 Treaty of Peace and Friendship that enabled the Mi’kmaq claimant to fish for trade. Writing for the majority, Binnie J. noted that “[t]he only contentious issues arose on the historical record and with respect to the conclusions and inferences drawn by [the trial judge] from the documents, as explained by the expert witnesses.” [358] Binnie J. concluded that “[t]he permissible scope of appellate review in these circumstances was outlined by Lamer C.J. in R. v. Van der Peet at para. 82”, which is reproduced in the paragraph above. [359] [397] Binnie J. found that the trial judge erred in interpreting the “truckhouse” provision of the 1760 Treaty of Peace and Friendship by failing to give adequate weight to the concerns and perspective of the Mi’kmaq people and by giving excessive weight to the concerns and perspective of the British, resulting in an overly deferential attitude to the text of the treaty. [360] (b) The Implications of Sattva [398] Notwithstanding that the Supreme Court has not departed from Marshall ’ s standard of review, the Huron and Superior Plaintiffs and some interveners submit that the Marshall standard must now give way to the more deferential standard applicable to contract interpretation set out in Sattva by reason of the fact-heavy inquiry into the parties’ common intention involved in the two-step treaty interpretation process. [399] In Sattva , the Supreme Court discarded the historical approach of classifying the interpretation of a contract as a question of law for purposes of appellate review in favour of more deferential treatment as a question of mixed fact and law, under which appellate intervention is confined to demonstrated palpable and overriding errors. [361] Sattva ’ s deferential standard of review is subject to two exceptions: (i) Deference does not apply where it is possible to identify an extricable question of law from within a question of mixed fact and law, in which case the correctness standard applies to that extricable question. [362] In the context of contractual interpretation, extricable questions of law include the application of an incorrect principle, the failure to consider a required element of a legal test, and the failure to consider a relevant factor. [363] In the context of treaty interpretation, extricable questions of law include an incorrect application of the numerous treaty interpretation principles enumerated in Marshall , at para. 78; and (ii) The other exception is that identified by the Supreme Court in Ledcor . [364] There, the court treated as a question of law the interpretation of a standard form contract, where the interpretation at issue is of precedential value, and there is no meaningful factual matrix that is specific to the parties to assist the interpretation process. [365] [400] The Huron and Superior Plaintiffs urge this court to follow the reasons on the standard of review of the dissenting judge in the Court of Appeal for British Columbia’s decision in West Moberly . [366] That case involved the interpretation of a treaty’s description of the boundary of a particular tract of land. The dissenting judge’s approach deviates from Marshall and would apply a deferential standard of review to legal inferences or conclusions drawn from findings of historical fact: In my view, the principles outlined in Sattva provide guidance in the approach to be taken to the standard of review with respect to treaty interpretation. Contract and treaty interpretation involve analogous (though not identical) considerations. Like contract interpretation, treaty interpretation involves the application of legal principles of interpretation to the text of the written treaty, considered in light of the factual matrix. For historical treaties, that matrix includes the historical and cultural context of the time. Thus, the standard of review that applies to treaty interpretation is overriding and palpable error unless the error alleged involves an extricable question of law. [367] [401] The dissenting judge’s approach did not find favour with the majority in West Moberly , who applied a standard of review echoing that set out in Marshall , stating: It is common ground that no deference is owed to judicial conclusions stemming from legal error. A correctness standard of review applies to a finding of the trial judge that “can be traced to an error in his or her characterization of the legal standard”: Housen at para. 33. Similarly, no deference is owed to the legal conclusions a trial judge makes by applying the law to a historical record : Caron v. Alberta , 2015 SCC 56 at para. 61. However, a traceable legal error must, of course, be identifiable to merit appellate interference on this correctness standard…. [368] [402] It is difficult to reconcile the dissent in West Moberly with a decision the Supreme Court released just over a year after Sattva , the decision in Caron . [369] Caron did not involve issues of Aboriginal rights or treaty rights; it considered the issue of whether a post-Confederation constitutional document, the 1870 Rupert’s Land and North-Western Territory Order (U.K.) (the “ 1870 Order ”), created a right to legislative bilingualism in the province of Alberta. [403] In the course of its interpretation of the 1870 Order , the majority of the court found guidance in its jurisprudence on Aboriginal rights and treaties and affirmed the continued application of the standard of review analysis in Van der Peet and Marshall , stating: While we take no issue with the factual findings of the provincial court judge regarding the negotiations between the delegates and Canada, we disagree with his legal conclusion that the negotiations resulted in a pact with Canada to establish legislative bilingualism in all of the annexed territories (para. 354). In this respect, there is a helpful distinction drawn in Aboriginal rights jurisprudence between a trial judge’s findings of fact on historical matters, which are entitled to deference, and the legal inferences or conclusions that a trial judge draws from such facts, which are not . As Lamer C.J. explained in R. v. Van der Peet , [1996] 2 S.C.R. 507, “[the trial judge’s] determination of the scope of the appellant’s aboriginal rights on the basis of the facts as he found them . . . is a determination of a question of law which, as such, mandates no deference from this Court” (para. 82; see also R. v. Marshall , [1999] 3 S.C.R. 456, at para. 18; and R. v. Sappier , 2004 NBCA 56, 273 N.B.R. (2d) 93, at para. 76). In our view, the same distinction applies with respect to the historical factual findings of the provincial court judge in this case, and the legal inferences he draws on the basis of these facts. [370] [404] Caron confirms that, notwithstanding Sattva ’ s modification of the standard of review for contract interpretation, the Marshall standard of review remains in place, including the principle that legal inferences or conclusions regarding the meaning of a historical treaty provision drawn by a trial judge from historical facts are not entitled to deference on appellate review. [371] (c) Policy Considerations [405] In our view, two policy considerations also support the application of the Marshall standard of review in this case. [406] First, the Huron and Superior Plaintiffs’ efforts to functionally analogize treaty interpretation with contract interpretation ignores the distinctive nature of Aboriginal treaties under Canadian law. Our jurisprudence regards a treaty between Canada and a First Nation as a unique, sui generis agreement, which attracts special principles of interpretation, and possesses a unique nature in that the honour of the Crown is engaged through its relationship with Aboriginal people. [372] As put by the late Peter W. Hogg, an Aboriginal treaty “is not a contract, and is not subject to the rules of contract law. It is an agreement between the Crown and an aboriginal nation.” [373] [407] The uniqueness of Aboriginal treaties stems, in part, from their public, political nature in establishing and shaping the on-going relationship between political communities. Professor Dwight Newman has eschewed analogizing Aboriginal treaties to contracts preferring, instead, to describe them as covenants, a concept he thinks better captures their broader public, political role as foundational documents that establish the bases of relations between Aboriginal peoples and the larger Canadian community. Professor Newman writes: A covenantal conceptualization of treaties would essentially see them as agreements between political communities expressing the terms of the ongoing evolution of relationships between those communities. To see them as such does not mean ignoring their express terms. Nonetheless, a covenant, in this sense, differs from a contract in several key ways. It concerns the establishment of the terms of a long-term relationship rather than a deal over more specifically defined matters. It has a broad, typically non-commercial orientation rather than a narrow, typically commercial purpose. It recognizes the intrinsic value of the other party rather than having a fundamentally instrumentalist orientation. [374] [408] Second, as this court observed in Keewatin , treaties are solemn agreements that are intended to last indefinitely. [375] Indeed, the annual annuities in both Robinson Treaties are described as “perpetual” in nature. [409] In Ledcor , the precedential value of the interpretation of a provision in a standard form contract informed, in part, the court’s adoption of a correctness standard of review. So, too, precedent is more likely to be controlling in the interpretation of a treaty than in an ordinary contract, especially for the Robinson Treaties that call for revisiting the amount of the annuities “from time to time”. While a specific treaty may only affect a defined group of First Nations, by their nature treaties concern not only persons who lived in the past and are living in the present, but also future generations to come of both Aboriginal and non-Aboriginal persons. [410] The perpetual, multi-generational nature of treaty provisions makes the interpretation of their provisions of “interest to judges and lawyers in the future”, as put by Ledcor . [376] Consequently, the degree of generality or precedential value of treaty interpretation or, put negatively, the lack of its “utter particularity”, moves the question of treaty interpretation across the line from a question of mixed fact and law to one of law and calls for a consistency of interpretation that is the objective of a standard of correctness. [377] (3) Conclusion [411] For these reasons, when reviewing the trial judge’s interpretation of the Robinson Treaties, we shall apply the standard of review set out in Marshall . E. Analysis of the Trial Judge’s Interpretation of the Treaties [412] The primary issue at the trial was the interpretation of the Robinson Treaties. The trial judge called it “[t]he focus of this hearing and the primary dispute”. [378] The same is true of this appeal. Mr. Schachter, counsel for the Superior Plaintiffs, called treaty interpretation the “main event”. We agree with that characterization. [413] To provide context for the following analysis, we note here our respectful point of departure from our colleagues’ reasons. We conclude that the trial judge erred in finding that the Robinson-Huron and Robinson-Superior Treaty annuities were a “collective entitlement” containing within them a separate “distributive amount” payable to individuals. That is, the trial judge erred when she expressly found that the collective entitlement was greater than the sum of the individual amounts that were to be distributed to members of the Robinson-Huron and Robinson-Superior Treaty First Nations. [414] This bifurcation of the annuities led to the trial judge’s conclusion that the £1 per person “cap” applied only to the individual distributive amount and that there was no cap on the collective entitlement, which was to be augmented, as expressed in her judgments, to reflect in the annuities a fair share of the value of the resources, including the land and water in the Treaties’ territory. [415] In our respectful view, this conclusion was the product of errors of law in the interpretation of the Treaties. The only reasonable interpretation is that there was only one annuity under each Treaty, which was to be (and in fact was historically) distributed in its entirety to the members of the First Nations. That annuity was subject to an aggregate “cap” of £1 per person, but, in our view, this was a “soft cap” and was subject to further increases through the exercise of Her Majesty’s graciousness. [416] The errors of law were as follows: 1. failing to consider the plain meaning of the Treaties’ text; 2. finding ambiguity where there was none; 3. going beyond a generous interpretation of the Treaties by exceeding what was possible on their language; and 4. failing to consider the only reasonable interpretation that reconciled the common intention of both parties. [417] In this section, we will examine each of these errors and will explain how they led the trial judge to an unreasonable interpretation of the Treaties. We will identify a more reasonable interpretation, which was identified by the trial judge herself, but which she failed to explore. We refer to this interpretation as the “fourth interpretation”. [418] In the next section, we will explain why the fourth interpretation is consistent with the parties’ common intention and more faithful to the historical record than the interpretation advanced by the trial judge. As we will explain, the fourth interpretation is grounded in the words of the Treaties, and gives meaning to “Her Majesty’s graciousness”. It gives the Crown discretion as to when and how it will give effect to the Treaties’ promises. But that discretion must be exercised. It cannot be ignored. The Crown’s failure to exercise its discretion for 150 years is a failure to diligently implement the Treaty promise. This failure runs contrary to the principle of the honour of the Crown and s. 35 of the Constitution Act, 1982 . In its role as guardian of the Constitution, this court must ensure the fulfillment of the Crown’s long-neglected promise to the beneficiaries of the Robinson Treaties. [379] (1) First Error: Failing to Consider the Plain Meaning of the Treaties’ Texts [419] In our view, the trial judge erred in law in the application of the principles of treaty interpretation because she never gave the language of the Robinson Treaties a fair opportunity to speak. This was not a case in which some terms of the Treaties were found in or modified by oral promises extrinsic to the Treaty documents. Moreover, Robinson was at pains to ensure that the Treaties were orally interpreted from English to Anishinaabemowin before they were signed. The words of the Treaties are therefore a central component of the interpretation exercise in this case. [420] As Binnie J. observed in Marshall : “The starting point for the analysis of the alleged treaty right must be an examination of the specific words used in any written memorandum of its terms.” [380] To the same effect, Cory J. stated in Badger : Treaties are analogous to contracts, albeit of a very solemn and special, public nature. They create enforceable obligations based on the mutual consent of the parties. It follows that the scope of treaty rights will be determined by their wording, which must be interpreted in accordance with the principles enunciated by this Court. [381] [421] The need to begin the analysis with the “facial meaning” of the treaty language was also highlighted by McLachlin J. (dissenting, but not on this point) in Marshall : The fact that both the words of the treaty and its historic and cultural context must be considered suggests that it may be useful to approach the interpretation of a treaty in two steps. First, the words of the treaty clause at issue should be examined to determine their facial meaning , in so far as this can be ascertained, noting any patent ambiguities and misunderstandings that may have arisen from linguistic and cultural differences . This exercise will lead to one or more possible interpretations of the clause.… The objective at this stage is to develop a preliminary , but not necessarily determinative, framework for the historical context inquiry, taking into account the need to avoid an unduly restrictive interpretation and the need to give effect to the principles of interpretation. [382] [422] With this approach in mind, we return to the pertinent language of the Treaties, set out in the joint reasons, which we repeat for convenience: The Consideration Clause (Robinson-Huron Treaty): [F]or and in consideration of the sum of two thousand pounds of good and lawful money of Upper Canada to them in hand paid, and for the further perpetual annuity of six hundred pounds of like money, the same to be paid and delivered to the said Chiefs and their Tribes at a convenient season of each year , of which due notice will be given, at such places as may be appointed for that purpose…. [Emphasis added.] The Augmentation Clause (Robinson-Huron Treaty): The said William Benjamin Robinson, on behalf of Her Majesty, Who desires to deal liberally and justly with all Her subjects, further promises and agrees that should the Territory hereby ceded by the parties of the second part at any future period produce such an amount as will enable the Government of this Province, without incurring loss, to increase the annuity hereby secured to them , then and in that case the same shall be augmented from time to time , provided that the amount paid to each individual shall not exceed the sum of one pound Provincial Currency in any one year , or such further sum as Her Majesty may be graciously pleased to order ; and provided further that the number of Indians entitled to the benefit of this treaty shall amount to two-thirds of their present number, which is fourteen hundred and twenty-two, to entitle them to claim the full benefit thereof; and should they not at any future period amount to two-thirds of fourteen hundred and twenty-two, then the said annuity shall be diminished in proportion to their actual numbers. [Emphasis added.] [423] The trial judge interpreted these provisions to mean that the Treaties promised a “collective” annuity, which had within it an “individual” or “distributive” component. As noted earlier, her formal judgments stipulated that the Crown was required to increase the annuity, without limit, “so as to achieve the Treaty purpose of reflecting in the annuities a fair share of the value of the resources, including the land and water in the territory”. [383] The judgments added that the Crown was required to consult with the Treaty parties “to determine what portion, if any, of the increased annuity amount is to be distributed by the Crown to the individual Treaty rights holders in addition to the $4 per person per year they are already being paid”. [384] [424] While the trial judge purported to follow the two-step approach in Marshall , she never explicitly examined the augmentation clause to ascertain its facial meaning. Nor did she identify any patent ambiguities or misunderstandings that might have arisen from linguistic or cultural differences. [425] We make the following preliminary observations about the Treaty language: · the consideration paid by the Crown in exchange for the surrender of the Treaty territories had two components – an immediate payment of £2000 and a perpetual “annuity” of £500 under the Robinson-Superior Treaty and £600 under the Robinson-Huron Treaty – the amounts were different because the population of the Huron territories was greater; · the annuity was to be delivered to the Chiefs and their Tribes at a “convenient season of each summer”; · the Crown promised to augment the annuity from time to time, if the land proved sufficiently profitable to enable the government to do so without incurring loss; · it was a condition of the augmentation (“provided that…”) the amount paid to each individual could not exceed £1 in any one year or “such further sum as Her Majesty may be graciously pleased to order”; and · there was a second condition that the annuity would be “ diminished ” proportionately if the number of beneficiaries fell below two-thirds of the population at the time of the Treaties. [426] It is noteworthy that the financial terms of the annuity were consistent with Robinson’s instructions: an initial lump-sum payment of £2,000 for each of the Huron and Superior parties (within the total £5,000 limited provided in the Order In Council (“OIC”)) and annuities in the total amount of £1,100 which were consistent with the income from the balance of the notional £25,000 fund made available to Robinson under the April 16, 1850 OIC. [427] The plain meaning of the augmentation clause is that the annuity was a perpetual one in the stated amount, payable to the Chiefs and their Tribes. It would be increased if economic conditions warranted. The maximum increase would be “capped” at £1 ($4) per person or such further sum as “Her Majesty may be graciously pleased to order”. The capped amount would be paid to all Treaty beneficiaries, even if the population grew, as in fact occurred. The annuity would be proportionately reduced if the Anishinaabe population fell below two-thirds of the stated amount. [428] On a fair and facial reading, the augmentation clause did not create an annuity payable to the “Chiefs and their Tribes” as a “collective” and an unspecified “individual” component payable to each Treaty beneficiary. The reference to “individual” was not for the purpose of creating a separate payment to individuals. It was simply the means of setting a cap on the amount of future increases to the annuity, recognizing that the population might grow and that the total amount of the annuity would be required to grow with it, thereby increasing the Crown’s overall obligation. After the cap was reached, further increases in the annuity could be made through the exercise of “Her Majesty’s graciousness”. [429] The trial judge came close to appreciating this when she correctly described the words “provided that the amount paid to each individual shall not exceed the sum of one pound Provincial Currency in any one year” as a “ condition ” of the increase of the annuity. [385] In our view, that is exactly what it was – a condition that was intended to limit the amount by which the annuity could be increased. It was mirrored by a condition requiring a reduction of the amount of the annuity if the population fell. Both conditions (“provided” and “provided further”) applied to the total amount of the annuity – one condition required the annuity to be increased and the other required its reduction. [430] Instead of giving the condition its obvious meaning, however, the trial judge treated it as creating a separate payment to individuals. This distorted its meaning and wholly ignored the second condition of the increase, that the annuity would be reduced if the population fell below a certain percentage of its number at the time of the Treaties. [431] One consequence of this distortion of the Treaties’ language is that the trial judge failed to give any effect to the “Her Majesty’s graciousness” provision of the augmentation clause. That provision was not just flowery language – it made it clear that the £1 per individual “cap” on the annuity was a “soft cap”. The intent, as conveyed by the Treaties’ language, was that increases above £1 per person could be made in the Crown’s discretion and would be based on the revenues of the Treaty territories. In the context of the treaty negotiations, the invocation of “Her Majesty’s graciousness” would have played a key role in bridging the gap between Robinson’s limited spending power and the demands of the Huron leaders for a $10 (£4½) annuity, which was the norm for treaties in Upper Canada. [432] In dismissing the import of “Her Majesty’s graciousness”, the trial judge stated that the Anishinaabe could not have understood this provision even if it had been translated, and that it could not have informed their common intention. This was based on a misapprehension of the evidence and was inconsistent with the trial judge’s other findings. [433] The trial judge said that the witness, Elder Corbiere, who translated the Treaties’ from English to Anishinaabemowin and then back to English, testified that there was no way to translate “as Her Majesty may be graciously pleased to order”. [386] In fact, Elder Corbiere testified that she translated the phrase to mean “and even more will be given to the Anishinaabek if the Gischpin Gchi-Gimaa Kwe [‘Big Chief Lady’] has a good heart and has a mind to do so.” Elder Corbiere testified that while she could not translate “graciously”, the Anishinaabe expected leaders to be generous. The translation that she provided, “if [the Queen] has a good heart and has a mind to do so”, reasonably conveys the meaning of “as Her Majesty may be graciously pleased to order”. [434] Moreover, a few paragraphs later in her reasons, in the context of considering the fourth interpretation advanced by the Huron and Superior Plaintiffs, the trial judge observed that it was possible that once the general principles of the Treaties were agreed on, the Anishinaabe, especially those represented by Chief Peau de Chat, were content to permit the Crown to set the amount of the annuity payments, understanding that Her Majesty’s graciousness would be exercised honourably to ensure that the annuities reflected the value of land, to the extent that the Crown would not incur a loss. [387] However, in spite of the fact that this interpretation gave meaning to “Her Majesty’s graciousness”, the trial judge gave no consideration to it in her ultimate analysis of which interpretation best reconciled the parties’ common intention. [435] As we will explain below, the plain meaning of the augmentation clause reconciles the common intention of the parties and is consistent with both the pre-Treaty and post-Treaty record. (2) Second Error: Finding Ambiguity Where There Was None [436] Whether a judge is interpreting a contract, a statute or a treaty, the principles of interpretation seek to reconcile two or more reasonable interpretations available on the language of the document. As this court observed in Chilton , a case involving an insurance policy, “[t]he ambiguity principle … resolves conflicts between two reasonable but differing interpretations…. The court should not strain to create ambiguity where none exists.” [388] [437] The trial judge’s finding of ambiguity is the product of a strained and illogical reading of the Treaties. Her error can be readily traced to para. 405 of her reasons, where she posited that the reference to “individual” in the phrase, “provided that the amount paid to each individual” in the augmentation clause was a “missing link”, because there was no other reference in the Treaties to payments to individuals. She explained that: Because the initial words of the consideration clause [“paid and delivered to the said Chiefs and their Tribes at a convenient season of each year”] create a perpetual annuity in the form of a lump sum paid to the Chiefs and their Tribes, there is an obvious missing link to the last sub-clause where there is reference to individual payments. There is no other reference in the text of the Treaties that mentions payments to individuals. [389] [438] The trial judge said that this created a “real risk of misunderstanding or different understandings.” She called this “the first and most confounding ambiguity”, although she did not identify any other ambiguity in the language of the augmentation clause. [439] After finding a “missing link”, the trial judge used the reference to £1 per individual to find that the annuity contained both a “collective” payment and an individual “distributive” payment. In our view, there was a good reason why the Treaties contained no other reference to individuals. As with other treaties, the Robinson Treaties’ annuity was expressed as a lump sum, but it was to be distributed to the individual members of the Treaty First Nations, either in cash or in goods. As we have observed, this is precisely what occurred in the case of the Robinson Treaties for 170 years. The reference to individuals was solely for the purpose of creating a “cap” on the collective annuity – that is, a cap of £1 per person multiplied by the number of Treaty beneficiaries at any given time. Having regard to the province’s desperate financial circumstances, it would have made no sense for Robinson to promise the Anishinaabe an unlimited collective annuity, while at the same time limiting individual payments. [440] Instead of examining the words of the Treaties to seek a reasonable and unambiguous interpretation, the trial judge created ambiguity and ultimately adopted an interpretation that was unreasonable. [441] In support of her conclusion that the reference to £1 per person was not intended as a “cap” on the annuity, the trial judge noted that increases and caps had no precedent in earlier treaties. [390] She continued: In any event, it is more likely that Robinson, under some pressure from some Chiefs at the Council to ear mark some funds for individual distribution and in compliance with the Colborne Policy that limited his ability to make cash payments to individuals, set a low cap on the individual distributive amount (the £1 or $4 cap.) Her Majesty was left with the discretion to increase this cap should future circumstances permit. [391] [442] The difficulty with this speculation is that there is no evidence that Robinson was under pressure at the Treaty Council to earmark funds for individual distribution. This speculation also presupposes that there was a recognition at the Treaty Council that the annuity was intended to be a “collective” amount from which individual “distributive” shares were to be carved out. There is no evidence of any such discussion. [443] In their report, Vidal and Anderson had observed that “money payments are highly prejudicial to the interests of the Indians”. As noted earlier, they had recommended that, apart from the first payment when the treaty was signed, subsequent payments should be made in clothing, provisions, goods, and implements and that provision should also be made for schools. Robinson did not follow this recommendation. As the trial judge noted, the Colborne Policy required that annuities be accessed through a requisition approval system that was still in place in 1850. [392] Robinson could easily have required that the Treaty annuities be distributed in goods in compliance with the Colborne Policy if he wished to do so. Not only did he not do so, as we have noted, the annuity was paid in cash to individual members of the Robinson-Superior Treaty First Nations from the very outset and to members of the Robinson-Huron Treaty First Nations from 1855 onwards. [444] In summary, instead of seeking the plain or “facial” meaning of the Treaties, the trial judge sought ambiguity. Her finding of ambiguity led to speculation concerning the reference to “individuals”, which was at the root of her finding that the Treaties had both a collective component and an individual one, with only the former being subject to augmentation. (3) Third Error: Going Beyond What Was Possible on the Language of the Treaties [445] It is a well-settled principle of treaty interpretation that a generous construction of treaty language does not permit the court to re-write the treaty. [393] [446] The trial judge’s interpretation of the Treaties as giving the Anishinaabe a “fair share” of the value of the Treaty territory went beyond a generous construction of the Treaties and gave effect to modern concepts of fairness and generosity that are not found on either a fair reading of the Treaties or in a balanced assessment of the common intention of the parties. [447] One such modern concept of fairness is articulated by Professor Michael Coyle, who advocates for a “fair sharing” of the economic benefits that flow from the development of treaty lands, given the “special, even sacred, bond between the first peoples of Canada and the Crown.” [394] After all, as Professor Coyle writes, this special bond “enabled the creation and settlement of this country”. [395] Coyle and others argue that courts and governments should re-adjust their conceptions of treaties, and “re-imagine” the treaty relationship. [448] In our view, it is unnecessary to re-imagine the Robinson Treaties. What is necessary is to hold the Crown to the promises it has neglected for more than 150 years. That can be done through an interpretation that is grounded in the words of the Treaties and best reflects the parties’ common intention at the time the Treaties were signed – not by reading more into the words of the Treaties than the Treaties’ partners could reasonably have contemplated. [449] The Robinson Treaties, which hold a unique place in the historical treaties, expressly contemplated that the Treaty relationship would be a continuing one, which would be periodically renewed and refreshed, having regard to the needs of the Anishinaabe and the means of the Crown. [450] As we will explain, the fourth interpretation, coupled with the honour of the Crown, provides a basis for the augmentation of the annuities in a manner that renews the Treaty relationship and promotes reconciliation. This calls for periodic reconsideration of the Treaties’ annuities in consultation with the Treaties’ beneficiaries. (4) Fourth Error: Failing to Consider the Only Interpretation that Reconciled Both Parties’ Intentions [451] In Marshall , Binnie J. referred to the “bottom line” of treaty interpretation as the court’s obligation to choose from among the various possible interpretations of the common intentions, at the time the treaty was made, the one that best reconciles the First Nations’ interests and those of the Crown. [396] [452] As we noted earlier, the trial judge observed that “[o]n the words of the text alone”, there were three possible interpretations of the augmentation clause. [397] They can be summarized as follows: · an annuity capped at £1 per person; · an obligation to make further orders above £1 per person, based on the “Her Majesty’s graciousness” clause, when economic circumstances permitted; or · a “collective promise to share the revenues from the territory with the collective”, whenever it was possible to do so without loss, with the £1 “cap” being a limit only on the amount payable to individuals. [398] [453] In our view, none of these interpretations were available on a fair reading of the Treaties’ language. [454] The first interpretation is unreasonable because a “hard cap” gives no effect to the “Her Majesty’s graciousness” clause, which imports a discretion to increase the annuity above $4 per person. The second interpretation is equally unreasonable because it suggests the Crown was under an obligation to increase the annuity if circumstances permitted, based on Her Majesty’s graciousness. The existence of an obligation is inconsistent with Crown discretion. For the reasons we have identified above, the third interpretation is a strained and illogical interpretation of the Treaties and exceeds what is possible on their language. [455] In our respectful view, the fourth interpretation, which the trial judge identified but never pursued, is supported by the evidence on common intention to a much greater extent than any of the three interpretations identified by the trial judge. [456] The trial judge noted that the Huron and Superior Plaintiffs had put forth an alternative interpretation of the £1 amount in the Treaties: The Plaintiffs submit that, alternatively, if the reference to a £1 amount is interpreted as a temporary or permanent cap on the whole of the collective entitlement, the most plausible explanation why Robinson chose a £1 amount was that Robinson was using the £1 amount as a “placeholder”, as per other treaties made previously in Upper Canada. In other words, the £1 amount was not the true extent of the consideration, but simply a placeholder amount. The parties did not fully develop this argument; however, as an alternative characterization of the £1 amount, it has a certain logic . Once the general principles of the Treaty were agreed, the First Nation parties, especially those represented by Chief Peau de Chat, were content to permit the Crown to set [the] amount of the annuity payments, understanding that Her Majesty’s graciousness would be exercised honourably to ensure that the annuities reflected the value of land, to the extent that the Crown would not incur a loss. [399] [457] The trial judge did not fully consider this interpretation, apparently because the parties did not develop it, but she clearly thought there was a “certain logic” to it. Leaving aside the “placeholder” characterization, which was speculative, this interpretation is consistent with the £1 amount being a “soft cap”. It also gives real meaning to “Her Majesty’s graciousness” in the context of the augmentation clause. [458] As we will explain in the next section, the fourth interpretation not only best reconciles the parties’ common intention, it is also most consistent with the historical record. F. Reconciling the Parties’ Intentions in a Manner Consistent with the Historical Record [459] The fourth interpretation reconciles the intentions of both parties at the time the Treaties were signed. The Crown realized its pressing objective of opening up the territories for mineral development and did so at a cost that its beleaguered Treasury could bear. The “soft cap” (a characterization we would employ rather than “placeholder”) limited the Crown’s immediate exposure to a modest annuity, but gave it the discretion to augment the annuity in excess of £1 per person in the future, if the territories proved profitable. From Robinson’s perspective, as the trial judge noted when considering the fourth interpretation, this would satisfy the expectations of the Anishinaabe, while “at the same time, limit the Crown’s financial exposure and not impose an unreasonable administrative burden” on the Crown. [400] The “administrative burden” referred to the need for a strict accounting of the revenues from the territories. [460] On the Anishinaabe side, many of the Chiefs at the Treaty Council were prepared to follow Chief Peau de Chat’s lead and trust in the “Great Mother” to act fairly toward her “children”. The dissenting Huron Chiefs, Shingwaukonse and Nebenaigoching, only signed their Treaty when it became apparent that the Superior Chiefs had accepted Robinson’s proposal and the other Huron Chiefs were prepared to follow their lead. Faced with the prospect of no cash payment and no annuity if they did not accept Robinson’s offer, the promise of future increases in the annuity up to £1 if the land proved profitable and additional increases in Her Majesty’s graciousness, helped bridge the gap between the Chiefs’ demands and the amount of the initial annuity. [461] While it is clear that Chiefs Shingwaukonse and Nebenaigoching would have preferred a more generous annuity, it is also clear that they ultimately accepted what they were offered, relying on the Crown to augment the annuity in a liberal and just manner, as the Treaties promised. The Anishinaabe’s reliance on the Queen’s generosity is consistent with the uncontroverted evidence that the Anishinaabe understood the “Great Mother” as a generous leader, who would provide for her “children’s” needs and would share in the bounty of their land, rather than keep it to herself. [462] Robinson would have appreciated that relationship of trust and knew that the reference to Her Majesty’s intention to deal “liberally and justly” with her subjects would reflect Anishinaabe perceptions of a good leader. In the words of the trial judge, again referring to the fourth interpretation, the Anishinaabe, especially those represented by Chief Peau de Chat, understood that “Her Majesty’s graciousness would be exercised honourably to ensure that the annuities reflected the value of the land, to the extent that the Crown would not incur a loss.” [401] [463] The fourth interpretation also satisfies the trial judge’s concern that both the Crown and the Anishinaabe expected to be in an ongoing relationship, characterized by reciprocity, renewal and respect. The Anishinaabe may not have understood the legal niceties of the Royal Prerogative or the honour of the Crown but they knew, from their long relationship with the Crown, their shared language of kinship and the customs associated with treaty-making, that the Robinson Treaties were intended to renew their longstanding relationship with the Crown. The Crown’s express Treaty assurance of its desire to treat the Anishinaabe liberally and justly, the promise of future augmentation of the annuity if the land proved profitable and the invocation of Her Majesty’s graciousness, can only be seen, in this context, as an assurance to the Anishinaabe that the Treaty relationship with the Crown would not only endure, but would be periodically renewed. [464] While the concept of future revenue sharing, subject to a soft “cap”, was not to be found in Robinson’s instructions, he did keep within the financial authority he had been given as regards the cash payments and the amount of the annuities. He plainly regarded a modest increase of the annuity to £1, an amount less than one half of the annuities paid in the fertile lands to the south, “if and when” the net revenues were sufficient, as something that was so reasonable that he felt confident it would be accepted by the Executive Committee of which he was a member. The “Her Majesty’s graciousness” clause provided the Crown with discretion to increase the annuities if it could do so without loss and assured the Anishinaabe that a “liberal and just” Sovereign would share the wealth of the land with them if and when it was possible to do so. [465] The fourth interpretation is also consistent with the evidence on the parties’ common intention to include an annuity in the Treaties. Both the Vidal-Anderson Report and Robinson’s instructions, set out in the April 16, 1850 OIC, contemplated payment of an annuity. The Anishinaabe were familiar with the use of annuities in southern treaties. Some Anishinaabe leaders based their demands on the $10 per person annuity that had been paid in exchange for the cession of arable lands in the south of Upper Canada. The subject was discussed both before the treaty negotiations and at the Treaty Council, where both Chiefs Shingwaukonse and Nebenaigoching spoke about annuities and compared Robinson’s offer to the annuities that were being paid elsewhere in Upper Canada ($10) and in the United States (significantly more). Chief Peau de Chat originally sought an even higher annuity, asking for $30 per person. [466] There is nothing in the record of the Treaty Council to indicate that the Anishinaabe were seeking compensation in any form other than a traditional annuity or that Robinson was under pressure to earmark funds for individual distribution. It is true that the Treaty records are incomplete because the record of the speeches made by the Anishinaabe Chiefs have been lost. Nevertheless, Robinson’s detailed treaty diary did not mention either demands for a “share” of the wealth of the territories or an individual “distributive” share. The Treaty Council demands of Chiefs Shingwaukonse and Nebenaigoching focused on the amount of the annuities traditionally paid in the south of Upper Canada or in the United States. [467] The trial judge suggested that an entry in Robinson’s treaty diary concerning a meeting with Governor General Lord Elgin in Sault Ste. Marie on August 30 and 31, prior to the Treaty Council, was evidence that the Governor General had approved the trial judge’s “fair share” interpretation of the Treaties. [402] Robinson recorded that he met with the Governor General and informed him of his “intentions as to the treaty”, of which the Governor General approved. There is no reference in Robinson’s treaty diary or in any other document he prepared as to exactly what his “intentions” were. The trial judge stated, however, “[i]t is reasonable to conclude that if Robinson was contemplating treaty terms outside the past practice of the Government, and possibly committing a share of future proceeds from the territory, that he discussed this idea and sought the approval from the Governor General himself.” [403] [468] The trial judge concluded: Robinson would have discussed this novel idea for the augmentation clause with Lord Elgin, and Lord Elgin gave him the authorization he needed to proceed. This is consistent with what is known about the way Robinson acted. He secured Lord Elgin's approval to proceed on that basis. Finally, there is nothing in the historical record following the Treaties to suggest that either the Governor General or the Executive Council were unhappy with the augmentation clause. Robinson must have been confident that he had secured approval to make a treaty on the basis of an augmentation provision with Lord Elgin. Hence, he said in his report: “I trust his Excellency will approve of my having concluded the treaty...”. [404] [469] In our respectful view, the inference the trial judge drew – that Robinson obtained approval from the Governor General for the third “fair share” interpretation – was simply not available to her. The words of the diary speak for themselves: Robinson told Lord Elgin of his intentions and Lord Elgin approved them. The idea that the Governor General approved the “novel idea” (the trial judge’s concept of a fair share with an uncapped annuity) is a matter of pure speculation. [405] It is equally likely that Robinson informed the Governor General of his intention to provide a modest annuity with a “soft cap” of £1, with future increases occurring if and when the funds were available and subject to Her Majesty’s graciousness. [470] The fact that there was nothing in the historical record to suggest that Lord Elgin and the Executive Council were unhappy with the augmentation clause is equally consistent with the fourth interpretation of the Treaties. [471] Although it is impossible to resolve exactly what conversations took place between Robinson and Lord Elgin, it should be remembered that the government of the day was “broke”, as the trial judge put it. [406] In these circumstances, it seems highly unlikely that Robinson would have proposed, and Lord Elgin would have approved, a treaty that committed the government to an unlimited, mandatory and perpetual “sharing” of future revenues. It seems even more unlikely that, had Robinson received those instructions from the Queen’s representative, he would not have mentioned them in his diary, in his report to the Executive Committee, or in his subsequent communications. [472] If Robinson had been intent on changing what the trial judge referred to as the “known patterns of treaty making” and adopting a “novel” approach that would give the Anishinaabe a “fair share” of the future revenues of the territory, it also seems strange that he would have buried the language in the middle of terms dealing with the augmentation of the annuity, to be revealed through a “missing link”, which was only discovered some 170 years later. [407] [473] More telling, had it been his intention to change the long-standing pattern of treaty-making by giving the Anishinaabe a “fair share” of the value of the territories he would certainly have made reference to that decision at the Treaty Council, in his treaty diary, in his Report to the Executive Council or in his subsequent correspondence on the issue, some of which responded to criticisms of the Treaties. Indeed, it is telling that there is nothing in the post-Treaty record, on either side, that demonstrates an understanding that the Robinson Treaties were intended to be a departure from the traditional course of treaty-making, other than to provide for an increase in the annuity if the land proved profitable. [474] In that regard, we return briefly to the post-Treaty record. [475] The trial judge found the post-Treaty record of limited assistance in the interpretative exercise. [408] What is striking about that record, however, and what the trial judge failed to consider, is the absence of any evidence to support the notion that the Treaties were intended to provide the Anishinaabe with a “fair share” of the wealth of the Treaty territories, as the trial judge found. [476] While there were complaints of various kinds after 1850 by and on behalf of the Anishinaabe, no one ever suggested that the Crown’s obligation was unlimited or that the Treaties compelled the payment of a “fair share”. While the Robinson Treaties have been noted to be innovative in the use of an augmentation clause, none of the historians cited in the record has suggested that the Treaties were intended to give the First Nations a “fair share” of the revenues from the territories. [409] [477] Indeed, as early as November 1850 Captain George Ironside, the Superintendent of Indian Affairs at Manitowaning, wrote to his superior, Colonel R. Bruce, the Superintendent General of Indian Affairs, noting that Chief Shingwaukonse was said to be “very much dissatisfied indeed with the late Treaty” and had been “led by designing persons” to believe that the Anishinaabe had been “shamefully deceived”, particularly with regards to the amount of the annuity. The letter said that Chief Shingwaukonse was taking a deputation to England, to make their complaint to the authorities there. [478] Colonel Bruce transmitted this communication to Robinson, who replied: The clause I introduced to increase the amount under certain reasonable circumstances should [and] I have no doubt will satisfy the Indians generally — and convince Her Majesty’s [Government] that they have no just cause of complaint… It may well be for [Captain] Ironside to explain to such of the Indians as he meets with at any time that part of the Treaty, which secures to them a larger annuity should the territory surrendered enable the [Government] to [increase] it without loss. [479] There is no suggestion in Robinson’s response that there were two components of the annuity, one an individual payment and the other a payment to the collective. Nor is there any suggestion that the Treaties offered an unlimited “fair share” of the revenues from the Treaty territories, something that Robinson would surely have said in defence of the Treaties he drafted. [480] Particularly telling, as well, is Robinson’s response to a subsequent complaint made by two Lake Huron Chiefs, who had sent a petition to the Governor General, complaining that they had understood that the annuity to be received by each band was to be in proportion to the quantity of land it had been allocated by the Robinson-Huron Treaty. [481] Colonel Bruce forwarded the communication to Robinson, noting in his letter: My impression gathered from your report [sic] the treaty itself and the numerical lists transmitted as a guide for the distribution of the annuities distinctly was that all the Indians belonging to the Tribes interested were to share in it alike , and as I understand the payments you made on the spot, were governed by that principle. The following extract from the Treaty seems to show conclusively that the distribution was to be per capita and not as suggested by the Petitioners [:] “And in that case the same (the Annuity) shall be augmented from time to time provided that the [amount] paid to each individual shall not exceed the sum of one pound currency in any one year.” [Emphasis added.] [482] Robinson replied: I can only say that the Treaty made by me with the Indians last year was based on the same conditions as all preceding ones I believe . These conditions even fully explained in Council [and] are also clearly expressed in the Treaty.… Nothing was said by the Chiefs [illegible] of the nature mentioned in the extract you sent me and all seemed satisfied both at the signing of the Treaty and payment of the money with the terms on which I concluded the surrender by them to Her Majesty. [Emphasis added.] [483] Once again, had Robinson believed that the Treaty included a “collective” annuity that could be greater than the sum of the individual “per capita” annuities, he would not have described it as being “based on the same conditions as all preceding ones”. He would also, surely, have brought this feature to the attention of Colonel Bruce. [484] Having received Robinson’s response, Colonel Bruce, on behalf of the Governor General, responded to Captain Ironside as follows: With reference to the distribution of the Annuity he sees no reason to suppose that a different rate was to be pursued in this from other cases. Indeed the Treaty clearly recognizes in all Indians entitled to participate in the annuity the right to share equally . These views are entertained by Mr. [Robinson?] to whom I have referred for information on the subject and were has he states fully explained in Council of the Chiefs before the Treaty was signed. [Emphasis added.] [485] In 1858, the Pennefather Commission was constituted by the government to investigate “the best means of securing future progress and civilization of the Indian Tribes in Canada” and “the best mode of … managing the Indian Property as to secure its full benefit to the Indians, without impeding the settlement of the country.” The Pennefather Commission’s observations concerning the Robinson Treaties included the following: [W]e do not hesitate to express our decided regret, that Treaty shackled by such Stipulations, whereby a vast extent of Country has been wrung from the Indians for such a comparatively nominal sum, should have received the sanction of the Government. [486] These observations, made less than a decade after the Treaties were signed, are inconsistent with the concept of an unlimited annuity or a fair sharing of the revenues of the Treaty territories, something that would have been a novel departure from traditional treaty-making. [487] While the historical record contains complaints about the amount of the annuity, there is nothing in the record to indicate that either the Crown or the Anishinaabe believed that the annuity had both a collective component and an individual component. G. Conclusion on Treaty Interpretation [488] The trial judge made extricable errors of law in her interpretation of the Treaties. The trial judge’s interpretation was neither supported by the language of the Treaties themselves, nor by the pre-Treaty or post-Treaty evidence. There was a reasonable “fourth interpretation” of the augmentation clause, which the trial judge failed to consider. The fourth interpretation is the only one that is grounded in the unambiguous words of the Treaties and is supported by the evidence on the parties’ common intention at the time the Treaties were signed. Even the Huron and Superior Plaintiffs’ counsel suggested that the fourth interpretation was reasonable, as long as “Her Majesty’s graciousness” was not interpreted as a reference to unfettered discretion. [489] This raises the question – does the Crown have an obligation to augment the annuity under the fourth interpretation? [490] For over 170 years, the Robinson Treaties have been interpreted and implemented as requiring a payment capped at $4. Counsel for the Superior Plaintiffs advised us that, to this day, the members of the Robinson-Huron and Robinson-Superior Treaty First Nations receive a $4 cheque or two “toonies” distributed personally each year. [491] Both Ontario and Canada agree that the annuities should be increased. Ontario says that the annuities should be indexed for inflation. Canada says that it should be accomplished through the augmentation clause. They cannot agree on who bears the responsibility for the increases, an issue to be resolved, if necessary, in Stage Three of these proceedings. [492] Below, we will explain why we agree with the trial judge, and the majority, that after 150 years of inaction, the Crown can be compelled to exercise its discretion to address an injustice that brings dishonour to the Crown. H. The Honour of the Crown (1) The Principles of the Honour of the Crown [493] There is no dispute concerning the legal principles arising from the honour of the Crown. Nor was there any dispute at trial or in this court that the honour of the Crown binds the Crown in its dealings with the beneficiaries of the Robinson Treaties. The real issues are the duties flowing from the honour of the Crown, the impact of those duties on the Treaty promises, and the remedies available for breach of those duties. [494] The principles arising from the honour of the Crown have been expressed and developed in a number of decisions of the Supreme Court, notably Mikisew Cree (2018), [410] Badger , Marshall , Manitoba Metis , and Haida Nation . [411] Those cases establish the following general propositions: · “[t]he honour of the Crown is a foundational principle of Aboriginal law and governs the relationship between the Crown and Aboriginal peoples. It arises from ‘the Crown’s assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people’ and goes back to the Royal Proclamation of 1763”; [412] · the honour of the Crown “recognizes that the tension between the Crown’s assertion of sovereignty and the pre-existing sovereignty, rights and occupation of Aboriginal peoples creates a special relationship that requires that the Crown act honourably in its dealings with Aboriginal peoples”; [413] · the “underlying purpose” of the honour of the Crown is to facilitate the reconciliation of Aboriginal peoples’ pre-existing sovereignty and the Crown’s assertion of sovereignty; [414] · one way that the honour of the Crown reconciles the tension between the Crown’s assertion of sovereignty and the pre-existing sovereignty rights of Aboriginal people is by “promoting negotiation and the just settlement of Aboriginal claims as an alternative to litigation and judicially imposed outcomes…. This endeavour of reconciliation is a first principle of Aboriginal law”; [415] · “[t]he honour of the Crown is always at stake in its dealings with Aboriginal peoples…. As it emerges from the Crown’s assertion of sovereignty, it binds the Crown qua sovereign. Indeed, it has been found to apply when the Crown acts either through legislation or executive conduct”; [416] · the honour of the Crown “is not a mere incantation, but rather a core precept that finds its application in concrete practices” and “gives rise to different duties in different circumstances.” [417] Because of the close relationship between the honour of the Crown and s. 35 of the Constitution Act, 1982 , the honour of the Crown has been described as a “constitutional principle”, enshrined in s. 35(1); [418] and · the duties that flow from the honour of the Crown vary “with the situation in which it is engaged.” [419] The obligations that are imposed by the honour of the Crown and what constitutes honourable dealing “depends heavily” on the circumstances. [420] [495] The honour of the Crown is not a cause of action itself. [421] Instead, the honour of the Crown gives rise to a variety of actionable duties. As explained in Manitoba Metis , the honour of the Crown “speaks to how obligations that attract it must be fulfilled.” [422] [496] The Supreme Court has recognized duties that flow from the honour of the Crown in a variety of circumstances. For example, in Marshall , the honour of the Crown was used to give meaning and substance to promises made by the Crown, in the absence of a complete written text. In Manitoba Metis , the court found that a persistent pattern of errors and indifference had frustrated a solemn Crown promise – the Crown was ultimately required to take a broad and purposive approach to the interpretation of its legislative promise to the Metis and to act diligently to fulfill it. In Haida Nation , the honour of the Crown drove a duty to consult and reasonable accommodations of Aboriginal interests, pending a land title claim. [497] As demonstrated by the above authorities, duties that flow from the honour of the Crown are contextual and impose a “heavy obligation” on the Crown. [423] When the Crown is implementing a constitutional obligation to Aboriginal people, the honour of the Crown requires it to: (1) take a broad and purposive approach to the interpretation of the promise; and (2) act diligently to fulfill it. [424] (2) The Crown’s Obligation to Honourably and Diligently Implement the Robinson Treaties [498] The Robinson Treaties affirmed the Crown’s desire to deal “liberally and justly” with Her Majesty’s subjects and promised to augment the annuity to £1 per person if the lands proved fruitful. It held out the promise of further augmentation, should Her Majesty be graciously pleased to so order. As the Superior Plaintiffs put it, the Crown made a promise to “act graciously”. [499] At a minimum, the Treaty promises, together with the honour of the Crown and principles of reconciliation, require the Crown to turn its mind from time to time to consider an increase in the amount of the annuity in excess of £1. The Crown has plainly failed to do so for 150 years since the one and only increase in 1875. [500] This case goes well beyond the circumstances of Marshall , Haida Nation and Manitoba Metis . Even though both Canada and Ontario acknowledge that the annuity should be augmented in one manner or another, no steps have been taken to do so. There is no evidence that after 1875 the Crown ever turned its mind to a further increase in the annuity. The Crown’s refusal to exercise its discretion to augment the annuities, even while recognizing that their purchasing power has been gutted by persistent inflation, is a clear failure to diligently implement the Robinson Treaties’ promise. [501] As noted earlier, it has been suggested that historical treaties need to be renegotiated, to reflect a modern understanding of the treaty relationship, with a view to renewal and reconciliation. As Professor Coyle puts it: The inescapable context of every historical land treaty in what is now Canada is that both treaty partners needed an arrangement under which the future of their peoples could be secured in the face of inevitable changes to come. And, in every case, what the parties sought was a consensual arrangement for coexistence, one based on reciprocal commitments and understandings. Accepting these premises means a third principle must inevitably form part of the normative order created by the historical land treaties. That is, in entering into a relationship expected to endure indefinitely, the historical treaty partners would be prepared, in the face of significant changes in circumstances over time, to negotiate, in good faith, a new consensus as to how their treaty understandings should be renewed to address both sides’ contemporary needs and interests in relation to the treaty lands. [425] [502] In entering into the Robinson Treaties the Crown expressly undertook to revisit its promises and to refresh the annuities, where possible, “to address both sides’ contemporary needs and interests in relation to the treaty lands.” [503] The trial judge rejected Ontario’s submission that the honour of the Crown gave the Crown unfettered discretion about whether to increase the annuities. She found that in light of the Crown’s neglect of the Treaty promise for over a century and a half, the court had the authority and the obligation “to impose specific and general duties on the Crown.” [426] [504] We respectfully agree with this conclusion. I. Disposition [505] For these reasons, we would grant judgment in the following terms: · declaring that the Crown is under an obligation to turn its mind from time to time to determine whether the £1 ($4) per person soft “cap“ on the Treaty annuities can be augmented, having regard to the net Crown resource-based revenues from the Treaty territories and without incurring loss (the “augmentation promise”); · declaring that the augmentation promise is a Treaty right, recognized and affirmed by s. 35 of the Constitution Act, 1982 ; · declaring that the Crown is required to diligently implement the augmentation promise and is required to periodically engage in a process, in consultation with the First Nation Treaty parties, to determine the amount of such augmentation; and · declaring that, in fulfilling these obligations, the Crown is subject to the duties flowing from the honour of the Crown. [506] We would direct the trial judge to invite further submissions from the parties, before undertaking Stage Three, concerning the implementation of the augmentation promise, including: · the frequency with which the Crown is required to turn its mind to the augmentation promise; · the considerations to be taken into account in determining whether the Crown can increase the annuities without incurring loss, including the extent to which the Crown is entitled to take into account its other obligations and expenditures, both within and outside the Treaty territories; · the calculation of the amounts, if any, by which the Crown should have increased the annuities from time to time; and · the damages resulting from the Crown’s breach of the augmentation promise. [507] We would remit the matter of the Huron Plaintiffs’ costs for the Stage One proceedings to the trial judge for reconsideration in accordance with the reasons of Lauwers and Pardu JJ.A. We would dismiss the Stage Two appeal for the reasons of Hourigan J.A. and award costs of the appeals in the manner set out in the joint reasons. “G.R. Strathy C.J.O.” “David Brown J.A.” Hourigan J.A.: A. Introduction [508] I concur with the reasons of Lauwers and Pardu JJ.A. on the issues of costs, indexing, the honour of the Crown, Crown discretion and remedies. While I also agree with their conclusion on the trial judge’s interpretation of the Robinson Treaties, like Pardu J.A., I do so on the basis that her interpretation was free from palpable and overriding error and contained no extricable legal errors. [509] In addition, I issue these reasons to address: (1) whether the appropriate standard of review when considering an appeal about the interpretation of a historical Aboriginal treaty is palpable and overriding error or correctness; (2) whether the trial judge erred in finding that Canada and Ontario owe the Huron and Superior Plaintiffs a fiduciary duty regarding the implementation of the augmentation clauses in the Robinson Treaties; (3) whether Ontario can assert a defence of Crown immunity with respect to the Huron and Superior Plaintiffs’ breach of fiduciary duty claims; and (4) whether the claims for breach of Treaty are prescribed by the former Limitations Act (the “1990 Limitations Act ”). [427] [510] Regarding the appropriate standard of review in treaty interpretation cases, the appellate jurisprudence in Canada has created two distinct lines of authority. On one side, there is case law that regards treaty interpretation as akin to contractual analysis, and that uses a standard of palpable and overriding error to review lower courts’ decisions. This approach finds support in the seminal decision of Sattva . [428] There, the Supreme Court found that matters of contractual interpretation generally raise questions of mixed fact and law because the principles of contractual interpretation must be “applied to the words of the written contract, considered in light of the factual matrix.” [429] Since contract and treaty interpretation involve analogous (though not identical) considerations, subsequent cases have reasoned that appellate courts should adopt a less stringent standard of review, i.e., a standard of palpable and overriding error, when interpreting historical Aboriginal treaties. [511] On the other hand, there is a line of appellate authority (primarily pre- Sattva ) holding that treaties are of a different qualitative nature than contracts. These cases suggest that because of the importance of treaty cases and their constitutional implications, appellate courts should review lower court decisions on a standard of correctness. [512] There is merit in both positions. Aboriginal treaties are important. They represent a “solemn exchange of promises” between the Crown and Indigenous peoples. In many parts of Canada, they “formed the basis for peace and the expansion of European settlement.” [430] They also continue to provide a framework for an ongoing relationship between the Crown, Indigenous peoples, and Canadian society at large. To that end, unlike the decisions routinely made by courts in contract cases, treaty interpretation requires judges to think about how the treaties at issue will define legal obligations for generations to come. However, the courts also must be mindful of the circumstances that surrounded the formation of Aboriginal treaties. Historical Aboriginal treaties were drafted and signed in drastically different circumstances than the modern Aboriginal treaties we see today. As a result, to adequately understand the relevant context and properly interpret the parties’ intentions, the factual matrix becomes exceedingly important in historical Aboriginal treaty cases. [513] To determine the appropriate standard of review, it is thus important to analyze the central role that historical context plays in determining both the factual and legal issues underlying treaty interpretation. Further, it is essential to carefully consider the interpretative process undertaken by trial judges in historical Aboriginal treaty cases. When the role of historical context and the nature of the interpretive process are considered, it becomes evident that only a standard of review of palpable and overriding error provides the appropriate level of deference to trial courts. [514] Regarding fiduciary duty, the trial judge found that the Crown owes an ad hoc fiduciary duty, but not a sui generis fiduciary duty, to the Treaty beneficiaries in the implementation of the augmentation clauses. [515] In my view, the trial judge erred in law in finding the existence of an ad hoc fiduciary duty in the circumstances. Two parts of her analysis render her decision unsustainable. First, the trial judge significantly expanded the scope of the ad hoc fiduciary duty between the release of her reasons and the settling of the judgments in these cases. It was transformed from a narrow and procedural duty into a broad-based and substantive obligation on the Crown to implement the augmentation clauses. Second, the trial judge made a legal error by concluding that the Crown agreed to act solely in the best interests of the Treaty beneficiaries when upholding the Treaty augmentation clauses. This was not legally possible because it would put the Crown, which is also responsible for Canadian society as a whole, in an inevitable conflict of interest. [516] I would not interfere with the trial judge’s finding regarding the sui generis fiduciary duty as I see no error in her analysis, and the ruling was consistent with binding precedent. Further, courts must be cautious in expanding the scope of the sui generis fiduciary duty where the actions of the Crown are more in the nature of a public law duty rather than a private law duty. [517] Ontario also asserts Crown immunity with respect to the claims for breach of fiduciary duty. It does not rely on Crown immunity in defence of any other aspect of the Huron and Superior Plaintiffs’ claims. Given my conclusion that there is no fiduciary duty owed in the circumstances of this case, it is unnecessary to decide whether Crown immunity is available, and I decline to do so. [518] Regarding the 1990 Limitations Act , the Crown appeals the decision of the trial judge, which found that the provisions of the legislation are unavailable with respect to the breach of Treaty claims. Ontario argues that the pre-2002 Treaty claims are statute-barred because one of the following limitation periods apply: (1) the claims are actions for contract without specialty, subject to a six-year limitation period under s. 45(1)(g); (2) the claims are actions upon a specialty, subject to a twenty-year limitation period under s. 45(1)(b); or (3) the claims are actions of account, subject to a six-year limitation period under s. 46. [519] The Crown’s submissions regarding the 1990 Limitations Act are without merit. Limitation periods are supposed to provide certainty to litigants regarding their legal rights and liabilities. There is nothing in the 1990 Limitations Act that explicitly references treaty claims . Had the legislature intended to target treaty claims, it would have been a straightforward task to do so, either through an explicit reference or the inclusion of a basket clause that caught all other causes of action not explicitly mentioned in the statute. [520] In any event, I do not accept the thrust of the Crown’s submission that treaties are synonymous with contracts. While treaties and contracts may share certain common features, the weight of the authority from the Supreme Court is that they are very different legal instruments. Similarly, a specialty contract shares little or no commonality with a treaty. Finally, as contemplated in the 1990 Limitations Act , an action of account is wholly inapplicable to the Robinson Treaties. B. Analysis (1) Standard of Review (a) Historical Aboriginal Treaties [521] Treaties between Aboriginal people and the Crown are generally divided into “historical treaties”, negotiated prior to 1921, and “modern treaties”, negotiated after 1973. [431] The written terms of historical Aboriginal treaties, which surrendered large tracts of land to the Crown, are understood to be significantly less favourable to Indigenous parties than those contained in modern treaties. [432] The Robinson Treaties, signed in 1850, are historical in nature. At the outset of my analysis, it is therefore essential to outline the differences between modern Aboriginal treaties and historical Aboriginal treaties in order to ascertain the standard of review applicable to these cases. [522] Historical Aboriginal treaties were negotiated “at the demographic low point for Indigenous peoples, which coincided with the relative lack of Indigenous economic, military, and legal power.” [433] In order to ensure that land and resources were not taken without their permission, and to protect their communities from European-borne diseases and starvation, Aboriginal people entered treaty-making processes with reduced bargaining power. [434] [523] Historical Aboriginal treaties were often negotiated quickly, [435] with little or no legal representation for the Indigenous signatories. [436] They were intended to record the agreement reached orally between the parties, but were relatively brief documents “with lofty terms of high generality” that did not always include the full extent of the Crown’s promises to Indigenous signatories. [437] Further, the differences in language, culture, and worldview led to divergent understandings of what the parties agreed to in each treaty. [438] The written text of historical Aboriginal treaties may thus not reflect the true intent or understanding of Indigenous signatories. [439] As a result, cases like the ones before this court raise questions about whether the written text represents the entirety of the Crown’s obligations. [524] By contrast, modern Aboriginal treaties were negotiated in a period of improved Indigenous bargaining power. [440] Modern Aboriginal treaties are long and complex documents that have been carefully drafted and reviewed by all parties’ legal counsel over several years. They are usually ratified by a majority of community members after substantial consultation and engagement. Unlike the historical Aboriginal treaties, they also contain amending provisions that recognize the need for continued dialogue between the parties. The consequences of such an inclusive and iterative process are that once a modern Aboriginal treaty is concluded, the parties are more likely to have a similar understanding of what has been agreed to, and the written text of the document more accurately captures the key terms of their agreement. [441] [525] The interpretation of modern Aboriginal treaties can still give rise to disagreement. However, the context in which they are negotiated, and the comprehensiveness of the document produced, mean that the circumstances a court must consider to identify the parties’ common intention and to determine an appropriate interpretation is vastly different than historical Aboriginal treaties. In Beckman , Binnie J. explained that: [T]he distinction lies in the relative precision and sophistication of the modern document. Where adequately resourced and professionally represented parties have sought to order their own affairs, and have given shape to the duty to consult by incorporating consultation procedures into a treaty, their efforts should be encouraged and, subject to such constitutional limitations as the honour of the Crown, the Court should strive to respect their handiwork. [442] [526] Consequently, modern Aboriginal treaties warrant greater deference to their text than historical Aboriginal treaties. [443] [527] Historical Aboriginal treaties should “be interpreted in light of the contexts in which they were signed, and that interpretation must be both liberal and dynamic so as to avoid the freezing of rights, while any ambiguity is to be resolved in favour of the Aboriginal signatories.” [444] This requires courts to go beyond the facial meaning of the text and to examine any evidence of how the parties understood the terms at the time the treaty was signed. Courts must undertake an extensive analysis of the record and witness testimony in order to make factual findings that will provide a foundation for them to apply the principles of treaty interpretation and arrive at a conclusion best reconciling the interests and intentions of both parties. [528] As I will elaborate below, it is precisely the scope of the fact-finding exercise underpinning the interpretation of historical Aboriginal treaties that requires appellate courts, upon review, to afford deference to lower courts and apply a standard of palpable and overriding error. (b) The Case for a Correctness Standard [529] Ontario relies on Van der Peet , [445] Marshall , [446] and Caron [447] to assert that the standard of review applicable to the interpretation of historical Aboriginal treaties is correctness. According to Ontario, the interpretation of treaties is a legal issue, even when informed by findings of fact. [530] In Van der Peet , the appellant was charged with the offence of selling fish that she had caught under the authority of an Indian food fish license. The appellant defended the charges on the basis that she had exercised an existing Aboriginal right to sell fish, and as a result, the relevant section of British Columbia’s fishery regulations [448] violated s. 35(1) of the Constitution Act, 1982 . [531] Lamer C.J. stated that no deference is owed to legal inferences or conclusions drawn from the trial judge’s findings of fact. The relevant paragraph reads as follows: In the case at bar, Scarlett Prov. Ct. J., the trial judge, made findings of fact based on the testimony and evidence before him, and then proceeded to make a determination as to whether those findings of fact supported the appellant’s claim to the existence of an aboriginal right. The second stage of Scarlett Prov. Ct. J.’s analysis — his determination of the scope of the appellant's aboriginal rights on the basis of the facts as he found them — is a determination of a question of law which, as such, mandates no deference from this Court. The first stage of Scarlett Prov. Ct. J.’s analysis, however — the findings of fact from which that legal inference was drawn — do mandate such deference and should not be overturned unless made on the basis of a “palpable and overriding error”. This is particularly the case given that those findings of fact were made on the basis of Scarlett Prov. Ct. J.’s assessment of the credibility and testimony of the various witnesses appearing before him. [449] [532] The Supreme Court ultimately showed deference to the trial judge's findings of fact but applied a standard of correctness to his subsequent analysis of the scope of the appellant’s Aboriginal rights. A correctness standard was similarly imposed in several other historical Aboriginal treaty cases before Sattva . [450] [533] Ontario rejects the argument that this jurisprudence’s precedential value has been called into question due to the Supreme Court’s decision in Sattva . It submits that treaties are not comparable to everyday commercial contracts, and that treaty relationships between the Crown and Aboriginal peoples create public law and are of importance to individuals and communities beyond a particular case. That argument seems to find support in a recent article by Professor Janna Promislow: Serving the ends of justice in the treaty interpretation context, however, is more complex than the interpretation of contracts, due to the historical nature of the agreements and the constitutional character of the moments of agreement – and because the foundational values behind protecting historic treaty rights are arguably less understood and more contentious than the values behind protecting freedom of contract. [451] [534] In any event, Ontario submits that the Supreme Court has not created a single standard of review applicable to all contracts. For example, in Ledcor , the court held that when faced with standard form contracts affecting a wide range of parties, Sattva does not apply, and the case should be reviewed on a standard of correctness. [452] [535] Ontario also argues that in Caron , which was released post- Sattva , the Supreme Court affirmed its earlier jurisprudence on the applicability of the correctness standard of review in treaty interpretation cases. The Supreme Court noted: While we take no issue with the factual findings of the provincial court judge regarding the negotiations between the delegates and Canada, we disagree with his legal conclusion that the negotiations resulted in a pact with Canada to establish legislative bilingualism in all of the annexed territories (para. 354). In this respect, there is a helpful distinction drawn in Aboriginal rights jurisprudence between a trial judge’s findings of fact on historical matters, which are entitled to deference, and the legal inferences or conclusions that a trial judge draws from such facts, which are not. As Lamer C.J. explained in R. v. Van der Peet , [1996] 2 S.C.R. 507, “[the trial judge’s] determination of the scope of the appellant’s aboriginal rights on the basis of the facts as he found them … is a determination of a question of law which, as such, mandates no deference from this Court” (para. 82; see also R. v. Marshall , [1999] 3 S.C.R. 456, at para. 18; and R. v. Sappier , 2004 NBCA 56, 273 N.B.R. (2d) 93, at para. 76). In our view, the same distinction applies with respect to the historical factual findings of the provincial court judge in this case, and the legal inferences he draws on the basis of these facts. [453] [536] In another recent post- Sattva case, Fort McKay First Nation , the Court of Appeal of Alberta took an unequivocal stance on the standard of review applicable to treaty interpretation. The court subscribed to the view that all matters of treaty interpretation are subject to a standard of correctness. [454] [537] In summary, Ontario submits that treaty interpretation cases, both before and after Sattva , call for a correctness standard of review. It relies on the importance of treaties and the broad impact of decisions interpreting treaties as justifying this more stringent standard of review. (c) The Case for a Deferential Standard [538] The Huron Plaintiffs argue that historical Aboriginal treaty interpretation is a matter of mixed fact and law, and reviewable on the standard of palpable and overriding error. In support of this submission, they draw an analogy to contracts. In the pre- Sattva jurisprudence, there is authority for the proposition that Aboriginal treaties should be treated as analogous to contracts. For example, in Badger , Cory J. noted that “[t]reaties are analogous to contracts, albeit of a very solemn and special, public nature.” [455] [539] Sattva represented a sea change in the approach to the standard of review in contractual interpretation cases. In that case, Rothstein J. recognized that the traditional view in England and Canada had been that the standard of review on an appeal from a lower court decision involving the interpretation of a contract was correctness. However, he noted that the law of contractual interpretation in Canadian courts had developed to the point where it was recognized that the meaning of contractual terms is often derived from contextual factors – also known as the “factual matrix” – that must inform the analysis. [540] Further, Rothstein J. observed that the exercise of applying the principles of contractual interpretation to the facts and words of an agreement is closer to a question of mixed fact and law than a question of law. He emphasized that determining the parties’ objective intentions to a contract is a “fact-specific goal”, informed, in part, by a consideration of “the surrounding circumstances known to the parties at the time of formation of the contract.” [456] [541] Another critical policy rationale for the imposition of a more deferential standard of review relied on by Rothstein J. was that in most cases, the interpretation of a contract would have no impact beyond the interests of the parties to the particular dispute. On this point, he reasoned as follows: [O]ne central purpose of drawing a distinction between questions of law and those of mixed fact and law is to limit the intervention of appellate courts to cases where the results can be expected to have an impact beyond the parties to the particular dispute. It reflects the role of courts of appeal in ensuring the consistency of the law, rather than in providing a new forum for parties to continue their private litigation. For this reason, Southam identified the degree of generality (or “precedential value”) as the key difference between a question of law and a question of mixed fact and law. The more narrow the rule, the less useful will be the intervention of the court of appeal…. Similarly, this Court in Housen found that deference to fact-finders promoted the goals of limiting the number, length, and cost of appeals, and of promoting the autonomy and integrity of trial proceedings…. These principles also weigh in favour of deference to first instance decision-makers on points of contractual interpretation. The legal obligations arising from a contract are, in most cases, limited to the interest of the particular parties. Given that our legal system leaves broad scope to tribunals of first instance to resolve issues of limited application, this supports treating contractual interpretation as a question of mixed fact and law. [457] [542] It is important to note that Rothstein J. recognized that it might be possible to identify an extricable question of law from within what was initially characterized as a question of mixed fact and law. He cited examples, including the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor. [458] However, he warned that courts should be cautious in identifying legal errors in disputes over contractual interpretation. He stated that “the circumstances in which a question of law can be extricated from the interpretation process will be rare.” [459] [543] The Huron Plaintiffs submit that while historical Aboriginal treaties are not contracts, their interpretation requires the courts to look at the historical context and the parties’ intentions in a manner at least as inherently fact specific as contractual interpretation. [544] Like the Huron Plaintiffs, the Superior Plaintiffs submit that the rationale for the deferential standard of review in Sattva applies with equal force to the interpretation of historical Aboriginal treaties. The Superior Plaintiffs, however, go a step further than the Huron Plaintiffs and assert that the interpretation of the Robinson Treaties will have no precedential value because they are the only ones in Canada to contain augmentation clauses. Given what they believe to be the limited precedential value of this case, the Superior Plaintiffs argue that the trial judge’s interpretation should attract significant deference on appeal unless there is an extricable error of law. [545] The Superior Plaintiffs draw an analogy between the interpretation of the Robinson Treaties and the interpretation of the Indian Residential School Settlement Agreement in Fontaine (SCC) . [460] In Fontaine (SCC) , the court’s decision would have had a broad impact affecting thousands of people but was not subjected to a higher standard of review. The Superior Plaintiffs similarly argue that although the interpretation of the Robinson Treaties will have significant implications for many people, the fundamental issue for the courts to address is the common intention of the Treaties’ signatories, and thus, the question is one of mixed fact and law. [546] Both the Huron and Superior Plaintiffs cite West Moberly , a recent case from the Court of Appeal for British Columbia that examined the standard of review in historical Aboriginal treaty cases. [461] This appeal concerned the interpretation of a “metes and bounds” clause in Treaty 8 that described a tract of land. [547] The plaintiffs in West Moberly applied for a declaration that the tract’s western boundary referred to the height of land along the continental divide between the Arctic and Pacific watersheds. The province counterclaimed. It sought a declaration that the disputed phrase referred to the line of the watershed within the Rocky Mountains as those mountains were understood to be situated in 1899 at the time of the treaty signing. The trial judge granted the declaration requested by the plaintiffs. The province appealed the order on the grounds that: (1) declaratory relief was unavailable in the circumstances; and (2) the trial judge erred in his interpretation of the relevant provision. [548] In dismissing the appeal, the majority, whose decision was authored by Bauman C.J.B.C., briefly considered the issue of the standard of review. The majority noted: It is common ground that no deference is owed to judicial conclusions stemming from legal error. A correctness standard of review applies to a finding of the trial judge that “can be traced to an error in his or her characterization of the legal standard”: Housen , at para. 33. Similarly, no deference is owed to the legal conclusions a trial judge makes by applying the law to a historical record: Caron v. Alberta , 2015 SCC 56 at para. 61. [462] [549] In dissenting reasons, Smith J.A. undertook a more detailed analysis of the issue and concluded: In my view, the principles outlined in Sattva provide guidance in the approach to be taken to the standard of review with respect to treaty interpretation. Contract and treaty interpretation involve analogous (though not identical) considerations. Like contract interpretation, treaty interpretation involves the application of legal principles of interpretation to the text of the written treaty, considered in light of the factual matrix. For historical treaties, that matrix includes the historical and cultural context of the time. Thus, the standard of review that applies to treaty interpretation is overriding and palpable error unless the error alleged involves an extricable question of law. [463] [550] The Huron and Superior Plaintiffs rely on Smith J.A.’s comments in support of their position that the standard of review is palpable and overriding error. [551] In summary, the Huron and Superior Plaintiffs submit that the factual matrix plays an essential role in the interpretative exercise of non-standard form contracts and historical Aboriginal treaties. Therefore, for the same reasons articulated by the Supreme Court in Sattva , they argue that the trial judge’s decision should be subject to a more deferential standard of review. (d) A New Approach [552] As I stated at the outset of these reasons, I am of the view that a new approach should be taken on the issue of standard of review as it relates to the interpretation of historical Aboriginal treaties. I will first consider Ontario’s submissions in favour of a correctness standard of review before I explain what the new approach should be. (i) Ontario’s Arguments Are not Persuasive [553] Ontario’s plea that a higher standard of review should be imposed because of the Treaties’ significance is not persuasive. That is not the way standard of review analysis is supposed to operate. Courts do not have differing standards dependent on the quantum of damages at stake or the number of people impacted by the decision. A breach of contract judgment in a dispute between two parties is not entitled to less deference than a similar decision in a class proceeding that impacts thousands of class members. As Strathy C.J.O. stated in Fontaine (ONCA) : The question is not whether the decision will impact many people, but whether it will have precedential value, in the sense that it provides guidance to adjudicators or resolves an issue that could arise in future litigation. The fact that the outcome of the interpretation of the agreement will affect many – indeed many thousands – of claimants, is not, of itself, a reason to elevate the standard of review to correctness. [464] [554] Deference is also applied to the fact-finding of judges in a myriad of circumstances that result in very serious consequences. For example, in criminal cases, factual findings critical in determining the guilt or innocence of an accused, or the appropriate sentence, are afforded significant deference on appeal. It is therefore an unconvincing argument to state that the standard of review should be higher for treaty interpretation cases because the consequences flowing from the decisions are more significant. [555] The jurisprudence is clear, however, that whether a decision has precedential value will be a significant factor in determining the appropriate standard of review. The purpose of the distinction between questions of mixed fact and law and questions of law is, as a matter of judicial economy, to limit an appellate court’s power to interfere with the fact-finder’s interpretation of a contract, given that in most cases, the interpretation will have no impact beyond the interests of the parties to the particular dispute. [465] [556] Wagner J. (as he then was) described the distinction between cases with and without precedential value this way in Ledcor : Contractual interpretation is often the “pure application” of contractual interpretation principles to a unique set of circumstances. In such cases, the interpretation is not “of much interest to judges and lawyers in the future” because of its “utter particularity”. These questions of contractual interpretation are appropriately classified as questions of mixed fact and law, as the Court explained in Sattva . However, the interpretation of a standard form contract could very well be of “interest to judges and lawyers in the future”. In other words, the interpretation itself has precedential value. The interpretation of a standard form contract can therefore fit under the definition of a “pure question of law”, i.e., “questions about what the correct legal test is”: Sattva , at para. 49; Southam , at para. 35. Establishing the proper interpretation of a standard form contract amounts to establishing the “correct legal test”, as the interpretation may be applied in future cases involving identical or similarly worded provisions. [466] [557] It is essential to recognize that what the Supreme Court discussed in Ledcor was standard form insurance contracts, which contained identical or nearly identical contractual language as used in many other insurance policies. In the cases at bar, the interpretation of the agreements has minimal precedential value. As counsel for the Superior Plaintiffs point out, there are no other similar augmentation treaties extant in Canada. [558] I am also not persuaded that there should be a distinction, as suggested in Van der Peet , Marshall , and Caron , between findings of historical facts (reviewed on a deferential standard) and the application of those findings to draw appropriate legal inferences (reviewed on a correctness standard). In a case where the primary goal of the analysis is to ascertain the signatories’ intentions for executing a treaty, the determination of the historical facts and the legal consequences of those findings are usually two sides of the same coin. Once the trial judge has determined the parties’ intention, there is very little work remaining; the legal consequences flow directly from the fact-finding. It is artificial to suggest that there is a two-step process and that different review standards should apply to each step. [559] Further, in my view, Van der Peet , Marshall , and Caron do not stand for the proposition that historical Aboriginal treaties are to be reviewed on a correctness standard. It must be noted that both Van der Peet and Marshall were decided prior to Housen , the leading case on the standards of appellate review. [467] In that case, the court differentiated between errors of law that are subject to a correctness standard, and errors of fact or mixed fact and law that are subject to a palpable and overriding error standard. Van der Peet and Marshall are examples of cases decided on extricable legal errors – the former case involved the establishment and application of the test for Aboriginal rights, whereas in the latter case, the Supreme Court was required to give effect to a treaty interpretation principle that the trial judge had ignored. Finally, Caron was not a case about Aboriginal or treaty rights. [560] For these reasons, I would reject Ontario’s arguments for a standard of correctness. (ii) Appellate Review of Historical Aboriginal Treaty Interpretation [561] The question that remains is whether historical Aboriginal treaties should be subject to a lower standard of review by reason of their similarity to contracts and should be fit under the umbrella of the Sattva line of authority. [562] I recognize that there is jurisprudence where appellate courts have suggested that Aboriginal treaties are akin to contracts. However, as Michael Coyle points out: [T]he doctrines of contract law did not evolve in the context of arrangements intended to endure for generations and were not formulated to resolve the kinds of disputes that are likely to arise in such a long-term relationship. Conceiving of treaties mainly through the principles of domestic contract law would fail to account for either the web of relational expectations that infused the treaty-making process or the necessarily unforeseeable and evolving circumstances through which the parties intended to maintain their treaty relationship. Perhaps most importantly, to adopt an approach based solely on Canada’s domestic law of contracts would overlook the fundamental character of treaties, namely that they are the product of an encounter between two separate legal orders, Indigenous and non-Indigenous. Since at least 1985, with the Supreme Court of Canada’s Simon decision, Canadian law has acknowledged that treaties between the Crown and First Nations are unique legal arrangements to be governed by a set of legal principles adapted to their unique nature. [468] [563] I would thus approach the issue in a slightly different manner. In my view, the reasons why the analysis of historical Aboriginal treaties should be subject to a lower standard of review are twofold: (1) the critical nature of historical context in the exercise; and (2) the process that trial courts engage in when undertaking a historical Aboriginal treaty analysis. (i) The Historical Context [564] The historical context relevant to treaty interpretation includes not only the political, economic, and social circumstances that the Crown and the Indigenous parties had faced in or around the time of the document’s signing. The historical context also refers to how Indigenous communities would have conceptualized their relationships to one another, the land, and European society, and how the Crown would have viewed the same. The parties’ beliefs, legal orders, and desires for the future would have provided the framework with which they each approached and entered into a given treaty. It must consequently be stressed that this historical context is integral to the exercise of Aboriginal treaty interpretation, which is fundamentally about the determination of the parties’ rights as was intended by the original signatories at the time of the document’s signing. [565] As Julie Jai notes, historical Aboriginal treaties were meant to create a relationship between two culturally distinct groups so that they could peacefully co-exist. However, there were gaps in language, worldview, and other factors that produced divergent understandings of what was agreed upon between the parties. In addition, the Aboriginal signatories often did not have legal representation and did not appreciate the fact that they were giving up their rights for perpetuity. [469] The exercise of seeking common intent in treaty interpretation would be “superfluous and misleading if the courts did not concern themselves with the manner in which each party’s apparent assent was obtained.” [470] In other words, when courts examine historical Aboriginal treaties that were negotiated quickly, with power imbalances, and often in a language foreign to Aboriginal peoples, the task of treaty interpretation cannot be accomplished without a detailed understanding of the broader historical context. [566] I would also observe that our courts interpret these historical treaties in the 21st century, where we recognize reconciliation as an animating element of ongoing Aboriginal-Crown relationships. To that end, the Crown must perform its treaty obligations in a manner that “pursues the purpose behind the promise.” [471] It must also ensure that its dealings do not render the treaty an improvident arrangement for the Aboriginal signatories. This substantive legal accountability is not possible if the courts are restricted to an interpretation based on the “lean and often vague vocabulary of historic treaty promises.” [472] Reconciliation requires the courts to view each historical treaty in the context of the facts that come from the vast and unique array of evidentiary sources presented by the parties. (ii) The Process of Trial Courts in Interpreting Historical Aboriginal Treaties [567] Regarding the process followed by trial judges, the Huron and Superior Plaintiffs’ analogy to the factual matrix in contract cases is not entirely apt. In a historical Aboriginal treaty case, the examination of the surrounding factual circumstances analysis goes well beyond what is typical in a contract case. Usually, a court tasked with interpreting a contract starts with the words of the agreement, and where there is ambiguity as to their meaning, applies the evidence adduced at trial to give the necessary context to the words chosen by the parties. This generally involves viva voce evidence from one or more of the participants in the contract negotiation. Often, the trial judge is also called upon to review the contracting parties’ communications. An analysis of a contract’s factual matrix, while important, is thus not a particularly complex or novel exercise. It is consistent with the fact-finding function that trial courts engage in every day across the country. To put it colloquially, it is the bread and butter of trial courts. [568] Contrast this typical process with the far more extensive exercise a trial court engages in when interpreting a historical Aboriginal treaty. Courts recognize that the text of historical Aboriginal treaties “often reflect the views and biases of the powerful” and that to understand the “truth”, they must go “well beyond the words of a single agreement”. [473] A finding of ambiguity in the treaty language is not necessary to have regard to extrinsic evidence. [474] The extrinsic evidence helps the courts see how the parties understood the terms of the treaty, and such an appreciation is “of assistance in giving content to the term or terms.” [475] Consequently, in a historical Aboriginal treaty case, the surrounding circumstances of the treaty are as important as the document’s text. The significance of the factual matrix is heightened, and a court must undertake an extensive review of the historical circumstances to interpret the treaty properly. [569] The cases at bar serve as good examples of the nature of that process. There was, of course, no direct evidence from any party who was present during the negotiation and execution of the Robinson Treaties. The trial judge accepted evidence from 11 experts and heard from various Elders and Chiefs. She reviewed approximately 30,000 pages of historical documents, including the Treaties themselves, reports, maps and diaries, and a similarly lengthy volume of secondary source material. To properly understand the parties’ intentions, she had to put the Robinson Treaties in their historical context. This meant reviewing the evolving nature of the relationship between Aboriginal peoples and Europeans over several decades. It also included a review of the conduct of the parties after the execution of the Treaties. The trial took 67 sitting days and was followed by closing submissions, which lasted another 11 days. [570] In a case centred on the interpretation of a historical Aboriginal treaty, the trial judge is called upon to conduct a process akin to a judicial inquiry. It is an extensive analysis where the judge is acting both as judicial officer and historian. Like the historian, the trial judge must sort through, piece together, and try to make sense of a diverse array of source material that usually illuminates the incomplete, tenuous, and questionable nature of the parties’ agreement. In order to resolve the parties’ dispute in their judicial role, however, they must go a step further and make factual inferences to fill the inevitable gaps in the record. Experts present evidence to help the trial judge in drawing those inferences, and the trial judge must evaluate the weight to give those opinions against the record of source documents. There are hard historical facts that may be revealed in this process, but generally inferences and opinions outnumber those facts. [571] Where the court is engaged in drawing conclusions from competing interpretations of the historical record, it cannot be credibly argued that there is only one correct interpretation. This is because: [T]reaties have a social life and generate a multiplicity of meanings, interpretations, expectations and hopes. Treaties have a social life insofar as they carry relational qualities, capacities and potentialities that concern and engage humans, institutions and the land. This is a social life that brings Indigenous and non-Indigenous regimes of value and historicity into coexistence and, therefore, into dialogue. Once signed, treaties become key actors in the relationship between governments, industries, Indigenous people and the land; they play a major role in the formation, transformation and deployment of these relationships. Once ratified, treaties are the starting point of a relationship, not an end in themselves. Their future and deployment are fraught with potentialities, uncertainties and indeterminacy. [476] [572] Ultimately, the study of history is not mathematics. It is all about context, perspective, and judgment. To use the words of the American writer, Thomas Flanagan, to properly understand a historical event, a historian must take that event and “turn it in one’s fingers until all the lights had played upon its surfaces.” [477] A trial judge in a historical Aboriginal treaty case must do the same. They are required to consider the intention of the signatory parties from all perspectives and in light of the historical context. [573] A trial judge must work diligently to sift through the historical record and come to a conclusion that is sensible and in accord with the evidence. Where a trial judge undertakes that task with diligence, carefully considers the competing viewpoints, and weighs the evidence to reach an available conclusion without making a palpable and overriding error or an extricable legal error, an appellate court oversteps its proper role if it interferes and asserts its own conclusion. As McLachlin J. (as she then was; dissenting, but not on this point) stated in Marshall , the “goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed”. [478] In my view, it is not open to an appellate court to step in after the trial and declare that theirs is the only valid interpretation of the historical record. [574] Thus, the rationale for deference is much better established in a historical Aboriginal treaty case than in an ordinary contract case. This is especially true in light of the fact that a trial judge’s determination of the parties’ common intention often settles the legal issues. For example, in the cases at bar, the key determination to be made by the trial judge was the parties’ intention in inserting the augmentation clauses into the Robinson Treaties. Once she answered that question, very little legal analysis was required. It is therefore unhelpful to suggest that there are distinct stages to a trial judge’s analysis, each of which could be subject to different standards of review. [575] I also note that there must be some value placed in the trial process itself. Based on the Supreme Court’s comments in Housen , we presume trial judges to be as competent as appellate judges in resolving disputes justly. [479] We further accept that trial judges are in a privileged position vis-à-vis their appellate counterparts to engage with the record, watch and listen to the parties, and make findings of fact, and that with repeated experience of carrying out this process, there comes expertise. [480] In the context of historical treaty interpretation, where reconciliation is the animating principle, the trial judge’s expertise and process should be especially respected. [576] Here, for example, the trial judge took extensive efforts to involve and hear from the Indigenous Treaty partners. She conducted the proceedings in various Indigenous communities, immersed herself in the teachings of these communities’ many knowledge keepers, and permitted Anishinaabe ceremony to come into the courtroom and the court process, through witnesses, counsel, and members of the First Nations. For this court to intervene not only undervalues the trial judge’s comprehensive process, but suggests that the involvement of the Treaty partners, particularly the Indigenous signatories, did not make the trial judge better situated to decide the case. That cannot be the intention of a treaty interpretation exercise meant to promote reconciliation. [577] In summary, I would find that the standard of review applicable to the trial judge’s analysis of the Robinson Treaties is palpable and overriding error. Extricable errors of law should be reviewed on a correctness standard. (e) Application of Legal Principles [578] In the present cases, the trial judge carefully considered the historical evidence and made extensive references to it in her judgment. Her interpretation of the Treaties was available to her, as it was well rooted in the evidence. It is free from palpable and overriding error or extricable legal error. [579] Ontario’s complaints that the trial judge ignored relevant evidence are not borne out by an examination of the record. In reality, these arguments are directed to the degree of emphasis that the trial judge placed on various parts of the record. The weight given by a trial judge to individual pieces of evidence is a choice that is well within a trial judge’s discretion and is not properly the subject of appellate correction. [580] Based on the foregoing, I would find no basis for this court to interfere with the trial judge's interpretation of the Robinson Treaties. (2) Fiduciary Duty (a) Overview [581] There are two distinct types of fiduciary duty that may arise in the cases at bar. They were described by Wagner J. (as he then was), in Williams Lake as follows: A fiduciary obligation may arise from the relationship between the Crown and Indigenous peoples in two ways. First, it may arise from the Crown’s discretionary control over a specific or cognizable Aboriginal interest: Manitoba Metis Federation , at paras. 49 and 51; Wewaykum , at paras. 79-83; Haida Nation , at para. 18; T.R., at para. 180-81. Because this obligation is specific to the relationship between the Crown and Indigenous peoples, it has been characterized as a “ sui generis ” fiduciary obligation: Wewaykum , at para. 78; Guerin , at p. 385; Sparrow , at p. 1108. Second, a fiduciary obligation may arise where the general conditions for a private law ad hoc fiduciary relationship are satisfied — that is, where the Crown has undertaken to exercise its discretionary control over a legal or substantial practical interest in the best interests of the alleged beneficiary: Manitoba Metis Federation , at para. 50; Alberta v. Elder Advocates of Alberta Society , 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 36; T.R., at paras. 182 and 217. [481] [582] The trial judge found that the Crown owes an ad hoc fiduciary duty, but not a sui generis fiduciary duty, to the Treaty beneficiaries regarding the augmentation clauses. [482] As I will explain in this section of my reasons, in reaching her conclusion regarding the ad hoc fiduciary duty, the trial judge made two significant legal errors in her analysis, which render her finding unsustainable. [583] First, there is an unresolvable discrepancy between the nature of the fiduciary duty identified in the trial judge’s reasons and the one found in her judgments. Somehow, the scope of the duty expanded significantly in the process of settling the judgments. In the reasons, the content of the fiduciary is limited to procedural obligations in implementing the augmentation clauses. However, in the judgments, the fiduciary duty applies to the entire process of the Crown making payments under these clauses. [584] Second, the trial judge failed to apply the test for ad hoc fiduciary duties properly. She erred in law in concluding that the Crown agreed to act solely in the best interests of the Treaty beneficiaries concerning the Treaty augmentation clauses. This was not possible because it would put the Crown in an inevitable conflict of interest. [585] I see no error in the trial judge’s conclusion that there is no sui generis fiduciary duty in the circumstances. I will explain why courts should be cautious in expanding the scope of the sui generis fiduciary duty where the actions of the Crown are more in the nature of a public rather than a private duty. (b) Ad Hoc Fiduciary Duty (i) Nature of the Duty [586] An ad hoc fiduciary duty arises where there is: (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiaries; (2) a defined class of beneficiaries vulnerable to the fiduciary’s control; and (3) a legal or substantial practical interest of the beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control. [483] [587] The trial judge found that the Crown assumed an ad hoc fiduciary duty under the Treaties. [484] In coming to this decision, she held that all three elements of the test for an ad hoc fiduciary duty were met. First, the Crown undertook to act exclusively in the best interests of the Treaty beneficiaries. The trial judge found that there was no competing interest or duty for the Crown to engage in a process to determine if economic circumstances warranted an increase in the annuities. [485] Second, the Treaty beneficiaries constituted a defined class of persons vulnerable to the Crown’s control. [486] Third, the beneficiaries stood to be adversely affected because of the discretionary control of the Crown over the annuity increase. [487] [588] In my view, the trial judge made an error of law in holding that the Crown undertook to act exclusively in the best interests of the Treaty beneficiaries. At trial, Ontario and Canada submitted that they could not owe an ad hoc fiduciary duty to the Treaty beneficiaries in paying monies under the augmentation clauses because they cannot act with exclusive or utmost loyalty to them. They argued that it would put them in a conflict of interest if, in paying out monies under the augmentation clauses, they had to place the interests of the Treaty beneficiaries over the interests of all other members of society. [589] The trial judge appeared to recognize the implications of a broad-based fiduciary duty finding. She attempted to resolve that potential conflict of interest by narrowing the scope of the fiduciary duty she was imposing. That duty would not relate to the results of the Treaty augmentation process (i.e., the actual setting and paying of compensation). Instead, it would be procedural and only apply to the process to determine whether the compensation should be paid. This was most clearly stated in para. 525: The Crown argument that an ad hoc fiduciary duty analysis fails because the Crown cannot act with exclusive or utmost loyalty to the Anishinaabe because it “wears many hats” is based on a faulty premise. The Crown focused on the land as the interest at stake; however, the interest at stake is embedded in the augmentation clause. It is a promise to engage in the process of implementing the conditional augmentation promise. The legal interest subject to the duty is not in an absolute right to increases and is not in relation to the administration of the land. Rather, the legal interest created by the augmentation clause is to engage in the process to determine whether increases are payable. The right to have the Crown engage in the process came into effect upon the signing of the Treaties and continues to exist today. [488] [590] Throughout her reasons, the trial judge was at pains to emphasize that the ad hoc fiduciary duty was process-based and not results-based: · “Specifically, I find that the Crown undertook to act exclusively in the best interest of the Treaties’ beneficiaries in their promise to engage in a process to determine if the economic circumstances warrant an increase to the annuities.” [489] · “The Crown reminded th[e] court that a finding of ad hoc fiduciary duty on the part of the Crown would be rare. However, the circumstances in this case, being a duty to engage in a process to meet a treaty promise, may constitute one of those rare cases. The Crown has no other conflicting demands when it comes to engaging in the process.” [490] · “The best interests define the standard of conduct of the fiduciary; they do not define the outcome. It is the standard of conduct that defines, in general terms, the duties of the fiduciary. As the court said in Williams Lake , the Crown will fulfil its fiduciary obligation by meeting the prescribed standard of conduct, not by delivering a particular result.” [491] · “For example, the Crown has discretion on when and how it provides sufficient information to allow the Anishinaabe, or a court on review, to assess the Crown’s calculations of net Crown revenues. The discretion is subject to the duties of a fiduciary and, therefore, is not unfettered and must be carried out within the parameters of the duty of honour and the duties of loyalty and utmost good faith.” [492] · “I am satisfied that an ad hoc fiduciary duty arises in the context of the Robinson Treaties and attaches to the Treaties’ promise to engage with the process to determine if the Crown can increase the annuities without incurring loss (based on a calculation of relevant revenues and expenses to determine net Crown revenues).” [493] [591] The point the trial judge was making was that the Crown was not put in an untenable position because it was not required to favour the Treaty beneficiaries over the interests of other residents of Ontario, as there was no competing duty regarding procedural matters. By limiting the scope of the duty, she tried to avoid placing the Crown in an inherent conflict of interest. [592] Notwithstanding the foregoing, the trial judge greatly expanded the scope of the Crown’s fiduciary duty in settling the judgments for these cases. Gone was the notion of a limited procedural-based fiduciary duty, and in its place was a broad, substantive fiduciary duty on the Crown to implement the augmentation clauses. [593] The judgment in the Superior Plaintiffs’ action reads, in part, as follows: [1] THIS COURT ADJUDGES AND DECLARES THAT, considered apart from the pleaded defences based on statutes of limitation, res judicata and laches, including acquiescence, and without making a determination as to the respective responsibilities and liabilities of Canada and Ontario: a) Pursuant to the Robinson Superior Treaty of 1850, the Crown is obligated to increase, and the First Nation Treaty Parties have a collective treaty right to have increased, from time to time, the promised annuity payment of £500 (or $2,000) if net Crown resource-based revenues from the Treaty territory permit the Crown to do so without incurring loss, with the amount of annuity payable in any period to correspond to a fair share of such net revenues for that period; b) To fulfill its obligation in (a) above, the Crown: i. is required to periodically engage in a process, in consultation with the First Nation Treaty parties, to determine the amount of net Crown resource-based revenues; and ii. if there are sufficient Crown resource-based revenues, to permit the Crown to pay an increased annuity amount without incurring loss, is required to pay any such increase; c) In fulfilling these obligations and requirements of the augmentation promise, the Crown is subject to the duties flowing from the honour of the Crown and the fiduciary duty which the Crown owes to the First Nation Treaty parties [.] [Emphasis added.] [594] Identical language is used in the judgment for the action brought by the Huron Plaintiffs. [595] Clearly, the text of the judgments is not restricted to process. The trial judge is ordering that the Crown has an obligation to pay an increased annuity amount where it can do so without incurring a loss. In fulfilling that obligation, the Crown is subject to a fiduciary duty. The notion of a limited, procedural-based fiduciary duty, as articulated in the reasons, is therefore not consistent with the judgments rendered by the trial judge. [596] It is well settled in the jurisprudence that an appeal is from the order or judgment rendered in the court below and not the reasons that are given in support thereof. [494] Thus, we must take the judgments that the trial judge signed as reflecting her finding on the scope of the Crown’s fiduciary duty. As I will discuss in the next section of my reasons, however, regardless of whether the Crown’s fiduciary duty is broad-based and substantive or narrow and procedural, the trial judge erred in law in finding an ad hoc fiduciary duty. (ii) Error in Imposing an Ad Hoc Fiduciary Duty (i) Substantive Fiduciary Duty [597] Concerning the broad-based and substantive fiduciary duty, Ontario submits that it is impossible for a government to act with the utmost good faith to only one group in society when making policy decisions. It argues that because the Crown “wears many hats”, it must balance the interests of all members of society and cannot benefit one group over the others. Binnie J. articulated the “many hats” argument in Wewaykum : When exercising ordinary government powers in matters involving disputes between Indians and non-Indians, the Crown was (and is) obliged to have regard to the interest of all affected parties, not just the Indian interest. The Crown can be no ordinary fiduciary; it wears many hats and represents many interests, some of which cannot help but be conflicting: Samson Indian Nation and Band v. Canada , [1995] 2 F.C. 762 (C.A.). As the Campbell River Band acknowledged in its factum, “[t]he Crown’s position as fiduciary is necessarily unique” (para. 96). In resolving the dispute between Campbell River Band members and the non-Indian settlers named Nunns, for example, the Crown was not solely concerned with the band interest, nor should it have been. The Indians were “vulnerable” to the adverse exercise of the government’s discretion, but so too were the settlers, and each looked to the Crown for a fair resolution of their dispute. At that stage, prior to reserve creation, the Court cannot ignore the reality of the conflicting demands confronting the government, asserted both by the competing bands themselves and by non-Indians. [495] [598] Similarly, in a recent article, Bryan Birtles argues in favour of a sovereign-to-sovereign approach to treaty agreements because a “fiduciary relationship means a fiduciary must put its beneficiary’s interests ahead of anyone else’s. But such a situation is impossible to maintain between the Crown and a single segment of society: the Crown has competing interests, including its own, that structurally preclude it from putting Indigenous interests first.” [496] [599] The trend in the jurisprudence is to move away from imposing fiduciary duties on governments in implementing their policy obligations. As the Supreme Court stated in Elder Advocates , the “Crown’s broad responsibility to act in the public interest means that situations where it is shown to owe a duty of loyalty to a particular person or group will be rare”. [497] [600] The cases at bar serve as good examples of the difficulty with trying to shoehorn in a fiduciary duty that does not fit the circumstances. Leonard I. Rotman writes that a fundamental problem with the law of fiduciary duties is that courts do not have a proper understanding of why the concept exists, what it was meant to accomplish, and the purpose it was intended to facilitate. [498] This leads to situations where the concept is improperly applied. As Rotman states, this “unsophisticated and often-improper understanding of the fiduciary concept not only results in the misapplication of its principles, but also allows for the purposeful misuse of its principles to generate particular results.” [499] [601] It is important to remember that where an ad hoc duty is found, [f]iduciaries are obliged to abnegate all self-interest, as well as those of third parties, and focus solely on the best interests of their beneficiaries. This requires that fiduciaries not benefit themselves or third parties, whether financially or otherwise, from their positions as fiduciaries…. [500] [602] A finding of a fiduciary duty greatly expands the scope of available remedies. The availability of those remedies must not drive the analysis of whether such a duty is extant. However, I highlight below the extent of the potential damages to demonstrate that if the trial judge’s finding regarding a broad ad hoc fiduciary duty were permitted to stand, the result would be inconsistent with her central finding that there should be a sharing of revenue between the Crown and the Treaty beneficiaries. [603] Pursuant to their rights under the ad hoc fiduciary duty, the beneficiaries would be well within their rights to insist on total compensation of all net resources and take the position that the Crown has no right to benefit in any manner from the development of the lands subject to the Treaties. The Crown would be obliged to strictly account for and pay out all monies received, over and above the associated expenses. There would be no sharing in the circumstances; the Crown’s only obligation would be to the Treaty beneficiaries. [604] In addition to the preceding, the beneficiaries’ right to compensation could arguably exceed net revenues. As a fiduciary fulfilling its standard of care of the utmost good faith, the Crown is obliged not to benefit itself or third parties at the expense of their beneficiaries’ interests. Strict rules against conflicts of interest enforce the prohibitions against self-dealing and preferring the interests of others. In enforcing these rules, the courts will not inquire into why the breach occurred and will brook no arguments regarding why it was justified in the circumstances. Instead, as Rotman states, “[b]reaching a fiduciary duty is not a question of degree: it is a binary definition—either a breach has occurred or it has not.” [501] [605] The equitable remedies that flow from such a breach include constructive trusts, equitable compensation, and disgorgements of profits. Moreover, the presumption of most advantageous use will be employed in calculating lost opportunities by a beneficiary wrongfully deprived of property. [502] [606] The beneficiaries in these cases could argue that they are entitled to the revenue generated and what revenue could have been generated by the lands covered by the Treaties. For example, an argument might be advanced that the Crown set mining rates at too low a level in order to attract investment, create good-paying jobs, and generate tax revenue. Arguably such policies prefer the interests of the Crown or those of third parties over the interests of the Treaty beneficiaries. The Crown would have the onus of establishing why its policies did not amount to a breach of its fiduciary duty. In that regard, its arguments about its public policy motivations in setting its mining royalties would be of no moment. [607] Based on the foregoing, it is clear that the trial judge’s finding of a broad-based substantive fiduciary duty cannot stand for two reasons. First, the imposition of such a duty places the Crown in a conflict of interest. It forces the Crown to prefer the interests of one group over all others in making policy decisions regarding the development of a large swath of the province. The trial judge erred in finding that the Crown agreed to what is essentially a legal impossibility. Second, the trial judge has provided no reasons to support her finding that such a duty is owed. On the contrary, her reasons support the opposite conclusion that the duty is limited to procedural matters only. (ii) Procedural Fiduciary Duty [608] Even if the fiduciary duty was limited to procedural matters, Ontario denies that it could carry out the procedural obligations contemplated by the trial judge’s reasons with utmost loyalty to the Treaty beneficiaries. It argues that it has control over information that it cannot be forced to produce. Ontario cites cabinet confidences on the setting of royalties and land management policies, third-party confidential business information, and solicitor-client and litigation privileged documents as examples. For these and other documents, the Crown has a competing duty to keep the information confidential. In other words, even a limited procedural-based fiduciary duty would place the Crown in a conflict of interest. I accept that submission. [609] In addition, there is no evidence in the record that supports a finding that the Crown undertook to act exclusively in the best interests of the Treaty beneficiaries with respect to procedural matters stemming from the augmentation clauses. Accordingly, to the extent that the trial judge can be found to have only imposed a procedural-based fiduciary duty, I would order that it also be set aside. (c) Sui Generis Fiduciary Duty (i) Legal Principles [610] The jurisprudence has developed a unique fiduciary duty that may arise in certain circumstances in dealings between Aboriginal peoples and the Crown. A sui generis fiduciary duty was first recognized in Guerin . [503] It was developed in response to the political trust doctrine, which held that governments could owe trust-like obligations to specific people or groups, but that those obligations were not enforceable in the courts. [504] [611] Guerin involved a situation where the Musqueam Nation made a claim against the federal government in relation to the surrender of a portion of their reserve to a golf club. The focus of the court’s analysis was on the fact that the Musqueam Nation had Aboriginal title over the land in issue. Dickson J. (as he then was) explained that the sui generis fiduciary duty arises from the unique relationship between the Crown and Aboriginal peoples regarding lands subject to Aboriginal title: The fiduciary relationship between the Crown and the Indians has its roots in the concept of aboriginal, native or Indian title. The fact that Indian Bands have a certain interest in lands does not, however, in itself give rise to a fiduciary relationship between the Indians and the Crown. The conclusion that the Crown is a fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown. An Indian Band is prohibited from directly transferring its interest to a third party. Any sale or lease of land can only be carried out after a surrender has taken place, with the Crown then acting on the Band's behalf. The Crown first took this responsibility upon itself in the Royal Proclamation of 1763. It is still recognized in the surrender provisions of the Indian Act . The surrender requirement, and the responsibility it entails, are the source of a distinct fiduciary obligation owed by the Crown to the Indians. In order to explore the character of this obligation, however, it is first necessary to consider the basis of aboriginal title and the nature of the interest in land which it represents. [505] [612] Dickson J. distinguished the political trust jurisprudence on the basis that in those cases, the party “claiming to be [a] beneficiary under a trust depended entirely on statute, ordinance or treaty as the basis for its claim”. In contrast, in Guerin , the interest in the lands was based on “a pre-existing legal right not created by Royal Proclamation, by s. 18(1) of the Indian Act , or by any other executive order or legislative provision.” [506] [613] Post- Guerin , there followed a series of cases alleging breaches of fiduciary duty in circumstances ranging from claims for moving expenses to the provision of social services. In Wewaykum, Binnie J. placed limits on the applicability of the sui generis fiduciary duty. He commented as follows: But there are limits. The appellants seemed at times to invoke the “fiduciary duty” as a source of plenary Crown liability covering all aspects of the Crown-Indian band relationship. This overshoots the mark. The fiduciary duty imposed on the Crown does not exist at large but in relation to specific Indian interests. In this case we are dealing with land, which has generally played a central role in aboriginal economies and cultures. Land was also the subject matter of Ross River (“the lands occupied by the Band”), Blueberry River and Guerin (disposition of existing reserves). Fiduciary protection accorded to Crown dealings with aboriginal interests in land (including reserve creation) has not to date been recognized by this Court in relation to Indian interests other than land outside the framework of s. 35 (1) of the Constitution Act, 1982 . [507] [614] Binnie J. went on to refine the nature of the sui generis fiduciary duty as follows: I do not suggest that the existence of a public law duty necessarily excludes the creation of a fiduciary relationship. The latter, however, depends on identification of a cognizable Indian interest, and the Crown’s undertaking of discretionary control in relation thereto in a way that invokes responsibility “in the nature of a private law duty”…. [508] [615] The jurisprudence has developed a two-part test for determining whether a sui generis fiduciary duty arises in the circumstances of a given case. For such a duty to apply there must exist both: (1) a specific or cognizable Aboriginal interest; and (2) a Crown undertaking of discretionary control over that interest. [509] [616] It is essential to recognize that the nature of this fiduciary duty is distinct from an ad hoc fiduciary duty in that it permits a balancing of competing interests. Brown J. (dissenting) described it this way in Williams Lake : This form of fiduciary duty imposes a less stringent standard than the duty of utmost loyalty incident to an ad hoc fiduciary duty. It requires Canada to act — in relation to the specific Aboriginal interest — with loyalty and in good faith, making full disclosure appropriate to the subject matter and with ordinary diligence: Wewaykum , at paras. 81 and 97. It allows for the necessity of balancing conflicting interests: Wewaykum , at para. 96. [510] [617] Therefore, unlike the situation with an ad hoc fiduciary duty, discussed above, it is open to a sui generis fiduciary to act in more than one interest. This is a fiduciary duty that breaks with the traditional tenets of the doctrine as developed by the courts of equity. It arose from case-specific circumstances where Canadian courts found it necessary to impose a higher duty on the Crown in order to protect Aboriginal interests, but where the courts also recognized that the Crown requires some degree of flexibility to undertake its duty to the broader public. (ii) Application of Principles [618] The trial judge found that no sui generis fiduciary duty was established on the facts of these cases, reasoning: The first element of the sui generis approach requires the Plaintiffs to establish that they have a specific or cognizable Aboriginal interest: the interest must be a distinctly Aboriginal, communal interest in land that is integral to the nature of the distinctive community and their relationship to the land. The Anishinaabe interest in the territories that became the subject of the Robinson Treaties was historically occupied and communally held prior to contact and is, therefore, capable of constituting a specific or cognizable Aboriginal interest in land in the pre-Treaty context. There is no controversy on this point. The Defendants contend, however, that the surrender that was made as part of the Treaties extinguished the Anishinaabe’s specific or cognizable Aboriginal interest in the lands, and, therefore, the pre-existing interest is not capable of grounding a sui generis fiduciary duty. I do not have to decide whether the Anishinaabe's cognizable interest in the land survives the signing of the Robinson Treaties. This question can be left for another day because I find that the second element of the sui generis analysis is not met. That is, there was no Crown undertaking of discretionary control over the Anishinaabe’s interest in land, however that interest might be characterized. Specifically, I find that neither the Treaties’ text nor the context in which the Treaties’ promise was made support the contention that the augmentation clause included the notion or concept that the Crown would administer the land on behalf of the Treaties’ beneficiaries. In the absence of an undertaking in respect of the cognizable interest in the land, I find that a sui generis fiduciary duty does not arise from the Robinson Treaties’ promise. [511] [619] The Huron Plaintiffs argue that the trial judge erred in not finding a sui generis fiduciary duty, submitting that the two elements of the duty are satisfied. First, the augmentation promise is a specific and cognizable interest that is “distinctly Aboriginal” and in the nature of a private law duty. Second, the circumstances under which the enhanced annuities are to be paid (i.e., where Crown revenues from the land allow for it) constitute a Crown undertaking of discretionary control over the interest. [620] The Superior Plaintiffs take the position that the trial judge erred in stating that a sui generis fiduciary duty only arises with respect to interests in land. They submit that sui generis fiduciary duties can arise in respect of all Aboriginal and treaty rights recognized under s. 35 of the Constitution Act , 1982 , such as Aboriginal rights to fish and treaty rights to hunt, fish, and trap. In this case, Ontario conceded that the Treaty beneficiaries have a “right to augmentation of Treaty annuities”. The Superior Plaintiffs argue that since there is a collective entitlement covered under s. 35, which is subject to Crown discretionary control, a sui generis fiduciary duty arises. [621] I would not give effect to the arguments advanced by the Huron and Superior Plaintiffs for the following reasons. [622] The Huron and Superior Plaintiffs take the position that the trial judge erred in restricting sui generis fiduciary duties to interests in land. They submit that the Supreme Court has not ruled that an interest in land is required to qualify as a cognizable interest. In other words, the Huron and Superior Plaintiffs’ position is that the duty has been expanded from the circumstances of Guerin and is sufficiently flexible to apply in different contexts as required to ensure equitable results. [623] I pause to note that the trial judge did not decide this issue on the basis of a cognizable Aboriginal interest. Nonetheless, the Huron and Superior Plaintiffs raise important issues about the scope of the sui generis fiduciary duty and where it may be properly applied. Those issues are worthy of consideration by this court. [624] When counsel for the Huron and Superior Plaintiffs were asked in oral argument if the sui generis fiduciary duty had ever been applied in the context of a treaty, they were unable to point the panel to any applicable case law. Conversely, the Crown pointed out that the Supreme Court had repeatedly restricted cognizable Aboriginal interests to pre-existing interests and not interests founded by treaty, legislation, or executive action. [512] I agree with the Crown’s submission. Based on the jurisprudence, the Huron and Superior Plaintiffs’ interests as found in the Robinson Treaties would not qualify as a cognizable Aboriginal interest. [625] The Huron and Superior Plaintiffs submit that the lack of precedent does not necessarily preclude the application of a sui generis fiduciary duty. Assuming without deciding that treaty rights can qualify as a cognizable Aboriginal interest, the question is whether it is advisable in the circumstances of these cases to find such a duty. I would answer that question in the negative for two reasons. [626] First, courts must be careful in identifying a cognizable interest, as was emphasized by Wagner J. in Williams Lake : The specific or cognizable Aboriginal interest at stake must be identified with care. The fiduciary’s obligation is owed in relation to that interest, and its content will depend on “the nature and importance of the interest sought to be protected”: Manitoba Metis Federation , at para. 49; Wewaykum , at para. 86. If there is no Aboriginal interest sufficiently independent of the Crown’s executive and legislative functions to give rise to “responsibility ‘in the nature of a private law duty’”, then no fiduciary duties arise — only public law duties: see Wewaykum , at paras. 74 and 85; Guerin , at p. 385; see also D. W. Elliott, “Much Ado About Dittos: Wewaykum and the Fiduciary Obligation of the Crown” (2003), 29 Queen’s L.J. 1. [513] [627] In the instant cases, there is an element of private law duty in the Treaties. These were resource agreements entered into specifically with the signatory bands. However, that element is overwhelmed by the public law aspects of the relationship created by the Robinson Treaties. The Treaties engage the Crown’s responsibility for managing a large section of the northern portion of the province. The Crown’s responsibilities include not only the setting of mining rates and taxes, but also the building of infrastructure and community development. This is factually far removed from the situation in Guerin , which created the sui generis fiduciary duty based on the Crown policy of acting as an intermediary in the sale and lease of Aboriginal lands. I am of the view that the Aboriginal interests in the cases at bar are not sufficiently independent of the Crown’s executive and legislative functions to ground a cognizable Aboriginal interest. [628] Second, I also agree with the trial judge’s finding that there was no evidence of a Crown undertaking of discretionary control over any cognizable interest. Thus, neither of the requisite elements of a sui generis fiduciary duty were met in the cases at bar. (3) Crown Immunity [629] At trial, Ontario argued that the Huron and Superior Plaintiffs’ claims for breach of fiduciary duty were barred by s. 28 of the Proceedings Against the Crown Act (“ PACA ”). [514] Pursuant to s. 28, the Crown is immune against claims for acts or omissions prior to the date that the PACA came into force (September 1, 1963), except for claims that meet the exception in s. 29(1). That subsection permits a party to commence an action that could have been enforced by a petition of right prior to September 1, 1963. Ontario submitted that the Huron and Superior Plaintiffs’ claims could not be captured by the exception in s. 29(1) because, prior to the enactment of the PACA , Crown immunity covered all equitable wrongs, not simply torts. [630] The trial judge rejected Ontario’s argument by drawing a distinction between tort claims and claims for equitable relief. She reasoned that, even before the PACA was enacted, claims for equitable relief could be brought against the Crown on a petition of right. [515] [631] On appeal, Ontario makes a series of arguments in support of its submission that the trial judge erred in her consideration of the Crown immunity issue. However, Ontario only asserts Crown immunity with respect to the Huron and Superior Plaintiffs’ breach of fiduciary duty claims. Given my finding that the Crown does not owe a fiduciary duty to the Huron and Superior Plaintiffs regarding the augmentation clauses, it is unnecessary for me to consider these arguments. (4) Limitations Defence (a) Overview [632] Ontario’s position is that the Huron and Superior Plaintiffs’ claims for breach of Treaty are subject to either a twenty-year limitation period (as actions upon a specialty) or a six-year limitation period (as actions of account or actions for contract without specialty) under the 1990 Limitations Act . [633] The 1990 Limitations Act applies by virtue of ss. 2(1)(e), 2(1)(f) and 2(2) of the Limitations Act , 2002 (the “2002 Limitations Act ”). [516] These sections provide that proceedings based on Aboriginal and treaty rights recognized by s. 35 of the Constitution Act , 1982 , or equitable claims brought by Aboriginal people are “governed by the law that would have been in force with respect to limitation of actions if this Act had not been passed.” Consequently, the parties agree that if any limitations legislation applies to these cases, it is the 1990 Limitations Act . [634] The trial judge rejected the Crown's submission, reasoning that an Aboriginal treaty is not a contract for limitations purposes, but rather a unique agreement between the Crown and Indigenous peoples intended to be a part of Canada’s constitutional fabric. [517] She also held that the Robinson Treaties could not be considered specialties because specialties are a specific type of contract. [518] Further, even if the Treaties could be characterized as contracts, they could not be interpreted as specialties, which derive their meaning from their form. [519] By contrast, Aboriginal treaties represent a vast body of promises between the parties that go beyond the document’s words and must be understood in their full historical and cultural context. [520] Finally, the trial judge rejected Ontario’s alternative argument that the Huron and Superior Plaintiffs’ Treaty claims were actions of account as contemplated by the 1990 Limitations Act . The trial judge agreed with the Huron and Superior Plaintiffs that they were seeking equitable compensation from the Crown, which is unlike a common law accounting. [521] [635] Although unnecessary, given her conclusion on the application of the 1990 Limitations Act , the trial judge went on to discuss the liberal statutory interpretation principles in favour of Indigenous peoples that are mandated by Nowegijick . [522] She acknowledged that those principles only apply to legislation that expressly deals with Indigenous people, not to statutes of general application. However, the trial judge observed that statutes of general application might attract such special rules of interpretation in certain circumstances. She reasoned that allowing a technical defence based on a strict and narrow interpretation of the PACA and the 1990 Limitations Act would effectively terminate the Huron and Superior Plaintiffs’ Treaty rights. Consequently, the trial judge concluded that both the PACA and the 1990 Limitations Act could attract the Nowegijick principles of interpretation. [636] The trial judge also noted that the Nowegijick principles are connected to the honour of the Crown. Given that the PACA and the 1990 Limitations Act have a significant impact on the enforcement of the Crown’s Treaty promises to the Huron and Superior Plaintiffs, the trial judge concluded that these statutes could be interpreted according to the duties flowing from the honour of the Crown. [637] Ultimately, the trial judge found that she would have applied the Nowegijick principles and the honour of the Crown when interpreting Ontario’s statutory defences of Crown immunity and limitations, had it been necessary to do so. However, she did not undertake this analysis since she held that the Crown did not have immunity from the Huron and Superior Plaintiffs’ breach of fiduciary duty claims, and the Huron and Superior Plaintiffs were not statute-barred from bringing their breach of Treaty claims. [638] Ontario submits that the trial judge erred in her interpretation of the 1990 Limitations Act . Below, I will review the terms of that legislation , utilizing the modern approach to statutory interpretation to examine Ontario’s arguments. In so doing, I will use a standard of correctness, as the issue concerns purely legal questions of statutory interpretation. [523] [639] I note that I will not consider the trial judge’s comments regarding the Nowegijick principles and the honour of the Crown to interpret the 1990 Limitations Act . The comments were obiter , and I do not need to consider them to dispose of this ground of appeal. (b) Modern Approach to Statutory Interpretation [640] The modern approach to statutory interpretation was recently summarized by Côté J. in Pointes Protection Association : Indeed, this Court has reiterated on numerous occasions that the modern approach to statutory interpretation requires 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” (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, quoted in Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27, at para. 21). [524] [641] The key point of the modern approach is that statutory interpretation cannot be founded on the wording of the legislation alone. The court must consider the purpose of the disputed provision(s) and all of the relevant context, including the public policy objectives underlying the legislation. [642] Ultimately, the court must adopt an interpretation that is appropriate in the circumstances. As Ruth Sullivan notes: An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of legislative intent; and (c) its acceptability, that is, the outcome complies with accepted legal norms; it is reasonable and just. [525] (c) Applying the Modern Approach to the 1990 Limitations Act (i) No Reference to Aboriginal Treaties [643] Ontario relies on ss. 45(1)(b), 45(1)(g), and 46 of the 1990 Limitations Act , which read as follows: 45. (1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned, (b) an action upon a bond, or other specialty , except upon a covenant contained in an indenture of mortgage made on or after the 1st day of July, 1894; within twenty years after the cause of action arose , (g) an action for trespass to goods or land, simple contract or debt grounded upon any lending or contract without specialty , debt for arrears of rent, detinue, replevin or upon the case other than for slander, within six years after the cause of action arose , 46. Every action of account , or for not accounting, or for such accounts as concerns the trade of merchandise between merchant and merchant, their factors and servants, shall be commenced within six years after the cause of action arose , and no claim in respect of a matter that arose more than six years before the commencement of the action is enforceable by action by reason only of some other matter of claim comprised in the same account having arisen within six years next before the commencement of the action. [Emphasis added.] [644] The crux of Ontario's argument is that when the legislature referred to a specialty, a simple contract or action of account in the 1990 Limitations Act , it meant to include Aboriginal treaty claims. Ontario provides no authority to support its submission that the 1990 Limitations Act should be interpreted in this manner. I also pause to note that Ontario’s attempt to construe Aboriginal treaties as a form of contract is the antithesis of the position it takes on the Stage One appeal with respect to the nature of treaties for the purposes of determining the appropriate standard of review. [645] The primary difficulty I have with Ontario’s submission is that one would have thought that if the legislature intended to impose a limitation period for Aboriginal treaty claims, it would have said just that in the 1990 Limitations Act . In this regard, the context surrounding ss. 45(1)(b), 45(1)(g) and 46 is important. A review of the 1990 Limitations Act reveals that the legislature listed numerous causes of action and designated specific limitation periods for each one. However, the legislature did not include Aboriginal treaty claims in the statute or identify an applicable limitation period. For something as unique as Aboriginal treaty claims, it seems inconceivable that the legislature intended to impose a limitation period but left litigants to choose which of the limitation periods for a specialty, a simple contract, or an accounting applied. [646] Further, in the 2002 Limitations Act the legislature specifically dealt with Aboriginal treaty claims. This suggests two things: (1) the legislature understood that Aboriginal treaty claims are distinct and cannot fall under the umbrella of specialties, contracts, or actions of account; and (2) when the legislature intended to deal with Aboriginal treaty claims, it did so explicitly. [647] The words of ss. 45(1)(b), 45(1)(g), and 46 appear to be clear on their face. The legislature chose to use legal terms like “specialty”, “simple contract” and “account” to delineate causes of action that will have limitation periods. The legislature is presumed to know both statutory and common law, and when it uses such terms, it is assumed to have used them in their correct legal sense . [526] The ordinary meaning of the terms should therefore be given effect unless there is a reason to reject them. (ii) The Meaning of “Contracts”, “Specialties” and “Accounting” [648] It is well established in the jurisprudence that a court must consider the entire context of a statute before settling on what appears, at first blush, to be the plain meaning of a legislative provision. [527] [649] Here, Ontario argues that despite the legislature’s failure to use the term, “treaty” in the 1990 Limitations Act , this court should interpret ss. 45(1)(b) and 45(1)(g) in conjunction with common law jurisprudence that characterizes Aboriginal treaties as contracts or specialties. Ontario similarly asserts that based on a contextual reading of s. 46, the type of claims asserted by the Huron and Superior Plaintiffs qualifies as an accounting . If Ontario’s propositions are accurate, they would impact the meaning attributed to the terms, “contract”, “specialty”, and “accounting”, in the respective provisions, and influence the interpretation of the 1990 Limitations Act . However, as I will discuss below, I do not believe that Ontario’s submissions accurately reflect the current state of the law. (i) Contracts [650] Ontario concedes that Aboriginal treaties are more than simple contracts but submits that they are contracts within the meaning of the 1990 Limitations Act . In support of this argument, Ontario points to several cases that have held Aboriginal treaties are contract-like. I agree that courts in Ontario and elsewhere in Canada have observed that treaties are analogous or tantamount to contracts. [528] [651] Notwithstanding the foregoing, the trial judge was correct in rejecting this argument. She relied on a series of cases from the Supreme Court and a statement from the late Professor Peter W. Hogg that make clear that, although Aboriginal treaties and contracts may have features in common, they are distinct concepts in law. She reasoned as follows: While treaties share some characteristics of contracts, that is they contain "enforceable obligations based on the mutual consent of the parties," the Supreme Court jurisprudence of the last three decades has been clear that treaties constitute a unique type of agreement. The following excerpts from the Supreme Court jurisprudence are examples of this view: Sioui: A treaty with the Indians is unique … it is an agreement sui generis which is neither created nor terminated according to the rules of international law. Badger: First it must be remembered that a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. Sundown : Treaties may appear to be no more than contracts. Yet they are far more. They are a solemn exchange of promises made by the Crown and various First Nations. They often formed the basis for peace and the expansion of European settlement. In many if not most treaty negotiations, members of the First Nations could not read or write English and relied completely on the oral promise made by the Canadian negotiators. There is a sound historical basis for interpreting treaties in the manner summarized in Badger . Anything else would amount to a denial of fair dealing and justice between the parties. Marshall: Aboriginal treaties constitute a unique type of agreement and attract special rules of interpretation. Finally, constitutional scholar, Peter W. Hogg, writes: An Indian treaty has been described as unique or “sui generis”. It is not a treaty at international law and is not subject to the rules of international law. It is not a contract, and is not subject to the rules of contract [529] [652] Thus, the weight of the jurisprudence is to the effect that, while Aboriginal treaties are comparable to contracts and may share similar features, they are different legal instruments. Treaties share with contracts the mutual exchange of consideration and obligations. Yet, the nature of the obligations that flow from these agreements are much different from a contract. Aboriginal treaties include concepts that are foreign to the law of contract, including the honour of the Crown and the protections contained in s. 35 of the Constitution Act , 1982 , both of which create unique substantive legal obligations towards Indigenous peoples. The trial judge did not err in finding that Aboriginal treaties cannot be considered contracts within the meaning of the 1990 Limitations Act . (ii) Specialty [653] Ontario submits that the trial judge wrongly concluded that actions for breach of an Aboriginal treaty could not be actions upon a specialty within the meaning of s. 45(1)(b) of the 1990 Limitations Act . It argues that a specialty is a disposition of property made in a particular form: the document must contain a promise, obligation, or covenant which is signed, sealed, and delivered with the intention to bind the parties in their act and deed. According to Ontario, while a specialty is an obligation under seal securing a debt, the debt need not exist when the specialty is made and sealed; it may be a future debt. [654] Ontario asserts that the question of whether the Robinson Treaties secure a debt, and the extent of any amount owing thereunder, should have been deferred to Stage Three as a genuine issue requiring a trial. Its position is that the Robinson Treaties were made and were intended to be made under seal. To the extent that the Huron and Superior Plaintiffs contest the Treaties’ seal, Ontario claims that such arguments involve questions of fact requiring the benefit of evidence to be adduced at the Stage Three hearing. [655] These submissions do not persuade me. The trial judge observed that the record was unclear on whether the Treaties were sealed but concluded that it was unnecessary for her to determine the issue. She assumed that the Treaties were sealed, and focused her analysis on the fundamental differences between a specialty and a treaty: However, even if one were to assume that the Treaties were sealed and that the presence of seals somehow transformed these Treaties into specialties, this characterization would conflict with the findings on Stage One that the Treaties must be understood in their full historical and cultural context. In contrast, the meaning of specialties comes from the form of the document itself. In Friedmann , the Supreme Court briefly outlined the history of the practice of sealing documents, stating: The seal rendered the terms of the underlying transaction indisputable, and thus rendered additional evidence unnecessary… A contract under seal derived, and still derives, its validity from the form of the document itself. [Citations omitted.] Such a document is, by definition, in stark contrast to the findings on Stage One, with respect to the vast historical, cultural, and Anishinaabe legal perspective that underlies the meaning of the Treaty documents. The Treaties must be interpreted according to treaty interpretation principles settled in the jurisprudence, which is fully outlined in Stage One of this proceeding. On the other hand, the form controls the substance in a specialty. But relying only on the form of the written document is anathema to the task of treaty interpretation. The finding in Stage One was that the treaty represented a vast body of understanding of the parties in their dealings with one another beyond the mere words of the document…. [530] [656] I agree with and adopt the trial judge’s analysis. In considering Ontario’s submission that a treaty is a form of specialty, the correct place to start is a review of the nature of an Aboriginal treaty and a specialty. As noted above, even in cases where the text of an Aboriginal treaty does not include an ambiguity, courts must have regard to the context surrounding its negotiation and execution to understand its meaning. The opposite is true with a specialty. It is a unique form of legal document that permits the parties and the court to look strictly at what is within its four corners to ascertain its meaning. The whole point of creating a specialty agreement is to avoid the type of analysis that is required in Aboriginal treaty interpretation. [657] The fundamental differences between these types of agreements leads me to conclude that the trial judge was correct in finding that the Robinson Treaties are not specialties. It is therefore unnecessary for me to consider the trial judge’s additional finding that the Robinson Treaties do not secure a debt. (iii) Accounting [658] Ontario submits that the trial judge erroneously held that the Huron and Superior Plaintiffs’ actions could not be viewed as actions for an accounting within the meaning of s. 46 of the 1990 Limitations Act . She reasoned that the actions were seeking equitable compensation, not a common law accounting, and thus the claims did not fall within the ambit of s. 46. [531] According to Ontario, this was an error because an action for an accounting is incidental to an action brought in contract, or any other relationship where there is an equitable or legal duty to account. [659] I would not give effect to this ground of appeal. In my view, it can be dismissed summarily. As Dan Zacks notes in his authoritative blog on limitation periods, an analysis pursuant to the 1990 Limitations Act “always began by ‘classifying the action’ – [i.e.,] determining which form of action included the cause of action being advanced.” [532] [660] The form of action for an “action of account” was described by the Ontario Law Reform Commission in its Report on the Limitation of Actions as follows: The actions of account expressly referred to in section 46 probably are only those which would have been brought at common law and do not include equitable actions of account. Section 46 was originally enacted to remove the exception of merchants’ accounts contained in section 3 of The Limitations Act, 1623 . Section 3 provided, inter alia , that all common law actions of account, except merchants’ accounts, must be brought within six years after the cause of action arose. When section 46 first became law, it clearly only referred to merchants’ accounts. Owing to minor changes in punctuation and wording, the section now is ungrammatical and appears on the surface to apply to all actions of account, although it is unlikely that the changes were intended to produce the latter result. [533] [661] Section 46 of the 1990 Limitations Act , which was intended to be limited to merchants’ accounts, has no application to the instant cases. Therefore, I would reject this ground of appeal. (d) Summary [662] The legislature chose not to reference Aboriginal treaties in the 1990 Limitations Act , although it did so in the 2002 Limitations Act . This is strongly suggestive of an intention not to impose a limitation period for claims based on a breach of an Aboriginal treaty. Ontario’s arguments that the legislature intended to cover Aboriginal treaty claims under the terms “contract”, “specialty”, or “action of account” are unpersuasive. As discussed above, these claims are distinct in law from one based on a breach of an Aboriginal treaty. Accordingly, I would dismiss this ground of appeal. C. Disposition [663] For the preceding reasons, I would dismiss Ontario’s appeal of the trial judge’s interpretation of the Robinson Treaties. Regarding fiduciary duty, I would set aside the trial judge’s finding that the Crown owes the Huron and Superior Plaintiffs’ a fiduciary duty, and accordingly I do not consider Ontario’s claim of Crown immunity. Finally, I would dismiss Ontario’s appeal of the trial judge’s decision on its defence under the 1990 Limitations Act . [664] In summary, I would grant the appeal from the Stage One proceedings in part, amend the judgments as set out in Appendix “A” to these reasons, and remit the matter of the Huron Plaintiffs’ costs for the Stage One proceedings to the trial judge for reconsideration in accordance with the reasons of Lauwers and Pardu JJ.A. I would dismiss the appeal from the Stage Two proceedings. I would award costs of the appeals in the manner set out in the joint reasons. Released: November 5, 2021  “G.R.S.” “C.W. Hourigan J.A.” Appendix A: Amended Stage One Judgments RESTOULE JUDGMENT (Huron Action) (PARTIAL JUDGMENT - STAGE ONE - RELEASED JUNE 17, 2019) THROUGH NOTICES OF MOTION for summary judgment brought in the within action the plaintiffs sought the following declaratory relief, and costs: 1. The plaintiffs move for a declaration that, considered apart from the pleaded defences based upon statutes of limitation , res judicata , laches and acquiescence, since 1850 the Crown has been and remains legally obligated under the Robinson Huron Treaty of 1850 to increase the annuity under the Treaty from time to time if the territory subject to the Treaty produced or produces an amount which would enable it to do so without incurring loss, and that the size of the increase of the annuity is not limited to an amount based on one pound per person. 2. The plaintiffs acknowledge that in addressing this motion, the parties were permitted to address and seek determination of particular issues, including: a) the meaning and legal effect of the phrase “such further sum as Her Majesty may be graciously pleased to order” in the written text of the Treaty; b) whether the revenues that are to be taken into account in determining whether “the territory subject to the Treaty produced or produces an amount which would enable it to do so without incurring loss” are restricted to Crown revenues from the territory; c) whether gross or net revenues are to be taken into account in determining whether “the territory subject to the Treaty produced or produces an amount which would enable it to do so without incurring loss”; d) what principle or principles govern the determination of the amount of the increased annuities; e) whether the provision that “the amount paid to each individual shall not exceed the sum of one pound provincial currency ($4) in any one year, or such further sum as Her Majesty may be graciously pleased to order” should be indexed for inflation; ON BEING ADVISED by counsel for the parties near the outset of the summary trial that there was no dispute regarding issues 2 (b) and 2 (c) noted above, and that in relation to those issues the parties were in agreement that the revenues that are to be taken into account in determining whether “the territory subject to the Treaty produced or produces an amount which would enable it to do so without incurring loss” are net Crown revenues from the territory; AND ON BEING REQUESTED BY THE PARTIES to make determinations on issues 1, 2 (a), (d) and (e) above, as set out in the plaintiffs’ notices of motion, but without engaging in a line-by­line identification of relevant revenues and expenses in the public accounts of Canada or Ontario; AND ON BEING REQUESTED BY THE PLAINTIFFS to make determinations under Issue 2 (d) above with respect to what types of Crown revenues and expenses are relevant for the purposes of Augmentation Clause, and on hearing submissions from counsel for the Attorney General for Canada (“Canada”) that such determinations should be deferred to the contemplated Stage 3 of this litigation, and from counsel for Her Majesty the Queen in right of Ontario and the Attorney General for Ontario, that the Court should make findings with respect to the intentions of the Treaty parties in 1850 regarding relevant revenues and expenses, but without reaching definitive determinations regarding relevant revenues and expenses on the limited evidence before the Court regarding modern public finances; AND ON READING the pleadings, the text of the Treaty, the numbered exhibits entered, the affidavits, expert reports and historical documents, filed, and on hearing the oral testimony of the witnesses, and on reading and hearing the submissions of counsel for the parties, and for reasons released on December 21, 2018 (2018 ONSC 7701): [1]      THIS COURT ADJUDGES AND DECLARES THAT, considered apart from the pleaded defences based on statutes of limitation, res judicata and laches , including acquiescence, and without making a determination as to the respective responsibilities and liabilities of Canada and Ontario: a) Pursuant to the Robinson Huron Treaty of 1850, the Crown is obligated to increase, and the First Nation Treaty Parties have a collective treaty right to have increased, from time to time, the promised annuity payment of £600 (or $2,400) if net Crown resource-based revenues from the Treaty territory permit the Crown to do so without incurring loss , with the amount of annuity payable in any period to correspond to a fair share of such net revenues for that period ; b) To fulfill its obligation in (a) above, the Crown: i. is required to periodically engage in a process, in consultation with the First Nation Treaty parties, to determine the amount of net Crown resource-based revenues; and ii. if there are sufficient Crown resource-based revenues, to permit the Crown to pay an increased annuity amount without incurring loss, is required to pay any such increase; c) In fulfilling these obligations and requirements of the augmentation promise, the Crown is subject to the duties flowing from the honour of the Crown and the fiduciary duty which the Crown owes to the First Nation Treaty parties ; d) The Crown must diligently implement the augmentation promise , so as to achieve the Treaty purpose of reflecting in the annuities a fair share of the value of the resources, including the land and water in the territory ; e) The Crown shall, in a manner consistent with the honour of the Crown, consult with the First Nation Treaty parties to determine what portion, if any, of the increased annuity amount is to be distributed by the Crown to the individual Treaty rights holders in addition to the $4 per person per year they are already being paid; f) The augmentation promise is a Treaty right recognized and affirmed by s. 35 of the Constitution Act , 1982. [2]      THIS COURT ADJUDGES AND DECLARES THAT the principles governing the Treaty parties’ implementation of the annuity provisions are to accord with this Court’s determinations that: a) the Robinson Huron Treaty was negotiated by the Treaty parties around the Anishinaabe Council Fire at Bawaating (Sault Ste Marie) as a renewal of the ongoing relationship between the Anishinaabeg and the Crown grounded in the Covenant Chain alliance, and as a basis for continuing a mutually respectful and beneficial relationship going into the future; and b) the Treaty reflects the parties’ common intention that their agreement was to allow both the Anishinaabeg and the Crown to realize the future opportunities and potential of the Treaty territory in a manner consistent with the Anishinaabe principles of respect, responsibility, reciprocity and renewal and the intention of the Crown to act honourably, with justice or fairness, and with liberality or benevolence. [3]      THIS COURT FURTHER ADJUDGES AND DECLARES THAT: a) The process adopted for purposes of determining the amount of net Crown resource­ based revenues in a particular period must afford sufficient Crown disclosure of information to enable the First Nation Treaty parties and the Court, if necessary, to determine the amount of such net revenues; b) For purposes of determining the amount of net Crown resource-based revenues in a particular period: i. relevant revenues to be considered are Crown resource-based revenues arising directly or in a closely related way to the use, sale, or licensing of land (which could include the waters) in the Treaty territory, including mineral and lumbering revenues and other analogous revenues as received by the Crown both historically and in the future , but not including personal, corporate or property tax revenues , ii. relevant expenses to be considered are Crown expenses related to collecting, regulating, and supporting relevant revenues , but do not include the costs of infrastructure and institutions that are built with Crown tax revenues , with these definitions to be applied as general principles that are subject to clarification and further direction by the Court in a future stage of this proceeding; and c) Failing agreement amongst the parties, the principles to be applied for purposes of determining amounts [added text - to be disbursed pursuant to the augmentation promise from] that are fairly and reasonably equal to a fair share of net Crown resource-based revenues are subject to further direction by the Court in a future stage of this proceeding. d) Where in the exercise of their duties to implement the augmentation promise the Crown exercises discretion, the discretion must be exercised honourably, such discretion is not unfettered and is subject to review by the Courts. [4]      THIS COURT FURTHER ORDERS AND ADJUDGES THAT the plaintiffs’ alternative claim, supported by Ontario, that the Court should imply a Treaty term to provide for indexing of the promised annuity payment of £600 (or $2,400), as augmented to an amount based on £1 (or $4) per person, in order to protect the First Nation Treaty parties against erosion of the purchasing power of annuities due to inflation be, and is hereby, dismissed. [5]      AND THIS COURT FURTHER ORDERS AND ADJUDGES that the plaintiffs are hereby awarded their costs of this action to date, on the partial indemnity scale, without reserving to them any right to seek a higher level of indemnity at another time, and that pursuant to an agreement made between them, Canada and Ontario are each responsible to pay 50 per cent of such costs, and: a) that subject to paragraph 4(b) below, the plaintiffs’ costs of this action to date, including this motion, are hereby fixed in the total amount of $9,412,447.50; and b) that the plaintiffs may make further submissions to the Court with respect to the sum of $303,775.00 they have claimed as further disbursements incurred by the Robinson Huron Trust. Should the plaintiffs make such further submissions, the defendants will be entitled to respond. [6]      THIS JUDGMENT BEARS INTEREST at the rate of three per cent (3%) per year commencing on December 21, 2018. CHIEF AND COUNCIL OF RED ROCK FIRST NATION (Superior Action) (PARTIAL JUDGMENT - STAGE ONE - RELEASED JUNE 17, 2019) THROUGH NOTICES OF MOTION for summary judgment brought in the within action the plaintiffs sought the following declaratory relief, and costs: 1. The plaintiffs move for a declaration that, considered apart from the pleaded defences based upon statutes of limitation, res judicata , laches and acquiescence, since 1850 the Crown has been and remains legally obligated under the Robinson Superior Treaty of 1850 to increase the annuity under the Treaty from time to time if the territory subject to the Treaty produced or produces an amount which would enable it to do so without incurring loss, and that the size of the increase of the annuity is not limited to an amount based on one pound per person. 2. The plaintiffs acknowledge that in addressing this motion, the parties were permitted to address and seek determination of particular issues, including: a) the meaning and legal effect of the phrase “such further sum as Her Majesty may be graciously pleased to order” in the written text of the Treaty; b) whether the revenues that are to be taken into account in determining whether “the territory subject to the Treaty produced or produces an amount which would enable it to do so without incurring loss” are restricted to Crown revenues from the territory; c) whether gross or net revenues are to be taken into account in determining whether “the territory subject to the Treaty produced or produces an amount which would enable it to do so without incurring loss”; d) what principle or principles govern the determination of the amount of the increased annuities; e) whether the provision that “the amount paid to each individual shall not exceed the sum of one pound provincial currency ($4) in any one year, or such further sum as Her Majesty may be graciously pleased to order” should be indexed for inflation; ON BEING ADVISED by counsel for the parties near the outset of the summary trial that there was no dispute regarding issues 2 (b) and 2 (c) noted above, and that in relation to those issues the parties were in agreement that the revenues that are to be taken into account in determining whether “the territory subject to the Treaty produced or produces an amount which would enable it to do so without incurring loss” are net Crown revenues from the territory; AND ON BEING REQUESTED BY THE PARTIES to make determinations on issues 1, 2 (a), (d) and (e) above, as set out in the plaintiffs’ notices of motion, but without engaging in a line-by­ line identification of relevant revenues and expenses in the public accounts of Canada or Ontario; AND ON BEING REQUESTED BY THE PLAINTIFFS to make determinations under Issue 2 (d) above with respect to what types of Crown revenues and expenses are relevant for the purposes of Augmentation Clause, and on hearing submissions from counsel for the Attorney General for Canada (“Canada”) that such determinations should be deferred to the contemplated Stage 3 of this litigation, and from counsel for Her Majesty the Queen in right of Ontario and the Attorney General for Ontario, that the Court should make findings with respect to the intentions of the Treaty parties in 1850 regarding relevant revenues and expenses, but without reaching definitive determinations regarding relevant revenues and expenses on the limited evidence before the Court regarding modern public finances; AND ON READING the pleadings, the text of the Treaty, the numbered exhibits entered, the affidavits, expert reports and historical documents, filed, and on hearing the oral testimony of the witnesses, and on reading and hearing the submissions of counsel for the parties, and for reasons released on December 21, 2018 (2018 ONSC 7701): [1]      THIS COURT ADJUDGES AND DECLARES THAT, considered apart from the pleaded defences based on statutes of limitation, res judicata and laches , including acquiescence, and without making a determination as to the respective responsibilities and liabilities of Canada and Ontario: a) Pursuant to the Robinson Superior Treaty of 1850, the Crown is obligated to increase, and the First Nation Treaty Parties have a collective treaty right to have increased, from time to time, the promised annuity payment of £500 (or $2,000) if net Crown resource-based revenues from the Treaty territory permit the Crown to do so without incurring loss , with the amount of annuity payable in any period to correspond to a fair share of such net revenues for that period ; b) To fulfill its obligation in (a) above, the Crown: i. is required to periodically engage in a process, in consultation with the First Nation Treaty parties, to determine the amount of net Crown resource-based revenues; and ii. if there are sufficient Crown resource-based revenues, to permit the Crown to pay an increased annuity amount without incurring loss, is required to pay any such increase; c) In fulfilling these obligations and requirements of the augmentation promise, the Crown is subject to the duties flowing from the honour of the Crown and the fiduciary duty which the Crown owes to the First Nation Treaty parties ; d) The Crown must diligently implement the augmentation promise , so as to achieve the Treaty purpose of reflecting in the annuities a fair share of the value of the resources, including the land and water, in the territory ; e) The Crown shall, in a manner consistent with the honour of the Crown, consult with the First Nation Treaty parties to determine what portion, if any, of the increased annuity amount is to be distributed by the Crown to the individual Treaty rights holders in addition to the $4 per person per year they are already being paid; f) The augmentation promise is a Treaty right recognized and affirmed by s. 35 of the Constitution Act , 1982. [2]      THIS COURT ADJUDGES AND DECLARES THAT the principles governing the Treaty parties’ implementation of the annuity provisions are to accord with this Court’s determinations that: a) the Robinson Superior Treaty was negotiated by the Treaty parties around the Anishinaabe Council Fire at Bawaating (Sault Ste Marie) as a renewal of the ongoing relationship between the Anishinaabeg and the Crown grounded in the Covenant Chain alliance, and as a basis for continuing a mutually respectful and beneficial relationship going into the future; and b) the Treaty reflects the parties’ common intention that their agreement was to allow both the Anishinaabeg and the Crown to realize the future opportunities and potential of the Treaty territory in a manner consistent with the Anishinaabe principles of respect, responsibility, reciprocity and renewal and the intention of the Crown to act honourably, with justice or fairness, and with liberality or benevolence. [3]      THIS COURT FURTHER ADJUDGES AND DECLARES THAT: a) The process adopted for purposes of determining the amount of net Crown resource­ based revenues in a particular period must afford sufficient Crown disclosure of information to enable the First Nation Treaty parties and the Court, if necessary, to determine the amount of such net revenues; b) For purposes of determining the amount of net Crown resource-based revenues in a particular period: i. relevant revenues to be considered are Crown resource-based revenues arising directly or in a closely related way to the use, sale, or licensing of land (which could include the waters) in the Treaty territory, including mineral and lumbering revenues and other analogous revenues as received by the Crown both historically and in the future , but not including personal, corporate or property tax revenues , ii. relevant expenses to be considered are Crown expenses related to collecting, regulating, and supporting relevant revenues , but do not include the costs of infrastructure and institutions that are built with Crown tax revenues , with these definitions to be applied as general principles that are subject to clarification and further direction by the Court in a future stage of this proceeding; and c) Failing agreement amongst the parties, the principles to be applied for purposes of determining amounts [added text - to be disbursed pursuant to the augmentation promise from] that are fairly and reasonably equal to a fair share of net Crown resource-based revenues are subject to further direction by the Court in a future stage of this proceeding. d) Where in the exercise of their duties to implement the augmentation promise the Crown exercises discretion, the discretion must be exercised honourably, such discretion is not unfettered and is subject to review by the Courts. [4]      THIS COURT FURTHER ORDERS AND ADJUDGES THAT the plaintiffs’ alternative claim, supported by Ontario, that the Court should imply a Treaty term to provide for indexing of the promised annuity payment of £500 (or $2,000), as augmented to an amount based on £1 (or $4) per person, in order to protect the First Nation Treaty parties against erosion of the purchasing power of annuities due to inflation be, and is hereby, dismissed. [5]      AND THIS COURT FURTHER ORDERS AND ADJUDGES that the plaintiffs are hereby awarded their costs of this action to date, on the partial indemnity scale, without reserving to them any right to seek a higher level of indemnity at another time, and that pursuant to an agreement between them, Canada and Ontario are each responsible to pay 50 per cent of such costs, with the plaintiffs’ costs of this action to date, including this motion, being hereby fixed in the total amount of $5,148,894.45. [6]      THIS JUDGMENT BEARS INTEREST at the rate of three per cent (3%) per year commencing on December 21, 2018. [1] Stage One Reasons, at para. 31. [2] Stage One Reasons, at para. 89. [3] Stage One Reasons, at para. 73. The term “Aboriginal” or “aboriginal” is found in s. 35 of the Constitution Act, 1982 and much of the jurisprudence. In these reasons, we use the term “Aboriginal” or “aboriginal” when referring to this jurisprudence. In addition, we also use the term “Indigenous”. [4] Stage One Reasons, at para. 79. [5] Stage One Reasons, at para. 118. [6] Stage One Reasons, at para. 181. [7] Stage One Reasons, at para. 190. [8] Stage One Reasons, at paras. 201-3. [9] Stage One Reasons, at para. 209. [10] Stage One Reasons, at para. 214. [11] Stage One Reasons, at para. 223. [12] Stage One Reasons, at para. 218. [13] Stage One Reasons, at para. 220. [14] Stage One Reasons, at para. 226. [15] See Stage One Reasons, at Appendices A and B; Canada, Indian Treaties and Surrenders: From 1680 to 1890 , vol. 1 (Ottawa: Brown Chamberlin, 1891). [16] See Stage One Reasons, at para. 238. See also Canada, at p. 147. [17] See Stage One Reasons, at para. 239. See also Canada, at p. 147. [18] See Stage One Reasons, at para. 243. See also Canada, at p. 148. [19] See Stage One Reasons, at para. 240. See also Canada, at p. 149. [20] See Stage One Reasons, at para. 241. See also Canada, at p. 149. [21] See Stage One Reasons, at para. 243. See also Canada, at p. 150. [22] Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434. [23] Attorney-General for the Dominion of Canada v. Attorney-General for Ontario , [1897] A.C. 199 (J.C.P.C.). [24] Stage One Reasons, at para. 3. [25] Stage One Reasons, at paras. 3, 568-70. [26] Stage One Reasons, at para. 397. [27] Stage One Reasons, at paras, 3, 533 and 568. [28] Stage One Reasons, at paras. 551-54. [29] Stage One Reasons, at para. 598. [30] R. v. Marshall , [1993] S.C.R. 456, at paras. 82-83. [31] Stage One Reasons, at paras. 398-410. [32] Stage One Reasons, at paras. 410-58 [33] Stage One Reasons, at para. 423. [34] Stage One Reasons, at paras. 430-32. [35] Stage One Reasons, at para. 318. [36] Stage One Reasons, at paras. 459-61. [37] Stage One Reasons, at para. 462. [38] Stage One Reasons, at paras. 468-70. [39] Stage One Reasons, at paras. 3, 538. [40] Stage One Reasons, at para. 533. [41] Stage One Reasons, at paras. 568-69. [42] Stage One Reasons, at para. 512. [43] Stage One Reasons, at paras. 522-26. [44] Stage One Reasons, at para. 527. [45] Stage One Reasons, at para. 553. [46] Stage One Reasons, at paras. 544-72. [47] Stage One Reasons, at para. 588. [48] Stage One Reasons, at para. 593. [49] Stage One Reasons, at para. 595. [50] Stage One Costs Reasons, at para. 43. [51] Proceedings Against the Crown Act, 1962-63 , S.O. 1962-63, c. 109 (“ PACA ”); Stage Two Reasons, at paras. 13-87. [52] Limitations Act , R.S.O. 1990, c. L.15 (the “1990 Limitations Act ”); Stage Two Reasons, at paras. 109-201. [53] Nowegijick v. The Queen , [1983] 1 S.C.R. 29; Stage Two Reasons, at paras. 202-38. [54] R. v. Marshall , [1999] 3 S.C.R. 456. [55] Stage One Reasons, at para. 244. [56] Stage One Reasons, at paras. 321-29. [57] Marshall , at paras. 9-14, per Binnie J., and as summarized at paras. 78-83, per McLachlin J. (dissenting, but not on this point). [58] Marshall , at para. 14, per Binnie J. (emphasis in the original), citing R. v. Sioui , [1990] 1 S.C.R. 1025, at p. 1069, per Lamer J., and see, in Marshall , McLachlin J.’s restatement, at paras. 78(3)-(4), 83. [59] Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) , 2005 SCC 69, [2005] 3 S.C.R. 388 (“ Mikisew Cree (2005)”), at para. 28, per Binnie J. [60] R. v. Taylor and Williams (1981), 62 C.C.C. (2d) 227 (Ont. C.A.), at p. 236, per MacKinnon A.C.J.O., leave to appeal refused, [1981] 2 S.C.R. xi. [61] Taylor and Williams , at p. 236. [62] Taylor and Williams , at p. 236. [63] Marshall , at para. 11, per Binnie J. The Supreme Court has approved the approach in Taylor and Williams on many occasions and has never doubted it: see e.g., Marshall ; Sioui ; R. v. Sparrow , [1990] 1 S.C.R. 1075; and Delgamuukw v. British Columbia , [1997] 3 S.C.R. 1010. [64] Marshall , at para. 14, per Binnie J. (citations omitted). [65] Marshall , at para. 78(5), per McLachlin J. [66] Beckman v. Little Salmon/Carmacks First Nation , 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 9, per Binnie J. See also Dwight Newman, “Contractual and Covenantal Conceptions of Modern Treaty Interpretation” (2011) 54 S.C.L.R. (2d) 475. [67] Stage One Reasons, at para. 399, and see para. 349. [68] Manitoba Metis Federation Inc. v. Canada (Attorney General) , 2013 SCC 14, [2013] 1 S.C.R. 623 , at para. 76. [69] Mikisew Cree First Nation v. Canada (Governor General in Council) , 2018 SCC 40, [2018] 2 S.C.R. 765 (“ Mikisew Cree (2018)”), at para. 28, per Karakatsanis J. [70] Little Salmon , at para. 10, per Binnie J. [71] Mikisew Cree (2018) , at para. 22, per Karakatsanis J. [72] Mikisew Cree (2005) , at para. 1, per Binnie J. [73] Mikisew Cree (2018), at para. 21. See also Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 32. [74] Mikisew Cree (2005) , at para. 1, per Binnie J. The Crown’s assertion of sovereignty gives rise to the “obligation to treat aboriginal peoples fairly and honourably, and to protect them from exploitation”: Mitchell v. M.N.R. , 2001 SCC 33, [2001] 1 S.C.R. 911, at para. 9, per McLachlin C.J. [75] Manitoba Metis , at para. 71, per McLachlin C.J. and Karakatsanis J. [76] Mikisew Cree (2018) , at para. 22, per Karakatsanis J. [77] Little Salmon , at para. 42, per Binnie J., and at para. 105, per Deschamps J.; Manitoba Metis , at para. 69, per McLachlin C.J. and Karakatsanis J.; and Mikisew Cree (2018), at para. 24, per Karakatsanis J. [78] Haida Nation , at para. 45. [79] Mikisew Cree (2005), at para. 28; Sioui , at p. 1035. [80] Stage One Reasons, at para. 412. [81] Stage One Reasons, at para. 423. [82] Stage One Reasons, at para. 347, and see para. 373. [83] Stage One Reasons, at para. 3. [84] Stage One Reasons, at para. 459. [85] Stage One Reasons, at para. 397. [86] Stage One Reasons, at para. 460 (emphasis in the original). [87] Stage One Reasons, at para. 456. [88] Stage One Reasons, at para. 461, and see para. 397. [89] Stage One Reasons, at para. 461. [90] Stage One Reasons, at para. 461. [91] Stage One Reasons, at para. 462. [92] Stage One Reasons, at para. 465. [93] Our reasons, at paras. 196-205. [94] Canada v. South Yukon Forest Corporation , 2012 FCA 165, 431 N.R. 286, at para. 46, per Stratas J.A. (citations omitted). This paragraph was quoted in full and approved by the majority in Benhaim v. St-Germain , 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 38. [95] Stage One Reasons, at para. 200. The trial judge notes, at para. 101, that in 1818, the Crown moved to an annuity model in making treaties. Between 1818 and 1850, annuities were generally expressed as an aggregate amount, based on multiplying the First Nation’s population at the time the treaty was made by roughly two and a half pounds (equivalent to $10): Stage One Reasons, at para. 102. [96] Stage One Reasons, at para. 203. [97] Stage One Reasons, at para. 261. [98] Stage One Reasons, at para. 255. [99] Stage One Reasons, at para. 161. [100] Stage One Reasons, at para. 251 (emphasis added). [101] Stage One Reasons, at paras. 450-453. [102] Ex pert Report of James Morrison, Exhibit 14, at para. 59 on p. 53. According to Mr. Morrison, expert witness for the Huron Plaintiffs, Robinson was “well aware” of this system and its use in more southerly parts of the Province: Expert Report of James Morrison, Exhibit 14, at para. 368 on p. 284. [103] Transcript, Vol. 50, at pp. 7340-41. [104] Robinson’s reference to the practice of calculating annuities based on population, not land area, as being “the same conditions as all preceding ones” is consistent with the historical evidence. The trial judge noted, at para. 102 of her reasons, that between 1818 and 1850, annuities tended to be an aggregate amount based on multiplying the population of the First Nation by $10. She states “[t]he multiplier of $10 was unrelated to the value or size of the land surrendered.” [105] Sioui , at p. 1060. [106] Lac La Ronge Indian Band v. Canada , 2001 SKCA 109, 206 D.L.R. (4th) 638, at para. 103, rev’g 1999 SKQB 218, 188 Sask. R. 1, leave to appeal refused, [2001] S.C.C.A. No. 647. Vancise J.A. agreed with the trial judge in that case that “evidence of subsequent conduct should be used with extreme caution.” [107] West Moberly First Nations v. British Columbia , 2020 BCCA 138, 37 B.C.L.R. (6th) 232, at para. 231, leave to appeal refused, [2020] S.C.C.A. No. 252. [108] Lac La Ronge , at para. 103. [109] Shewchuk v. Blackmont Capital Inc. , 2016 ONCA 912, 404 D.L.R. (4th) 512. [110] Stage One Reasons, at para. 284. [111] Stage One Reasons, at para. 318. [112] Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 91, 128. See also R. v. R.E.M. , 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 34, 37 and 43. [113] To give it its full name, the “ Report of Special Commissioners (R.T. Pennefather, Froome Talfourd, and Tho. Washington) appointed on the 8 th of September, 1856, to Investigate Indian Affairs in Canada.” [114] They stated: “Enquiries at the Crown Land Department shew that no increase in the annuity is yet warranted by the sums realized from the surrendered lands.” [115] Stage One Reasons, at para. 305. [116] Stage One Reasons, at para. 315. [117] Ontario conceded that Blake’s opinion arose from him looking at the documents and at the wording of the Treaties. [118] Stage One Reasons, at paras. 307-13. [119] Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434, aff’d Attorney-General for the Dominion of Canada v. Attorney-General for Ontario , [1897] A.C. 199 (J.C.P.C.). [120] Lac La Ronge , at para. 106. [121] Award on Indian Robinson Treaties, Huron and Superior , February 14, 1895 (J.A. Boyd, Sir L.N. Casault, and G.W. Burbidge), as reproduced in the notes preceding the Supreme Court of Canada’s judgment on the appeal of the arbitrators’ award: Province of Ontario , at p. 456. [122] Transcripts from the Unsettled Accounts Arbitration, at pp. 365-66. [123] Spragge stated, “the Robinson Treaties … do not contemplate that in the event of the annuities being augmented, the numbers to receive them shall exceed those at which the various bands were estimated when the treaties were executed.” [124] Stage One Reasons, at para. 562. [125] Baker v. Canada (Minister of Citizenship and Immigration) , [1999] 2 S.C.R. 817, at para. 52 [126] Roncarelli v. Duplessis , [1959] S.C.R. 121, at p. 140, per Rand J. [127] Baker , at para. 56. [128] Baker , at para. 53. [129] Stage One Reasons, at paras. 527, 532 and 569. [130] Stage One Reasons, at para. 454. [131] Stage One Reasons, at para. 4. [132] This was also Canada’s position before the trial judge, as she noted in her reasons, at para. 382. [133] Hupacasath First Nation v. Canada , 2015 FCA 4, 379 D.L.R. (4th) 737, at para. 66. In Hupacasath , Stratas J.A. found that the application for judicial review was justiciable because, although the challenge was to the decision to sign an international treaty, the case turned on whether the appellant had certain legal rights. In Wenham v. Canada (Attorney General) , 2018 FCA 199, 429 D.L.R. (4th) 166, at paras. 58-63, Stratas J.A. addressed justiciability and concluded that a class action seeking to quash a federal program to compensate victims of Thalidomide on the basis that the documentary proof requirements were unreasonable was justiciable. In Hupacasath and Wenham , Stratas J.A. followed Operation Dismantle v. The Queen , [1985] 1 S.C.R. 441. [134] Tanudjaja, v. Canada (Attorney General) , 2014 ONCA 852, 123 O.R. (3d) 161, at paras. 27, 33, leave to appeal refused, [2015] S.C.C.A. No. 39. [135] Tanudjaja , at para. 33. [136] Tanudjaja , at para. 35. [137] See Hupacasath First Nation , at para. 70. [138] Stage One Reasons, at para. 447 (emphasis added). [139] See Ontario’s Written Closing Submissions in Stage One Trial, Exhibit MM, pp. 206-10. We have rejected this argument on Robinson’s understanding of the augmentation clause at paras. 140-43 of these reasons. [140] Stage One Reasons, at para. 438. [141] Stage One Reasons, at para. 439. [142] Stage One Reasons, at para. 442. [143] Stage One Reasons , at para. 442. [144] Ontario’s Written Closing Submissions in Stage One Trial, Exhibit MM, at para. 369. [145] Stage One Reasons, at para. 446. [146] This kind of discretion is equally incomprehensible in Canadian law, as explained at paras. 192-93 of these reasons. [147] Marshall , at para. 50. [148] Thomas Isaac, in Aboriginal Law , 5th ed. (Thomson Reuters: Toronto, 2016), at p. 341, discusses two cases, dating back to 1608 and 1613, where the “King’s honour” was applied to disputes outside the Aboriginal law context: St. Saviour in Southwark (Churchwardens case) (1613), 77 E.R. 1025 (Eng. K.B.); and Rutland’s (Earl) Case (1608), 77 E.R. 555 (Eng. K.B.). [149] Manitoba Metis , at para. 66, per Abella J.; Little Salmon , at para. 42; and Mikisew Cree (2018), at para. 21. [150] Haida Nation , at para. 32; Manitoba Metis , at paras. 58-59, per Abella J. [151] Haida Nation , at para. 17 (citations omitted). [152] Haida Nation , at para. 45. [153] Marshall , at paras. 49, 51, per Binnie J. This statement is repeated often. The Supreme Court of Canada used the phrase most recently in Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam) , 2020 SCC 4, at para. 22. [154] Haida Nation , at para. 16; and see Manitoba Metis , at paras. 73-74. [155] Haida Nation , at para. 19. [156] Little Salmon , at para. 42. [157] Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) , 2004 SCC 74, [2004] 3 S.C.R. 550, at para. 24. [158] Manitoba Metis , at para. 73. [159] Manitoba Metis , at para. 73. [160] Manitoba Metis , at para. 143; Mikisew Cree (2018), at para. 47. [161] Brian Slattery, “Aboriginal Rights and the Honour of the Crown” (2005) 29 S.C.L.R. (2d) 433, at p. 436. [162] Jamie D. Dickson, The Honour and Dishonour of the Crown: Making Sense of Aboriginal Law in Canada (Saskatoon: Purich Publishing Limited, 2015), at p. 10. Abella J. cited Dickson, in Mikisew Cree (2018), at para. 71, for the proposition that “ Haida Nation established a new legal framework in which to understand the government’s obligations towards Indigenous peoples, organized around the principle of the honour of the Crown.” [163] Dickson, at pp. 20-21. [164] Mikisew Cree (2018), at para. 28 (citations omitted). [165] Haida Nation , at para. 18. [166] Manitoba Metis , at para. 74. [167] Manitoba Metis , at para. 73(1). [168] Manitoba Metis , at para. 64. [169] Manitoba Metis , at para. 133. [170] Haida Nation , at para. 54. See also Mikisew Cree (2005), at para. 51. [171] Guerin v. The Queen , [1984] 2 S.C.R. 335; Grassy Narrows First Nation v. Ontario (Natural Resources) , 2014 SCC 48, [2014] 2 S.C.R. 447; and Southwind v. Canada , 2021 SCC 28, 459 D.L.R. (4th) 1. [172] On the duty to consult, see Haida Nation , at para. 54, and Mikisew Cree (2005), at para. 51. [173] Manitoba Metis , at para. 76 [174] Manitoba Metis , at para. 78. [175] Manitoba Metis , at para. 97, and see para. 75. [176] Manitoba Metis , at para. 73(4); Mikisew Cree (2018), at para. 28. [177] Manitoba Metis , at para. 81. [178] Manitoba Metis , at para. 80. [179] Manitoba Metis , at para. 82. [180] Stage One Reasons, at para. 538. [181] Stage One Reasons, at para. 538. [182] Stage One Reasons, at paras. 3, 355, 369, 374 and 499. [183] Stage One Reasons, at paras. 500-2. [184] Stage One Reasons, at para. 505, citing Peter Ballantyne Cree Nation v. Canada (Attorney General) , 2016 SKCA 124, 485 Sask. R. 162, leave to appeal refused, [2017] S.C.C.A. No. 95. [185] Stage One Reasons, at para. 504. [186] Stage One Reasons, at para. 393. [187] Stage One Reasons, at para. 495. [188] Stage One Reasons, at para. 587. [189] Stage One Reasons, at para. 589. [190] Stage One Reasons, at para. 538. [191] Stage One Reasons, at para. 3. [192] Stage One Reasons, at para. 3. [193] R. v. Agawa (1988), 53 D.L.R. (4th) 101 (Ont. C.A.), at p. 120, leave to appeal refused, [1988] S.C.C.A. No. 501. [194] Isaac, at p. 344. [195] Manitoba Metis , at para. 83. [196] Stage One Reasons, at para. 505. [197] Stage One Reasons, at para. 499. [198] Stage One Reasons, at para. 504. [199] Stage One Reasons, at para. 505. [200] Peter Ballantyne Cree Nation , at para. 83, citing Dickson, at p. 91. [201] See e.g., Watson v. Canada , 2020 FC 129 (in which only declaratory relief was granted); Yahey. v. British Columbia , 2021 BCSC 1287; and Manitoba Metis , which concerned constitutional obligations contained in the Manitoba Act , 1870 , S.C. 1870, c. 3, rather than a treaty promise. [202] Manitoba Metis , at para. 81. [203] Stage One Reasons, at para. 594. [204] Stage One Reasons, at para. 586. [205] Stage One Reasons, at para. 592. [206] Stage One Reasons, at para. 596. [207] Stage One Reasons, at para. 597. [208] Marshall , at para. 43. [209] Marshall , at para. 52. [210] Marshall , at para. 4. [211] Energy Fundamentals Group Inc. v. Veresen Inc. , 2015 ONCA 514, 388 D.L.R. (4th) 672, at para. 34, quoting Attorney General of Belize & Ors v. Belize Telecom Ltd & Anor , [2009] UKPC 10, [2009] 2 All E.R. 1127, at para. 22. [212] Energy Fundamentals Group Inc. , at paras. 35-36. [213] Marshall , at para. 52. [214] Stage One Reasons, at para. 399. [215] Stage One Reasons, at para. 349 (emphasis in the original). [216] Stage One Reasons, at para. 324(9). [217] Stage One Reasons, at para. 536. [218] Little Salmon , at para. 12. [219] Stage One Reasons, at paras. 492-94. [220] Taku River , at para. 24. [221] Stage One Reasons, at para. 563. [222] Stage One Reasons, at para. 567. [223] Stage One Reasons, at paras. 570, 571, and see para. 572, in which the trial judge notes that a better definition of the contents of the duty to consult must be left to another stage in the litigation. [224] Canada somewhat moderated its recalcitrance during the hearing before the trial judge: see Stage One Reasons, at para. 490. [225] Stage One Reasons, at para. 492 (footnote omitted), and see paras. 378, 391, 481 and 491-97. The trial judge was alive to the advantages of negotiation. The Supreme Court has often sounded its preference for negotiation over litigation, motivated by negotiation’s promise of reconciliation, which is the “grand purpose” of s. 35 of the Constitution Act, 1982 , most recently in R. v. Desautel , 2021 SCC 17, 456 D.L.R. (4th) 1, at para. 87, per Rowe J. But there must be a will. [226] Stage One Reasons, at para. 540. [227] Stage One Reasons, at para. 541. [228] Stage One Reasons, at para. 541. [229] Stage One Reasons, at para. 541. [230] Stage One Reasons, at para. 547. [231] Stage One Reasons, at para. 549. [232] Stage One Reasons, at para. 553. [233] Stage One Reasons, at para. 554. [234] Stage One Reasons, at para. 461 (emphasis added). [235] Stage One Reasons, at para. 466. [236] Stage One Reasons, at para. 423. [237] Stage One Reasons, at para. 32. [238] Stage One Reasons, at para. 48. [239] Stage One Reasons, at para. 48. [240] Stage One Reasons, at para. 49. [241] Stage One Reasons, at para. 50. [242] Stage One Reasons, at para. 420. [243] Stage One Reasons, at para. 126. [244] Stage One Reasons, at para. 246. [245] Stage One Reasons, at para. 131. [246] Stage One Reasons, at para. 134. [247] Stage One Reasons, at para. 330. [248] Stage One Reasons, at para. 467, and see para. 161. [249] Stage One Reasons, at para. 134. [250] Stage One Reasons, at para. 146. [251] Stage One Reasons, at para. 150. [252] Stage One Reasons, at para. 161. [253] Stage One Reasons, at para. 167. [254] Stage One Reasons, at para. 167. [255] Stage One Reasons, at para. 171. [256] Stage One Reasons, at para. 174. [257] Stage One Reasons, at para. 176. [258] Stage One Reasons, at paras. 469-70. [259] Stage One Reasons, at para. 362. [260] Stage One Reasons, at para. 535. [261] Stage One Reasons , at para. 556. The Huron Plaintiffs argued on the motions and before this court that Crown revenues represent only a fraction of the wealth generated by the territory. [262] Stage One Reasons, at para. 560. [263] Stage One Reasons, at paras. 555-61. [264] Stage One Reasons, at para. 559. [265] Stage One Reasons, at para. 461. [266] Stage One Reasons, at para. 397. See also Huron Action Stage One Partial Judgment, at para. 1(e); Superior Action Stage One Partial Judgment, at para. 1(e). [267] Familiar figures of speech are used in legal rhetoric to prompt the intuitive adoption of a favourable schema because they are often unthinkingly accepted. This is a form of “narrative priming”: see Linda L. Berger & Kathryn M. Stanchi, Legal Persuasion: A Rhetorical Approach to the Science (London and New York: Routledge, 2018) at pp. 84, 109. [268] Appeal Book, Tab 4.a.1, para. 1(l). [269] Appeal Book, Tab 4.a.1, para. 123 (emphasis added). [270] Opening Submissions of the Huron Plaintiffs, Joseph Arvay, September 25, 2017, Transcript, Vol. 1, at p. 23. [271] Opening Submissions of the Superior Plaintiffs, Harley Schachter, September 26, 2017, Transcript, Vol. 2, at p. 141. [272] Opening Submissions of the Superior Plaintiffs, Harley Schachter, September 26, 2017, Transcript, Vol. 2, at p. 142. [273] Closing Submissions of the Huron Plaintiffs, Joseph Arvay, June 4, 2018, Transcript, Vol. 68, at p. 10,048. [274] Closing Submissions of the Superior Plaintiffs, Harley Schachter, June 7, 2018, Transcript, Vol. 71, at p. 10,524. [275] Closing Submissions of the Superior Plaintiffs, Harley Schachter, June 6, 2018, Transcript, Vol. 70, at pp. 10,307-8. [276] Address of Chief Shingwaukonse to Lord Cathcart, June 10, 1846, Exhibit 01-0437. [277] Stage One Reasons, at para. 593. [278] Stage One Reasons, at para. 417. [279] Stage One Reasons, at para. 536. [280] Stage One Reasons, at para. 350. [281] Stage One Reasons , at para. 393 , but see her strong words quoted at para. 243 of these reasons. [282] First Nation of Nacho Nyak Dun v. Yukon , 2017 SCC 58, [2017] 2 S.C.R. 576 , at para. 60. [283] Little Salmon , at para. 12. [284] Nacho Nyak Dun , at para. 36. [285] Stage One Reasons , at fn. 279. [286] Rules of Civil Procedure , R.R.O. 1990, Reg. 194, r. 6.1.01. Rule 6.1.01 states that: “With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages.” This rule “precludes making [a bifurcation] order without the consent of the parties”: Duggan v. Durham Region Non-Profit Housing Corporation , 2020 ONCA 788, 454 D.L.R. (4th) 496, at para. 38. [287] Nacho Nyak Dun , at para. 60. [288] Clyde River (Hamlet) v. Petroleum Geo-Services Inc. , 2017 SCC 40, [2017] 1 S.C.R. 1069 , at para. 24. [289] Stage One Costs Reasons, at para. 43. [290] Stage One Costs Reasons, at para. 16. [291] Stage One Costs Reasons, at paras. 17-22. [292] Stage One Costs Reasons, at para. 23. [293] Stage One Costs Reasons, at para. 24. [294] Stage One Costs Reasons, at para. 25. [295] Barresi v. Jones Lang Lasalle Real Estate Services Inc. , 2019 ONCA 884, 58 C.P.C. (8th) 318, at para. 14. [296] Nolan v. Kerry (Canada) Inc. , 2009 SCC 39, [2009] 2 S.C.R. 678, at para. 126. [297] See Walker v. Ritchie , 2006 SCC 45, [2006] 2 S.C.R. 428, at para. 17; Frazer v. Haukioja , 2010 ONCA 249, 101 O.R. (3d) 528, at para. 75. [298] Frazer , at para. 75. [299] Bondy-Rafael v. Potrebic , 2019 ONCA 1026, 441 D.L.R. (4th) 658, at para. 57. [300] See e.g., Whitfield v. Whitfield , 2016 ONCA 720, 133 O.R. (3d) 753, at para. 29. [301] Wasserman, Arsenault Ltd. v. Sone (2002), 164 O.A.C. 195 (C.A.), at para. 5. [302] British Columbia (Minister of Forests) v. Okanagan Indian Band , 2003 SCC 71, [2003] 3 S.C.R. 371, at paras. 16, 47, aff’g 2001 BCCA 647, 95 B.C.L.R. (3d) 273. [303] The Superior Plaintiffs say that Ontario understates the time it actually spent. Ontario did not dispute this assertion during oral arguments, but the record does not permit this court to review Ontario’s calculation. [304] Stage One Costs Reasons, at paras. 6-7. [305] Boucher v. Public Accountants Council (Ontario) (2004), 71 O.R. (3d) 291 (C.A.), at para. 24, citing Zesta Engineering Ltd. v. Cloutier (2002), 21 C.C.E.L. (3d) 161 (Ont. C.A.), at para. 4. [306] Murano v. Bank of Montreal (1998), 163 D.L.R. (4th) 21 (Ont. C.A.), at para. 100. [307] Our reasons, at p ara. 100. [308] R. v. Marshall , [1999] 3 S.C.R. 456. [309] Stage One Reasons, at para. 3. [310] Stage One Reasons, at para. 3. [311] Huron Action Stage One Partial Judgment, at para. 1(d); Superior Action Stage One Partial Judgment, at para. 1(d). [312] Stage One Reasons, at paras. 15-61. [313] Stage One Reasons, at paras. 62-207. [314] Stage One Reasons, at paras. 208-37. [315] Stage One Reasons, at para. 14, citing Marshall , at para. 11. [316] Stage One Reasons, at paras. 281-320. [317] Stage One Reasons, at para. 318. [318] Stage One Reasons, at para. 324, citing Marshall , at para. 78. [319] Stage One Reasons, at para. 327. [320] Stage One Reasons, at para. 328, citing Marshall , at para. 82. [321] Stage One Reasons at para. 328. [322] Stage One Reasons, at para. 329 (footnote omitted), citing Marshall , at para. 83 .. [323] Stage One Reasons, at para. 330. [324] Stage One Reasons, at para. 331. [325] Stage One Reasons, at para. 331, quoting Marshall , at para. 83 . [326] Stage One Reasons, at para. 338. [327] Stage One Reasons, at paras. 343, 347. [328] Stage One Reasons, at para. 343. [329] Stage One Reasons, at paras. 345-46. [330] Stage One Reasons, at paras. 352-91. [331] Stage One Reasons, at paras. 351, 395-97. [332] Stage One Reasons, at para. 397. [333] Stage One Reasons, at Part X.A. [334] Stage One Reasons, at para. 400. [335] Stage One Reasons, at para. 400. [336] Stage One Reasons, at para. 401. [337] Stage One Reasons, at para. 402. [338] Stage One Reasons, at para. 403. [339] Stage One Reasons, at para. 406. [340] Stage One Reasons, at paras. 406-8. [341] Stage One Reasons, at paras. 411-58. [342] Stage One Reasons, at paras. 459-61. [343] Stage One Reasons, at para. 462. [344] Stage One Reasons, at para. 463 (emphasis added). [345] Stage One Reasons, at para. 464. [346] Stage One Reasons, at para. 465. [347] Stage One Reasons, at para. 466. [348] Stage One Reasons, at para. 467. [349] Stage One Reasons, at para. 469. [350] Stage One Reasons, at paras. 455-56. [351] Stage One Reasons, at para. 455. [352] Stage One Reasons, at para. 324, citing Marshall , at para. 78. [353] Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 50. [354] R. v. Van der Peet , [1996] 2 S.C.R. 507. [355] Van der Peet , at paras. 46, 55. [356] Van der Peet , at paras. 80, 81. [357] Van der Peet , at para. 82 (emphasis added). [358] Marshall , at para. 18. [359] Marshall , at para. 18. [360] Marshall , at paras. 19, 20. Although McLachlin J., writing in dissent, did not expressly address the issue of the standard of appellate review, in several places her reasons evince the application of a correctness standard: “The wording of the trade clause, taken in its linguistic, cultural and historical context, permits no other conclusion” (at para. 96); “I conclude that the trial judge did not err — indeed was manifestly correct — in his interpretation of the historical record and the limited nature of the treaty right that this suggests” (at para. 104); and “the trial judge made no error of legal principle. I see no basis upon which this Court can interfere” (at para. 114). [361] Sattva , at para. 50. See also Corner Brook (City) v. Bailey , 2021 SCC 29, 460 D.L.R. (4th) 169, at para. 20. [362] Sattva , at para. 53. [363] Sattva , at para. 53; Corner Brook , at para. 44. [364] Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. , 2016 SCC 37, [2016] 2 S.C.R. 23. [365] Ledcor , at para. 24. [366] West Moberly First Nations v. British Columbia , 2020 BCCA 138, 37 B.C.L.R. (6th) 232, leave to appeal refused, [2020] S.C.C.A. No. 252. [367] West Moberly , at para. 130. [368] West Moberly , at paras. 363-64 (emphasis added). [369] Caron v. Alberta , 2015 SCC 56, [2015] 3 S.C.R. 511. The dissent’s approach in West Moberly also runs counter to the view expressed by this court in a treaty interpretation case, Keewatin v. Ontario (Natural Resources) , 2013 ONCA 158, 114 O.R. (3d) 401, at para. 158, aff’d Grassy Narrows First Nation v. Ontario (Natural Resources) , 2014 SCC 48, [2014] 2 S.C.R. 447. Although not finding it necessary to engage in a detailed consideration of the applicable standard of review, this court stated that as the trial judge’s findings of fact were mingled with her assessment of the effect of legislation and principles of treaty interpretation, “there may be an argument that some or all of her findings attract a less deferential standard”: at para. 158. [370] Caron , at para. 61 (emphasis added). [371] The American approach to standard of review of “Indian” treaty interpretation is similar: the interpretation of an Indian treaty is a question of law reviewed on a de novo standard, while a trial judge’s findings of historical fact, including the treaty negotiators’ intentions, are reviewed for “clear error”: see e.g., United States v. State of Washington , 157 F.3d 630 (9th Cir. 1998), at p. 642, cert. denied 119 S.Ct. 1376 (1999); Richard v. United States , 677 F.3d 1141 (Fed. Cir. 2012), at pp. 1144-45. [372] R. v. Sioui , [1990] 1 S.C.R. 1025, at p. 1043; Marshall , at para. 78; and R. v. Desautel , 2021 SCC 17, 456 D.L.R. (4th) 1, at para. 25. [373] Peter W. Hogg, Constitutional Law of Canada , 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2019), at § 28.6, [374] Dwight Newman, “Contractual and Covenantal Conceptions of Modern Treaty Interpretation” (2011) 54 S.C.L.R. (2d) 475, at p. 486. [375] Keewatin , at para. 137. [376] Ledcor , at paras. 39, 42 and 43. [377] Ledcor , at paras. 39, 41 and 42. [378] Stage One Reasons, at para. 340. [379] Manitoba Metis Federation Inc. v. Canada (Attorney General) , 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 153 [380] Marshall , at para. 5. [381] R. v. Badger , [1996] 1 S.C.R. 771, at para. 76 (emphasis added). [382] Marshall , at para. 82 (emphasis added). [383] Huron Action Stage One Partial Judgment, at para. 1(d); Superior Action Stage One Partial Judgment, at para. 1(d). [384] Huron Action Stage One Partial Judgment, at para. 1(e); Superior Action Stage One Partial Judgment, at para. 1(e). [385] Stage One Reasons, at para. 403. [386] Stage One Reasons, at para. 446. [387] Stage One Reasons, at para. 456. [388] Chilton v. Co-Operators (1997), 143 D.L.R. (4th) 647 (Ont. C.A.), at p. 654. [389] Stage One Reasons, at para. 405. [390] Stage One Reasons, at para. 454. [391] Stage One Reasons, at para. 454. [392] Stage One Reasons, at para. 108. [393] Badger , at para. 76; Keewatin , at para. 151; and Marshall , at para. 14. See also R. v. Horseman , [1990] 1 S.C.R. 901, at p. 908; Sioui , at p. 1069. [394] Michael Coyle, “ As Long as the Sun Shines: Recognizing that Treaties were Intended to Last”, in John Borrows and Michael Coyle, eds., The Right Relationship: Re-imagining the Implementation of Historical Treaties (Toronto: University of Toronto Press, 2017) 39, at p. 41. [395] Coyle, at p. 41. [396] Marshall , at para. 14. [397] Stage One Reasons, at para. 459. [398] Stage One Reasons, at paras. 459-61. [399] Stage One Reasons, at paras. 455-56 (emphasis added). [400] Stage One Reasons, at para. 457. [401] Stage One Reasons, at para. 456. [402] Stage One Reasons, at paras. 252-64. [403] Stage One Reasons, at para. 252. [404] Stage One Reasons, at paras. 263-64. [405] See Stage One Reasons, at para. 263. [406] Stage One Reasons, at para. 219. [407] See Stage One Reasons, at paras. 405, 434, 469 and 535. [408] Stage One Reasons, at para. 318. [409] See Robert J. Surtees, “Indian Land Surrenders in Ontario 1763-1867” (Ottawa: Indian and Northern Affairs Canada, 1983); Robert J. Surtees, Indian Land Cessions in Ontario, 1763-1862: The Evolution of  System (PhD Thesis, Carleton University, 1979) [unpublished]; Robert J. Surtees, “Indian Land Cessions in Upper Canada, 1815-1830” in Ian A. L. Getty & Antoine S. Lussier, eds., As Long as the Sun Shines and Water Flows: A Reader in Canadian Native Studies (Vancouver: University of British Columbia Press, 1983) 65; Robert J. Surtees, Treaty Research Report: The Robinson Treaties (1850) (Ottawa: Treaties and Historical Research Centre, Indian and Northern Affairs Canada, 1986); Robert J. Surtees, “Canadian Indian Treaties” in Wilcomb E. Washburn, ed., History of Indian-White Relations (Washington, D.C.: Smithsonian Institution, 1988) 202; and Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories Including the Negotiations of which they are Based, and other Information Relating Thereto (Toronto: Belfords Clarke, 1880). [410] Mikisew Cree First Nation v. Canada (Governor General in Council) , 2018 SCC 40, [2018] 2 S.C.R. 765 (“ Mikisew Cree (2018)”). [411] Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73, [2004] 3 S.C.R 511. [412] Mikisew Cree (2018), at para. 21; Haida Nation , at para. 32; and Manitoba Metis , at para. 66. [413] Mikisew Cree (2018), at para. 21; Manitoba Metis , at para. 67; and Brian Slattery, “Aboriginal Rights and the Honour of the Crown” (2005) 29 S.C.L.R. (2d) 433, at p. 436. [414] Mikisew Cree (2018), at para. 22; Manitoba Metis , at paras. 66-67. [415] Mikisew Cree (2018), at para. 22; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) , 2004 SCC 74, [2004] 3 S.C.R. 550, at para. 24. [416] Mikisew Cree (2018), at para. 23 (citations omitted). [417] Haida Nation , at paras. 16, 18. [418] Beckman v. Little Salmon/Carmacks First Nation , 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 42; Taku River , at para. 24. [419] Manitoba Metis , at para. 74. [420] Mikisew Cree (2018), at para. 24. [421] Manitoba Metis , at para. 73 [422] Manitoba Metis , at para. 73 (emphasis in original). [423] Peter Ballantyne Cree Nation v. Canada (Attorney General) , 2016 SKCA 124, 485 Sask. R. 162, at para. 41, leave to appeal refused, [2017] S.C.C.A. No. 95. [424] Manitoba Metis , at para. 75. [425] Coyle, at p. 61 (emphasis and footnote omitted). [426] Stage One Reasons, at para. 497. [427] Limitations Act , R.S.O. 1990, c. L.15 (the “1990 Limitations Act ”). [428] Sattva Capital Corp. v. Creston Molly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633. [429] Sattva , at para. 50. [430] R. v. Sundown , [1999] 1 S.C.R. 393, at para. 24. [431] Julie Jai, “Bargains Made in Bad Times: How Principles from Modern Treaties Can Reinvigorate Historic Treaties” in John Borrows & Michael Coyle, eds., The Right Relationship: Reimagining the Implementation of Historical Treaties (Toronto: University of Toronto Press, 2017) 105 (“Jai (2017)”), at p. 105. [432] Jai (2017), at p. 107. [433] Jai (2017), at p. 107. [434] Jai (2017), at pp. 112, 122-23. [435] Gordon Christie, “Justifying Principles of Treaty Interpretation” (2000) 26:1 Queen’s L.J. 143, at p. 188. [436] Julie Jai, “The Interpretation of Modern Treaties and the Honour of the Crown: Why Modern Treaties Deserve Judicial Deference” (2009) 26:1 Nat’l J. Const. L. 25 (“Jai (2009)”), at p. 27. [437] Beckman v. Little Salmon/Carmacks First Nation , 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 12. See also R. v. Badger , [1996] 1 S.C.R. 771, at para. 52. [438] Jai (2009), at p. 27. See also Quebec (Attorney General) v. Moses , 2010 SCC 17, [2010] 1 S.C.R. 557, at para. 108. [439] Jai (2017) , at p. 107. For a discussion of historical treaties and whether they reflect the “real deal”, a fair deal, or no deal at all, see Nancy Kleer & Judith Rae, “Divided We Fall: Tsilquot’in and the Historic Treaties” (11 July 2014), online (blog): Olthuis Kleer Townshend LLP : <https://www.oktlaw.com/divided-fall-tsilhqotin-historic-treaties/>. [440] Jai (2017), at p. 130. [441] Jai (2017), at pp. 134-36. [442] Beckman , at para. 54 (citation omitted). [443] First Nation of Nacho Nyuk Dun v. Yukon , 2017 SCC 58, [2017] 2 S.C.R. 576, at para. 36. [444] Quebec (Attorney General) v. Moses , 2010 SCC 17, [2010] 1 S.C.R. 557, at para. 108. [445] R. v. Van der Peet , [1996] 2 S.C.R. 507. [446] R. v. Marshall , [1999] 3 S.C.R. 456. [447] Caron v. Alberta , 2015 SCC 56, [2015] 3 S.C.R. 511. [448] See British Columbia Fishery (General) Regulations , SOR/84-248, s. 27(5). [449] Van der Peet , at para. 82 (emphasis added). [450] See e.g., Halfway River First Nation v. British Columbia (Ministry of Forests) , 1999 BCCA 470, 64 B.C.L.R. (3d) 206, at para. 85; Lac La Ronge Indian Band v. Canada , 2001 SKCA 109, 213 Sask. R. 1, at para. 148, leave to appeal refused, [2001] S.C.C.A. No. 647. [451] Janna Promislow, “Treaties in History and Law” (2014) 47:3 U.B.C.L. Rev. 1085, at p. 1172 (footnote omitted). [452] Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. , 2016 SCC 37, [2016] 2 S.C.R. 23 [453] Caron , at para. 61 (emphasis added). [454] Fort McKay First Nation v. Prosper Petroleum Ltd. , 2019 ABCA 14, at para. 39. [455] Badger , at para. 76. [456] Sattva , at paras. 47, 49. [457] Sattva , at paras. 51-52 (citation omitted). [458] Sattva , at para. 53. [459] Sattva , at para. 55. [460] Fontaine v. Canada (Attorney General) , 2017 SCC 47, [2017] 2 S.C.R. 205 (“ Fontaine (SCC) ”), aff’g 2016 ONCA 241, 130 O.R. (3d) 1 (“ Fontaine (ONCA) ”). [461] West Moberly First Nations v. British Columbia , 2020 BCCA 138, 37 B.C.L.R. (6th) 232, leave to appeal refused, [2020] S.C.C.A. No. 252. [462] West Moberly , at para. 363. [463] West Moberly , at para. 130. [464] Fontaine (ONCA) , at para. 95. [465] MacDonald v. Chicago Title Insurance Company of Canada , 2015 ONCA 842, 127 O.R. (3d) 663, at para. 21, leave to appeal refused, [2016] S.C.C.A. No. 39. [466] Ledcor , at paras. 42-43. [467] Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235. [468] Michael Coyle, “As Long as the Sun Shines: Recognizing That Treaties Were Intended to Last” in John Borrows & Michael Coyle, eds., The Right Relationship: Reimagining the Implementation of Historical Treaties (Toronto: University of Toronto Press, 2017) 39, at pp. 46-47 (footnotes omitted). [469] Jai (2009), at p. 27. [470] Michael Coyle, “Marginalized by Sui Generis? Duress, Undue Influence and Crown-Aboriginal Treaties” (2008) 32:2 Man. L.J. 34, at p. 59. [471] Manitoba Metis Federation Inc. v. Canada (Attorney General) , 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 80. [472] R. v. Morris , 2006 SCC 59, [2006] 2 S.C.R. 915, at para. 18. [473] Kate Gunn, “Agreeing to Share: Treaty 3, History & the Courts” (2018) 51:1 U.B.C.L. Rev. 75, at p. 92. [474] Marshall , at para. 11. [475] Marshall , at para. 11, quoting R. v. Taylor and Williams (1981), 66 C.C.C. (2d) 227 (Ont. C.A.), at p. 236, leave to appeal refused, [1981] S.C.C.A. No. 377. [476] Sylvie Poirier & Clinton N. Westman, “Living Together with the Land: Reaching and Honouring Treaties with Indigenous Peoples” (2020) 62 Anthropologica 236, at p. 241 (citations omitted). [477] Thomas Flanagan, The Tenants of Time (New York: Dutton, 1988), at p. 85. [478] Marshall , at para. 73(3). [479] Housen , at para. 11. [480] Housen , at para. 13, citing Anderson v. Bessemer (City) , 470 U.S. 564 (1985), at pp. 574-75. [481] Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development) , 2018 SCC 4, [2018] 1 S.C.R. 83, at para. 44. [482] Stage One Reasons, at paras. 512, 533. [483] See Alberta v. Elder Advocates of Alberta Society , 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 36; Manitoba Metis , at para. 50; and Williams Lake , at para. 162, per Brown J. (dissenting, but not on this point). [484] Stage One Reasons, at para. 533. [485] Stage One Reasons, at paras. 524-26. [486] Stage One Reasons, at para. 514. [487] Stage One Reasons, at paras. 520-23. [488] Stage One Reasons, at para. 525. [489] Stage One Reasons, at para. 519. [490] Stage One Reasons, at para. 526 (footnote omitted). [491] Stage One Reasons, at para. 530 (footnote omitted). [492] Stage One Reasons, at para. 532. [493] Stage One Reasons, at para. 533. [494] Grand River Enterprises v. Burnham (2005), 197 O.A.C. 168 (C.A.), at para. 10. [495] Wewaykum Indian Band v. Canada , 2002 SCC 79, [2002] 4 S.C.R. 245, at para. 96 (emphasis omitted). [496] Bryan Birtles, “Another Inappropriate F Word: Fiduciary Doctrine and the Crown-Indigenous Relationship in Canada” (2020) 9:1 American Indian L.J. 1, at p. 6 (footnotes omitted). [497] Elder Advocates , at para. 44. [498] Leonard I. Rotman, “Understanding Fiduciary Duties and Relationship Fiduciary” (2017) 62:4 McGill L.J. 975, at p. 978. [499] Rotman, at pp. 981-82. [500] Rotman, at p. 984. [501] Rotman, at p. 1013 (footnote omitted). [502] Rotman, at p. 992. [503] Guerin v. The Queen , [1984] 2 S.C.R. 335. [504] See Tito v. Waddell (No. 2) , [1977] 3 All E.R. 129 (Ch.). [505] Guerin , at p. 376. [506] Guerin , at p. 379. [507] Wewaykum , at para. 81. [508] Wewaykum , at para. 85. [509] Wewaykum , at paras. 79-83; Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 18; and Manitoba Metis , at para. 51. [510] Williams Lake , at para. 165. [511] Stage One Reasons, at paras. 509-12. [512] See Guerin , at p. 379; Manitoba Metis , at para. 58; and Williams Lake , at paras. 52-54. [513] Williams Lake , at para. 52. [514] Proceedings Against the Crown Act, 1962-63 , S.O. 1962-63, c. 109 (“ PACA ”). [515] Stage Two Reasons, at paras. 79-87. [516] Limitations Act , 2002 , S.O. 2002, c. 24, Sch. B. (the “2002 Limitations Act ”). [517] Stage Two Reasons, at paras. 149-51. [518] Stage Two Reasons, at para. 153. [519] Stage Two Reasons, at para. 173. [520] Stage Two Reasons, at para. 168. [521] Stage Two Reasons, at paras. 179-80. [522] Nowegijick v. The Queen , [1983] 1 S.C.R. 29. [523] Canadian National Railway Co. v. Canada (Attorney General) , 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 33; Heritage Capital Corp. v. Equitable Trust Co. , 2016 SCC 19, [2016] 1 S.C.R. 306, at para. 23; and TELUS Communications Inc. v. Wellman , 2019 SCC 19, [2019] 2 S.C.R. 144, at para. 30. [524] 1704604 Ontario Ltd. v. Pointes Protection Association , 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 6. [525] Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. (Toronto: LexisNexis Canada Inc., 2014), at § 2.9. [526] 2747-3174 Québec Inc. v. Québec (Régie des permis d’alcool) , [1996] 3 S.C.R. 919, at para. 238, per L’Heureux-Dubé J. (concurring); ATCO Gas & Pipelines Ltd. v. Alberta (Energy & Utilities Board) , 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 59; and Sullivan, at §§ 4.23 (fn. 4), 8.9. [527] R. v. McColman , 2021 ONCA 382, 156 O.R. (3d) 253, at para. 115. See also Solar Power Network Inc. v. ClearFlow Energy Finance Corp. , 2018 ONCA 727, 426 D.L.R. (4th) 308, at para. 75, leave to appeal refused, [2018] S.C.C.A. No. 487; Keatley Surveying Ltd. v. Teranet Inc. , 2019 SCC 43, 437 D.L.R. (4th) 567, at para. 96, per Côté and Brown JJ. (dissenting). [528] See Pawis v. Canada , [1980] 2 F.C. 18, at para. 9(i); Badger , at para. 76; and Fletcher v. Ontario , 2016 ONSC 5874, at para. 118. [529] Stage Two Reasons, at paras. 127-28 (footnotes omitted). [530] Stage Two Reasons, at paras. 164-68 (footnotes omitted). [531] Stage Two Reasons, at paras. 178-79. [532] Dan Zacks, “Ontario: There has never been a limitation period for a breach of treaty claim” (16 July 2020), online (blog): Under the Limit: Developments in Canadian Limitations Jurisprudence : <http://limitations.ca/?p=1134>. [533] Ontario Law Reform Commission, Report on the Limitation of Actions (Toronto: Department of Attorney General, 1969), at p. 18.

COURT OF APPEAL FOR ONTARIO CITATION: Bowman v. Ontario, 2021 ONCA 795 DATE: 20211105 DOCKET: M52851 & M52778 (C68939) Strathy C.J.O. (Motion Judge) BETWEEN Dana Bowman, Grace Marie Doyle Hillion, Susan Lindsay and Tracey Mechefske Plaintiffs (Appellants) and Her Majesty the Queen in Right of Ontario Defendant (Respondent) Stephen J. Moreau and Kaley Duff, for the appellants Christopher Thompson, Chantelle Blom, Ravi Amarnath and Adam Mortimer, for the respondent Jennifer L. Hunter, Jennifer O’Dell and Jacqueline Palef, for the proposed intervener, Canadian Civil Liberties Association (M52851) Anu Bakshi and Nabila F. Qureshi, for the proposed intervener, Income Security Advocacy Centre (M52778) Heard: October 27, 2021 by video conference ENDORSEMENT [1] After hearing motions for leave to intervene by the Canadian Civil Liberties Association (CCLA) and the Income Security Advocacy Centre (ISAC), I advised counsel that I would grant the motion in respect of the former and I reserved judgment on the latter. [2] In respect of the CCLA motion, which is unopposed, I am satisfied that the proposed intervention meets the requirements set out in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), and that the CCLA will make a useful contribution to the resolution of the appeal without causing injustice to the parties. The following terms will apply: (a) the CCLA may file a factum of up to 15 pages in length by November 30, 2021 or such other date as the parties agree upon; (b) the Crown may file a responding factum of up to 15 pages in length by December 15, 2021 or such other date as the parties agree upon; (c) the CCLA may have up to 15 minutes for oral argument on the appeal, such time to be deducted from the appellant’s allotted time of two and one half hours; (d) the Crown’s time for oral argument in reply shall be contained within its existing allotment of one and one half hours; (e) the CCLA shall take the record as it finds it and shall not augment the record; and (f) the CCLA shall not seek costs and will not be liable for costs. [3] Having considered the submissions of the ISAC and the additional authorities submitted by the parties, and with some regret, I dismiss the ISAC’s motion without costs. [4] The issues in this appeal, a class action on behalf of low-income individuals, fall in the middle of the private/public spectrum. The appeal involves issues of public interest which fall squarely within the ISAC’s wheelhouse. I do not have any doubt that the ISAC has the expertise and experience to make a useful contribution to the appeal. [5] The ISAC seeks to intervene with respect to the issue of whether there is a contract between the class members and the Province of Ontario with respect to the Basic Income Pilot Project (the “Project”). It proposes to address the legal principles that would guide the determination of whether a contract was formed. [6] In opposing the ISAC’s motion for leave to intervene, the Province raised the issue of the ISAC’s engagement with the Project at the government and community levels. [7] I do not hold to the view that an intervener must have no connection to the underlying dispute or that a “true friend of the court” must be a “disinterested non-party”: see United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction , 2002 NBCA 27, 249 N.B.R. (2d) 93, at para. 15; Gemtec Limited & Robert G. Lutes v. The Queen , 2006 NBQB 439, 313 N.B.R. (2d) 296, at para. 18. As McMurtry C.J.O. observed in Childs v. Desormeaux (2003), 67 O.R. (3d) 385, (C.A.), which has been a jurisprudential touchstone in intervention motions, the submission that “a “friend of the court” must be neutral, abstract and objective refers to a restricted notion of the amicus curiae that has long been rejected”: at para. 13. Indeed, it is frequently the intervener’s “interest” and experience in the matter that enables it to make a useful contribution to the appeal by providing a perspective on the issues that differs from the immediate parties: see also Ontario (Natural Resources and Forestry) v. South Bruce Peninsula (Town) , 2021 ONCA 749, at para. 19. [8] I accept, therefore, that having an “interest” in the Project does not automatically disqualify the ISAC from intervening – indeed, advocacy for income security through basic income or other means is the ISAC’s raison d’être. [9] My overriding concern, however, is that the ISAC is much more than “interested” in the subject of this appeal. It has been directly involved in the underlying process, including, in its own words, participating “in government consultations to develop the Basic Income Pilot Project that is the subject of this Appeal” and developing “public legal education presentations and materials on basic income” for the purpose of the Project. The ISAC’s work included making recommendations to senior government officials concerning communications with the participants in the program (that is, the members of the proposed class). The ISAC also provided advice, directly or indirectly, to those who participated in the Project. [10] One of the fundamental issues before the court in the underlying appeal will be whether a contractual relationship existed between the Province and the members of the class and, if so, the terms of that contract. The resolution of those questions will require an examination of the factual matrix – a matrix that the ISAC was a part of and helped shape. The involvement of the ISAC in that factual matrix could well become a matter of evidence, should the matter proceed to trial. [11] Put another way, and more colloquially, the ISAC has “skin in the game”. At a minimum, it has a reputational issue at stake on the appeal, because of its direct involvement in the Project. In my view, the ISAC is simply too close to the underlying factual issues and too closely associated with the potential class members to permit it to take on the role of intervener. As well, it would be unfair to require the respondent to respond to an additional voice which is so closely allied with the appellants. [12] I am satisfied, moreover, that any perspective that the ISAC might be able to provide on the appeal will be reflected in the submissions of counsel for the appellants. [13] For these reasons, the ISAC’s motion is dismissed, without costs. “G.R. Strathy C.J.O.”

COURT OF APPEAL FOR ONTARIO CITATION: Giancola v. Dobrydnev, 2021 ONCA 793 DATE: 20211108 DOCKET: C68792 MacPherson, Simmons and Nordheimer JJ.A. BETWEEN Antonio Giancola and Angelina Giancola Plaintiffs (Respondents) and A lexandre Dobrydnev Defendant (Appellant) Arkadi Bouchelev, for the appellant Christopher Belsito, for the respondents Heard: November 3, 2021 by video conference On appeal from the judgment of Justice Mark L. Edwards of the Superior Court of Justice dated October 5, 2020, with reasons reported at 2020 ONSC 6007. REASONS FOR DECISION [1] Mr. Dobrydnev appeals from the summary judgment granted by the motion judge in which he ordered the appellant to pay to the respondents the sum of $306,130.54. He subsequently ordered that the appellant pay costs in the amount of $40,000. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons. [2] The issues between the parties arose out of a failed residential real estate transaction. The appellant had agreed to purchase a house from the respondents. The day before the closing, the appellant raised an issue about a possible problem in the basement of the home. He asked for a reduction in the purchase price and a postponement of the closing date. [3] While the respondents were open to a postponement of the closing date, they were not prepared to reduce the purchase price. The appellant then advised that he would not close the transaction. [4] The appellant says that a few days before the closing date, he visited the property and noticed a problem in the basement. He says that he had not noticed the problem earlier because the area had been covered with a carpet. The appellant was very concerned about what he saw because it suggested that there had been a problem with the foundation of the home. He says that in response to questions he asked, the respondents told him that there had been a major flood some years earlier, that the foundation walls had cracked, and that repairs had been made. The appellant says that the respondents refused to provide any documentation regarding the repairs or tell him who had done the work. He does say, however, that the respondents admitted that the work had been done without getting a building permit. [5] The appellant filed two expert reports on the motion. The thrust of the expert reports was that the repairs were significant and ought to have been disclosed. [6] The respondents deny the appellant’s allegations. They say that the problem in the basement was obvious to anyone who viewed the property. They say that the appellant did not raise any issue with them when he visited the property. The respondents produced photographs taken by their real estate agent that showed the problem area in the basement. [7] The motion judge reviewed the evidence. He was satisfied that, notwithstanding the conflict in the evidence, he was in a position to resolve the issue without the need for further evidence or for the matter to go to trial. He noted the corroboration for the respondents’ position provided by the photographs from their real estate agent. He also noted that the respondents’ real estate agent had confirmed that the subject area in the basement was not hidden from any potential purchaser. [8] The motion judge rejected the appellant’s evidence in part because the appellant waited until the day before the closing to raise this issue. The motion judge observed that the appellant, on his own evidence, had learned about the problem six days earlier. The motion judge also found that between those two dates, the appellant had received a mortgage commitment that left him over $200,000 short of the amount he needed to complete the purchase. [9] The motion judge also rejected the appellant’s expert evidence. He pointed out that neither expert had actually seen the property but rather had relied almost exclusively on what the appellant had told them in forming their opinions. [10] The appellant raises a number of errors said to have been made by the motion judge. We agree with only one. The motion judge erred in relying on the hearsay evidence of a home inspection that was undertaken by the subsequent purchaser of the home. However, this error was not material to the motion judge’s conclusion and does not detract from the other aspects of his analysis, including his point that the appellant could have made his offer to purchase conditional on a home inspection but chose not to do so. [11] Finally, the motion judge concluded that any issue with respect to the basement of the property was readily apparent to any potential purchaser. Therefore, the principle of caveat emptor applied. [12] The appellant has failed to demonstrate any error that goes to the core of the analysis undertaken, and conclusion reached, by the motion judge. The motion judge provided detailed reasons in which he reviewed the evidence and explained his approach to it. The findings that the motion judge made were available to him on the evidence. There is no basis for us to interfere with his decision. [13] It is for these reasons that the appeal was dismissed. The respondents are entitled to their costs of the appeal which are fixed in the agreed amount of $8,380, inclusive of disbursements and HST. “J.C. MacPherson J.A.” “Janet Simmons J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Maloney v. Goodman, 2021 ONCA 792 DATE: 20211108 DOCKET: C68760 MacPherson, Simmons and Nordheimer JJ.A. BETWEEN Joseph Maloney and Heather Maloney Applicants (Respondents) and Rick Goodman personally, and in his capacity as executor of the Estate of Leo Goodman, deceased Respondents (Appellants) Darryl Singer and Nadia Condotta, for the appellants Todd Storms and Kerri Malcolm, for the respondents Heard: November 2, 2021 by video conference On appeal from the order of Justice Graeme Mew of the Superior Court of Justice, dated October 1, 2020 with reasons reported at 2020 ONSC 5948. REASONS FOR DECISION [1] The issues on appeal arise out of the respondents’ application to discharge several mortgages registered against two farm properties they own. The mortgages were originally held by Leo Goodman as mortgagee. Leo Goodman (“Mr. Goodman Sr.”) assigned the mortgages to his son, Rick Goodman (“the appellant”) [1] , in 2010. Mr. Goodman Sr. died in 2017 at the age of 102. [2] Because of poor record keeping and the confusing state of the record, the application judge was unable to resolve the question of whether the mortgages had been fully paid. However, he made four findings in an effort to assist the parties in resolving that question. The appellant appeals the application judge’s second and fourth findings. We dismissed the appeal at the conclusion of the appeal hearing for reasons to follow. These are our reasons. Background [3] The respondents originally owned three properties that were subject to mortgages in favour of Mr. Goodman Sr.: the two farm properties referred to above and a property referred to as the Donald Street property. The mortgages fell into arrears. In 2008, Mr. Goodman Sr. sold the Donald Street property under power of sale. [4] In an effort to resolve matters, the respondents applied for a mediation under the Farm Debt Mediation Act , S.C. 1997, c. 21. The September 15, 2008 mediation resulted in an arrangement under s. 19 of that Act (the "FDMA Agreement"). Under the FDMA Agreement the parties agreed on the amounts owing under each of the mortgages, including the Donald Street property mortgage, as of various dates in 2006. However, the agreed upon amounts were subject to verification of certain figures. Further, the parties agreed that additional adjustments could be made. [5] Commencing in January 2009 and continuing until about April 2019, the respondents made monthly payments of $2,703.05 to the appellant or his father on account of their indebtedness. The Application Judge’s Second Finding – the $60,000 Promissory Note [6] The application judge’s second finding relates to a $60,000 promissory note (the “Promissory Note”) signed by the respondents on March 28, 2008 in favour of Mr. Goodman Sr. The Promissory Note stipulated that it was due and payable on March 1, 2010. [7] The appellant's position on the application was that the Promissory Note was paid with the proceeds of sale of the Donald Street property and that $60,000 should therefore be added to the total owing on all the mortgages as set out in the FDMA Agreement. [8] The application judge rejected the appellant’s position. Among other things, he noted that, assuming the Promissory Note was a genuine obligation, applying proceeds from the sale of the Donald Street property to pay it in priority to obligations secured against the property would have violated s. 27 of the Mortgages Act , R.S.O. 1990, c. M.40. In any event, if the Promissory Note reflected a genuine obligation, an action on a promissory note that was payable on March 1, 2010 would be statute barred. [9] The formal order arising from the application stipulates that the Promissory Note “is not enforceable, due to its being statute barred.” [10] On appeal, the appellant states that he and his father reasonably believed the Promissory Note was paid off with the proceeds of the Donald Street property. He submits that the application judge erred in holding that an action on the Promissory Note is statute barred because the fact that the Promissory Note could not properly be repaid from the Donald Street power of sale proceeds was only discovered when the application judge made his finding. Accordingly, the limitation period should run from the date of the application judge’s reasons, being the date on which the appellant discovered the Promissory Note was in fact unpaid. [11] We reject the appellant's submissions. As a starting point, the application judge made it clear in his reasons that he was not convinced that the Promissory Note was a genuine obligation. Further, it is unclear how any amount that may ever have been owing on the Promissory Note could be added to the balance owing on the mortgages on the farm properties for which the respondents seek a discharge. Most importantly however, the Promissory Note stipulated it was due and payable on March 1, 2010. The two-year limitation period for suing on the Promissory Note runs from its maturity date, March 1, 2010. The appellant is not entitled to rely on his own, or his father’s, purported mistake in applying the proceeds of sale of the Donald Street property to resurrect a claim that became statute barred in 2012. The Application Judge’s Fourth Finding – the December 31, 2008 Account for Legal Fees [12] The application judge’s fourth finding was that an account from Leo Goodman's lawyer dated December 31, 2008 for legal fees relating to mortgage enforcement proceedings should not be added to the amount owing on the mortgages for which the respondents seek a discharge. [13] The appellant submits that the application judge erred in holding that the respondents were “entitled to infer that any claim for reimbursement of legal expenses was extinguished by the [September 2008] FDMA Agreement.” The account was dated December 31, 2008, which was after the FDMA Agreement was made and states, in part, “[t]his is the amount that should be added to Maloney’s mortgage.” Further, the appellant notes that the parties agreed that additional adjustments were to be made to the FDMA Agreement figures, that the FDMA Agreement was silent on the subject of legal fees and that the mortgages all provided for enforcement fees to be added to the balance owing. [14] We do not accept the appellant’s submissions. Mr. Goodman's lawyer confirmed that the December 31, 2008 account related to work done prior to the mediation. The application judge found that the first communication to the respondents about this claim was a letter dated May 28, 2015, which the appellant sent on behalf of his father. In our view, the application judge’s finding was open to him on the record and was reasonable. The fact that the formal account pre-dated the mediation does not mean the fees were not taken into consideration at the mediation in calculating the balance owing on the various mortgages. Had legal fees not been taken into account on the mediation, the respondents were entitled to receive notice of the claim much sooner than six-and-a-half years after the fact. Costs of the Appeal and Further Relief [15] Costs of the appeal are to the respondents on a partial indemnity scale fixed in the amount of $10,000 inclusive of disbursements and applicable taxes. [16] As noted by the application judge, if necessary, the parties are at liberty to request a case conference in the court below if further directions or orders are required to finally resolve the application. “J.C. MacPherson J.A.” “Janet Simmons J.A.” “I.V.B. Nordheimer J.A.” [1] As the assignments of mortgage were never registered, the parties agreed in the court below that the estate is not a necessary party to this proceeding. Mr. Goodman Jr. is not, in any event, the estate trustee of Mr. Goodman Sr.’s estate.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Harvey, 2021 ONCA 801 DATE: 20211108 DOCKET: C69724 Tulloch, Hourigan and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Jesse David Harvey Appellant Jesse David Harvey, acting in person Michael Crystal, appearing as duty counsel Philippe Cowle, for the respondent Heard and released orally: November 4, 2021 by video conference On appeal from the conviction entered on May 27, 2021 and the sentence imposed on July 13, 2021 by Justice Graeme Mew of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of numerous breaches of probation orders contrary to s. 733.1 of the Criminal Code , R.S.C. 1985, c. C-46, and of assault contrary to s. 266 of the Criminal Code . He received a global sentence of 3 years’ incarceration. The appellant abandons his conviction appeal but is pursuing his sentence appeal. [2] His primary submission is that the sentencing judge erred because he referred to the Crown submission that the Crown had considered commencing a dangerous offender application. [3] As this court stated in R. v. Soriano , 2020 ONCA 276, an appellate court will not vary a sentence unless it is demonstrably unfit or the sentencing judge made an error that affected the sentence imposed. A sentence that is demonstrably unfit is “clearly excessive” or “clearly unreasonable”: Soriano , at para. 7. We echo the court’s comments in Soriano. In this case, given the appellant’s incorrigible behaviour, we cannot say that the sentence was clearly excessive. [4] There was a mention of a possible dangerous offender application in the reasons for sentence. However, that statement must be put in context. The sentencing judge made a brief reference to the submission, while identifying what we believe to be the key issue before him, being the appellant’s repeated failure to abide by court orders in a situation rife with domestic violence. [5] We reject the submission that the sentencing judge turned the case into an informal dangerous offender application. [6] The sentence was fit, and we see no error in the sentencing judge’s analysis. In the result, leave to appeal sentence is granted, but the appeal is dismissed. “M. Tulloch J.A.” “C.W. Hourigan J.A.” “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 complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.J., 2021 ONCA 788 DATE: 20211108 DOCKET: C64152 Paciocco, Nordheimer and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and J.J. Appellant Michael W. Lacy and Bryan Badali, for the appellant Philippe G. Cowle, for the respondent Heard: October 14, 2021 by video conference On appeal from the conviction entered on February 22, 2017, with reasons reported at 2017 ONSC 445, by Justice Rick Leroy of the Superior Court of Justice, sitting without a jury. Thorburn J.A.: INTRODUCTION [1] The appellant was convicted following trial by judge alone of sexual assault and break and enter for the purpose of committing sexual assault. He was sentenced to three years in prison. He appeals his convictions and seeks an acquittal or a new trial pursuant to s. 686(5) of the Criminal Code, R.S.C. 1985, c. C-46. BACKGROUND Interaction with the Complainant During the Party [2] The appellant attended a party for A.L., at the invitation of their mutual friend B.H. The party was at A.L.’s residence, which he shared with the complainant. [3] The complainant testified that she and the appellant did not know each other and did not interact during the party. She testified that at the party, the appellant was wearing a black and white striped shirt. [4] She said she had consumed twelve bottles of beer and went to sleep while the appellant was still at the party. She got into bed with her clothing on. Her bedroom door was unlocked. Appellant’s Entry into the Complainant’s Bedroom [5] A.L. testified that at the end of the party, he saw the appellant enter the complainant’s bedroom and shut the door. After 30 seconds, A.L. entered the bedroom and saw the appellant on top of the bed covers trying to “spoon” against the complainant who was under the bed covers. A.L. heard the complainant say, “Help me” and he pushed the appellant out of the room. [6] A.L. testified that the appellant told him he had ruined the appellant’s chance of having sex with the complainant. Evidence Regarding the Incident in Question [7] The complainant testified that later that evening, she awoke to discover an intruder performing oral sex on her and then penetrating her, at which point she yelled. The intruder got off her, put on his trousers and left the residence. The complainant returned to sleep. [8] A.L. testified that he heard the complainant cry, “Get the fuck out of my room”, between 5:00 and 6:00 a.m., the morning after the party. [9] When the complainant awoke around 11:00 a.m., she noted that her clothing had been removed except for her tank top. She put on a pair of her pyjama bottoms that were lying on the floor. [10] The complainant testified that the pyjama bottoms on the floor had been “left there from maybe the day before.” She did not remember when she had last worn them. She testified that she was in the habit of doing her laundry on Sundays, so if she had washed them when she had last done the laundry, then it would have been six days before the assault. She couldn’t remember if the pyjamas had been washed in that load. The Complainant’s Identification of the Appellant as the Perpetrator [11] The complainant testified that it was only when A.L. asked her what she had been yelling about, that her memory of the sexual assault crystallized. [12] She told A.L. that she had been sexually assaulted and they went to B.H.’s home, as he had invited the appellant to the party. The complainant said the intruder was wearing a black and white striped shirt and had dark hair. [13] They looked the appellant up on Facebook and she identified him as the perpetrator. The complainant reported the sexual assault to the police. DNA Found on the Complainant’s External Genitalia and Pyjamas [14] A swab taken from the complainant’s external genitalia generated a single male DNA profile (“Profile 1”). The appellant could not be excluded as the source of that DNA. [15] A sample from the complainant’s pyjama bottoms generated a different male DNA profile (“Profile 2”). The appellant could be excluded as the source of that DNA. [16] The biologist, who was qualified as an expert in “body fluid identification and forensic DNA analysis testing and interpretation of those results”, opined that it was unlikely for a detectable level of DNA to be transferred from brief touching in the absence of bodily fluid, especially when touching smooth or non-porous surfaces. Charges Laid [17] The appellant was charged with sexual assault (s. 271 of the Criminal Code ) and breaking and entering for the purpose of committing an indictable offence (s. 348(1)(b) of the Criminal Code ). THE TRIAL JUDGE’S REASONS [18] The trial judge held that the central issue was identity, and there were three grounds that together, led him to conclude that the appellant was the perpetrator: i. The complainant identified the perpetrator as the man wearing the striped shirt at the party, and the complainant subsequently identified the appellant as the perpetrator by looking at his Facebook page; ii. Earlier in the evening, the appellant entered the complainant’s room without consent. He got onto the bed with the complainant. When he was sent out of the room by A.L., the appellant told A.L. he had ruined his chance to have sex with her. This was just hours before the alleged assault; and iii. The male DNA detected on the complainant’s external genitalia swab matched the appellant’s DNA and there was no evidence to support benign transfer. [19] The trial judge held that even if the alleged sexual assault and the appellant’s earlier act of entering her room without her consent were not parts of a single distinct event, the evidence of the appellant’s conduct in entering the room, including his statement to A.L., was admissible as similar fact evidence on the issues of identity, animus and motive because its probative value outweighed its prejudicial effect . While the appellant’s statement was hearsay, it was admissible under the admission exception. [20] During the trial, the appellant’s counsel disclosed to the trial judge that she had previously represented one of the investigating officers in this case, on an unrelated matter. Trial counsel confirmed to the trial judge that the appellant was aware of the conflict and consented to her proceeding. The officer did not permit trial counsel to disclose the nature of the prior representation but provided a waiver to allow trial counsel to cross-examine him. THE ISSUES ON APPEAL [21] This court may allow a conviction appeal where it is of the opinion that the verdict is unreasonable or cannot be supported by the evidence, there is found to be an error of law, or there has been a miscarriage of justice: Criminal Code, s. 686(1)(a). [22] The appellant raises the following grounds of appeal: i. The trial judge misapprehended the expert biologist’s findings with respect to Profile 1 by concluding that the male DNA profile on the complainant’s external genitalia was from a bodily substance not skin cells; ii. The trial judge imposed an onus on the appellant to prove a “benign explanation” for the presence of a male DNA profile (Profile 1) on the complainant’s genitalia from which the appellant could not be excluded; iii. The trial judge misapprehended the evidence by failing to consider that there was exculpatory evidence of another male DNA profile (Profile 2) on the complainant’s pyjama bottoms from which the appellant was excluded; and iv. The appellant was deprived of his right to counsel by the trial judge’s failure to address trial counsel’s conflict of interest. The appellant applied for leave to file fresh evidence to address this issue on appeal. [23] I will address each argument in turn. ANALYSIS The First Issue: Did the trial judge misapprehend the DNA evidence of Profile 1? [24] The appellant claims the trial judge misapprehended the DNA evidence by concluding that the male DNA profile generated from a swab of the complainant’s external genitalia (Profile 1) from which the appellant could not be excluded, was from a bodily substance including saliva or blood. This is incorrect as the expert opinion was that the DNA was from “skin cells or a body fluid other than semen that includes but is not limited to saliva ” or blood (emphasis added). [25] Misapprehension of evidence may include “a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence”: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538; see also R. v. Stennett , 2021 ONCA 258, at para. 50. [26] When misapprehension of evidence is alleged, the court should first consider the reasonableness of the verdict, under s. 686(1)(a)(i): Morrissey, at p. 540; Stennett, at para. 51. If the verdict is not unreasonable, the court should determine whether a miscarriage of justice was occasioned, under s. 686(1)(a)(iii): Morrissey, at p. 540; Stennett, at para. 51. [27] The misapprehension will result in a miscarriage of justice when the trial judge misapprehends the substance of material parts of the evidence and “the errors play an essential part not just in the narrative of the judgment but ‘in the reasoning process resulting in a conviction’”: R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, citing Morrissey , at p. 540; see also Stennett , at para. 52. If there is no miscarriage of justice, the court should determine whether the misapprehension amounts to an error in law, under s. 686(1)(ii): Morrissey, at p. 540; Stennett, at para. 51. [28] There is no dispute that the trial judge’s characterization of DNA Profile 1 was important to his finding of guilt. [29] The expert testified that the swab from the complainant’s external genitalia identified a single male DNA profile, from which the appellant could not be excluded, and that DNA possibly derived from “skin cells or a body fluid other than semen that includes, but is not limited to saliva” or blood. [30] The appellant asserts that the trial judge erroneously suggested that when submissions were being made the critical question was “how does the saliva-based DNA get onto [the complainant’s] genitals” and that this error was a material misapprehension of the evidence. [31] The appellant is correct that the above statement made by the trial judge was incorrect as the DNA swab from the complainant’s external genitalia was not tested for saliva, given the limits of that testing. There was therefore no evidence that amylase (a protein found in saliva) was found on the DNA swab. [32] Amylase was only found on the pyjama bottoms from which Profile 2 was generated. The appellant’s DNA was excluded from Profile 2. [33] The appellant’s trial counsel made similar comments and the Crown did not correct them. [34] In his reasons for judgment however, the trial judge correctly interpreted the evidence relating to Profile 1. The trial judge held, at para. 59, that: The DNA swab that contained [the appellant’s] DNA derived from skin cells or a body fluid including, but not limited to saliva .… The biologist’s opinion was that she could not determine whether any blood or saliva present on the swab originated from [the complainant] or the male DNA donor. [Emphasis added.] [35] These statements in the reasons for judgment, accurately reflect the expert’s evidence that Profile 1 possibly “originates from skin cells or a body fluid other than semen that includes, but is not limited to saliva” and that, In general terms if amylase is present on that swab, if we accept that amylase is detected if it’s a lower level it could be from saliva or other body fluids. And if there’s a mixture of DNA then I would not be able to determine who the source of the body fluid is. [36] Moreover, the trial judge made no mention in his reasons for judgment of saliva-based DNA being located on the complainant’s external genitalia. On the contrary, every time the trial judge referenced the forensic evidence linking the appellant to the offence, he referred only to “the accused’s DNA”, “[the appellant’s] DNA” or “the male DNA swabbed” from the complainant’s external genitalia. [37] It is clear from the reasons for judgment that the trial judge understood that there was no way to know whether the DNA from Profile 1 taken from the complainant’s external genitalia was derived from skin cells or bodily fluid, including saliva or blood. The trial judge’s reasons are clear that his findings in relation to Profile 1 are not about the transfer of DNA from saliva; they are about DNA transfer generally. [38] In sum, while there was an instance of misapprehension of evidence regarding the nature of the DNA evidence of Profile 1 by the trial judge and the parties during submissions, that misapprehension was cured in the reasons for judgment. The trial judge did not misapprehend the evidence regarding the DNA evidence of Profile 1 in his reasons for judgment. [39] As such, I would dismiss the first ground of appeal. The Second Issue: Did the trial judge err by imposing an onus on the appellant to provide a “benign explanation” for the presence of DNA on the complainant’s external genitalia? [40] The appellant’s theory at trial and on appeal is that the appellant’s DNA must have made its way to the complainant’s external genitalia by way of innocent transfer. [41] The appellant submits that the trial judge reversed the burden of proof, by suggesting that unless the appellant could establish an innocent explanation for the presence of DNA on the complainant’s genitalia, the only reasonable conclusion was that the presence of the appellant’s DNA was confirmation of the appellant’s identity as the perpetrator. [42] The appellant submits, as the trial judge noted, that the appellant is not required to provide an innocent explanation for the presence of his DNA. [43] The appellant relies on the Supreme Court’s decision in R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, which he says, supports his argument that the trial judge reversed the burden of proof. [44] In Villaroman, Cromwell J. held, at paras. 37-38: When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt.… I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused…. “Other plausible theories” or “ other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation . Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [Citations omitted; italics emphasis in original; underline emphasis added.] [45] Cromwell J. noted, at para. 42, citing R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138, at paras. 22-25, that the trier of fact should not act on alternative interpretations of the circumstances that are unreasonable, and that “alternative inferences must be reasonable, not just possible”. [46] As Cromwell J. explained in Villaroman , at para. 71, it is for the trier of fact to draw the line that separates reasonable doubt from speculation and determine whether the alternative inferences proposed by the appellant raised a reasonable doubt about guilt . [47] A trial judge’s rejection of an alternative theory inconsistent with guilt does not necessarily mean that there was a Villaroman error; it may mean that there was no reasonable inference other than guilt, given the evidence or lack of evidence and in light of human experience and common sense: R. v. S.B.1, 2018 ONCA 807, 143 O.R. (3d) 81, at para. 138. [48] Deference is owed to a trial judge’s conclusion that there are no reasonable alternative inferences other than guilt: S.B.1, at para. 139. This court held, in R. v. Loor, 2017 ONCA 696, at para. 22, “[a]n appellate court is justified in interfering only if the trial judge’s conclusion that the evidence excluded any reasonable alternative was itself unreasonable.” [49] In this case, the trial judge recognized that, given that the Crown’s evidence was primarily circumstantial, “the accused can only be found guilty where the guilt of the accused is the only reasonable conclusion to be drawn from the whole of the evidence.” [50] He considered the evidence and the absence of evidence in light of human experience and rejected as speculative the theory that the presence of the appellant’s DNA on the complainant’s external genitalia was due to innocent transfer. [51] The trial judge relied on the following uncontroverted evidence adduced at trial: i. The complainant testified that she had not met the appellant before the evening in question. She had seen him at the party but had no interaction with him before retreating to her bedroom. She testified that she went to bed fully dressed; and ii. A.L. testified that when he entered the complainant’s bedroom 30 seconds after seeing the appellant enter the room, the complainant was under the covers and the appellant was beside her, over the covers, lying semi-prone. The appellant was about 10 cm from her and was not moving. He looked like he was trying to “spoon” or cuddle her except that she was lying on her back. A.L. did not recall seeing the appellant make any movements but could not remember where the appellant’s hands were. [52] The trial judge also considered the evidence of the expert who opined that: i. Skin-to-skin DNA transfer is possible, but DNA transfer occurs more readily when it is moist; ii. The expert did not have a high expectation of finding a detectable level of DNA from brief touching in the absence of bodily fluid; iii. The expert would not expect a significant transfer of DNA from the brief touching of an item, especially an item that is smooth or non-porous, for instance a table; iv. Urine is not a good source of DNA. The expert would not expect to be able to generate a DNA profile from a urine stain; and v. Although it is possible to transfer DNA via a chain of contact (i.e. transfer from person A to object, and then from object to person B), the more points of contact on the chain, the less DNA will be transferred to the person at the end of the chain. [53] The trial judge noted that his analysis was conducted on the basis of “the evidence presented” and that, as the trier of fact, he must rely on the evidence and cannot “speculate”. [54] He concluded that there was no evidence to support the appellant’s theory of innocent transfer of DNA that matched the appellant’s onto the complainant’s genitalia because, Any innocent transfer had to have happened before [the complainant] exited the party. They were strangers. The closest they came to one another was they were in the same building. There was no contact between them during the party. I conclude that when [the complainant] retired [the appellant’s] DNA was not affixed to her genitals. AL observed [the appellant] on top of the covers and [the complainant] under the covers when he entered the room. She was unconscious. [The appellant] was trying to spoon [the complainant]. No kissing or other opportunity for exchange of bodily fluid is in evidence. That exchange happened in the blink of thirty seconds. There is no evidence of contact with her genitals or any part of her body in that encounter. The only depiction offered for the presence of [the appellant’s] DNA on [the complainant’s] genitals derives from [the complainant]. [55] He therefore concluded that the only reasonable explanation for the presence of the appellant’s DNA on the complainant’s external genitalia was that the appellant committed the offence. [56] In so doing, the trial judge did not require the appellant to prove an innocent explanation for the presence of his DNA nor did he reverse the burden of proof. [57] On the contrary, the evidence adduced at trial supports the trial judge’s conclusion that there was no evidentiary basis to support a reasonable conclusion that the DNA in Profile 1 found on the complainant’s external genitalia could have been the result of benign transfer [58] As such, I would also dismiss this ground of appeal. The Third issue: Did the trial judge err by failing to consider that the appellant was excluded as a source of the DNA found on the complainant’s pyjamas? [59] The appellant claims the trial judge misapprehended the evidence by failing to give effect to the evidence from the pyjama bottoms. The appellant claims it was incumbent on the trial judge to rule out the possibility that Profile 2 was not the perpetrator, particularly given the evidence of the different methods of transfer rendering it just as likely that the donor of Profile 2 was the perpetrator. [60] I do not agree. [61] A trial judge’s reasons must be read as a whole, in the context of the evidence, the issues and the arguments at trial, together with “an appreciation of the purposes or functions for which they are delivered”: R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397, at para. 16, citing R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 16. [62] A trial judge is not required to expound on uncontroversial evidence, “or detail his or her finding on each piece of evidence or controverted fact, so long as the findings linking the evidence to the verdict can be logically discerned”: R.E.M., at para. 20. [63] In this case, the complainant testified that the pyjama bottoms on the floor had been “left there from maybe the day before”, she did not remember when she had last worn or washed them, and she likely last washed them at least six days before the assault. [64] Given that the complainant said she did not know when they were last worn or washed, there was nothing to connect the pyjama bottoms to this assault. (This is contrasted with the evidence of a single DNA profile (Profile 1) on the complainant’s external genitalia which matched the appellant’s DNA.) [65] As such, the trial judge did not err by failing to discuss the DNA profile on the pyjama bottoms (Profile 2). [66] While the appellant was under no obligation to testify, in considering the reasonableness of the verdict, this court may infer from his failure to testify that he could not provide an innocent explanation for his conduct leading to the presence of a DNA match on the complainant’s genitalia. The appellant’s failure to provide an innocent explanation at trial undermines the alternative inferences he says were available on the evidence: R. v. Ezechukwu , 2020 ONCA 8, at para. 29; see also R. v. Dell (2005), 194 C.C.C. (3d) 321 (Ont. C.A.), at para. 35; R. v. An , 2015 ONCA 799, at paras. 15-16; and R. v. Wu , 2017 ONCA 620, at para. 16. [67] For these reasons, I would dismiss this ground of appeal. The Fourth Issue: Whether the fresh evidence should be admitted and whether trial counsel was in a conflict of interest [68] The appellant seeks leave to file fresh evidence and submits that the fresh evidence supports his claim that he was denied effective assistance of counsel as a result of his trial counsel being in a conflict of interest that was not properly resolved at trial. The Crown concedes that this court may consider the fresh evidence tendered by the appellant. [69] The test for conflict of interest on appeal is a) whether there was an actual conflict of interest between the respective interests represented by counsel, and b) whether counsel’s ability to effectively represent the interests of the appellant was impaired as a result of the conflict: R. v. W. (W.) (1995), 25 O.R. (3d) 161 (C.A.), at p. 173. If both criteria are established, then the appellant has been denied the right to make full answer and defence and a miscarriage of justice has occurred: W. (W.), at p. 173. The focus is not on the appearance of conflict, but on whether counsel’s representation was in fact adversely affected: W. (W.), at p. 176. [70] In R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, at para. 29, Binnie J. writing for the court established a “bright line rule” preventing a lawyer or law firm from acting against a second client contrary in interest to an existing client without their consent: The bright line is provided by the general rule that a lawyer may not represent one client whose interests are directly adverse to the immediate interests of another current client — even if the two mandates are unrelated — unless both clients consent after receiving full disclosure (and preferably independent legal advice), and the lawyer reasonably believes that he or she is able to represent each client without adversely affecting the other. [Emphasis in original.] [71] However, counsel’s duty to a former client is different. The Supreme Court in Canadian National Railway Co. v. McKercher LLP , 2013 SCC 39, [2013] 2 S.C.R. 649 held, at para. 23, that: The law distinguishes between former clients and current clients. The lawyer’s main duty to a former client is to refrain from misusing confidential information. With respect to a current client, for whom representation is ongoing, the lawyer must neither misuse confidential information, nor place himself in a situation that jeopardizes effective representation. [72] If trial counsel’s representation of a client may be compromised due to a duty to a former client, counsel should advise the new client and obtain their consent: R. v. Faudar, 2021 ONCA 226, 403 C.C.C. (3d) 43, at para. 62. If counsel believes that their duty to the former client will in fact compromise the new retainer, counsel should decline to act for the new client: Faudar, at para. 62. [73] In this case, the officer was a former client by the time of trial. Therefore, the bright line rule does not apply. The only concern was the possible misuse of confidential information. There is no suggestion that the appellant’s trial counsel misused confidential information in this case. [74] In any event, the appellant consented to have counsel continue to represent him after counsel informed him that she had previously represented an investigating officer in this case. [75] Trial counsel swore in her affidavit and testified in cross-examination on the affidavit in fresh evidence that she discussed the issue several times with the appellant. Trial counsel indicated that she communicated with the appellant in clear and simple language, as the appellant’s first language is not English. On a break during pretrial motions, she communicated with him with the assistance of the court interpreter. [76] The appellant in his affidavit in fresh evidence stated that he had no recollection of any of these conversations but acknowledged in cross-examination that it was possible the discussions had occurred. After these discussions, trial counsel reasonably believed she was able to continue acting for the appellant without adverse effect. [77] Further, I am not persuaded that trial counsel’s prior representation of the officer resulted in a conflict that compromised representation and impaired trial fairness: see Faudar, at para. 66. [78] On a review of the full trial record, it does not appear that trial counsel was torn by divided loyalty. Trial counsel cross-examined the officer on the fact that he interviewed A.L. and B.H. together at the same time. Although she did not cross-examine him as to whether the complainant was present during his interview of A.L. and B.H., she swore in her affidavit that this was an oversight on her part. In any event, the trial judge did not find the testimony of A.L. and B.H. determinative on its own of the appellant’s guilt. The trial judge noted, “[t]he fact that AL and BH were interviewed together would be more of an issue if their evidence was contested or if their evidence was dispositive.” [79] Counsel informed the trial judge that she had represented the officer on a completely unrelated matter, and that the officer and the appellant consented to trial counsel cross-examining the officer. [80] The trial judge held that he was not sure there was a conflict of interest but nonetheless asked trial counsel to obtain a waiver from the officer consenting to trial counsel’s cross-examination of him, which she did. The trial judge held that, “It’s a conflict if it’s a related matter and there’s been a solicitor/client relation on that matter. But I don’t know that a client owns the lawyer for all time on totally unrelated matters.” [81] The Crown indicated that she was prepared to proceed to call the officer on the basis of the waiver, and on the basis of trial counsel “advising on the record, [the appellant] is aware of the conflict and given that information he’s still content that she proceed.” Given the appellant’s consent, trial counsel cross-examined the officer. [82] The trial judge did not err in deciding to permit appellant’s counsel to continue to represent him on this matter. There was no actual conflict of interest that adversely affected trial fairness or resulted in a miscarriage of justice in this case. I would therefore dismiss this ground of appeal. CONCLUSION [83] For the above reasons, the appeal is dismissed. Released: November 8, 2021 “David M. Paciocco J.A.” “J.A. Thorburn J.A.” “I agree. David M. Paciocco J.A.” “I agree. I.V.B. Nordheimer J.A. ”

COURT OF APPEAL FOR ONTARIO CITATION: DeLuca v. Grillone, 2021 ONCA 798 DATE: 20211109 DOCKET: C69054 MacPherson, Simmons and Nordheimer JJ.A. BETWEEN Marco DeLuca and Rhondaroo Holdings Ltd. Plaintiffs (Respondents) and Sergio Grillone , 2390215 Ontario Inc. , 1894931 Ontario Limited, Ravdeep Chera, Chera Law Office, Kurt Love, Avison Young (Canada) Inc. and John Doe Corporation Defendants ( Appellants ) AND BETWEEN Sergio Grillone , 2390215 Ontario Inc. , 1894931 Ontario Limited Plaintiffs by Counterclaim ( Appellants ) and Marco DeLuca , Omega Process Servers Inc., Rhondaroo Holdings Ltd. , Emilio Bisceglia, Bisceglia & Associates Professional Corporation, John Cirillo and John Cirillo Professional Corporation, Canadian Imperial Bank of Commerce and Daniel Dignard Defendants by Counterclaim ( Respondents ) Sergio Grillone, in person and for the appellant 2390215 Ontario Inc. R. Leigh Youd and Adam J. Wygodny, for the respondents Marco DeLuca and Rhondaroo Holdings Ltd. Randy Schliemann, for The Bank of Nova Scotia Heard: November 5, 2021 by video conference On appeal from the order of Justice Markus Koehnen of the Superior Court of Justice, dated August 12, 2020. REASONS FOR DECISION [1] The appellants appeal from the decision of a motion judge enforcing the terms of the settlement. At the conclusion of the appeal hearing, we dismissed the appeal for reasons to follow. These are our reasons. [2] The main issue on appeal is whether the motion judge erred in holding that an e-mail from counsel for the respondents confirmed that the parties had settled the proceeding on terms that would allow the motion judge to direct certain share purchase monies to be paid into court. [3] The e-mail read in part as follows: Your Honour in connection with tomorrow's attendance before you … the purchasing and selling parties have agreed to the price to be paid for the shares of 239 in 189. The parties will agree to an order that: 1. Subject to any contrary direction by His Honour the agreed price … shall be paid by Rhonderoo to 239 within 10 business days of Friday, July 17. [4] The appellants submit here, as they did in the court below, that the words "[s]ubject to any contrary direction by His Honour" meant there would be no settlement if the court determined the monies should not be paid directly to 239. [5] We do not accept that submission. It is clear from the record that Mr. Grillone, for the appellants, authorized counsel for the respondents to forward the above-noted e-mail. The motion judge held that the words “[s]ubject to any contrary direction by His Honour” meant it was open to him, as the motion judge, to direct, as he did, that the purchase monies be paid into court for the benefit of Mr. Grillone's creditors. [6] In our view, the interpretation the motion judge placed on the e-mail was open to him based on the record before him. We see no basis on which to intervene. [7] The appellants sought to introduce fresh evidence on appeal. Their application is dismissed. The first piece of evidence related to something that occurred after the settlement was made and was irrelevant to the question whether there was a settlement. The second piece of evidence related to a matter that was fully dealt with by the terms of the settlement. The proposed evidence does not meet the test for introduction of fresh evidence. [8] The appeal is therefore dismissed. Costs of the appeal and the motion for an extension are to the respondents on a partial indemnity scale fixed in the amount of $10,500 inclusive of disbursements and applicable taxes. No order as to costs of the Bank of Nova Scotia. “J.C. MacPherson J.A.” “Janet Simmons J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Elite Construction Inc. v. Canada (Attorney General), 2021 ONCA 803 DATE: 20211109 DOCKET: C69101 MacPherson, Simmons and Nordheimer JJ.A. BETWEEN Elite Construction Inc. Plaintiff (Appellant) and The Attorney General of Canada (representing Public Works and Government Services Canada) Defendant (Respondent) John V. Sestito, for the appellant Wendy Wright, for the respondent Heard: November 5, 2021 by video conference On appeal from the judgment of Justice Andrew Pinto of the Superior Court of Justice, dated January 22, 2021, with reasons reported at 2021 ONSC 562. REASONS FOR DECISION [1] The plaintiff appeals from the summary judgment granted by the motion judge that dismissed the plaintiff’s action against the respondent for what was alleged to be outstanding amounts arising out of a construction contract. At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons. [2] The appellant challenges the motion judge’s conclusion on essentially three grounds. First, it submits that this was not a proper case for summary judgment because there were factual issues in dispute. We do not agree. The motion judge found that the essential facts were agreed in terms of what the parties had done at various points during the construction project. He also noted that the parties had filed extensive material on the motion. It was open to the motion judge, in those circumstances, to conclude that he could reach “a fair and just determination” of the issues raised by the parties, especially the effect of the terms of the contract on the appellant’s claims: Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49. We note that the motion judge gave detailed and thorough reasons for all of his conclusions. On the record before him, it was open to him to conclude that no outstanding balances were owing. [3] Second, the appellant submits that the motion judge erred in concluding that the respondent had not waived its right to rely on the strict terms of the contract, especially the notice requirements contained therein. Again, we do not agree. The motion judge properly set out the legal requirements for a finding of waiver in a contractual setting and he made the requisite findings of fact with respect to those requirements. In particular, the motion judge found that the appellant had not provided the notice required under the contract for any claim for extra expenses or losses. He also found that the appellant never issued a Notice of Dispute as required by the contract regarding any Change Orders. Those findings of fact were grounded in the record that was before the motion judge. [4] Third, the appellant submits that the motion judge erred in striking out its claims for quantum meruit and unjust enrichment. Once again, we do not agree. The motion judge correctly concluded that there was no room for either of those equitable principles to apply where the parties were operating pursuant to a contractual agreement between them. [5] The appeal is dismissed. The respondent is entitled to its costs of the appeal in the agreed amount of $16,000 inclusive of disbursements and HST. “J.C. MacPherson J.A.” “Janet Simmons J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ceballo, 2021 ONCA 791 DATE: 20211109 DOCKET: C67808 Hoy, Trotter and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Latoya Ceballo Appellant Nathan Gorham, appearing as duty counsel Scott Wheildon, for the respondent Heard: September 8, 2021 by video conference On appeal from the conviction entered on August 8, 2019, by Justice Jennifer Woollcombe of the Superior Court of Justice, with reasons at 2019 ONSC 4617. Paciocco J.A.: OVERVIEW [1] Latoya Ceballo was arrested at Pearson International Airport on February 2, 2014, after arriving from St. Maarten with 3.2 kilograms of cocaine in her possession. The cocaine was discovered when she was searched incident to her arrest, which occurred after she admitted during a secondary customs inspection that she had drugs strapped to her body. She was charged with importing cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . [2] At her trial, Ms. Ceballo applied pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms to exclude from evidence the cocaine that was found on her person. That Charter application was based, in part, on her submission that, by the time she admitted to having the drugs, she was already detained but had not been promptly advised of the reason for her detention, or of her right to consult counsel without delay, contrary to ss. 10(a) and 10(b) of the Charter . [3] The Border Services Officer who took charge of Ms. Ceballo’s secondary inspection was Border Services Officer Gilbey (“BSO Gibley”). As I will explain below, to establish that Ms. Ceballo was detained, thereby triggering her s. 10 Charter rights, Ms. Ceballo’s trial counsel (“trial counsel”) had to establish that prior to Ms. Ceballo’s admission that she was in possession of cocaine, BSO Gilbey either engaged in intrusive, non-routine investigation of Ms. Ceballo, or had formed a strong particularized suspicion that Ms. Ceballo was committing an offence, and had decided to commence an intrusive investigation. [1] [4] Ms. Ceballo’s trial proceeded as a blended Charter voir dire . The parties agreed that if her s. 24(2) Charter application failed to lead to the exclusion of the evidence Ms. Ceballo should be found guilty. The Charter application failed because the trial judge concluded that Ms. Ceballo had not been detained when she admitted to possessing the cocaine, and she was convicted. She was given a global sentence of six years and three months imprisonment. [5] Ms. Ceballo has appealed both her conviction and her sentence. Those appeals have been bifurcated, on consent. This is her conviction appeal. She submits [2] that the trial judge erred in denying her Charter application by failing to consider the cumulative effect of the evidence in determining whether she was detained when she made the admission and by misapprehending material evidence. For reasons that follow I would dismiss Ms. Ceballo’s conviction appeal. MATERIAL FACTS [6] Upon her arrival, Ms. Ceballo was the subject of a Canada Border Services Agency Target Synopsis (known as a “lookout”). The computerized lookout provided her flight details and identified her as a target for “contraband”. The lookout alluded to her criminal record for fraud, noted that she was travelling alone on a “go-show ticket” after not having travelled since 2010, that she had been on a five day trip to a “country of high interest for contraband smuggling”, and that she had been the “very last person to board the plane sequentially”. [7] The lookout included the following requests to the border service officials who would be dealing with Ms. Ceballo: (1) “Please conduct a progressive secondary examination to build any reasonable grounds, considering all methods of concealment such as body packing, ingestion and stuffing”; (2) “Please utilize all resources such as XRAY and ION”; and (3) “Please verify means and funding of travel – and purpose for last minute travel”. [8] BSO Gilbey was responsible for “roving” among arriving passengers in the baggage hall. He spoke briefly with Ms. Ceballo and marked her arrival card for a secondary customs inspection. After she claimed her luggage, he conducted the secondary inspection, which commenced at 10:24 p.m. [9] In his evidence-in-chief, BSO Gilbey testified that Ms. Ceballo remained calm during that inspection. He questioned her about the purpose and funding for her travel. She told him she had stayed alone in a resort. She said her boyfriend purchased the ticket for her because she was upset about having miscarried a child, an explanation BSO Gilbey found to be “an odd story”. He asked her what she and her boyfriend did for a living and about their income. He examined the contents of her purse, which were unremarkable, and conducted an “ion” swab at 10:33 p.m. The ion swab came back with a positive reading for cocaine. This reading signified that the purse had been in contact with cocaine at some undeterminable point in time. BSO Gilbey advised Ms. Ceballo of the result of the ion test and she told him she had borrowed the purse from a friend. She said she did not use drugs. At 10:42 p.m. he asked Ms. Ceballo if she had drugs with her today, and she replied “no”. At 10:47 p.m., while he was examining her luggage, BSO Gilbey asked Ms. Ceballo “straight out if she had drugs strapped to her body”. He testified that he asks such direct questions to gauge a traveller’s reaction. It was at this point that Ms. Ceballo admitted that she was in possession of drugs, and he arrested her. [10] During cross-examination, trial counsel attempted to secure complete details about the questions BSO Gilbey had asked. This effort met with limited success because BSO Gilbey testified that he could not remember questions that produced the information he had recorded. BSO Gilbey also confirmed that there was a gap of approximately five minutes in his notes, between 10:42 p.m. to 10:47 p.m., and testified that he could not recall if there was conversation during that five-minute period. He “believed” he was examining her baggage at the time. [11] When the suggestion was put to BSO Gilbey that he had told Ms. Ceballo that she would be searched, he responded that “[i]t’s fair to say that [he] might explain the customs process to her”, including his authority to conduct more invasive searches under s. 98 of the Customs Act , R.S.C. 1985, c.1 (2nd Supp.) (“s. 98”). He could not recall specifically having done so but testified that this was his practice. He responded to the suggestions that he might have told Ms. Ceballo that she was going to be subject to a pat down by saying “I don’t recall”. When it was suggested to him that he might have told Ms. Ceballo that she would be subject to a strip search he said “[i]t’s possible”, but added that “[g]enerally, it’s explaining the process”. When the suggestion was repeated that he possibly told Ms. Ceballo she was going to be subject to a more invasive search he answered, “It’s possible that I explained the process.” [12] BSO Gilbey was asked periodically during his testimony about his level of suspicion that Ms. Ceballo was committing a criminal offence, and whether he believed he had grounds to detain her pursuant to s. 98. BSO Gilbey denied having a particularized or strong suspicion that Ms. Ceballo was committing an offence, or sufficient grounds to detain Ms. Ceballo prior to her admission that she had cocaine on her body. He explained why individual indicia of possible criminality that he discovered prior to her arrest were not significant. For example, he testified that individuals placed on lookout may simply be wanted on a warrant, and many innocent people are coded that way; innocent people often have odd stories or “strange answers”; and he often fails to find narcotics after a positive ion test result, and the main impact of the ion test was to give him another question to ask. [13] During submissions, trial counsel challenged the credibility of BSO Gilbey’s testimony. He submitted that BSO Gilbey had “designed” his notes to avoid scrutiny and was “refusing to say what he said to [Ms. Ceballo]” during the five-minute time-period when he took no notes. He asked the trial judge to infer that somewhere during the five-minute gap the questions BSO Gilbey asked Ms. Ceballo “got more harsh and more specific”. He also challenged the credibility of BSO Gilbey’s testimony that he did not believe he had strong suspicion or grounds to detain Ms. Ceballo until she admitted that she had drugs strapped to her body. [14] The trial judge did not accept trial counsel’s submissions. She found that although BSO Gilbey’s notes were deficient, his testimony was credible. She recognized the gaps in his testimony but said, “[I]t is the applicant who must establish that she was detained.” She found that the evidentiary record did not support a finding that Ms. Ceballo was detained. She accepted BSO Gilbey’s testimony that he did not believe subjectively that he had grounds to detain Ms. Ceballo for a Customs Act search, and found that he “lacked grounds, objectively, to detain [her] prior to her admission to having narcotics.” She held, as well, that there is “no evidence that [he] conducted anything other than a normal and routine screening procedure”. She therefore denied the Charter application and ultimately convicted Ms. Ceballo. ISSUES [15] Ms. Ceballo submits that the trial judge erred in finding that she was not detained prior to arrest because she examined the indicia of detention in a piecemeal fashion rather than evaluating the cumulative impact of the evidence. [16] She also argues that the trial judge misapprehended the evidence by making a finding that BSO Gilbey said that “he does not recall, what, if anything further he asked in the period between 10:42 and 10:47 p.m.” She submits that the trial judge further misapprehended the evidence by finding that BSO Gilbey testified that “he did not recall reading the lookout, although he believed he had.” [17] Although Ms. Ceballo marshalled the alleged misapprehensions of evidence in support of her claim that the trial judge did not consider the indicia of detention cumulatively, it is convenient to address the issues as follows: A. Did the trial judge err by considering the evidence piecemeal? B. Did the trial judge misapprehend evidence? ANALYSIS The Relevant Legal Principles [18] As Doherty J.A. explained in R. v. Jones (2006), 81 O.R. (3d) 481 (C.A.), at paras. 30-35, given the importance of Canada’s effective control over its borders, no one entering Canada reasonably expects to be left alone by the state. As a result, routine inspection of persons entering Canada is not stigmatizing, and principles of fundamental justice permit greater interference with personal autonomy and privacy than would ordinarily be acceptable in a free and democratic society. The concept of detention is tailored to this reality. [19] Accordingly, the restraint a traveller is under to either comply satisfactorily with a customs inspection or be denied entry into Canada does not constitute detention: R. v. Kwok (1986), 31 C.C.C. (3d) 196 (Ont. C.A.), at p. 207. Nor is it enough to trigger a detention that the traveller has been subjected to “secondary screening”: Dehghani v. Canada (Minister of Employment and Immigration) , [1993] 1 S.C.R. 1053, at p. 1073. In the context of a traveller crossing the border, there are two alternative ways of identifying when the line has been crossed and a detention will occur. [20] The first approach is settled and non-controversial. It “depends primarily on the intrusiveness of [the] state action”: Jones , at para. 32. Barnes J. described the “intrusiveness test” with clarity in R. v. Sinclair , 2016 ONSC 877, at para. 43, aff’d 2017 ONCA 287 (“ Sinclair (ONCA) ”), leave to appeal to SCC refused, 37625 (November 23, 2017), by observing that “when the questioning and searches become less routine and more intrusive, the person is detained and that individual’s s. 7, 8 and 10(b) Charter rights are engaged.” [21] The line between detention and routine investigation is not always bright. However, in assessing whether a border investigation has reached the point where it is intrusive enough to trigger a detention, it must be appreciated that given the importance of border security, a robust concept of permissible “routine forms of inspection” operates. For example, the use of x-rays and ion scans capable of detecting drugs are routine forms of inspection: R. v. Peters , 2018 ONCA 493, at paras. 3, 11; Sinclair (ONCA) , at para. 6. So, too, is questioning related to the contents of luggage, or the provenance of those contents: Peters , at para. 3. Similarly, questions intended to expose possible contraband or immigration issues, including questions about marital or employment status, income, or the purpose of a trip, or questions intended to probe the credibility of the answers a traveller has provided, are routine: see Jones , at paras. 20-21, 37; R. v. Sahota , 2009 CanLII 44280 (Ont. S.C.), at para. 6. [22] By contrast, searches conducted pursuant to s. 98 of the Customs Act , including strip searches, body cavity searches, and “bedpan vigils”, are intrusive and will trigger a finding of detention: R. v. Simmons , [1988] 2 S.C.R. 495, at p. 521; R. v. Monney , [1999] 1 S.C.R. 652. Of more immediate relevance to the instant case, questions cross the line and become intrusive when they amount to a coercive or adversarial interrogation, contain improper inducements, or exert unfair pressure: Jones, at paras. 41-42; R. v. Darlington , 2011 ONSC 2776, at paras. 75, 79. [23] In Jones , Doherty J.A. recognized that there may be a second approach for identifying detention. Speaking in the context of investigative questioning, he left open the possibility that, although it will not be enough to establish detention that the border services officer has targeted the traveller for criminal investigation, if the border services officer has “decided, because of some sufficiently strong particularized suspicion, to go beyond routine questioning of a person and to engage in a more intrusive form of inquiry, it may well be that the individual is detained when subject to that routine questioning”: Jones , at para. 42. [24] In Sinclair (ONCA) , this court appears to have applied this approach in an endorsement decision. It upheld Barnes J.’s conclusion that a detention occurred when a border services officer asked what was arguably a routine question in circumstances where objectively the border services officer had “sufficiently strong particularized suspicion” and subjectively “decided to conduct a more intrusive inquiry”. It also approved of his reasoning, quoting the heart of Barnes J.’s analysis, at para. 9: In the present case, upon an objective review of all the circumstances of the interaction between Officer Rodgers and Ms. Sinclair, I conclude that Officer Rodgers had a sufficiently strong particularized suspicion to warrant a more intrusive form of inquiry after she showed Ms. Sinclair the x-ray images and Ms. Sinclair asked, “What’s in it?” At this point, on the basis of her sufficiently strong suspicion, Officer Rodgers decided to conduct a more intrusive inquiry. [25] In Peters , the trial judge used the alternative test that Doherty J.A. left open in Jones to determine whether Mr. Peters was detained. On appeal, again in an endorsement decision, a panel of this court described this more subjectively focused detention inquiry as “the correct analysis”: Peters , at para. 8. Similarly, in Sahota , at para. 48, van Rensburg J., as she then was, found the accused to have been detained once the border services officer concluded he had reasonable and probable grounds to arrest him after finding suspicious bulges in a suitcase and x-raying the suitcase. [26] It may be that for a detention to occur, another step is required. Namely, in addition to having a sufficiently strong particularized suspicion, and a subjective decision to engage in an intrusive investigation or detain the subject, the border services officer may have to engage in some action that makes that intention known to the traveller. This requirement is consistent with the foundation for the constitutional concept of detention, resting as it does in the physical or psychological detention of the accused: Simmons , at pp. 515-21. There is also authority, including the decision of this court in Kwok , to support the need for some act by the border services agent that indicates their intention to engage in more intrusive investigation or to detain the subject. [27] In Kwok , the Crown conceded that the appellant, who was ultimately found to be importing heroin, was detained when a senior immigration officer decided to detain him. Finlayson J.A. could not accept that position. He stated, at p. 207: Surely there must be some action on the part of the immigration authorities to indicate that the restriction on the immigrant’s freedom has gone beyond that required for the processing of his application for entry . In my opinion, the appellant was detained when [the senior immigration officer], having filled out the detained convention letter, invited the appellant … into his office with the intention of advising them of his decision to detain them (emphasis added). [28] In Dehghani , at p. 1068, Iacobucci J., writing for the court, cited this passage from Kwok with apparent approval. He then distinguished Kwok on the basis that “there was no ‘action on the part of the immigration authorities to indicate that the restriction on [the appellant’s] freedom ha[d] gone beyond that required for the processing of his application for entry’”: Dehghani , at p. 1072. [29] The need for some action by the border services agent that demonstrates their decision to engage in more intrusive measures also finds support in Simmons . There Dickson C.J. found, for a majority of the court, that a traveller was detained once informed that she would be strip searched. He noted, at p. 521, that when this occurred, “the appellant could not have refused and continued on her way.” He made a similar finding in the companion case of R. v. Jacoy , [1988] 2 S.C.R. 548, at pp. 557-58, that the detention was triggered when the accused was ushered into an interview room for the purposes of conducting a search. In each case the trigger for detention was not the formulation of the subjective intention to engage in intrusive investigation, but rather the steps that had been taken to commence the intrusive investigation, which steps would have made the subject aware that the border services officer had decided to go beyond a routine investigation. [30] I need not attempt to resolve the full reach of this second, alternative mode of identifying detention. As I will explain, in my view even if no conduct by the border services agent is needed to trigger a detention where objectively the border services agent has a sufficiently strong particularized suspicion, and has made the subjective decision to engage in an intrusive investigation, the trial judge did not err in this case in finding that Ms. Ceballo was not detained. A. Did the trial judge ERR by considering the evidence piecemeal? [31] I agree that it would be erroneous for a trial judge to approach a detention determination by looking at the indicia of detention piecemeal or individually, without considering the evidence cumulatively: R. v. Chehil , 2013 SCC 49, [2013] 2 S.C.R. 220, at paras. 67-69; Darlington , at para. 75. However, in my view the trial judge did not do so. [32] In support of her position, Ms. Ceballo relied on the fact that the trial judge addressed the key indicia of detention serially – in this case the lookout, the ion scan, and the conversation. This, however, is not a dependable indication that the trial judge has failed to consider those indicia cumulatively. The significance of each individual indicia of detention must be assessed individually before their cumulative effect can be gauged. Here the trial judge properly described the task before her, noting explicitly that determining whether a traveller “is detained for constitutional purposes, is fact-specific and includes consideration of all of the evidence”. [33] Ms. Ceballo’s central submission in support of this ground of appeal appears to be that despite what the trial judge said, she must have evaluated the evidence piecemeal because if she had evaluated the evidence cumulatively she would inevitably have concluded that Ms. Ceballo was detained. Again, I disagree. [34] I am not persuaded that a cumulative view of the evidence reasonably required the trial judge to find that BSO Gilbey went beyond routine investigation and engaged in a more intrusive form of inquiry. [35] In considering whether routine forms of inspection were exceeded the trial judge was correct to emphasize that the burden was on Ms. Ceballo, the Charter claimant, to establish that she was detained. Yet Ms. Ceballo chose not to present evidence on this issue. The only material evidence the trial judge was left with came from BSO Gilbey, and that evidence established only routine searches of Ms. Ceballo’s belongings and routine questioning. It may well be that the line would have been crossed if Ms. Ceballo had proved that during questioning BSO Gilbey told her that she was going to be strip searched. However, BSO Gilbey’s concession during cross-examination that it was possible he said this to her is not affirmative evidence that he did so, and in any event, his evidence, fairly interpreted, was that he believed he only described his s. 98 powers but did not threaten to use them. Nor would it have been appropriate for the trial judge to speculate that some other unproven intrusive form of investigation may have occurred during the five-minute period during which BSO Gilbey took no notes. She was correct in declining the invitation to do so. I see no error in the trial judge’s determination that Ms. Ceballo failed to prove that BSO Gilbey exceeded routine forms of investigation. [36] Nor am I persuaded that the only reasonable conclusion that the trial judge could have come to was that objectively, BSO Gilbey had formed a “sufficiently strong particularized suspicion” and that he had subjectively decided to engage in an intrusive investigation. [37] With respect to the strength of BSO Gilbey’s suspicion, I do not accept Ms. Ceballo’s apparent premise that targeting a traveller for investigation for a specific kind of offence amounts to a particularized suspicion. Whether it does so will depend on the cogency of the information supporting the suspicion. As Doherty J.A. pointed out in Jones , at para. 40: In a general sense, everyone who is questioned at the border and whose luggage is examined is the target of an investigation…. It only makes good sense that those responsible for enforcing border regulations will focus their routine questions and searches on persons who have for some reason attracted their interest. [38] There is therefore an important difference between having general suspicion that a person seeking entry could be engaged in criminality and having the sufficiently strong particularized suspicion that can open the door to a finding of detention. For this reason, the mere fact that the traveller has been targeted for investigation, even for a suspected general category of offence, does not constitute a sufficiently strong particularized suspicion: Sahota , at para. 47. [39] In my view, the trial judge was entitled to find that Ms. Ceballo was not detained. The tip or lookout was not particularly significant. It disclosed only that Ms. Ceballo presented with a general profile that warranted attention. Similarly, it was open to the trial judge on the evidence before her to find, as she did, that the ion scan result did not have particular significance. The trial judge also considered the exchange that occurred between BSO Gilbey and Ms. Ceballo. She was entitled, on this record, to conclude that prior to Ms. Ceballo’s admission that she had cocaine in her possession BSO Gilbey did not have objective grounds to detain her. Although it would have been preferable for the trial judge to have said expressly that she was not satisfied that BSO Gilbey had a sufficiently strong particularized suspicion to trigger a detention, that was the clear purport of her comments, and I would take no issue with that outcome. [40] Similarly, the trial judge was entitled to accept BSO Gilbey’s testimony that he did not believe subjectively that he had grounds to detain Ms. Ceballo prior to her admission that she had cocaine strapped to her body. Ms. Ceballo has not challenged that factual finding, and during oral argument, duty counsel made clear that BSO Gilbey’s credibility was not an issue in this appeal. Once again, although it would have been better had the trial judge spoken directly about whether BSO Gilbey had formed an intention to engage in more intrusive investigation prior to Ms. Ceballo’s admission, it is clear that she was not persuaded that he had. [41] I would therefore dismiss this ground of appeal. B. Did the trial judge misapprehend evidence? [42] I do not agree with Ms. Ceballo’s submission that the trial judge erred by misapprehending evidence. [43] The trial judge’s finding that BSO Gilbey “said he does not recall what, if anything further he asked in the period between 10:42 and 10:47 p.m.” is true to his testimony. The fact that BSO Gilbey was prepared to concede the possibility that lines of conversation suggested to him may have occurred is not evidence to the contrary. Indeed, as he explained in his testimony, the reason BSO Gilbey left open the possibility that he had discussed the Customs Act process was that he could not remember if anything had been discussed, and this is something that he would ordinarily discuss. [44] Things are modestly more complex with the trial judge’s comment that BSO Gilbey “testified that he did not recall reading the lookout [or Target Synopsis], although he believed that he had.” This finding accurately describes the testimony that BSO Gilbey gave during his evidence-in-chief. But it does not accurately describe what BSO Gilbey said in cross-examination when he agreed with the suggestion that he read the “target synopsis” before he spoke to Ms. Ceballo. [45] It may therefore be that the trial judge misapprehended the evidence by failing to consider BSO Gilbey’s answers in cross-examination, but it is also possible that she may simply have preferred his evidence-in-chief. It is controversial whether I should make a finding that the trial judge misapprehended the evidence in the circumstances. But I need not decide. A misapprehension of evidence will not lead to a miscarriage of justice unless it is a mistake “as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction”: R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541; R. v. Lohrer , 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. Even if the trial judge did misapprehend the evidence as to whether BSO Gilbey read the lookout, that misapprehension did not play an essential role in the reasoning process. It would have done so if the trial judge had decided that the lookout should not factor into her determination of whether BSO Gilbey had a sufficiently strong particularized suspicion because he was unsure whether he even read it. But that is not how the trial judge proceeded. She considered the lookout in coming to her conclusion. In particular, she accepted BSO Gilbey’s testimony that the lookout was not significant, and reasoned correctly, that “a person is not detained simply because they are flagged for secondary inspection because of a lookout”. [46] The trial judge did not err by misapprehending evidence. CONCLUSION [47] I would dismiss Ms. Ceballo’s conviction appeal. Released: November 9, 2021 “A.H.” “David M. Paciocco J.A.” “I agree. Alexandra Hoy J.A.” “I agree. Gary Trotter J.A.” [1] As I will also explain below, it may be the case that in order to establish detention based on a strong particularized suspicion, it must be shown that the person conducting the customs inspection in some way communicated to the subject that the decision to detain them or subject them to more intrusive investigation has been made. [2] The conviction appeal was an inmate appeal, and Ms. Ceballo was generously and ably assisted by duty counsel on her behalf. It is convenient to refer to the arguments made on appeal as her submissions.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. C.S., 2021 ONCA 802 DATE: 20211108 DOCKET: M52911 (C69745) Thorburn J.A. (Motions Judge) BETWEEN Her Majesty the Queen Respondent (Responding Party) and C.S. Appellant (Applicant) Megan Savard, for the appellant Jennifer A.Y. Trehearne, for the respondent Heard: November 5, 2021 by video conference ENDORSEMENT OVERVIEW [1] When the appellant was 21 years old, he was involved in a physical confrontation with a 13-year-old complainant (the “first complainant”) who called the police. He was apprehended and charged with assault. During the police investigation, police learned of the appellant’s alleged sexual relationship with the first complainant and the exchange of sexual material with a second, 12-year-old complainant (the “second complainant”). [2] The trial judge found the appellant guilty of having intercourse with the first complainant and punching her during an altercation. The trial judge also found that he sent a photo of his penis to the second complainant and had received a picture of her buttocks. [3] The appellant was convicted by judge alone of (1) sexual interference, (2) possession of child pornography, (3) making sexually explicit material available to a child, and (4) assault. He received a sentence of six years. [4] The appellant appeals both his conviction and sentence. [5] On this motion, he seeks bail pending appeal. THE TEST TO BE MET TO OBTAIN BAIL PENDING APPEAL [6] To obtain bail pending appeal pursuant to s. 679(3) of the Criminal Code , R.S.C. 1985, c. C-46, the appellant must establish that: (1) the appeal is not frivolous (s. 679(3)(a)); (2) he will surrender into custody in accordance with the terms of the order (s. 679(3)(b)); and (3) detention is not necessary in the public interest (s. 679(3)(c)). The appellant has the burden of establishing each of the three release considerations, on the balance of probabilities: R. v. Oland , 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 19. ANALYSIS OF THE ISSUE [7] The Crown concedes that the appellant has met his onus to show he will surrender into custody as required with the imposition of the appropriate terms of bail, and that his detention is not necessary in the public interest. [8] The only question is whether the appeal exceeds the frivolous threshold. [9] In Oland, at para. 20, Moldaver J. acknowledged that the “not frivolous” test sets a very low bar. It requires only that an applicant show that the proposed grounds of appeal raise arguable issues, and that the appeal is not doomed to fail: R. v. Manasseri, 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38; R. v. Xanthoudakis, 2016 QCCA 1809, 343 C.C.C. (3d) 291, at paras. 4-5. [10] An appeal is not frivolous if the proposed grounds raise arguable issues of a viable ground of appeal that would warrant appellate intervention if established: Manasseri, at para. 38. [11] In this case, the grounds of appeal are focused on the trial judge’s alleged failure to consider and/or appreciate the appellant’s significant intellectual disability in convicting the appellant and determining the appropriate sentence. In particular, the appellant claims that the trial judge erred by: a) engaging in impermissible speculation by concluding the appellant had an operating mind in the face of expert evidence to the contrary; b) finding that the appellant’s statements to police were voluntary without considering and/or appreciating the effect of the appellant’s significant intellectual disability; c) failing to take the appellant’s intellectual disability into account at all in assessing his credibility; and d) failing to consider his intellectual disability as a mitigating factor on sentence. [12] At trial, the appellant called a clinical and forensic psychologist to give evidence on the appellant’s cognition and IQ. The appellant’s expert evidence was the only expert evidence proffered to address the appellant’s intellectual functioning and its effect on his comprehension and social perception. The case against the appellant [13] At the outset of trial when asked how he wished to plead to the charges, the appellant replied “yes”. Counsel asked for an adjournment to speak with her client and after speaking with his counsel, the appellant advised the court that he was pleading not guilty to each of the charges. [14] At trial, the first complainant testified that she and the appellant had a sexual relationship. The second complainant did not testify. The appellant denied the sexual relationship and exchange of sexually explicit material. [15] The primary evidence for the Crown came from two videotaped police statements which the Crown successfully applied to introduce at trial. In the tapes, the appellant admitted that he had had a sexual relationship with the first complainant knowing she was 13 years old. He also admitted that he sent a picture of his erect penis to the second complainant knowing she was underage and that he received a photograph of her buttocks. [16] The appellant said he only admitted these things as the interview process had confused him and police used manipulative tactics such as suggesting that “it was no big deal for a 20-something-year-old man to have sexual relations with a 13-year-old girl.” [17] It was not disputed that the appellant had been in special education since grade seven, had left high school and was on social assistance as a result of his cognitive disability. The voir dire to determine voluntariness of the appellant’s statements to police [18] In support of the appellant’s voir dire to challenge the admissibility of the police statements, the appellant called a clinical and forensic psychologist to testify about the appellant’s level of comprehension, social perception and intellectual ability. [19] She was qualified on consent to give opinion evidence as to his cognition and IQ. The Crown elected to call no expert evidence to address the appellant’s intellectual functioning and its effect on his comprehension and social perception. The expert’s examination in chief [20] The expert testified that the appellant’s IQ was only 50, he was below “borderline functioning”, his verbal comprehension and perceptual reasoning were in the extremely low range, and his social perception fell at the 0.1 percentile. The expert testified that his adaptive skills were “alarmingly low” and suggested that his intellectual functioning would affect many of his cognitive abilities: [T]here are going to be difficulties in comprehension, especially as things become a little more complex or nuanced. When IQ is so low it affects so many cognitive abilities and sort of that, you know, being able to process information, being able to make accurate judgments. All of these things become affected across the board when IQ is low. So, I’m not surprised that he struggled in understanding. [21] The expert went on to say that people like the appellant may present at a higher level of functioning than their actual understanding: [I]individuals with low intellectual functioning … learn to adapt, so to speak, over the years. They can learn to, sort of, parrot and mimic and say things, but that doesn’t necessarily mean that their level of understanding matches how they may present. [22] The expert also opined that people with low IQs like the appellant are more vulnerable to manipulation and being duped. Cross-examination of the expert [23] In cross-examination, the expert further testified about the fact that people like the appellant may present at a higher level of functioning than their actual understanding: So, again, at a higher level he could understand that that’s a rule that you don’t have sex with 13-year-olds but, again, the sort of assumptions and presumptions that could be made based on his level of cognitive functioning could turn that around in a way and, for example, and I don’t know that this is the case for [the appellant] but I didn’t try to have sex with her, she tried to have sex with me and that makes it okay. So, when someone is that low functioning, they are thinking so concretely that it’s possible that that assumption could be made, which tends to get them into trouble. [24] She testified however, that she did not review the appellant’s police statements and would be unable to comment on the nuances of how the appellant communicated in the statements and how that related to the testing, as it would be “more … for a neuropsychologist to review at that level.” [25] The expert was asked in cross-examination about the notion of malingering. She explained that “malingering involves intentionally presenting yourself as sort of worse off, so to speak, than you are.” When asked whether test subjects like the appellant could malinger and skew test results, the expert replied: [T]o malinger cognitive scores when they’re already at floor levels, it just doesn’t make sense. [26] The expert used score sheets when evaluating the appellant, but indicated that she was reticent to give them to Crown counsel because they contained protected third-party information: [I]t’s my duty to protect third-party information according to the test producers and according to the Canadian Psychological Association. So, what belongs to [the appellant] are his scores, the test protocols with the questions are protected and they’re protected to maintain the integrity of the tests and to maintain the safety of the public. So, there’s a reason why only psychologist[s] can purchase, administer, score, and interpret these tests. [27] The appellant’s counsel objected to Crown counsel’s assertion that the expert had refused to hand over the scoring sheets, noting she had provided them to another psychologist retained by Crown counsel: I object to the foundation of this question because [counsel] knows that, in fact, [the expert] did hand over her scoring sheets to another psychologist. [28] Crown counsel also questioned the reliability of information provided in the questionnaire completed by the appellant’s parents and used by the expert in the following exchange with the expert witness: Q. [Y]ou’re relying upon these folks to give honest answers to your testing and if you’ve asked them things that maybe are a little bit incredulous, their responses, isn’t that a concern? A. Okay. Should we focus on some of the other very negative things that they said about as well? Q. ...but I just want to point to whether there’s some red flags in your interview with them that would cause you to say, I wonder if these people are completely, honestly, reporting about their son to me, the same ones I’m relying upon for this third test. A. So, yes, that’s always a concern. There aren’t effort measures or measures of malingering for parents that I’m aware of. A: [W]hat I’m assessing is his adaptive functioning and given that he’s been living at home, primarily, for the past few years, that they were the best people to be able to fill out the questionnaire. Q. But them filling out the questionnaire, that’s their story and that’s their view of how either, for real, how [the appellant] is in the house on a daily basis, or how they want to portray it to you how [the appellant] is in the house on a daily basis. A. Correct. The trial judge’s decision on voluntariness and assessment of the expert’s opinion evidence [29] The trial judge admitted the expert evidence but gave it little weight. He discounted the expert evidence as he held that the expert took a “casual approach” to the assessment of malingering and refused to hand over her score sheets. [30] Although the expert testified that she did not have any significant concerns about malingering because the evidence from the appellant’s health practitioners indicated that the appellant had been performing at this level for nearly a decade, the trial judge held that “further exploration of this issue by way of additional testing might have been more in keeping with the traditional scientific method rather than simply relying on anecdotal advice from a colleague.” [31] The trial judge also found the expert to be “argumentative” based on the above exchange concerning the questionnaire completed by the appellant’s parents. He held that her response was “not suggestive of the independent perspective generally expected of an expert witness.” [32] The trial judge concluded that the police video statements were voluntary because he was satisfied the appellant understood what he said and what was said to him: I have watched each of those videos twice, I poured over the transcript of those two videos extensively. Having done so, I am fully satisfied that [the appellant] understood everything he said to Sergeant McGrath and everything that Sergeant McGrath said to him. [33] In his reasons for judgment, the trial judge held that “There is nothing in his words or demeanour … to suggest that he was confused by the questions or the process.” In so doing, the trial judge did not allude to the appellant’s very low cognitive abilities. [34] In his reasons for judgment, the trial judge assessed the appellant’s evidence with little reference to the expert evidence. He held that the appellant appeared capable of challenging suggestions put to him and did not appear to have been duped: [The appellant] took the stand on two occasions in the course of this proceeding, once in the course of the s. 276 application and then again during the trial proper. In all, he was on the stand in excess of two court days, some eight to ten hours. He also participated in two separate video interviews with the police which together were approximately one and a half hours in length. I watched [the appellant] very closely while he testified in court. I have watched each of the video interviews twice and have perused the transcripts of those interviews at length. At no point in those videos or during the course of his viva voce evidence before me did I have the sense that [the appellant] was being duped, or succumbing to suggestions, in fact quite the contrary. In my view, [the appellant] fully engaged with Sergeant McGrath in the course of each of the police interviews. At no time did [the appellant] indicate to Sergeant McGrath that he was either confused or did not understand the questions. When Sergeant McGrath made suggestions he did not agree with, [the appellant] challenged him without hesitation and even corrected him on occasion. To be sure, [the appellant] also made certain admissions in the course of those interviews and while he may now regret having done so, it did not appear to me that he made those admissions as a result of gullibility or dupability. Those statements were thoroughly vetted during the course of a five day voluntariness voir dire and were ultimately admitted into evidence as voluntary. When confronted with a highly experienced Crown Attorney who engaged him in a very lengthy and thorough cross-examination, [the appellant] was never once shy about standing his ground or disagreeing with suggestions put to him by the Crown. Again, I saw nothing that made me think [the appellant] was succumbing to suggestion or being duped. [35] In his reasons for sentence, the trial judge held that he was not satisfied that the appellant’s intellectual challenges rendered him unaware of the potential consequences of his actions and decisions: I also take into account some of the evidence given by [the appellant] during the course of the trial, that being as follows: (1)         [The first complainant] testified that [the appellant] told her that he could no longer be with her because she was telling people about their relationship and their age difference. (2)         [The appellant] testified that he and [the first complainant] agreed not to tell anybody about their relationship because he knew it was wrong to be having sex with [the first complainant]. (3)         [The appellant] testified that he knew that [the first complainant] was, in his words, “jailbait”. (4)         In one of his statements to police [the appellant] acknowledged that he knew the age of consent to be sixteen. (5)         [The appellant] also told police that he had sexual intercourse with [the first complainant] after finding out she was only thirteen. (6)         In the course of his testimony [the appellant] said “of course I would lie to a cop.” In the face of evidence such as that, and in the absence of any clear indication by [the expert] that [the appellant] does not appreciate the consequences of his actions, I am simply unable to find that [the appellant]’s intellectual challenges operated in such a way as to render him unaware of the potential consequences of the actions and decisions he took which resulted in him being brought up before this court. [36] The trial judge therefore rejected the appellant’s submission that the appellant’s intellectual disability reduced his moral culpability. [37] The trial judge concluded that a reduction in sentence was not available because the appellant’s intellectual disability did not “[affect] him in such a way that he is rendered unaware of the consequences likely to follow from his actions.” The issues the appellant intends to raise on appeal [38] The appellant claims that one of the legal issues he will raise on appeal is that it is a legal error for judges to criticize an expert for lack of independence based solely on their demeanour in court (in this case, the assertion that the expert was argumentative). [39] The appellant claims this in turn led the trial judge to further err by placing little or no weight on the expert’s opinion and by failing to take into consideration the appellant’s cognitive disability when determining the appellant’s statements to police were voluntary, despite the fact that the expert opined that “99.9 percent of the population in that age group would overall have better cognitive and adaptive functioning” than the appellant. [40] The appellant claims the combined effect of the fact that it was agreed that the appellant was severely intellectually impaired, and the uncontradicted expert evidence that such individuals are often more easily manipulated, should have left the trial judge in reasonable doubt as to the voluntariness of his police statements. Instead, the trial judge relied solely on his own lay opinion that from watching the police videos and reviewing the transcripts, the appellant appeared to understand what was being said during the interviews. [41] The appellant claims this had serious implications for the voir dire , the verdict and the sentence. The appellant claims it also had the effect of reversing the Crown’s onus to show the appellant’s statement to the police was voluntary: R. v. Oickle , 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 30. The appellant also seeks leave to appeal the sentence on the basis that the trial judge failed to consider his intellectual disability as a mitigating effect on sentence. [42] The Crown cites no authority for discounting the evidence of an expert witness based only on their demeanour. CONCLUSION [43] The issues raised by the appellant about how to use evidence of limited cognitive ability in an assessment of the voluntariness of a statement, whether expert evidence should be discounted based on the trial judge’s assessment of demeanour, and whether the trial judge failed to consider whether the appellant’s disability had a mitigating effect on sentence, are not frivolous. If one or more of these arguments are successful on appeal, they could affect the outcome of the trial and/or the sentence. [44] For these reasons, the application for bail pending appeal is granted. The Crown and the appellant have agreed on the proposed terms of bail if the appellant is to be released, and an order is therefore issued in accordance with the terms of the draft Release Order filed. “J.A. Thorburn J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.  8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.  13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. R.G., 2021 ONCA 800 DATE: 20211110 DOCKET: C66650 Simmons, Lauwers and Pardu JJ.A. BETWEEN Her Majesty the Queen Respondent and R.G. Appellant Richard Posner and Fiona McNestry, for the appellant Michael Dineen, for the respondent Heard: October 20, 2021 by video conference On appeal from the conviction entered on November 1, 2018 and the sentence imposed on March 8, 2019 by Justice James F. Diamond of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant appeals from convictions on four counts of sexual assault and one count of assault upon his wife. He argues that the trial judge erred in his assessment of the complainant’s credibility, erred in rejecting the appellant’s evidence and erred in his use of cross-count similar fact evidence. We do not accept these arguments and dismiss the appeal. [2] The appellant and the complainant were married on April 19, 2015 in a traditional Punjabi arranged marriage. They had spent about 10 to 15 minutes together before both sets of parents agreed to the marriage. The complainant described an unremitting course of violent sexual and non-sexual assaults. Her every move was controlled and restricted, including the nature of her employment and the clothes she wore. She was not allowed any of the money she earned, her access to food was restricted and she was forbidden to use a cell phone to contact her own family. Police photographed the injuries to her body when she finally went to the police on the day she left the appellant. [3] In contrast, when questioned by police the appellant said it was a happy marriage and that there were no problems. He denied all of the assaults. At trial, the appellant’s position was that the allegations were ludicrous, that the complainant was lying, and that inconsistencies in her evidence showed that she could not keep her false stories straight. He largely admitted the degree of control exerted over the complainant’s daily activities. He testified at trial that their relationship had deteriorated, describing fights, arguments, and crying, and claimed that he decided to “let the complainant walk away from the marriage.” Principles governing appeals challenging a trial judge’s assessment of credibility [4] A trial judge’s findings of credibility are owed deference. As recently noted by the SCC in R. v. G.F. , 2021 SCC 2020, 459 D.L.R. (4th) 375 at para. 81: a trial judge’s findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, nor always available. Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. But, as this Court stated in Gagnon , at para. 20: Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. [5] This is particularly so where the trial judge had the advantage of 24 days of trial time and where the complainant was on the stand for over ten days, including 5.5 days of cross-examination. This trial judge was in a far better position to assess the credibility and reliability of the evidence than an appellate court reading a record. Leaving the marriage with honour [6] On appeal the appellant submits that the trial judge did not assess the central plank of his defence: that the complainant had a motive to fabricate false allegations of assault, so that she could leave the marriage with honour, in accordance with her traditions. In general, the appellant’s thesis is that according to Punjabi traditions, unless the complainant could establish that the marriage was not consummated or that she had been subjected to physical abuse, she could not leave the marriage with honour, and this would make it difficult for her to remarry within those traditions. [7] The trial judge questioned trial counsel as to whether he intended to call expert evidence to establish those traditions, and counsel responded that he did not intend to do so, but intended only to establish that the complainant and her own father adhered to those beliefs. The trial judge found that neither the complainant nor her father agreed with trial counsel’s suggestions as put to them in cross examination. This was a fair interpretation of their testimony. [8] The trial judge found the complainant to be an honest witness, who did her best to tell the truth. He found that she held off reporting the abuse to her family and police for several months because she had a “sincere and honest belief, or perhaps hope, that things would change and placed her faith in the marriage arranged by her parents. She had already endured one failed marriage, and very likely had no desire to see her second marriage fail as well.” [9] While the thesis of fabrication for the purposes of leaving the marriage with honour is emphasized on appeal, it had little prominence in submissions at trial. Trial counsel devoted only a couple of lines in otherwise lengthy submissions to the issue. [10] We see no basis to interfere with the trial judge’s conclusion that the complainant was an honest witness. The trial judge did go on to acquit the appellant of a number of the other counts on the indictment, as he was not convinced that the appellant had accurately conveyed the substance of what had occurred on those other occasions. There was some confusion as to what happened during the incidents upon which the appellant was acquitted, in a context, that featured multiple – almost daily – assaults over the course of several months. [11] The complainant’s evidence was powerfully corroborated by the photographs of her injuries, which she attributed to the appellant. Her evidence was detailed, graphic and compelling. Did the trial judge err in rejecting the appellant’s evidence? [12] The appellant argues that the trial judge erred in relying on his controlling behaviour and his attitude towards his wife to reject his testimony that the assaults did not occur. While he may have been a verbally abusive, uncaring and inattentive husband, this does not mean that he assaulted his wife. [13] The difficulty with this submission is that the ongoing assaults were part of the pattern of domination and control used to keep the complainant under the appellant’s and his parents’ thumbs. [1] [14] The trial judge noted “despite his testimony that he wanted his marriage to work, and was interested in making it a successful relationship, during most of his testimony R.G. seemed dismissive, nonchalant, aloof, arrogant and not genuine. Not only did he show little interest for the complainant, his testimony confirmed that little interest in her existed throughout the course of their marriage.” [15] Again, as the trial judge noted, the photographs of the complainant’s injuries, for which there was no other credible explanation, provided good reason to reject the appellant’s evidence. The lies the appellant told police regarding matters inconsistent with his trial testimony also provided a basis to reject his evidence at trial. [16] That the complainant left after only 12 weeks of marriage, although she had really wanted the marriage to work, supports her evidence about the appellant’s conduct, and also suggests that he was not telling the truth when he denied assaulting her. She would not have left unless the conditions in that household were truly intolerable. [17] We see no basis to interfere with the trial judge’s assessment that the appellant was not a credible witness. The findings of fact made by the trial judge were reasonably available to him on the evidence, and there was no material misapprehension of the evidence. [18] Nor did the trial judge reverse the burden of proof. He explicitly referred to the onus upon the Crown and applied the requisite standard of proof to acquit the appellant on some of the counts with which he was charged. Similar act evidence [19] The appellant acknowledges that a pattern of abusive conduct towards a single complainant may be admitted as proof of animus or to establish the nature of the relationship between the parties. He submits, however, that the trial judge erred by engaging in prohibited propensity reasoning by concluding that the trial judge reasoned that because the appellant committed one assault, he was likely to have committed another. We are not convinced that the trial judge engaged in this line of reasoning, but in any event, as this court observed in R. v. Batte , 49 O.R. (3d) 321 (C.A.) at para. 102: For example, if an accused is charged with assaulting his wife, evidence that the accused beat his wife on a regular basis throughout their long marriage would be admissible. Evidence of the prior beatings does much more than suggest that the accused is a bad person or that the accused has a general disposition to act violently and commit assaults. The evidence suggests a strong disposition to do the very act in issue – assault his wife.  In such cases, the jury is permitted to reason, assuming it accepts the evidence of the prior assaults, that the accused was disposed to act violently towards his wife and that he had that disposition on the occasion in issue. [20] Accordingly, the appeal is dismissed. “ Janet Simmons J.A. ” “ P. Lauwers J.A. ” “G. Pardu J.A.” [1] The trial judge convicted the appellant’s mother of assaulting the complainant and convicted both of the appellant’s parents of threatening the complainant with death.

COUR D’APPEL DE L’ONTARIO RÉFÉRENCE : Samson c. Terjanian-Baro, 2021 ONCA 808 DATE : 20211110 DOSSIER : M52877 (C67037) La juge Thorburn (la juge saisie de la motion) ENTRE Blandie Samson Requérante (Appelante) et Nora Terjanian-Baro Intimée (Intimée) Blandie Samson, en personne Fraser Dickson, pour l ’i ntimée Date de l’audience : le 5 novembre 2021 par visioconférence INSCRIPTION A. SURVOL [1] L’appelante demande une prorogation du délai pour présenter une motion à trois juges de la Cour d’appel de l’Ontario de la décision du juge de motion rendue le 4 octobre 2021, selon l’article 7(5) de la Loi sur les tribunaux judiciaires , L.R.O. 1990, chap. C.43 . [2] La juge de motion a rejeté la demande d'annuler l'ordonnance du greffier du 6 juillet 2021 rejetant l'appel pour cause de retard ainsi que les dépens de 750$. B. LE CONTEXTE FACTUEL [3] L’intimée, Mme Baro, était la cliente de l’appelante pendant une poursuite dans laquelle elle a eu gain de cause. Elle a opposé la demande au sujet des honoraires pour ses services. Elle a pris la position que l’appelante n’avait pas satisfait les critères établis par la loi et la jurisprudence justifiant l’annulation de l’ordonnance. [4] Maître Samson fait valoir que l'entente entre elle et l’intimée sur ses honoraires, incluait une somme forfaitaire de 30 000$. La liquidatrice a réduit le compte de Me Samson à 18 871$. [5] Me Samson a interjeté une motion à la Cour supérieure pour s’opposer à la confirmation du certificat de liquidation. Cette motion a été rejetée par la juge Champagne le 26 avril 2019. La décision de la juge de première instance [6] La juge Champagne a conclu que, même si l’accord entre Me Samson et Mme Baro stipulait un montant forfaitaire, que Me Samson a obtenu de bons résultats pour Mme Baro, et que Mme Baro avait la capacité de payer la somme forfaitaire, l'entente comprenait une somme forfaitaire pour l'appel, mais que l'appel n'avait pas procédé. Il n’y avait donc aucune erreur dans la décision de la liquidatrice. [7] Maître Samson a déposé un avis d’appel de la décision de la juge Champagne à cette cour le 18 juin 2019. [8] Il n’y avait aucune controverse entre les parties que l’appel de la décision de la juge Champagne devait être déposé à la Cour divisionnaire et non pas à la Cour d’appel. De plus, l’intimée a consenti à un transfert à la Cour divisionnaire, comme le confirme Me Dickson. La décision du greffier de la Cour d’appel d’annuler l’appel [9] Le greffier de la cour a avisé les parties qu’elles devraient déposer une motion demandant le transfert avec leur consentement respectif. [10] Maître Dickson a indiqué qu’il consentirait à la motion. Pourtant, dans sa lettre datée le 19 mai, 2021, il a indiqué que : Si vous avez l'intention de procéder de bonne foi, veuillez me revenir d'ici le vendredi 21 mai, en indiquant les mesures que vous avez prises et en fournissant une liste détaillée et précise de ce que vous attendez encore de notre part. Si tous vos documents ne sont pas déposés auprès de la Cour avant la fin des travaux le 2 juin 2021, nous nous opposerons à votre requête au motif du retard et demanderons à la Cour de rejeter la requête et l'action. [11] Les documents que l’appelante a soumis à la cour n’étaient pas suffisants, et le greffier lui a envoyé de nombreux courriels en expliquant qu’elle devrait soumettre tous les documents en même temps. Le greffier n’a reçu aucune réponse de la part de Me Samson après le 21 mai 2021, sachant la position de Me Dickson à-propos du délai. [12] Après plusieurs périodes de retard, le greffier a annulé l’appel le 6 juillet 2021. C. LA MOTION EN QUESTION [13] La motion devant la juge Harvison Young a été interjetée après que le greffier a annulé l’appel pour retard de perfectionnement. La règle 61.13 des Règles de procédure civile , R.R.O. 1990, Règl. 194 applique en l’espèce. Selon Sickinger c. Sickinger , 2017 ONCA 760, W.D.F.L. 5346, les critères sont les mêmes que ceux qui sont nécessaires pour obtenir une prolongation pour délai. Ils comprennent : 1. l’explication du retard; 2. la longueur du retard; 3. le préjudice à l’intimée; et 4. la justice de la cause. [14] La considération primordiale est la justice de la cause. Comme cette cour a constaté dans l’arrêt Sickinger , la justice de la cause exige une évaluation du fondement de l’appel. [15] L’appelante a soulevé plusieurs raisons pour expliquer le retard. Pourtant, la juge de motion n’a pas été convaincue que, vu ensemble, les raisons justifiaient l’accumulation de ces retards, et la longueur des retards pendant lesquels elle n’a pris aucune action pour avancer la motion de transfert. La juge de motion a expliqué que : En tant qu’appelante, c’était à elle de faire avancer l’appel. Ici, la seule chose qu’elle devait faire était de se conformer aux demandes du greffier de la Cour d’appel pour soumettre la demande du transfert à la Cour divisionnaire. En sa qualité d’avocate, on présume qu’elle est au courant des procédures, tel que la préparation d’une motion sur consentement. Je trouve que les raisons pour les retards ne sont pas fortes. D’ailleurs, elles ne justifient pas la durée des retards. Sa prétention que Me Dickson avait consentie à la motion de transfert n’aide pas sa cause. Comme le constate Me Dickson, il a consenti il y a deux ans au transfert de l’appel, mais il n’a pas consenti à un retard indéfini. De plus, le dossier démontre clairement que Me Dickson l’a avertie qu’il ne donnerait pas son consentement à une motion pour annuler l’ordonnance du greffier. [16] De plus, Me Dickson a soulevé que les retards ont causé du préjudice à sa cliente qui attendait depuis longtemps pour effectuer la décision de la liquidatrice. [17] Comme la juge de motion l’a dit, la décision était assujettie à une norme de contrôle fondée sur des motifs valables, et la justice de la cause favorise l’intimée aux dépens de l’appelante. D. CONCLUSION [18] Me Samson présente sa demande d’interjeter appel de la décision de la juge de motion hors temps. [19] La règle 61.16(6) des Règles de procédure civile exige qu’une personne qui demande, par voie de motion, l’annulation ou la modification de l’ordonnance d’un juge d’un tribunal d’appel en vertu du paragraphe 7 (5) ou 21 (5) de la Loi sur les tribunaux judiciaires le fait au moyen d’un avis de motion, dans les quatre jours qui suivent la date à laquelle l’ordonnance est rendue. Me Samson ne l’a pas fait dans les quatre jours. Au contraire, elle n’a pas demandé l’annulation de l’ordonnance de la juge Harvison Young datée du 4 octobre, avant le 13 octobre. [20] Je ne vois aucune raison pour accorder une prorogation du délai ni de permettre à Me Samson d’interjeter appel de la décision rendue le 4 octobre 2021, car il n’y pas de raison valable pour expliquer le délai portant à la décision du greffier d’annuler l’appel le 6 juillet 2021, ni du délai en interjetant appel de la décision de la juge de motion. De plus , je ne vois aucune erreur faite par la juge de motion, et la justice de la cause favorise l’intimée aux dépens de l’appelante. [21] Pour ces motifs, la motion est rejetée. « J.A. Thorburn j.c.a. »

COURT OF APPEAL FOR ONTARIO CITATION: Lockhart v. Lockhart, 2021 ONCA 807 DATE: 20211112 DOCKET: C68973 Fairburn A.C.J.O., Roberts J.A. and Van Melle J. ( ad hoc ) BETWEEN Barbara Lockhart personally and in her capacity as attorney for property of June Lockhart Applicant/Moving Party/Responding Party (Respondent) and Robert Lockhart personally and in his capacity as attorney for property of June Lockhart Respondent/Responding Party/Moving Party (Appellant) and June Lockhart personally and in her capacity as named Estate Trustee of the Estate of Frank Lockhart, deceased, and Christine Lockhart Respondents Robert Lockhart, acting in person Matthew Rendely and Bryan Gilmartin, for the respondent Jacob Kaufman, for the Estate Trustee, CIBC Trust Heard and released orally: November 8, 2021 by video conference On appeal from the order of Justice Bernadette Dietrich of the Superior Court of Justice, dated December 11, 2021. REASONS FOR DECISION [1] These proceedings arise out of the administration of the estate of the late Frank Lockhart. The appellant and the respondent are siblings and were appointed as attorneys for property for their nonagenarian mother, June Lockhart, the widow of their father, Frank Lockhart, who has been found incapable of managing her property. [2] The appellant and respondent brought motions that were heard at the same time but disposed of by the application judge in two separate orders. Among other issues, they dealt with: 1) the question of whether their father had made a will subsequent to his 1974 Will, that, according to the appellant, disinherited their mother; and 2) whether an election should be filed on behalf of their mother, under s. 6(1) of the Family Law Act , R.S.O. 1990, c. F.3 (“ FLA ”), to take an equalization amount as opposed to the benefits provided to her as sole beneficiary under her late husband’s 1974 Will, and to extend the time for doing so. [3] In her October 14, 2020 judgment, the application judge allowed the respondent’s motion, appointed CIBC Trust as Estate Trustee, and declared that the 1974 Will of Frank Lockhart was his last will and testament. The appellant has not appealed the October 14th judgment. [4] The application judge dismissed the appellant’s cross-motion in her December 11, 2020 order, which the appellant appeals. The respondent raised a threshold issue about the appellant’s standing to appeal, which we do not accept. As a party to the proceedings before the application judge, the appellant has standing to appeal. [5] Returning to the merits of the appeal, the application judge rejected the appellant’s submission that there was a possibility that his father had made a subsequent will in which he had disinherited the appellant’s mother and that the appellant needed more time to find it. Based on the evidence of the extensive but ultimately fruitless efforts that had been carried out, the application judge was satisfied on a balance of probabilities that there was no subsequent will and that the likelihood of one is “very remote”. She also found that the appellant had failed to show that it would be in the best interests of Mrs. Lockhart, as sole beneficiary under the 1974 Will, to make an election under s. 6(1) of the FLA . She was concerned that any further delay in the administration of the Estate was unfair and to Mrs. Lockhart’s prejudice alone. [6] As a result, the application judge determined there was no basis to order the FLA election or to extend the time for Mrs. Lockhart to make the election past the existing deadline of January 31, 2021. [7] The appellant maintains that the election or his other requested alternative remedies are necessary to protect his mother from disinheritance under the subsequent will allegedly made by his late father. He also seeks leave to appeal the costs award made against him in favour of the respondent. [8] The appellant argues that the application judge erred in her treatment of the evidence, her failure to provide reasons, and her refusal to entertain his requested alternate relief. [9] We do not agree. All the appellant’s arguments stem from his disagreement with the application judge’s findings of fact that are firmly grounded in the record and were open to her to make, in particular, her findings that there was no subsequent will and the 1974 Will was Mr. Lockhart’s last will and testament. Essentially, the appellant is asking this court to retry the matters before the application judge. That is not our task. We see no error in the application judge’s careful and thorough reasons and decision. [10] We also see no merit in the appellant’s allegations of bias against the application judge. They are groundless. [11] The appeal is therefore dismissed. [12] With respect to costs, we find no error in the application judge’s costs order that would displace the high deference owed to her exercise of discretion. Her findings underpinning her costs award are amply supported by the record. Leave to appeal costs is granted sparingly. There is no basis to grant leave here. [13] The respondent is entitled to her costs from the appellant in the amount of $20,000, inclusive of disbursements and applicable taxes, to be paid within 30 days by the appellant personally. “Fairburn A.C.J.O.” “L.B. Roberts J.A.” “Van Melle, J. (ad hoc)”

COURT OF APPEAL FOR ONTARIO CITATION: Cao v. Markham (City), 2021 ONCA 818 DATE: 20211116 DOCKET: C68148 MacPherson, Simmons and Nordheimer JJ.A. BETWEEN Qiangli Cao Plaintiff (Appellant) and City of Markham and Markham Public Library Defendants (Respondents) Qiangli Cao, acting in person David Boghosian and Matt Brown, for the respondents Heard: November 15, 2021 by video conference On appeal from the judgment of Justice Lorne Sossin of the Superior Court of Justice, dated February 10, 2021, with reasons reported at 2020 ONSC 764. REASONS FOR DECISION [1] Mr. Cao is the CEO of Chinese Publications for Canadian Libraries Ltd. (“CPCL”). [2] On a motion for summary judgment, the motion judge dismissed Mr. Cao's action against the City of Markham and Markham Public Library in which Mr. Cao claimed damages for defamation with racial discrimination and dereliction of duty. [3] The motion judge found that the action was barred by issue estoppel. Mr. Cao appeals from the motion judge's decision. At the conclusion of the hearing we dismissed the appeal with reasons to follow. We now provide our reasons. [4] CPCL had previously sued the City and the Library for improper termination of a contract for the supply of Chinese language materials to the Library. CPCL's action was dismissed on a summary judgment motion and the dismissal was upheld by this court. [5] The motion judge who dismissed CPCL's action found the City was entitled to terminate the contract without cause on 30 days' notice and that it validly did so. However, she also concluded that there were more than sufficient grounds to have terminated the contract for cause thus demonstrating that there was no bad faith, improper purpose or arbitrariness in the termination. In that regard, she made specific findings that CPCL failed to comply with price requirements of the contract, missed delivery targets, breached collection profile targets and made cataloguing errors. She specifically rejected CPCL's submission that the evidence of the City's three affiants was false. [6] The motion judge who dismissed Mr. Cao's claim found his action was based largely on impugning the evidence relied on by the CPCL motion judge. The motion judge concluded that the question of the validity of that evidence had been finally determined in CPCL's action, that Mr. Cao was a privy to that proceeding and that no new issues had been raised that could sustain Mr. Cao's action for defamation. We agree with the motion judge’s reasons and conclusion on this issue. [7] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $2,000, inclusive of disbursements and HST. “J.C. MacPherson J.A.” “Janet Simmons J.A.” “I.V.B. Nordheimer J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. C.G., 2021 ONCA 809 DATE: 20211116 DOCKET: C67069 Paciocco, Nordheimer and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and C.G. Appellant Eric S. Neubauer, for the appellant Vallery Bayly, for the respondent Heard: October 13, 2021 by video conference On appeal from the convictions entered by Justice Stephen T. Bale of the Superior Court of Justice on March 29, 2019. Nordheimer J.A.: [1] C.G. appeals from his convictions for sexual assault, sexual interference, invitation to sexual touching and breach of recognizance. [1] For the following reasons, I would allow the appeal and order a new trial. A. Background [2] The charges arose out of allegations made by the complainant, TH, who was between the ages of 11-14 years old at the time of the events. The appellant’s and TH’s families were very close. They travelled together and went on vacation together. TH and K, the appellant’s daughter, were cousins and best friends, and would often sleep over at each other’s houses continuously for weeks on end. TH alleged that the appellant had sexually assaulted her during some of her sleepovers with K. [3] TH gave evidence through her statement to the police, pursuant to s. 715.1 of the Criminal Code , R.S.C. 1985, c. C-46. She also gave viva voce evidence. She was the only witness for the Crown. The appellant testified in his own defence. He offered a straightforward denial of the allegations. He stated that he never entered K and TH’s room in the night, and never sexually touched TH. The defence also called members of the appellant’s family as witnesses. [4] TH’s evidence was that during some of the sleepovers at K’s house, at some point in the night, the appellant would attend the bed where she and K were sleeping, touch TH’s breasts and vagina under her clothes, including digital penetration, and occasionally make her touch and rub his penis, sometimes to the point of ejaculation. He would do this with one hand while standing over TH, never getting into bed with her. No words would be spoken. TH would feign sleep during the assaults. [5] TH stated that the location of the assaults changed because the location of K’s room changed. At first, K shared a room on the upper floor of the home with her younger sister, each sleeping in a single bed positioned across from each other. In 2016 or 2017, K started sleeping in a makeshift bedroom in the basement. TH had difficulty distinguishing between the assaults that occurred upstairs and those that occurred downstairs. She believed more had occurred in the basement bedroom. In either case, TH testified that the assaults occurred while she was sleeping in bed with K. [6] TH could not give concrete details about when the assaults started, or how frequently they occurred. At times, she guessed about these details, giving rise to inconsistencies. She testified she could not remember the last time an assault occurred but thought perhaps it was in the preceding several months. TH estimated she had been assaulted 15 times (or possibly more) over the course of the preceding three years. TH said, in her statement to the police, that the timing of the assaults during the night varied, depending on when K fell asleep and when the appellant got home from his night shifts at work. The assaults could occur at two, four, or even after seven o’clock in the morning. In each case, she would be awake and K, along with everyone else in the house, was asleep. [7] In terms of the details of the assaults, TH testified that she would repeatedly roll away from the appellant, resisting, in an effort to remain on her stomach. In response, the appellant would forcefully roll her onto her back, again and again, in order to facilitate the assault. TH testified at trial that this occurred notwithstanding that she and K were so close in bed that they were touching. TH testified that neither K, nor K’s sister, who was in the opposite bed, woke up when this occurred. TH also testified that no one woke when the appellant entered the upstairs bedroom, notwithstanding that there was evidence that the house creaked – most notably, the bedroom’s older flooring loudly creaked when anyone entered. [8] K’s evidence was that there was no room between her and TH in the bed. When they slept, they were touching each other. She described how the pair would be elbowing one another, or accidentally kick one another, or even roll on top of each other. She testified that inevitably, when this occurred, both woke up – sometimes falling right back to sleep, sometimes not. The Crown challenged K regarding what occurred when one of the pair had to go to the bathroom. K responded that if she had to go to the bathroom, and was against the wall, she would have to climb over TH and invariably wake her up. [9] TH gave varying evidence about her sleeping position, which she offered to explain how she tried to avoid the appellant’s assaults. On different occasions, she said: (a) that she would always ask K to allow her to sleep on the inside of the bed, against the wall, to avoid the appellant having access to her; (b) that K always slept on the inside, against the wall; (c) that she asked to sleep on the inside, but that K wanted to sleep on the inside, against the wall, because K sleepwalked; (d) that it was possible she had asked to sleep on the outside, not the inside, to prevent K from sleepwalking; (e) that she may have requested the outside sleeping position to avoid risk to K, notwithstanding her fear of the appellant’s assaults, and notwithstanding she had never seen K sleepwalk in the many times she had slept over. [10] In contrast, K confirmed that she used to sleepwalk and in the past TH had predominantly slept on the outside, closest to the door. This was at TH’s request and was not K’s preference. K testified that since her move to the basement, things had changed. She no longer sleepwalked. TH and K alternated who slept on the inside, closest to the wall. It was no longer routine for TH to be on the outside. The appellant and his wife both recalled there being some discussion of TH sleeping on the outside of the bed, and believed TH slept on the outside. [11] The appellant and his wife both testified that the appellant worked nights for the last 17 years, and specifically, the 10:30 p.m. to 7:00 a.m. shift for the last eight years. For all but two nights per week, the appellant was not home overnight. The nights the appellant was home, he and his wife spent the evenings together. For this reason, and because their house was not large, his wife could not recall a time in the evenings where the appellant was home, but she did not know where he was for 10-15 minutes or more. She conceded the appellant might briefly go downstairs to retrieve something or attend the basement to switch off a light left on, but denied that there was any significant time when she did not know her husband’s whereabouts in the home. [12] All witnesses agreed that the upstairs bedroom had a very creaky floor. This was corroborated by video evidence filed as an exhibit at trial. K testified that, whether upstairs or downstairs, she did not believe it was possible that someone could enter her room without waking her up. K attributed this to the creaky floor, being a light sleeper, the clattering of the clothes hangers on the back of the upstairs bedroom door, the creaky stairs to the basement, and the general way sound travelled in the house. [13] The appellant testified that his wife was a terrible sleeper, woke up easily, and would ask where he was going if he went to the bathroom during the night. His wife confirmed that she was a poor sleeper, and always woke up when the appellant would get up at night. She indicated that she had never woken up and found the appellant missing from the room. She testified that she did wake up at times because of creaks in the house or because the family dog was moving around. She explained that she usually was the one who investigated these noises, even when the appellant was home. [14] TH stated that, out of fear of reattending K’s house, she reluctantly told her mother what had happened. She testified that she only went to speak with the police because her mother made her go. She expressed that she delayed disclosing because she was scared it would break up their very close family and that she would not be believed. [15] Prior to TH disclosing the allegations, another one of K’s friends had alleged that the appellant had touched her breast. This allegation was the subject of separate charges against the appellant. TH indicated that her fears of disclosing were informed by this other allegation. TH stated that she feared that, like this other complainant, she would not be believed, and her friendship with K would cease. [16] In cross-examination, TH was confronted with the fact that she had made an unprompted offer to testify on behalf of the appellant in any trial involving this other allegation. She said she did not know whether she made such an offer, but conceded it was possible. She also testified that it was possible she had expressed that the appellant was not “capable of doing such a thing”, but she did not think she had said so. TH agreed this offer did not make sense if the appellant was abusing her, too. [17] One of the issues at trial was the nature and extent of discussions between the defence witnesses. The appellant’s wife testified that the appellant’s trial counsel showed her TH’s police statement while she was in his office with the appellant. The appellant’s wife was shocked by what she learned, because the statement was different from what TH originally disclosed. The appellant’s wife testified that, during long breaks in TH’s video statement, she and the appellant discussed the allegations with trial counsel, including why the allegations could not be true. [18] The appellant’s wife was cross-examined extensively on what information she shared about the allegations with her children. She indicated that K had overheard a family meeting and was therefore aware of the allegations from the outset. The appellant’s wife testified that K’s sister was also made aware that TH alleged that the appellant had sexually touched her during sleepovers. However, the appellant’s wife testified that in all of her discussions with her daughters, she was “a mother first” and was questioning them to find out whether the appellant had, in fact, touched anyone, and to provide a safe space for her daughters to disclose. When her daughters expressed their view that their father was innocent, the appellant’s wife reassured them that she believed this to be true as well. B. THE TRIAL JUDGE’S REASONS [19] The trial judge began his reasons by considering the reliability of the defence evidence, that is, the evidence of the appellant, his wife, and both of their daughters, K and her sister. The Crown argued that the defence evidence was unreliable because of the pre-trial discussions that had occurred among the witnesses. Although the Crown was not suggesting that these witnesses had advertently colluded, he did submit that the defence evidence was tainted by “inadvertent collusion”. [20] On this issue, the trial judge said, at para. 17: While I do not dismiss the defendant’s evidence on this ground alone, the collusion is a factor to be taken into account in the final weighing of the evidence at the end of the trial. [21] The trial judge next turned to TH’s evidence. The defence had submitted that the evidence of TH was unreliable because she was inconsistent in several respects, such as regarding the number of assaults, the length of time that the assaults lasted, and the sleeping positions as between her and K. [22] The trial judge rejected this submission. He found that it offended the rule about after-the-fact conduct in such cases. In doing so, he quoted from R. v. A.R.D . , 2017 ABCA 237, 422 D.L.R. (4th) 471, aff’d 2018 SCC 6, [2018] 1 S.C.R. 218, where the Alberta Court of Appeal said, at para. 42: Just like the failure to make a timely complaint, a failure to demonstrate avoidant behaviour or a change in behaviour “ must not be the subject of any presumptive adverse inference based upon now rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse”. [Emphasis in original; citations omitted.] [23] The trial judge went on to say that the defence argument was, in essence, an argument that TH did not act in a manner that would have been expected if her allegations were true, and that an adverse inference should be drawn. The trial judge rejected that submission. He found, at para. 28: In this case, in considering the complainant’s conduct, the court must consider it in context: she was afraid to report the touching because of the close bond between her family and K’s family; her close bond with K and [the appellant’s wife] would be jeopardized if she changed her behaviour and refused to sleep over at their house; she would have to explain her changed behaviour, notwithstanding that she was not yet ready to disclose; and again, the touching had taken place, perhaps, ten or fifteen times, over a three-year period. [24] Finally, in dealing with the challenges to TH’s evidence, the trial judge addressed the defence submission that TH’s allegations were inconsistent with her willingness to testify on behalf of the appellant regarding the allegation made by another friend of K’s. The defence argued that, if the appellant had assaulted TH, as she claimed, she would not have been willing to voluntarily offer to testify that the appellant was not the type of person who would do such things. The trial judge rejected this argument, again on the basis that it offended the after-the-fact conduct principle he had earlier cited. He also rejected the defence submission that, in general, the evidence of TH should not be believed. [25] Having dealt with those issues, the trial judge then, in the final paragraph of his reasons, addressed the issue of the guilt of the appellant. He said, at para. 35: Defence counsel argues that the entire story told by the complainant is implausible, both because the accused would be taking a significant risk, and because he could not have committed the offences, without waking someone else in the house. However, after considering the complainant’s evidence, and the defence evidence, in the context of the trial evidence as a whole, and for the reasons given, I am unable to accept the evidence of the accused, and find that it does not raise a reasonable doubt as to his guilt. I do accept the evidence of the complainant, and find on the basis of that evidence that Crown counsel has proved the accused’s guilt, on all counts, beyond a reasonable doubt. C. ANALYSIS [26] In my view, the trial judge made three fundamental errors in his reasons leading to the convictions. One error deals with the issue of collusion; the second error deals with the lack of analysis of the competing evidence; and the third error deals with the application of the principles from R. v. W. (D.) , [1991] 1 S.C.R. 742. A new trial is required as a result of these fundamental errors. (1) Collusion [27] The trial judge said that collusion was a factor in assessing the defence evidence. While the trial judge did not characterize the collusion as between “advertent collusion” and what is commonly called “inadvertent collusion”, as the Crown submitted before us, a fair reading of his reasons demonstrates that the trial judge acceded to the Crown’s submission that the defence evidence was tainted by “inadvertent collusion”. The difficulty with the trial judge’s conclusion on this point is two-fold. First, it is implicit in his comments that the trial judge accepted that the evidence of the defence witnesses was diminished by this “inadvertent collusion”. Yet the trial judge never explains how he took the “inadvertent collusion” into account in his assessment of the defence evidence, apart from stating that he does not dismiss the defence evidence on this ground alone. Second, in spite of his evident acceptance that tainting had occurred, the trial judge failed to explore how the “inadvertent collusion” altered the evidence of each of the defence witnesses, if at all. [28] As I have intimated, the term “collusion” has been used to describe two different phenomena. The first is deliberate or “advertent collusion”, that is, where witnesses get together and fashion their evidence in concert in order to appear to be reciting a consistent and reliable story. The other, commonly referred to as “inadvertent collusion”, occurs where one witness discusses the events with another witness with the consequence that the evidence of one or both of them may be altered. Put another way, a witness’ evidence may be “inadvertently” impacted by the fact that they have heard the evidence of other witnesses which “can have the effect, whether consciously or unconsciously, of colouring and tailoring their descriptions of the impugned events”: R. v. B. (C.) (2003), 171 C.C.C. (3d) 159 (Ont. C.A.), at para. 40. This point was made in R. v. F. (J.) (2003), 177 C.C.C. (3d) 1 (Ont. C.A.), where Feldman J.A. said, at para. 77: The reliability of a witness’s account can be undermined not only by deliberate collusion for the purpose of concocting evidence, but also by the influence of hearing other people’s stories, which can tend to colour one’s interpretation of personal events or reinforce a perception about which one had doubts or concerns. [29] While the issue of collusion most often arises when a court is considering the admissibility of similar fact evidence, it is an issue that has relevance to the evaluation of a witness’ evidence in general. [30] As this case illustrates, it is unfortunate that the term “inadvertent collusion” has been coined. As I will explain, “advertent collusion” affects the credibility of evidence. “Inadvertent collusion”, or accidental tainting, does not do so. It affects only the reliability of such evidence. As a result, an entirely different analysis is required in determining the impact that “inadvertent collusion” may have on the evidence in question. Yet the term “inadvertent collusion ” obscures this because the term “collusion” connotes conspiracy, which is a credibility concern. It would be better if the term “inadvertent collusion” was avoided and replaced by the term “inadvertent tainting”. Given that the term “inadvertent collusion” was used during the matter before us, I will continue to refer to “inadvertent collusion” but as I say, that is a term that would best be avoided going forward. [31] I will begin with advertent collusion. It is self-evident that this first form of collusion is particularly problematic. Deliberate collusion among witnesses will inevitably undermine the credibility of the evidence given. No court would be comfortable relying on evidence from witnesses who have gotten together and decided on what they are going to say when questioned under oath, at least not without independent corroborating evidence establishing that their evidence is reliable, notwithstanding the collusion. [32] The second form of collusion, “inadvertent collusion”, is more difficult. The fact that one witness has heard what another witness will say, or for that matter has even discussed what another person’s recollections were, does not mean that either witness is not telling the truth, or is not giving their independent recollection, or that their evidence has been tainted. Indeed, even where the evidence of one of the parties to the discussion is inadvertently affected by what another person has said, the account of that other person may not change. For example, in this case, it is possible that when, during the joint meeting with the defence lawyer, the appellant’s wife offered reasons why the appellant could not be guilty, the appellant did innocently incorporate those reasons into his testimony, but that does not mean that his wife’s observations were inaccurate or that her testimony had changed as a result of their discussion. Nor does it necessarily follow that the appellant’s testimony became unreliable. He may have recognized from his own knowledge the truth and importance of what his wife had observed. The key point is that, unlike advertent collusion which corrupts the evidence of all participants, where inadvertent collusion has occurred, a close examination is required to determine what impact that innocent sharing of information may have had on the evidence of each of the witnesses who is a party to the exchange. As Sopinka J. said in R. v. Burke , [1996] 1 S.C.R. 474, at para. 45: Under this approach, the trier of fact is obliged to consider the reliability of the evidence having regard to all the circumstances, including the opportunities for collusion or collaboration to concoct the evidence and the possibility that these opportunities were used for such a purpose. [Emphasis in original.] [33] The problem in this case is that the trial judge does not address whether the fact that the defence witnesses discussed the events, thus giving rise to the possibility of inadvertent collusion, did, in fact, lead to one or more of them altering their evidence and, if so, in what respect. [34] This problem is part of a larger concern with respect to the trial judge’s treatment of the defence evidence. There is no weighing of the defence evidence at all. Rather, the trial judge moved from his generic conclusion on the collusion issue directly to considering the evidence of the complainant. He never returned to the defence evidence, and more importantly to the appellant’s evidence, and never engaged in the weighing of it that he had earlier said he would do. This same situation arose in R. v. Burnie , 2013 ONCA 112, 294 C.C.C. (3d) 387, where Tulloch J.A. said, at paras. 41-42: [I]t was the duty of the trial judge in this case, as the trier of fact, to instruct himself to consider the possibility of collusion in his assessment of what effect to give the similar fact evidence in his ultimate decision on the guilt of the accused on the whole of the evidence. The difficulty in this case is that on the reasons given, we cannot know if he did or did not do so. As such, on this issue, we are left in the position, in the terms used in Sheppard , where we cannot be sure of the path taken by the trial judge. There is more than one view of how the trial judge may have decided guilt and one such view would clearly constitute reversible error. [35] Had the trial judge undertaken an analysis of the defence evidence, in light of the possibility of inadvertent collusion, he would have had to consider that there was independent evidence that tended to support at least some of the evidence provided by the defence witnesses, which was incapable of being tainted by collusion. In particular, on this point, there was the uncontradicted evidence, supported by video evidence, of the creaking of the bedroom floor. However, this evidence is not mentioned by the trial judge. He does not address how that evidence might have supported the defence position, and thus discounted any problems arising from the suggestion of collusion. Simply put, the witnesses could not have colluded to make the floor creak. [36] To a similar effect was the evidence of the hangers on the bedroom door that would have made noise if the door was opened. This evidence is also not mentioned by the trial judge, although it was not challenged at trial. Again, inadvertent collusion would not undermine the probative value of this evidence. [37] As indicated, the trial judge was obliged to consider whether, if there was inadvertent collusion, it actually affected the evidence of the various defence witnesses. In that regard, the trial judge had to consider the nature of the discussions that took place between these witnesses. For example, the trial judge had to consider the explanation of the appellant’s wife that she spoke with their daughters because she wanted, as a mother, to provide an opportunity for them to safely disclose if they had witnessed any improper conduct by the appellant. It was with that stated purpose in mind that she spoke to their daughters about the allegations. The trial judge had to consider whether the content of the discussions, in those circumstances, led to any impairment of the evidence given. [38] In considering the impact of any inadvertent collusion with respect to each individual witness, the trial judge also had to consider that one of those witnesses was the appellant. As the Crown acknowledged in closing submissions, the appellant could not be found to have been tainted by collusion only through his access to, and review of, the disclosure in the case, which included the police statement of TH. The trial judge could not approach the issue of collusion in the same fashion with respect to the appellant as he might with respect to the other defence witnesses, because of the appellant’s right to disclosure. And, once again, the trial judge had to consider whether those discussions led to any impairment of the evidence given. [39] Lastly, the trial judge would also have had to consider that these discussions occurred among members of the same family, i.e., father, mother, and daughters, faced with serious allegations made against one parent. Some discussion was inevitable in those circumstances. The impact of those discussions, if any, was the crucial issue. In the end result, none of this analysis was done. Simply put, the trial judge’s collusion analysis is too general and conclusory to constitute a proper evaluation of the evidence offered by each defence witness. [40] Consequently, we are left in the same position as this court was left in Burnie . I am unable to determine the impact, if any, of the finding of “inadvertent collusion” on the trial judge’s assessment of the credibility and reliability of each of the defence witnesses. This problem is exacerbated by the fact that the trial judge clearly said that he was not prepared to use collusion as a basis to reject the defence evidence. It was then incumbent on the trial judge to address this issue in his W. (D.) analysis, including why the defence evidence did not raise a reasonable doubt, given that collusion alone was not a basis for rejecting the defence evidence. As I shall discuss later in these reasons, there was no such analysis. (2) The Absence of Analysis of the Competing Evidence [41] The trial judge moved from his finding regarding “inadvertent collusion”, as it related to the defence evidence, to his consideration of TH’s evidence. He dealt with many, but not all, of the issues raised regarding the credibility and reliability of TH’s evidence. It is notable, however, that the trial judge did not engage in a similar assessment of the evidence of the defence witnesses. Indeed, he never returned to the defence evidence, save for a generalized comment about the appellant’s evidence at the end of his reasons. [42] The appellant says that the trial judge failed to address certain critical flaws in TH’s evidence. The respondent says that the trial judge was not obliged to address each and every issue that was raised as it related to TH’s evidence. While the respondent is correct that a trial judge is not required to address each and every piece of evidence, a trial judge is required to address crucial evidence that bears directly on the credibility and reliability of a witness. [43] In this respect, there were two particularly important pieces of evidence that directly impacted on TH’s evidence, but which the trial judge did not address. One is TH’s evidence that the appellant, in committing the assaults, had to roll her over forcefully as she attempted to remain on her stomach to avoid the unwanted touching. This evidence is of particular significance, given that TH was sharing the bed with K. Indeed, the evidence was that they were so close together that they were touching while they slept. Yet, on TH’s evidence, the appellant forcefully rolled her over in order to assault her without ever waking K. The surface improbability of that being able to take place required the trial judge’s attention. He was obliged to resolve that issue in terms of his conclusion that TH’s evidence established the guilt of the appellant beyond a reasonable doubt. Yet this resolution never took place. [44] The second important piece of evidence related to the opportunity for the appellant to commit these offences. In that regard, the evidence was that the appellant worked night shifts, that he was only home on two nights per week, that he spent the nights when he was home with his wife, that his wife was a light sleeper who said she would be awoken if the appellant left their bed, and that she could not recall any instance of her awaking and finding the appellant absent. In addition to this evidence, of course, is the evidence of the creaky floors in the house. [45] All of this evidence led to the obvious submission from the defence that the appellant had no opportunity to commit the offences without being discovered. The trial judge’s response to this defence submission is of concern for two reasons. One is that the trial judge does not deal with this submission directly in his reasons. The other is the manner in which the trial judge dealt with it during closing submissions. At that time, the trial judge said: As far as why would he take that risk, I think sex offenders take incredible risks all the time and, so you, I mean, you hear, well why would he ever take that risk when somebody was next door or whatever it was, but that’s just the nature of those – of that type of offence, and that’s why in this court, the majority of the cases that we hear are sex offences… Because they’re prepared to take those incredible risks. [46] It is unclear to me how the trial judge may have used his view, on this point, in deciding this case. It cannot reasonably be disputed that some sex offenders take incredible risks, and trial judges are entitled to reject an implausibility argument that is based on the unlikelihood that the accused would have taken the risks required to commit the offence with which they are charged. But here, the trial judge appears to be expressing a universal truth that all sex offenders take incredible risks, which would constitute an inappropriate stereotype about how sex offenders behave. Even if the trial judge was not intending to express a universal truth, he was at least of the view that incredible risk-taking is commonplace. If that was the trial judge’s approach, then he erred in doing so. Not only is it arguable that this too would be an inappropriate stereotype about how sex offenders behave, judicial notice cannot be taken of such a contention as if it was a fact. Assuming such a fact could be established, it would require a proper evidentiary foundation. A third possibility is that the trial judge was relying on his personal knowledge or experience as proving that fact. This also would be an error. A trial judge cannot judicially notice a fact within his or her personal knowledge unless the criteria of notoriety or immediate demonstrability are present: R. v. J.M. , 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 50-54. In either event, while the trial judge mentions the risk point in the final paragraph of his reasons, he fails to deal with it. [47] The failure of a trial judge to address material evidence constitutes a misapprehension of the evidence. As Doherty J.A. said in R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 538: A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence. [48] The two pieces of evidence to which I have referred were relevant to a material issue, that is, the credibility and reliability of TH’s evidence. The trial judge’s failure to both mention these pieces of evidence, and to deal with them in his analysis, constitutes an error. In this case, given its importance in the overall W. (D.) analysis, to which I now turn, this constitutes an error of law that has the effect of rendering the verdicts unreasonable. (3) The W. (D.) Analysis [49] The principle from the decision in W. (D.) is well-known. Yet it has caused more than its fair share of problems in its application since the principle was enunciated more than thirty years ago. It is, perhaps, worthwhile setting out the principle again, as taken from p. 758 of the decision: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [50] Since the decision, the application of the principle has been written about frequently, and its proper application both debated and refined. For the purposes of this case, two refinements of the principle are relevant. One is that it is not necessary for a trial judge, sitting alone, to recite the principle in its precise terms as it appears above: R. v. C.L.Y. , 2008 SCC 2, [2008] 1 S.C.R. 5, at para. 7; R. v. Debassige , 2021 ONCA 484, at para. 127. It is sufficient that the principle was, in fact, applied, even if not expressly recited. [51] In this case, the only application of the principle appears in the final paragraph of the trial judge’s reasons, as I have set out in para. 25 above. While that brief mention would be sufficient to show that the trial judge was alert to the principle, what is missing in this case is any analysis leading up to the trial judge’s conclusion as to its proper application. In particular, there is no discussion or analysis of the appellant’s evidence, or why the trial judge rejected it, or why the trial judge found that it did not raise a reasonable doubt, either on its own or in conjunction with the rest of the defence evidence. [52] That problem leads into a consideration of the second refinement of the principle from W. (D.) . That second refinement arises from this court’s decision in R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), leave to appeal refused, [2007] S.C.C.A. No. 69. In that case, the issue of a trial judge’s failure to provide express reasons for rejecting the accused’s evidence, in the context of the application of the principle from W. (D.) , was raised. In concluding that the trial judge’s reasons for rejecting the accused’s evidence were capable of being discerned from the record, Doherty J.A. said, at para. 53: An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence. [Emphasis added.] [53] The decision in D. (J.J.R.) permits a conclusion that a trial judge’s “considered and reasoned acceptance” of the complainant’s evidence is a sufficient basis to explain the trial judge’s rejection of an accused person’s evidence and, similarly, to explain why that evidence does not raise a reasonable doubt. In that case, Doherty J.A. set out all of the trial judge’s findings regarding his acceptance of the complainant’s evidence and, importantly, the confirmation of it that could be found in the complainant’s diary, a contemporaneous record of the events. Indeed, Doherty J.A. referred to the diary’s “credibility enhancing effect” in his reasons: at para. 54. [54] The decision in D. (J.J.R.) provides a route for an appellate court to be satisfied that, despite the failure to follow the step-by-step analysis from W. (D.) , the trial judge nevertheless properly applied it. What the decision in D. (J.J.R.) does not do, however, is provide an answer to the failure of a trial judge to avert to exculpatory evidence that stands unchallenged. The failure to advert to such evidence, and to address it, means that the acceptance of the complainant’s evidence is neither considered nor reasoned. This point was made in R. v. C.L. , 2020 ONCA 258, 387 C.C.C. (3d) 39, where Paciocco J.A. said, at para. 33: In contrast, those same terms, “considered and reasoned”, offer no guidance to a trier of fact about when it is appropriate to convict in the face of exculpatory evidence that has no obvious flaws. [55] It is the problem identified in C.L. that arises in this case. There was clear exculpatory evidence, much of which was undisputed. That evidence included the creaky bedroom floor, the clothes hangers on the door, the evidence regarding the appellant’s wife being a light sleeper, the hours during the night when the appellant was at work, the rolling over of TH, and like matters. The trial judge fails to address any of this evidence, or explain why it would not, at least, raise a reasonable doubt. As a result, his analysis of the evidence of TH does not provide a “reasoned and considered” basis for believing her evidence beyond a reasonable doubt, in the face of exculpatory evidence from the appellant. [56] The respondent strives to avoid these problems by characterizing the trial judge’s reasons as being generally sufficient and, also, by invoking the principle derived from R. v. G.F. , 2021 SCC 20, 459 D.L.R. (4th) 375, that an appellate court “must not finely parse the trial judge’s reasons in a search for error”: at para. 69. The decision in G.F. reaffirms the important message that appeal courts should not be too ready to overturn the factual conclusions made by trial judges and should not assume that errors have occurred when errors are not evident. However, G.F. does not direct appeal courts to overlook or disregard material reasoning errors, nor does it dispense with the need for trial judges to give adequate reasons for their decisions before stigmatizing and punishing someone as a sex offender. [57] The Crown’s submission that we should not interfere with the trial judge’s decision in this case ignores the fundamental problems that exist in the trial judge’s reasoning. I do not suggest that trial judges are required to show that they considered every piece of evidence or that they have responded to each and every argument raised by counsel. However, that approach does not obviate the need for trial judges to address significant pieces of evidence that have a direct impact on the issue of guilt. The reasons must explain the “what” and the “why”: R. v. R.E.M. , 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 17. More specifically, trial judges are obliged to address significant exculpatory evidence, the presence of which makes a finding of guilt beyond a reasonable doubt unthinkable, or at least highly unlikely, absent a thorough explanation of why it does not. [58] The respondent explains the trial judge’s conclusion by saying that “once the trial judge weighed the evidence he had found to be tainted along with his acceptance of the complainant’s evidence, he rejected the appellant’s evidence and found it did not raise a reasonable doubt.” While that is undoubtedly an accurate recitation of the trial judge’s reasons, like those reasons, this submission fails to provide the necessary explanation as to why the trial judge found that the evidence proved the offences beyond a reasonable doubt. More importantly, that submission does not explain why the unchallenged exculpatory evidence failed to raise a reasonable doubt. [59] This requirement is central to the purpose for reasons. It is so the accused and the public can know why the conclusion was reached, along with providing the opportunity for meaningful appellate review. This point has been made in many decisions of the Supreme Court of Canada and of this court. It is aptly put in R. v. Gagnon , 2006 SCC 17, [2006] 1 S.C.R. 621, where the majority said, at para. 21: This does not mean that a court of appeal can abdicate its responsibility for reviewing the record to see whether the findings of fact are reasonably available. Moreover, where the charge is a serious one and where, as here, the evidence of a child contradicts the denial of an adult, an accused is entitled to know why the trial judge is left with no reasonable doubt. [60] The trial judge does not address the exculpatory evidence. He does not explain why that exculpatory evidence did not corroborate the appellant’s denial of the events, nor, at the very least, why it did not raise a reasonable doubt. The trial judge’s reasons do not perform the fundamental purpose for which reasons are required. Those failures mean that this court cannot be satisfied that the fundamental point made in G.F. , at para. 82, has been answered: [W]hether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. [61] To borrow the language of G.F. , the reasons in this case are not “factually sufficient”: at para. 71. A review of the record does not provide that sufficiency. Indeed, it does the opposite. It reveals the exculpatory evidence, which is left unmentioned and unaddressed in the trial judge’s reasons. Even if one completely rejects the evidence of the appellant, his wife, and their daughters, on the basis that their evidence is “tainted” – a conclusion that the trial judge himself was not prepared to make – this does not explain why the appellant’s denial of the events was not found to raise a reasonable doubt, when it can be seen as being corroborated by the exculpatory evidence offered. D. Conclusion [62] The appeal is allowed, and a new trial is ordered. Released: November 16, 2021 “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “I agree. David M. Paciocco J.A.” “I agree. J.A. Thorburn J.A.” [1] While the appellant originally also sought leave to appeal the sentence imposed, he subsequently abandoned the sentence appeal.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Clyke, 2021 ONCA 810 DATE: 20211116 DOCKET: C66622 Rouleau, van Rensburg and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Shawn Clyke Appellant Margaret Bojanowska, for the appellant Benita Wassenaar, for the respondent Heard: April 30, 2021 by video conference On appeal from the conviction entered on July 7, 2017 by Justice Julie A. Thorburn of the Superior Court of Justice, sitting with a jury. By the Court : A. OVERVIEW [1] The appellant and two co-accused were charged with sexual assault and several related offences. The charges arose from an alleged attack on the complainant by three individuals in the early hours of the morning in an abandoned shed in downtown Toronto. The appellant and Derrick Goulding were tried together, while the third individual was tried separately. [2] The Crown’s theory at trial was that the appellant and Mr. Goulding had participated in an opportunistic crime. Mr. Goulding testified. He claimed that on the day of the alleged offence he and the complainant had sex in a consensual sex-for-drugs transaction, and that no sexual assault or assault had taken place. The appellant did not testify. His counsel argued that the case against him had not been proven beyond a reasonable doubt and that the complainant’s late identification of him as one of her assailants was suspect. [3] After an 18-day trial, the jury found the appellant and Mr. Goulding guilty of two counts of assault simpliciter and one count of assault causing bodily harm. Both were acquitted of sexual assault, unlawful confinement, sexual assault with a weapon, and being a party to a sexual assault. [4] The appellant appeals his convictions based on alleged improprieties in the Crown’s closing argument. He submits that the Crown’s closing submissions contained serious improper and inflammatory remarks that rendered his trial unfair. [5] The impropriety of Crown counsel’s conduct at trial is not disputed. The respondent acknowledges that the Crown’s closing submissions at trial crossed the line in many respects. Nevertheless, the respondent contends that the trial judge’s corrective instruction and passages from the charge to the jury, taken together, adequately addressed any prejudice to the appellant arising from the Crown’s closing submissions. [6] For the reasons that follow, the appeal is allowed, the appellant’s convictions are set aside and a new trial on the charges of assault and assault causing bodily harm is ordered. [7] Briefly, we conclude that the Crown’s closing submissions contained improper and inflammatory remarks that cumulatively rendered the appellant’s trial unfair and resulted in a miscarriage of justice despite the trial judge’s corrective instruction and charge. B. BACKGROUND (1) An Overview of the Evidence at Trial [8] The complainant, S.L., alleged that, on the morning of April 22, 2015, she was assaulted by three men in an abandoned shed at College Park, in Toronto. At the time she was 20 years old and lived in a women’s shelter. The police learned of the assault after S.L. returned to the shelter, in serious distress. The attending officer believed that a sexual assault had taken place. [9] Mr. Goulding was found the following day, in the shed where the assault was alleged to have taken place, and arrested shortly thereafter. The appellant was not identified by the complainant as an assailant until several months later, in November 2015. Ultimately, three men – the appellant, Mr. Goulding and a third person, P.S. – were charged with several offences: assault, unlawful confinement, sexual assault using a weapon, assault causing bodily harm, and being a party to a sexual assault. Initially, they were to be tried jointly, but when P.S. changed counsel, his charges were severed. The appellant and Mr. Goulding proceeded to trial together, while P.S. was to be tried later. [10] S.L. testified. On her account, shortly before the assault, she ran into an acquaintance named Cody, near College Park. While the two were together drinking coffee, Mr. Goulding and two other men, one of whom she identified as the appellant, approached them. She knew who they were from seeing them around but she did not know them well. Mr. Goulding began screaming and yelling, and he claimed that S.L. was his girlfriend (which according to S.L. was untrue). Cody ran off, while Mr. Goulding suddenly attacked her. S.L. testified that Mr. Goulding, the appellant and the third man dragged her into the abandoned shed where they assaulted her with bricks and sticks and took turns sexually assaulting her. S.L. was able to provide only limited details about what happened during the sexual assault. She was eventually able to escape after her assailants took a break to smoke crystal meth. [11] S.L. returned to the shelter where she was staying, where a shelter worker noticed her condition. S.L. reported the assault to the police, who documented her injuries. She also underwent an examination by a sexual assault nurse, who took samples for DNA testing. A DNA expert testified that there were at least three contributors of DNA found in the DNA samples: one was likely S.L., one was Mr. Goulding, and a third sample – which she opined was likely male – was unsuitable for comparison. [12] S.L.’s blood was also tested, revealing the presence of low levels of methamphetamine. S.L., who had a history of drug use, denied having consumed any drugs in the months leading up to the assault. [13] Mr. Goulding testified that he sold drugs, and that the appellant helped him in this pursuit. He testified that he and S.L. had a relationship, and that he would give her drugs in exchange for sexual services. Mr. Goulding testified that he had confronted Cody over a drug debt, and later the same day he and the appellant had run into S.L. and Cody at a coffee shop. He testified that he, S.L. and the appellant went together to a woman’s shelter where they were consuming drugs. Mr. Goulding testified that he provided drugs to S.L. in exchange for sex. While they were there, a fire alarm went off. Thereafter, the three went to College Park, where they continued to smoke crystal meth in the abandoned shed. Mr. Goulding denied assaulting or sexually assaulting S.L.; he testified that he left the shed at some point, and that when he returned the appellant and S.L. were still there. [14] An expert witness called by the Crown testified about alternative ways that drugs could have ended up in S.L.’s system, assuming she did not intentionally ingest them. The first was through second-hand smoke, by being in a confined space with others who were smoking methamphetamines. The expert however considered this method to be inconsistent with the levels detected in S.L.’s blood. Second, if methamphetamines touched a highly vascularized area of the body, such as the nose, mouth, vagina or anus, they could enter a person’s blood stream. The expert was also asked whether methamphetamines could transfer through semen. She was not aware of any literature on the subject and could not say whether this was possible. [15] The jury found the appellant and his co-accused not guilty of sexual assault and unlawful confinement, but guilty of assault causing bodily harm and assault simpliciter . (2) Objections to the Crown’s Closing at Trial [16] The Crown addressed the jury last. Immediately after her closing submissions, both defence counsel raised a number of objections. These included that: · the Crown invited the jury to engage in propensity reasoning based on evidence about the bad character of the two accused; in particular, linking their exploitation of drug addicts to their exploitation of S.L.; · the Crown provided “commentary” about how the act was brutal, and “something no mother, sister, or friend should experience”; · the Crown gave her personal endorsement of the complainant’s credibility; · the Crown submitted that the complainant was able to convince the sexual assault nurse of her story and relied on this to bolster the complainant’s credibility; · the Crown submitted that Mr. Goulding’s account of a fire alarm was not credible because he did not mention the firefighters who attended the scene, when there was no evidence led about when the firefighters arrived or where they went; and · the Crown gave evidence by talking about her personal experience dropping a brick. [1] [17] Defence counsel did not move for a mistrial; instead, they asked the trial judge to provide a corrective instruction to the jury. (3) Discussions with Counsel [18] The trial judge received submissions on the alleged problems with the Crown’s closing. Since it was already late in the day, and anticipating that her discussions with counsel would take some time, the trial judge released the jury until 11:30 a.m. the following day. Defence counsel raised a considerable number of objections, some more significant than others. The trial judge worked with counsel to sort through which of the many objections she would address with the jury. [19] Early on the trial judge expressed her concern that the Crown’s closing submissions had crossed a line, and she admonished the Crown as follows: I do think, though, that just as a matter of practice I think the Crown has to be particularly careful, you’re not an advocate like defence counsel. You’re not pulling out all the stops and I think Crown counsel should be very, very cognizant that you do have a different role. You are the, you know, an officer of the court and an official of the state, and I think to be, to be, you know, blunt about it, your, your charge was a little extreme in the sense that you were pulling out all the stops, and I think you should be careful. You’re Crown counsel, you’re not a lawyer for defence counsel, and you know, inviting speculation on some issues and things, honestly, I had some concerns listening to that. [20] With respect to the specific issues raised by defence counsel, the trial judge agreed that the Crown’s personal endorsement of S.L.’s credibility was improper, and she indicated that she would instruct the jury to disregard the personal opinions of counsel. The trial judge outlined some proposed language, including: “[t]he Crown made some personal opinions about her views of the evidence. We shouldn’t be providing personal opinions and you should, to the extent that personal opinions are offered, you should disregard them.” (Ultimately the corrective instruction given by the trial judge was more general; it referred to the personal opinions of all counsel, not just the Crown.) [21] The trial judge also identified an issue with the Crown’s submissions about how the drugs could have ended up in S.L.’s system. She was concerned that the Crown had invited speculation by suggesting that there could have been drug residue on the accused’s hands that could have transferred to S.L.’s vagina or rectum. She was unsure whether she needed to address this point specifically with the jury. [22] As for defence counsel’s concern about the Crown’s invitation to the jury to engage in propensity reasoning, and her use of inflammatory language (described by defence counsel as “personal commentary”), the trial judge observed that the defence had also used lots of “commentary” in their closing arguments, and that they had invited the jury to engage in propensity reasoning by suggesting that S.L. was a liar. The trial judge indicated that she would caution the jury against speculation and propensity reasoning, and in response to a request by the appellant’s counsel that she explain propensity reasoning to the jury, the trial judge said that she would use clear language and tell the jury that they were not there to decide whether they liked the accused or the complainant or their lifestyles. [23] The trial judge did not provide counsel with a draft of her corrective instruction, although, as already noted, she referred to the type of instructions she would give. (4) The Trial Judge’s Corrective Instruction [24] The day after the Crown’s closing submissions, and immediately before she delivered her charge, the trial judge provided the following instruction to the jury: Before I begin with my jury charge there are a couple of brief comments that I wish to make about the closing submissions that you heard yesterday. First of all, you heard some information about some evidence adduced at a Barrie court proceeding. That was not evidence that came from [S.L.] herself so I’m going to ask you to disregard that. [2] Secondly, insofar as they talked about firefighters, there was a fire at what has been referred to as the Native Women’s shelter. There were 17 firefighters that arrived but there is no evidence as to when and how many came at any one time. I also, and I will be reminding you of this in my charge as well, that to the extent that counsel have made comments or personal opinions about the evidence that is not something that you need to consider. The only thing that you need to consider is after hearing and seeing all of the evidence adduced in this proceeding whether you are satisfied that the Crown has proven the case against one or both of the accused beyond a reasonable doubt. And you are the judges of the facts, the only judges of the facts, and you alone are going to be assessing the credibility of witnesses and the reliability of their testimony. And lastly, I’m also going to remind you, as I will in my charge, about the dangers of propensity reasoning. And what I mean by that is you’re not here to judge whether you like somebody’s lifestyle or you like the kind of person that they are. What you’re here to decide is whether an offence or offences were committed on a given day at a certain place, based on the evidence, all of the evidence that you saw and heard in this proceeding. [25] There was no objection to this instruction or to the relevant portions of the trial judge’s charge to the jury. C. ISSUES [26] The sole issue in this appeal is whether there were serious improprieties in the Crown’s closing submissions that were not effectively addressed by the trial judge, such that the appellant had an unfair trial. [27] The appellant relies on the following: 1. the invitation that the jury engage in propensity reasoning; 2. the invitation that the jury decide the case based on sympathy for the complainant, by using inflammatory language; 3. the improper attempts to bolster the complainant’s credibility, by: a. suggesting that the complainant had stood up to cross-examination in prior proceedings; and b. submitting that the complainant had “convinced” the sexual assault nurse of the truth of her allegations; 4. the invitation that the jury engage in speculation, including by: a. offering unfounded theories for how drugs might have gotten into the complainant’s system; and b. claiming that the appellant’s DNA was present in the samples taken from the complainant; 5. the reference to facts not in evidence, including: a. the number of firefighters present during a fire alarm and the actions taken by those firefighters; b. whether a person familiar with the streets would “rat” on someone; and c. an explanation for why the Crown did not call certain evidence; and 6. her improper reliance on personal observations not founded in the evidence. [28] The appellant asserts that he received an unfair trial: the cumulative effect of the various improprieties in the Crown’s closing address and its overall tone were prejudicial to him, and the corrective instruction was insufficient to alleviate the prejudice. [29] The respondent accepts that the Crown’s closing address was problematic in many respects, but argues that the corrective instruction, together with the jury charge, adequately responded to the problems. The respondent submits that deference is owed to the trial judge who was well-placed to decide on an appropriate response. The respondent also relies on the fact that defence counsel did not take issue with the corrective instruction or the relevant passages in the charge, which suggests that their concerns were adequately addressed. [30] With respect to several of the alleged improprieties, the respondent relies on the fact that the appellant was acquitted on the sexual assault counts. The acquittals demonstrate that the jury was not swayed by the trial Crown’s improper submissions and was able to make an impartial and objective decision based on the evidence. D. APPLICABLE LEGAL PRINCIPLES [31] We begin by setting out the legal framework and principles that apply to the determination of this appeal. (1) The Two-Part Test [32] When improper comments by Crown counsel are sufficiently prejudicial, a trial judge has a duty to intervene, and a failure to do so will constitute an error of law: R. v. T.(A.) , 2015 ONCA 65, 124 O.R. (3d) 161, at para. 29, citing R. v. Romeo , [1991] 1 S.C.R. 86, at p. 95 and R. v. Michaud , [1996] 2 S.C.R. 458, at para. 2. [33] The analysis of a claim on appeal that Crown counsel crossed the line in closing submissions to a jury proceeds in two stages: the court must first determine whether the Crown’s conduct was improper; and if so, “whether, considered in the context of the trial as a whole, including the evidence adduced and the positions advanced, the substance or manner of the Crown’s closing address has caused a substantial wrong or miscarriage of justice, including by prejudicing the accused’s right to a fair trial”: R. v. McGregor , 2019 ONCA 307, 145 O.R. (3d) 641, at para. 184. [34] With respect to the first stage of the analysis – whether the Crown’s conduct was improper – the limits imposed on Crown counsel are well-established. These include: · “The Crown occupies a special position in the prosecution of criminal offences, which ‘excludes any notion of winning or losing’ and ‘must always be characterized by moderation and impartiality’”: T.(A.) , at para. 26, citing R. v. Boucher , [1955] S.C.R. 16, at pp. 21, 24. · The Crown should not “engage in inflammatory rhetoric, demeaning commentary or sarcasm, or legally impermissible submissions that effectively undermine a requisite degree of fairness”: R. v. Mallory , 2007 ONCA 46, 217 C.C.C. (3d) 266, at para. 340; · The Crown must not “express personal opinions about either the evidence or the veracity of a witness”: R. v. Boudreau , 2012 ONCA 830, at para. 16, leave to appeal refused, [2013] S.C.C.A. No. 330; Boucher , at p. 26. The Crown must not invite speculation by the jury: McGregor , at para. 179, or rely on anything within their personal experience or observations that is not in the evidence: R. v. Pisani , [1971] S.C.R. 738, at p. 740; · The Crown must not “invite the jury to use an item of evidence in reaching its verdict for a purpose other than that for which it was admitted and the law permits”: McGregor , at para. 180; and · The Crown must not misstate the evidence or the law: Boudreau , at para. 16. [35] There is no question that the Crown is entitled to make forceful and effective closing submissions: McGregor , at para. 181. Both Crown and defence counsel are entitled to latitude in their closing addresses. However, as Deschamps J. wrote for the majority in R. v. Trochym , 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 79: Crown counsel are expected to present, fully and diligently, all the material facts that have evidentiary value, as well as all the proper inferences that may reasonably be drawn from those facts. However, it is not the Crown’s function “to persuade a jury to convict other than by reason”: R. v. Proctor (1992), 11 C.R. (4th) 200 (Man. C.A.), at para. 59. Rhetorical techniques that distort the fact-finding process, and misleading and highly prejudicial statements, have no place in a criminal prosecution. [Emphasis added.] [36] With respect to the second stage of the analysis – whether a substantial wrong or miscarriage of justice has resulted from the Crown’s conduct – there is no “unyielding rule” mandating that improper Crown closing submissions require a new trial. The test is whether the closing address “was unfair in such a way that it might have affected the decision of the jury”: R. v. Grover (1990), 56 C.C.C. (3d) 532 (Ont. C.A.), at p. 537; reversed on appeal, but not on this point [1991] 3 S.C.R. 387. See also Pisani , at para. 5, where the court concluded that improprieties in the Crown’s closing address bore so directly on the actual issue in the case and were so prejudicial in respect of that issue and of the related question of credibility as to deprive the appellant of a fair trial. [37] While each case falls to be decided on its own facts, a non-exhaustive list of factors to be considered includes: (i) the seriousness of the improper comments; (ii) the context in which the comments were made; (iii) the presence or absence of objection by defence counsel; and (iv) any remedial steps taken by the trial judge following the address or in the final instructions to the jury: R. v. Taylor , 2015 ONCA 448, 325 C.C.C. (3d) 413, at para. 128, per Watt J.A. (2) Deference to the Trial Judge [38] Substantial deference is owed to the trial judge’s response to alleged improprieties in a Crown’s closing address. In McGregor , at para. 182, Watt J.A. explained the rationale for such deference: None can gainsay that the trial judge is in the best position to gauge the impact of closing submissions made by either counsel. The trial judge can take the temperature of the trial. As an eye and ear witness to the entire proceedings, including both jury addresses. In that position the trial judge can assess the apparent significance or otherwise of the impugned remarks, and determine whether and to what extent correction or other remedial action may be required [citations omitted]. We accord substantial deference to the trial judge’s conclusions on these issues. This is as it should be. [39] Of course, deference to the trial judge does not eliminate the trial judge’s duty to adequately redress any prejudice that is caused by the Crown’s closing address. As the Supreme Court held in R. v. Rose , [1998] 3 S.C.R. 262, at para. 127: [The] trial judge is best able to assess the impact that improper remarks will have on a jury and to determine whether remedial steps are necessary. However, where the trial judge fails to redress properly the harm caused by a clearly inflammatory, unfair or significantly inaccurate jury address, a new trial could well be ordered. It is not only appropriate for a trial judge, in the charge to the jury, to undertake to remedy any improper address by counsel, but it is the duty of the trial judge to do so when it is required. [40] A timely and focused correction by a trial judge of deficiencies in a Crown’s closing address may be sufficient to alleviate any prejudice to an appellant’s fair trial rights: Boudreau , at para. 20. “Clarity, specificity and, forcefulness are the three qualities appellate courts usually look at in considering the adequacy of the correction”: Robert J. Frater, Prosecutorial Misconduct , 2nd ed. (Toronto: Carswell 2017), at p. 283. In cases where this court has found potentially prejudicial Crown misconduct, but deferred to the trial judge’s remedial approach, the court has described the corrective instruction as “blunt”, “strong”, “strongly-worded”, “firm and clear” or “pointed”, observing that the trial judge explicitly identified the problematic areas and told the jury to disregard them: see, e.g., Boudreau , at para. 19; R. v. John , 2016 ONCA 615, 133 O.R. (3d) 360, at para. 64; R. v. Osborne , 2017 ONCA 129, 134 O.R. (3d) 561, at para. 85; R. v. Howley , 2021 ONCA 386, at para. 49. [41] In most cases, what is required is a sharp correction, as soon as possible after the words are spoken: R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.). In that case the Crown’s closing, which was immediately before the lunch recess, contained improper submissions. Immediately upon resuming the judge gave his charge to the jury in which very early on he spoke about the Crown’s address, identified the specific comments that were improper and why that was the case, and instructed the jury more than once to “banish those comments from [their] mind”. This court accepted that this “very clear and forceful direction” that was given shortly after the Crown’s address was sufficient to nullify the unfortunate effect of the Crown’s address: at p. 471. See also Howley , at paras. 41-42. [42] A caution with precise examples is preferable to a general appeal to the jury to be dispassionate: Melanson v. R. , 2007 NBCA 94 , 230 C.C.C. (3d) 40, at para. 75. Judges should identify clear improprieties to the jury and provide “an unambiguous direction that they are to be disregarded as irrelevant”: Fiddler v. Chiavetti , 2010 ONCA 210, 317 D.L.R. (4th) 385, at para. 18. In R. v. Copp , 2009 NBCA 16, 342 N.B.R. (2d) 323, for example, the trial judge told the jury to disregard Crown counsel’s personal opinions and rhetorical excesses, repeating the specific remarks the jury was to disregard, and explaining why. The appellate court, in dismissing that ground of appeal, said that there was “nothing equivocal” in the corrective instruction, that it was quite forceful, that the jury was provided with examples of the types of inappropriate comments that were to be “absolutely” ignored and that the trial judge characterized Crown counsel’s conduct as “getting carried away, inappropriate and excessive”: at para. 25. (3) The Failure to Object at Trial [43] Defence counsel’s failure to object or to seek a mistrial is relevant at both stages of the analysis. At the first stage, the failure of defence counsel to object may indicate that the Crown’s conduct was not viewed as improper at the time: see, e.g., Taylor , at para. 135. At the second stage, counsel’s failure to object “can sometimes indicate that the impact of the comment, in the circumstances, was not so prejudicial as to render the trial unfair”: T.(A.) , at para. 41. Counsel’s failure to object may be particularly relevant “where defence counsel is experienced, or the decision not to intervene can be described as ‘tactical’ rather than a mere ‘lapse’”: T.(A.) , at para. 41. [44] That said, defence counsel’s failure to object is a factor to consider in assessing this ground of appeal but not an “unscalable barrier to appellate success”: R. v. Manasseri , 2016 ONCA 703, 132 O.R. (3d) 401, at para. 107. E. ANALYSIS [45] We will now address each of the alleged improprieties in the Crown’s closing submissions. We have concluded that some of the alleged improprieties are not borne out on the record, and in respect of others, we would defer to the trial judge’s approach in handling these issues. As already stated, it is our view that the cumulative effect of certain problems with the Crown’s closing address rendered the appellant’s trial unfair. We will explain why we have reached this decision, and why in our opinion, the trial judge’s corrective instruction and the aspects of the jury charge relied on by the respondent on appeal were inadequate to remedy the resulting harm. (1) The Invitation to Engage in Propensity Reasoning [46] The most significant impropriety in the Crown’s closing submissions was the express and pervasive appeal to propensity reasoning. [47] The trial Crown repeatedly invited the jury to engage in propensity reasoning based on the discreditable conduct of the two accused. In particular, the Crown emphasized that the appellant and his co-accused preyed on vulnerable people like S.L. when they sold them drugs, and she invited the jury to reason that they had preyed on S.L. in committing the alleged offences. These submissions also encouraged the jury to despise the appellant and his co-accused and to sympathize with the complainant. In order to appreciate the significance of these submissions and their centrality in the Crown’s overall theme, it is necessary to set out what the Crown said in some detail. [48] The Crown commenced her closing address by arguing that the appellant and his co-accused worked together to prey on vulnerable people like the complainant: Mr. Goulding and Mr. Clyke were well versed in taking advantage of people however they could, whenever they could, for their own gain, vulnerable people, drug addicts. If it was 4:00 a.m. and Mr. Goulding was the only one around with drugs to sell the prices shot up for the addicts. They would come banging at times. He explained himself to you how it worked. At times Mr. Clyke connected him with the addicts, told him who used what drugs, and in return, Mr. Clyke would benefit from his teamwork, if you want to call it that. Mr. Goulding would give him drugs for helping him out. It wasn’t a particularly sophisticated kind of teamwork. Opportunities arose within the scene we’ve all heard so much about, and when they did Mr. Goulding and Mr. Clyke knew they could work together and both benefit from the vulnerabilities of others. I’m not suggesting that they were partners in drug dealing, I think it’s clear that Mr. Goulding was the dealer, but they had a system that seemed to work out for the benefit of both of them. [S.L.] was 20 years old in April of 2015. She was young and vulnerable, small in stature, had recently moved to Toronto from up north with a boyfriend. He was in jail, she was on her own. She had gotten herself into some trouble with the law, recently had a baby, she was living in a shelter. She had a history of struggling with drugs. She knew Mr. Goulding and Mr. Clyke from the drug scene. She didn’t know them well, nor did they know her well but it wasn’t hard for anyone to see that she was a young girl who was in a vulnerable place easy to take advantage of for one’s own benefit. On the morning of April 22nd, 2015 when Mr. Goulding and Mr. Clyke encountered [S.L.] behind College Park they did exactly that. [49] Throughout her closing, the Crown returned to the theme that the appellant and Mr. Goulding were bad people who took advantage of those who were vulnerable. She concluded her submissions in a similar vein, repeating much of what she said when she began her submissions, and drawing the link between the appellant and his co-accused’s approach to selling drugs to desperate people and their commission of the alleged offences: And by his own accord Derrick Goulding was at the height of his addiction and drug use. Behind the College Park building he encountered [S.L.] who was sitting, drinking coffee and talking with another male. A male they could get rid of pretty easily, leaving [S.L.] powerless. What followed was an opportunity for Mr. Goulding and Mr. Clyke, and [P.S.] to take advantage of a very young and vulnerable girl who they could do whatever they wanted to in a nearby abandoned building that Mr. Goulding was so familiar with. He went there often and there was [S.L.] meters away from the door. It didn’t take much to put the plan together. Nothing about this is sophisticated. Not much about how Mr. Goulding and Mr. Clyke operated together was sophisticated. They’d walk around looking for people on the streets to sell drugs to. If, by chance, they met, they ran into an addict, they’d sell to the addict. That addict might be begging for drugs. The price might shoot up, and it was by chance that they ran into [S.L.] that morning and they weren’t going to let that opportunity pass without benefiting from it, taking advantage of her, getting what they wanted from someone in a vulnerable position. Once Derrick Goulding, Shawn Clyke and [P.S.] got her into that building they could do whatever they wanted to, to her, and they did. [50] The respondent acknowledges that the propensity reasoning invoked by the trial Crown is one of the most problematic aspects of her closing submissions. However, the respondent contends that the invitation to engage in propensity reasoning applied mainly to Mr. Goulding, because there was more evidence of his involvement in dealing drugs, and that it did not prejudice the appellant’s fair trial rights. [51] We disagree. The thrust of the Crown’s submissions was to paint the two accused with the same brush: they worked together to prey on vulnerable people. The fact that there was more evidence about Mr. Goulding’s involvement in drug dealing does not reduce the impact of the Crown’s invitation to engage in propensity reasoning with respect to both accused. [52] The respondent’s main submission is that the trial judge’s corrective instruction, together with her jury charge, adequately addressed the potential harm arising from the Crown’s appeal to propensity reasoning. The respondent relies on the part of the corrective instruction where the trial judge said: And lastly, I’m also going to remind you, as I will in my charge, about the dangers of propensity reasoning. And what I mean by that is you’re not here to judge whether you like somebody’s lifestyle or you like the kind of person that they are. What you’re here to decide is whether an offence or offences were committed on a given day at a certain place, based on the evidence, all of the evidence that you saw and heard in this proceeding. [53] The respondent also relies on the part of the charge dealing with how the jury could use evidence of Mr. Goulding’s criminal record. The trial judge stated: MR. GOULDING’S CRIMINAL RECORD: Mr. Goulding has a criminal record. You may not use the fact that an accused committed offences in the past, or the number or nature of the offences committed, or when those offences were committed, as evidence that he committed the offences charged or, that he is the sort of person who would commit the offences charged. She went on to explain, using the standard jury charge wording, the permitted and prohibited uses of Mr. Goulding’s criminal record in the jury’s assessment of his evidence. She concluded by saying: You must not use the fact, number or nature of the prior convictions to decide, or help you decide, that an accused is the sort of person who would commit the offences charged (or, is a person of bad character and thus likely to have committed the offences charged). [54] While acknowledging that the corrective instruction about propensity reasoning could have been stronger and more complete, the respondent submits that it was nonetheless sufficient, considering that the evidence about the accused’s involvement in dealing drugs was relevant as part of the narrative. The respondent underlines that the Crown made these comments in the context of a hard-fought proceeding. The respondent submits that the trial Crown’s invitation to propensity reasoning did not render the appellant’s trial unfair, given the relevance of the evidence, the lesser impact of the evidence on the appellant, the corrective instruction, and the passage above from the charge to the jury (which, although directed to Mr. Goulding’s criminal record, reminded the jury to avoid propensity reasoning). [55] We agree with the appellant that the Crown’s direct invitation to the jury to engage in propensity reasoning was highly improper. The potential prejudice arising from evidence of an accused’s extrinsic misconduct is well-established. There is “moral prejudice” – the risk that the jury may reason that the accused is a bad person who is likely to have committed the offence with which he is charged. There is also a risk of “reasoning prejudice”, which diverts the jury from its task. An example of reasoning prejudice arises where “the evidence awakens in the jury sentiments of revulsion and condemnation that deflect them from ‘the rational, dispassionate analysis upon which the criminal process should rest’”: R. v. C. (Z.W.) , 2021 ONCA 116, 155 O.R. (3d) 129, at paras. 101-103, citing Martin J. (dissenting in part, but not on this point) in R. v. Calnen , 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 176, 180. [56] The trial Crown’s submissions in this case gave rise to both moral prejudice and reasoning prejudice. She invited the jury to conclude that the accused were bad, predatory people who, therefore, were likely to have committed the offences charged, and she invited the jury to detest the accused, potentially diverting the jurors from their task. [57] Evidence of the accused’s drug dealing was admissible and relevant as part of the narrative (at the very least it provided the necessary context for Mr. Goulding’s testimony). That said, even when evidence of prior misconduct is admissible as part of the narrative, “it is incumbent on the trial judge to clearly instruct the jury on exactly how the evidence is to be used”: C. (Z.W.) , at para. 132. A trial judge’s instruction “should identify the evidence in question, and explain the permitted and prohibited uses of the evidence”: C. (Z.W.) , at para. 109. [58] While the admission of the drug-dealing evidence without a specific instruction about its use may not have amounted to reversible error in this case, particularly given that there was no objection to the charge on this basis, the problem here is the Crown’s use of the evidence. [59] The Crown’s remarks were serious. They were repeated and explicit. The invitation to propensity reasoning was the main theme of the Crown’s submissions. The Crown began her closing on this note, and she ended it the same way. It was reflected in her treatment of the evidence. Mr. Goulding and the appellant were predatory drug dealers. S.L. was a vulnerable young woman. S.L.’s friend, A.V., was characterized in contrast to the appellant and Mr. Goulding, as “a different kind of drug dealer” who protected her from unscrupulous people in the drug scene. The invitation to propensity reasoning was not a mere passing reference. It was the organizing principle for the Crown’s theory of the case. [60] Unfortunately, the trial judge’s corrective instruction did not adequately respond to the Crown’s improper appeal to propensity reasoning. [61] First, the instruction was insufficiently specific or focused: it did not identify for the jury that it related to what the Crown had said in her closing submissions, nor did it include an example of prohibited propensity reasoning. The trial judge ought to have specifically identified the improper invitation to propensity reasoning and then instructed the jury about the permissible and prohibited uses of the evidence about the accused’s drug-selling behaviour. [62] Second, although the trial judge addressed in general terms the “moral prejudice” aspect of propensity reasoning – instructing the jury not to “judge whether you like somebody’s lifestyle or you like the kind of person they are” – she did not address the key problem, which was the Crown’s urging the jury to reason that because the accused were predatory people who targeted vulnerable individuals, they had committed the offences. The corrective instruction did not explain to the jury that they were prohibited from reasoning in this way, and did not instruct the jurors to disregard the Crown’s invitation to do so. [63] The absence of an effective corrective instruction was compounded by passages in the jury charge. In summarizing the position of Crown counsel, the trial judge repeated the main theme of the Crown’s closing: that the accused were opportunists who took advantage of the vulnerable complainant, just as they took advantage of vulnerable drug users. The summary of the Crown’s position reinforced the overarching theme of the Crown’s closing, which was based on prohibited propensity reasoning. [64] Nor did the passage from the charge relied on by the respondent bring home any corrective message with respect to propensity reasoning in relation to the appellant. In fact, it may have inadvertently compounded the problem. Because the only reference in the charge to propensity reasoning was directed at Mr. Goulding’s criminal record, it is quite possible that the jury would have understood that the earlier instruction, that was stated in general terms, related to the same issue. Instead of the corrective instruction and the charge working together to resolve the issues in the Crown’s closing, this would have left the impugned passages in the Crown’s closing completely unaddressed. [65] This case is similar in some respects to two other decisions from our court, where the Crown’s theory of the case, as put to the jury, turned on impermissible reasoning. In R. v. Precup , 2013 ONCA 411, 116 O.R. (3d) 22, this court ordered a new trial after Crown counsel improperly referred to hearsay notations in the appellant’s medical records for the truth of their contents, inviting the jury to use them as evidence of the appellant’s disposition for violence, and hence as indicative of his guilt. The Crown suggested that the appellant was an angry and volatile person, and therefore more likely to have committed the offences charged. The Crown’s statements “were tantamount to encouraging the jury to engage in impermissible propensity reasoning. They cried out for an explicit, remedial instruction or, alternatively, a clear instruction on the limited use of [the] evidence about the Prior Incidents”: at para. 65. The absence of such instructions required a new trial. [66] Similarly, in T.(A.) , the trial Crown’s theory of the case turned on impermissible reasoning: that the appellant was a religious zealot and therefore more likely to have committed the offences charged: at para. 40. The appeal was allowed and a new trial was ordered notwithstanding the failure by defence counsel to object to Crown counsel’s comments. This court concluded that the remarks were so prejudicial that the trial judge had a duty to remedy the potential trial unfairness: at para. 42. [67] Here, the impermissible reasoning was that the accused were predatory people, in the habit of taking advantage of vulnerable people however they could, and therefore more likely to have committed the offences charged. This impermissible reasoning flowed throughout the Crown’s closing submissions and was inadvertently reinforced by the trial judge. [68] Unlike in T.(A.), the trial judge gave the jury some guidance on how to deal with this evidence, however the corrective instruction did not address the impermissible reasoning advanced by the Crown. As in Precup , we do not consider defence counsel’s failure to renew her objection following the corrective instruction as determinative. The appellant’s counsel forcefully objected to this aspect of the Crown’s closing, referring to both aspects of prejudice that would follow the appeal to propensity reasoning. She specifically asked the trial judge to explain propensity reasoning to the jury. There was no strategic benefit to the defence for not renewing the objection, for example, by drawing further attention to the bad character evidence. The evidence that was the subject of the invitation to propensity reasoning – drug dealing on the part of both accused – was front and centre in both the Crown and defence cases. Specific instructions about the proper and improper uses of this evidence would not have harmed, and could only have benefited, the defence. [69] It is unnecessary to decide whether, standing alone, the Crown’s appeal to propensity reasoning would warrant a new trial given the cumulative effect of the improprieties in the Crown’s closing submissions, discussed further below. (2) Crown Counsel’s Inflammatory Language [70] The appellant submits that the trial Crown used inflammatory language to describe the assault and the effect it had on the complainant. She described the assault as “a horrendous, brutal attack that no girl, no woman, no mother, no sister, no daughter, no friend should ever have to experience in their lives”. She suggested that the complainant’s demeanour while testifying was “consistent with someone who is reliving a horrible, degrading, violent, traumatizing event. One that [she] may never forget and perhaps never move beyond”. [71] The appellant also points to a passage in the trial Crown’s closing where she expressed her personal view that the complainant had been traumatized: [S.L.] was injured and she was traumatized. Now, I’m not giving medical evidence when I say this, and I’m not an expert in trauma, or anything medically related, but I’m a person with common sense, I think, and [S.L.] is still pretty traumatized, not in a medical diagnosis kind of way because again I can’t tell you that. But as a person with various life experiences, the same way all 11 of you have, that you’ll bring to the table in your discussions, I’m just telling you how I saw it, and how I think it may have appeared to some of you. [72] The appellant submits that in these passages, the Crown attempted to pull at the heartstrings of the jurors and invite them to sympathize with S.L. as they would with their mother, daughter or sister. There was no evidence that S.L. was traumatized or might never forget or move on. It was improper for Crown counsel to present her own musings about S.L.’s mental state to the jury in order to evoke their sympathy. [73] The respondent acknowledges that the inflammatory language used by the trial Crown amounted to “rhetorical excess”. However, the respondent contends that such language was directed to the sexual offences, and that the acquittal of the appellant and his co-accused for such offences indicates that the jury was not swayed by it. Further, the respondent points to the detailed instructions in the jury charge on how to assess credibility. In outlining the factors relevant to assessing credibility, the trial judge told the jurors to “consider the evidence and make [their] decision without sympathy, prejudice or fear”. She advised the jury not to be influenced by public opinion, and to conduct an impartial assessment of the evidence. [74] In our view, the Crown improperly and directly sought to “inflame the passions” of the jury, appealing to their emotions, by inviting sympathy for S.L. and revulsion toward the accused. The inflammatory rhetoric used by the trial Crown worked together with her invitation to the jury to engage in propensity reasoning. [75] As in the case of the invitation to propensity reasoning, and for the same reasons, the Crown’s use of inflammatory language should have been the subject of an explicit and unequivocal corrective instruction. The standard instruction to the jury not to decide the case based on sympathy or prejudice was insufficient, given that both sympathy and prejudice were the main themes in the Crown’s closing. [76] It appears from the transcript of her discussions with counsel, that the trial judge may have decided not to provide a corrective instruction on this point because defence counsel had also resorted to what counsel described as “commentary”. With respect, even if defence counsel went too far in their submissions about the complainant – and we note that the Crown did not object to the defence closing on this basis – an explicit corrective instruction was nevertheless required. “An inflammatory closing is not justified even where preceded by defence counsel’s own excesses. Ethical duties do not recede in proportion to the improprieties of opposing counsel”: David Layton and Hon. Michel Proulx, Ethics and Criminal Law , 2nd ed. (Toronto: Irwin Law, 2015), at pp. 648-649. “Emotions tend to run high in jury trials dealing with serious crimes… Crown counsel is expected to behave in a dispassionate and impartial manner to reduce the emotional level and foster a rational process”: R. v. R.B.B. , 2001 BCCA 14, 152 C.C.C. (3d) 437, at para. 15. [77] Finally, we do not accept the respondent’s argument that the Crown’s inflammatory remarks related only to the sexual assault charges. The Crown was referring to the entire attack on the complainant, not just to the alleged sexual assault. In our view, it is not possible to parse the Crown’s comments in the manner suggested by the respondent. (3) Comments Designed to Bolster the Complainant’s Credibility [78] The appellant refers to two passages in the Crown’s closing submissions where she is alleged to have made improper comments that were designed to bolster the complainant’s credibility. [79] First, the appellant contends that the Crown attempted to enhance S.L.’s credibility by improperly referring to the preliminary inquiry in this matter and the preliminary inquiry for the third co-accused, and suggesting that S.L.’s account had stood up to cross-examination in such prior proceedings. It is unnecessary to address this argument. In the context of this trial, the references to the prior proceedings were not problematic. And, in our view, the passage relied on by the appellant would not reasonably bear the interpretation advanced by the appellant. [80] Second, the appellant submits that the trial Crown improperly suggested that S.L. was credible because she underwent a full examination and “convinced” an expert (the sexual assault nurse), when it was not the nurse’s role to challenge S.L.’s account, but only to gather information. In this regard, the Crown stated: In [the sexual assault nurse’s] expert opinion, [S.L.’s] version of what happened to her was consistent with the results of her examination and assessment. This is evidence I hope you take to the forefront of your discussions. No one challenged [the nurse’s] expertise. Both the Crown and defence agreed she was an expert in the area to what she testified. If [S.L.] wanted to make up this whole story and falsely implicate Mr. Goulding and Mr. Clyke, she successfully managed to convince a qualified expert who examined her that same day, that her made up version was consistent with [the nurse’s] assessment and [the nurse’s] opinion. If you believe that she’s lying that’s rather impressing, impressive, for lying [S.L.] that the medical findings of her sexual assault examination are consistent with her lies. [81] The appellant also notes that the Crown personally endorsed the complainant’s credibility. The Crown concluded her closing address with such an endorsement: But if in fact, [S.L.] was making all this up and managed to put all of the other supporting pieces of evidence in place, she’s a young girl capable of accomplishing amazing things, and I wish she was. I wish I believed that she made this all up and [S.L.] would one day conquer the world. [82] The respondent acknowledges that the Crown’s reliance on the sexual assault nurse to bolster S.L.’s credibility, and her personal endorsement of S.L.’s credibility, were improper. However, the respondent contends that certain aspects of the charge effectively prevented the jury from relying on these submissions in their assessment of S.L.’s evidence. [83] If these had been the only improper submissions in the Crown’s closing, we might have deferred to the trial judge’s decision not to address them specifically. What she said in the jury charge went some way to remedying the potential prejudice. The trial judge accurately summarized the evidence of the sexual assault nurse, including that the presence or absence of injuries was not determinative of whether an assault occurred. She reminded the jury that the opinions of counsel were not evidence. And she instructed the jury that it was their task alone to assess the credibility of witnesses, providing the usual detailed instruction to the jury on how to go about this task. The jury was thus equipped with many of the necessary tools to decide this issue without relying on the Crown’s improper attempts to bolster the complainant’s credibility. In our view however, when these problems are considered together with the trial Crown’s invitation to engage in propensity reasoning, the use of inflammatory language, and the other problematic issues related to S.L.’s credibility discussed below, the absence of a specific correction resulted in an unfair trial. [84] The respondent also suggests that the trial Crown’s submission about the sexual assault nurse related only to the sexual assault offences, and since the jury found the accused not guilty of sexual assault, it had no impact on their reasoning. We do not accept this argument. The injuries observed by the sexual assault nurse were not limited to injuries sustained in the alleged sexual assault. Moreover, in making her submissions about this evidence, and in encouraging the jury’s use of it to enhance S.L.’s credibility, the Crown did not distinguish between the alleged sexual assault and the other aspects of the attack. (4) Invitations to Speculation [85] The appellant submits that the trial Crown improperly invited the jury to engage in speculation in two ways: first, in discussing ways that drugs might have gotten into S.L.’s system by including a theory that was not supported by the evidence, and second, by claiming that the appellant’s DNA was present in the DNA samples, when the evidence did not support this conclusion. (a) Speculation About Why S.L. Had Drugs in Her System [86] First, the appellant contends that the trial Crown relied on baseless theories to explain away the evidence that S.L.’s blood tested positive for methamphetamines. The evidence of drugs in S.L.’s system was important because it was potentially inconsistent with her evidence that she had not been using drugs in the months leading up to the events in question. The appellant submits that this was an improper attempt by the Crown to rehabilitate S.L.’s credibility. [87] The respondent acknowledges that, given the limited details in S.L.’s evidence about the sexual assault, the trial Crown likely crossed a line when she submitted that the assailants “[p]resumably… were all touching every part of [S.L.’s] naked body”, and in implicitly relying on semen as a possible method of transmission, when the expert evidence did not support this theory. However, the respondent submits that this did not cause any unfairness because this evidence related to the sexual assault allegation. The only way the jury could have accepted the Crown’s submissions on how the drugs came to be in S.L.’s system was if they also accepted that the sexual assault occurred. Moreover, in her charge the trial judge correctly summarized the evidence on how methamphetamine can enter a person’s system, as well as the defence position that the Crown’s suggestion that crystal meth may have passed through the vaginal or anal cavity was at odds with her testimony that she only saw the three males smoking the meth, not stuffing the pipe or snorting the meth. Finally, the trial judge instructed the jury to decide the facts based on the evidence and cautioned them against speculation. [88] We agree with the respondent’s concession that the Crown’s submissions stretched the evidence about drug transfer beyond its limits. The trial judge appreciated the problematic nature of the Crown’s submissions. Recall that this was an issue that she raised on her own initiative after the Crown’s closing, and she said she would consider it. In the end, she decided not to give a corrective instruction on this issue. Instead, the trial judge correctly summarized the evidence, and defence counsel’s position on it, in her charge to the jury. She also correctly instructed the jury on the principles for dealing with expert evidence. [89] In our view a more specific caution would have been preferable, because the Crown’s implicit submission that the jury could find that methamphetamine was transferred to S.L. through semen was particularly improper – there was simply no evidence to support such a finding. The trial judge could have pointed to this example in her caution against speculation. As with the Crown’s submissions about the sexual assault nurse and her personal endorsement of the complainant’s credibility, if this had been the only error in the Crown’s submissions, we might well have deferred to the trial judge’s decision not to give a specific correction. However, given that it was accompanied by multiple problematic submissions from the Crown relating to the important issue of S.L.’s credibility, it ought to have been addressed. [90] Nor do we accept the respondent’s argument that no prejudice resulted from the Crown’s remarks. As noted above, the evidence was significant to the jury’s assessment of the complainant’s credibility. It was also potentially consistent with Mr. Goulding’s evidence that she had used drugs with him that day. While this evidence may be less significant given the acquittals for the sexual offences, in a case that turned to a great extent on credibility, we cannot know the role it might have played in finding the appellant guilty on the assault charges. (b) Speculation About the Appellant as the Third DNA Contributor [91] The appellant also submits that it was wrong for the trial Crown to submit to the jury that the third DNA contributor was the appellant. While it was open to the Crown to say that the appellant was one of the parties involved in the incident, the Crown crossed the line by relating him to the DNA evidence when the expert testified that the third sample was unsuitable for comparison and could not be connected to the appellant. Although the DNA evidence arguably related only to the sexual offences, the appellant submits that the Crown’s submission on this point could have been relied on by the jury to identify the appellant as one of the complainant’s assailants. [92] It is unnecessary to address this submission in great detail. We accept that the trial Crown may have gone too far in submitting that the appellant was the third DNA contributor, given that the forensic analyst testified that the sample was not suitable for comparison. That said, in our view the jury would have understood the limits of the DNA evidence. Immediately before stating her position that the third sample came from the appellant, the Crown reminded the jury that the sample was unsuitable for comparison. The trial judge correctly summarized the expert’s evidence, as did defence counsel. She also accurately summarized the appellant’s position that the DNA evidence did not assist in identifying S.L.’s assailants. In the circumstances, despite the fact that the Crown’s submissions may have crossed the line in suggesting that the third sample was of the appellant’s DNA, the jury would have understood that the DNA evidence did not identify the appellant. [93] In our view, given the repeated, correct summaries of the DNA evidence, the trial judge did not err in failing to correct this aspect of the Crown’s submissions. (5) References to Facts Not in Evidence [94] The appellant submits that the trial Crown wrongly referred to certain facts that were not in evidence: first, in giving her own opinion about what the scene looked like at the time the fire alarm went off, and referring to actions taken by the firefighters present during the fire alarm; second, in inviting the jury to conclude that Mr. Goulding had not implicated the appellant because this would lead to consequences for him “on the streets”; and third, in providing an explanation for the Crown’s failure to call S.L.’s grandmother as a witness. [95] While some of these remarks were improper, in our view they were either adequately corrected by the trial judge or relatively insignificant. To the extent the trial judge declined to correct the remarks we defer to her decision. [96] First, while the Crown’s submission about the firefighters tended to stretch the available evidence and could have been misleading, the trial judge’s corrective instruction expressly referred to the fact that there had been submissions about this evidence. She correctly summarized the evidence about the firefighters, including its limits. Nothing further was required to address this point. [97] Second, the Crown arguably crossed the line in submitting that someone familiar with the streets would not “rat” on someone else. There does not appear to be any evidentiary support for this submission. However, this was a brief comment, made in passing. It was not the focus of the Crown’s submissions. We defer to the trial judge’s decision not to correct this remark. A correction would only have drawn the jury’s attention to what was otherwise a minor point in the Crown’s lengthy closing. [98] Finally, whether or not the Crown was entitled to provide an explanation for not calling S.L.’s grandmother as a witness, this comment would not have occasioned any significant prejudice. As the respondent pointed out, the Crown’s comment that she felt the grandmother’s evidence was unnecessary was made in response to the suggestion by counsel for the appellant that the Crown ought to have called the grandmother to corroborate the complainant’s account of where she was the night before. In any event, the jury was told that counsel’s submissions are not evidence, and they must decide the case based only on the evidence, and, in the context of this case, even if the Crown’s explanation was inappropriate, it could not have occasioned much prejudice given the insignificance of any evidence the grandmother might have given. (6) Reliance on Personal Observations Not in Evidence [99] The appellant submits that the trial Crown referred to personal observations not in evidence, including that the Crown had dropped bricks on the floor and had not observed scuff marks. This comment was in response to the reliance by the defence on the absence of any indicia of a struggle in the shed – including scuff marks made by bricks – to suggest that the incident could not have transpired as described by S.L. The appellant concedes that this was a relatively minor issue. [100] In our view, while the Crown’s comment was likely improper, it was also trivial. Given the trial judge’s corrective instruction and charge, the jury would have understood that counsel’s submissions were not evidence, and that they were to decide the case based only on the evidence. This was a passing remark in the context of lengthy closing submissions, and it was within the trial judge’s discretion to decide not to correct this explicitly. F. CONCLUSION ON THE CUMULATIVE EFFECT OF THE CROWN’S IMPROPER SUBMISSIONS [101] In our view, the trial Crown made improper closing submissions that prejudiced the appellant’s right to a fair trial. The main problems were the Crown’s repeated invitations to the jury to engage in prohibited propensity reasoning and her use of inflammatory language inviting the jury to detest the accused and to sympathize with the complainant. [102] As we have explained, in her closing submissions the Crown also attempted to bolster the complainant’s credibility in multiple improper ways. As already indicated, had these improper attempts to bolster the complainant’s credibility been the only improprieties in the Crown’s submissions, we might have deferred to the trial judge’s decision not to give an explicit correction, and instead to rely on the more general language in the corrective instruction and jury charge to equip the jury to deal with these issues. [103] In determining whether trial unfairness resulted from the Crown’s improprieties in her closing address, the strength of the Crown’s case is a relevant consideration. The Crown did not have an overwhelming case. There were credibility and reliability concerns with the complainant’s evidence, much as there were with the evidence of Mr. Goulding. In this context, it was important that Crown counsel approach the evidence fairly and dispassionately. She did not do so; instead, she attempted to prop up her case by inviting the jury to feel revulsion for the accused and compassion for the complainant, and by bolstering the complainant’s credibility in improper ways. Given the challenges in the Crown’s case, a more explicit corrective instruction was required to address the resulting prejudice to the appellant’s right to a fair trial. [104] When, as here, Crown counsel has overstepped the bounds of proper submissions to the extent that an accused’s fair trial rights are jeopardized, there is typically no reason for the trial judge to avoid pointing out specifically what is being corrected, and there is every reason to do so. In this case the most egregious remarks were deliberate and part of the Crown’s overriding theme. It was appropriate and indeed necessary for the trial judge to “single out” the Crown in her remarks. The failure to do so risked a corrective instruction that was ineffective. [105] Depending on the nature of the impropriety, there may be a concern about repeating references that are prejudicial to the accused. This is one reason why it can be beneficial for a trial judge not only to discuss the appropriate response with counsel (as the trial judge did in this case), but also to provide them with proposed wording for their consideration and input: see, e.g., Howley , at para. 41; R. v. Herron , 2019 SKCA 138, at para. 89; R. v. Badgerow , 2019 ONCA 374, at paras. 44-47; R. v. Gager , 2020 ONCA 274, at para. 57. Crown counsel can play an important role in ensuring that an effective and appropriate corrective instruction has been given. See, e.g., Melanson , at para. 79, and Howley , at paras. 40-42. [106] While Crown counsel at trial, for the most part, did not accept that she had done anything wrong, the respondent on appeal acknowledges that there were several significant improprieties in the trial Crown’s closing submissions. The resulting prejudice to the appellant’s fair trial rights was not effectively remedied. The corrective instruction did not bring home to the jury what was specifically said that they needed to disregard. It would not have been clear: (1) what parts of the Crown’s closing submissions were problematic; and (2) that the jury was to disregard entirely certain parts of the Crown’s submissions. [107] As already noted, the failure of defence counsel, who protested vigorously after the Crown’s closing address, to object to the corrective instruction and the relevant portions of the jury charge, is not determinative. There was no apparent tactical reason for the defence failure to object, nor can we take the failure to object as “an indication that the impact of the comment, in the circumstances, was not so prejudicial as to render the trial unfair” ( T.(A.) , at para. 41). Where, as here, the main problem with the Crown’s closing was her repeated invitation to the jury to engage in propensity reasoning, and the invitation to propensity reasoning formed the central theme of the Crown’s closing submissions, there was a real danger that the jury would have been misled and would not have properly assessed the evidence. G. DISPOSITION [108] For these reasons we allow the appeal, quash the appellant’s convictions, and remit the matter to the Superior Court of Justice for a new trial on the charges of assault and assault causing bodily harm. Released: November 16, 2021 “P.R.” “Paul Rouleau J.A.” “K. van Rensburg J.A.” “Grant Huscroft J.A.” [1] There were other objections to the trial Crown’s closing submissions that are not listed here, as they were pertinent only to Mr. Goulding. [2] The trial judge’s reference to the Barrie proceedings was not directed at the Crown’s closing submissions. Rather, it was intended to correct a suggestion made by defence counsel about unrelated family law proceedings.

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 110(1)          Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. (2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community. (3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication. 111(1)          Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138(1)          Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b)  is guilty of an offence punishable on summary conviction. COURT OF APPEAL FOR ONTARIO CITATION:  R. v. J.Z., 2021 ONCA 817 DATE: 20211116 DOCKET: C68072 Doherty, Pardu and Thorburn JJ.A. BETWEEN Her Majesty the Queen Applicant (Appellant) and J.Z. Respondent Erin Carley, for the Crown applicant (appellant) Ricardo Golec, for the respondent Heard and released orally: November 12, 2021 On appeal from the sentence imposed by Justice Brian Weagant of the Ontario Court of Justice (Youth Justice Court) on January 24, 2020. REASONS FOR DECISION [1] The Crown applicant alleges the trial judge misinterpreted s. 39(1)(d) of the Youth Criminal Justice Act (“ YCJA ”) and failed to impose a custodial sentence despite having determined that this was “an exceptional case” under s. 39(1)(d). The Crown submits that, having made that determination, the trial judge was required to impose a custodial sentence. [2] We cannot accept this interpretation. The proper interpretation of the section  is found in R. v. R.E.W. (2006), 205 C.C.C. (3d) 183, at para. 43. Rosenberg J.A. said: The scheme of the YCJA suggests that the exceptional case gateway can only be utilized in those very rare cases where the circumstances of the crime are so extreme that anything less than custody would fail to reflect societal values . It seems to me that one example of an example of an exceptional case is when the circumstances of the offence are shocking to the community. [Emphasis added.] [3] The trial judge, although cognizant of the serious nature of the offence, determined that this was not a case in which only a custodial sentence could reflect societal values and, more specifically, the purposes and principles in s. 38 of the YCJA . [4] It was open to the trial judge to make that assessment. We see no error in principle in his conclusion. Given the trial judge’s assessment, he properly declined to impose a custodial sentence under s. 39(1)(d) of the YCJA . Leave to appeal is granted and the appeal is dismissed. “Doherty J.A.” “G. Pardu J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Nowack, 2021 ONCA 816 DATE: 20211116 DOCKET: M52673 (C67831) Doherty, Pardu and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Steven Nowack Appellant Paul Slansky, for the appellant Matthew Asma, for the respondent Noah Schachter, for the Toronto Police Service Heard and released orally: November 12, 2021 REASONS FOR DECISION [1] Counsel for the Toronto Police Service advises that he learned this morning, about an hour before the appeal was scheduled to start, that the police had recovered additional emails that may be pertinent to this motion. Counsel is understandably unable to provide any details of the recovery at this point. Counsel all agree that the motion should be adjourned sine die to allow the parties to explore this latest development. We agree. [2] The motion is adjourned sine die . Any matters that may arise from this recent recovery may be addressed by Justice Rouleau, the case management judge. “Doherty J.A.” “G. Pardu J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Syrowik v. Wheeler, 2021 ONCA 819 DATE: 20211117 DOCKET: C69034 MacPherson, Simmons and Nordheimer JJ.A. BETWEEN David Syrowik and Ursula Syrowik Applicants (Appellants) and Stella Wheeler and Sheila Diaz Respondents (Respondents) Analee Baroudi, for the appellants David M. Sanders, for the respondents Heard: November 2, 2021 by video conference On appeal from the judgment of Justice Jonathon C. George of the Superior Court of Justice, dated December 18, 2020 with reasons reported at 2020 ONSC 7948. REASONS FOR DECISION [1] The appellants appeal from a decision dismissing their application under s. 440 of the Municipal Act, 2001 , S.O. 2001, c. 25, (the “Act”) for declaratory and other relief to enforce a municipal fence by-law. The by-law at issue is referred to as “The Corporation of the Municipality of Lambton Shores By-law 80-2008, a By-law to Prescribe the Height and Type of Fences” (the “Fence By-law”). Following the appeal hearing, we dismissed the appeal for reasons to follow. These are our reasons. Background [2] The appellants and the respondents own neighbouring cottages in the Municipality of Lambton Shores (the “Municipality”) on Lake Huron. Both cottages face generally to the north and front on an unopened private road allowance that runs along the lake. The respondents’ property lies to the west of the appellants' property. The respondents’ driveway faces west and opens onto a private road that runs generally north and south. [3] In 2015, the respondents built a privacy fence (the “Fence”) that runs parallel to the east wall of their cottage and their eastern property line, which divides their land from the appellants’ land. The Fence sits adjacent to the respondents’ cottage and runs beyond their cottage towards the lake. [4] The appellants contend that the Fence is too high, that it violates the Fence By-law and that, on occasion, it blocks their view of the sunset over the lake. They also contend that, in constructing the Fence, the respondents violated the Municipality's site alteration by-law by shoring up the fence line with sand without a permit. [5] In April 2018, the appellants complained to the Municipality. The Municipality’s clerk responded to the appellants' complaints by email dated May 25, 2018. She said the Municipality had considered the complaint and found no violation of the site alteration by-law. Further, while the Municipality believed that the end of the Fence closest to the lake violated a 6.5 feet height restriction in the Fence By-law, other factors were relevant: the nature and context of the complaint, background information and spirit of the By-law. Having considered all the circumstances, the Municipality said it would not be conducting any further investigation with respect to the alleged fence violation. The Application Judge’s Decision [6] On the appellants’ application to enforce the Fence By-law under s. 440 of the Act , the application judge assumed for the purposes of the application that the Fence "is probably higher than the Municipality permits." Nonetheless, he declined to make an order that the respondents remove or lower the Fence. He found that the Municipality had looked into and declined to enforce the Fence By-law for articulable reasons. Given that the Municipality had not acted unreasonably or in bad faith, he saw no basis on which to intervene and grant the relief requested. Discussion [7] Section 440 of the Act reads as follows: If any by-law of a municipality or by-law of a local board of a municipality under this or any other Act is contravened, in addition to any other remedy and to any penalty imposed by the by-law, the contravention may be restrained by application at the instance of a taxpayer or the municipality or local board.” [Emphasis added.] [8] Both parties submit that the application judge erred in concluding that in order to succeed on an application to enforce a by-law under s. 440 of the Act, where a municipality has declined to do so, a taxpayer is required to show that the Municipality acted unreasonably or in bad faith in declining to enforce the by-law. [9] We agree. The appellants were not seeking an order compelling the Municipality to enforce the Fence By-law. Nonetheless, we are satisfied that the evidence the appellants adduced on their application lacked sufficient detail to establish a clear breach of the Fence By-law and that they were not therefore entitled to an order restraining its contravention. [10] As we will explain in more detail, the Fence By-law’s height restrictions, as they apply to the respondents’ property, are determined by reference to the term “street”. The term “street” is defined in the Fence By-law to mean “a public highway which provides the principal means of vehicular access to abutting lots and includes its sidewalks and boulevards.” However, there are no “public highways” adjacent to the respondents’ property. Rather, an unopened road allowance lies to the north and a private road lies to the west of their property. The respondents are otherwise bounded by other cottagers. [1] Accordingly, whether and how the Fence By-law applies to the respondents’ property is fraught with difficulty. Although served with notice, the Municipality declined to appear on the application. Further, the appellants adduced no evidence on the application from Municipal officials or employees. Based on our review of the record, the appellants’ evidence is not sufficient to demonstrate whether or how the Fence By-Law applies to the respondents’ property. 1. The Fence By-law Definitions [11] The Fence By-law prescribes fence heights by reference to their location in a particular yard: front yard, exterior side yard, side yard and rear yard. [12] It is undisputed that the Fence is of a “solid type of construction” as described in the Fence By-law. The Fence By-law specifies that a fence of a solid type of construction shall not exceed the following maximum heights: - 0.91 metres (3 feet) in front and exterior yards ; and - 2 metres (6.5 feet) in interior side yards and rear yards . [13] The difficulty concerning whether or how the Fence By-law applies to the respondents’ property arises because it is not clear that the land on which the Fence is located falls within the definition(s) of any of the foregoing yards. [14] This is because the definition of each yard described in the Fence By-law is tied, in turn, to the definition of "street". The link occurs either directly through the definition of the particular yard in the Fence By-law - or indirectly through references in the definition of the particular yard in the Fence By-law to terms defined in either Lambton Shores Zoning By-law No. 1 of 2003 (the “Zoning By-law”) or the Fence By-law. [15] The problem arises because, as we have said, the road and road allowance abutting the respondents’ property are private, not public. If the land on which the fence is located does not fall within one of the relevant yard definitions, it is far from clear that the Fence By-law operates to prescribe fence height limits on the respondents’ property at all. [16] All the relevant By-law definitions are set out in Appendix ‘A’ with the relevant links underlined. But, by way of example, we will set out below the relevant definitions of exterior side yard, front yard and side yard in the Fence By-law and show how the definitions are tied to the term “street”. [17] For example, the definition of exterior side yard in the Fence By-law refers directly to the definition of “street”. In contrast, the definition of front yard in the Fence By-law is tied to the definition of “street” by reference to a term that is defined, and tied to the definition of “street”, in the Zoning By-law. Further, an interior yard is defined by reference to a term in the Fence By-law (front yard) that is tied to the definition of “street” through the Zoning By-law. (i) Exterior side yard Fence By-law “ Yard, exterior side ” means a side yard immediately adjoining a street , extending from a front yard to the rear lot line; (ii) Front yard Fence By-law “ Yard, front ” means a yard that extends across the full width of the lot from the front lot line to the nearest wall of the main building on the lot; Zoning By-law “ Front Lot line ” means in the case of an Interior Lot, the line dividing the Lot from the Street . In the case of a Corner Lot, the shorter Lot Line abutting a Street shall be deemed the Front Lot Line and the longer Lot Line abutting a Street shall be deemed the Exterior Side Lot Line. In the case of a Through Lot or a Corner Lot whose exterior Lot Lines are the same length, the Lot Line where the principle access to the Lot is provided shall be deemed to be the Front Lot Line. [2] (iii) Interior Yard Fence By-law “ Yard, side ” means a yard that extends from the front yard to the rear yard and from the side line of a lot to the nearest wall of the main building on the lot. Fence By-law “ Yard, front ” means a yard that extends across the full width of the lot from the front lot line to the nearest wall of the main building on the lot. 2. The Appellants’ Evidence [18] The appellants filed two affidavits from a registered land use planner to address, among other things, the interpretation of the Fence By-law and its application to the Fence. The planner advanced an opinion that the Fence is located partly within a front yard and partly within a side yard of the respondents’ property and therefore subject to both a 3 foot and 6.5 foot height restriction. In reaching these opinions the planner relied in large measure on a 1980 Committee of Adjustment decision and what he describes as the intent of the original subdivision plan within which the cottages are located. At least implicit in this opinion is a conclusion that the northern boundary of the respondents’ property is a front lot line. [19] Based on our review of the record, the land use planner's evidence is not sufficient to establish a clear breach of the Fence By-law. As a starting point, the planner did not explain the basis for his opinion concerning the intent of the original subdivision plan relative to the Fence By-law. Nor does his opinion refer to Wheeler v. Syrowik , 2017 ONSC 2901, 67 M.P.L.R. (5th) 43 (Div. Ct.), a decision addressing the appellants' property, but which described the northern boundary of the respondents' land as a side lot line – apparently premised on an interpretation of the Zoning By-law proffered by the planner and accepted by the Chief Building Official. [3] [20] Most importantly however, the planner’s opinion does not address what we view as the real possibility that the Fence By-law does not apply to the respondents’ lands at all. His reliance on a dated Committee of Adjustment decision, and an unexplained opinion concerning the intent of the original subdivision plan, are inadequate to displace that concern. Disposition and Costs [21] The appeal is dismissed. Costs of the appeal are to the respondents on a partial indemnity scale in the agreed upon amount of $12,300 inclusive of disbursements and applicable taxes. “J.C. MacPherson J.A.” “Janet Simmons J.A.” “I.V.B. Nordheimer J.A.” Appendix ‘A’ Fence By-Law “Yard, exterior side” means a side yard immediately adjoining a street , extending from a front yard to the rear lot line; “Yard, front” means a yard that extends across the full width of the lot from the front lot line to the nearest wall of the main building on the lot; “Yard, rear” means a yard that extends across the full width of the lot from the rear lot line to the nearest wall of the main building on the lot; “Yard, side” means a yard that extends from the front yard to the rear yard and from the side lot line of a lot to the nearest wall of the main building on the lot. Zoning By-law “Front Lot Line” means in the case of an Interior Lot, the line dividing the Lot from the Street . In the case of a Corner Lot, the shorter Lot Line abutting a Street shall be deemed the Front Lot Line and the longer Lot Line abutting a Street shall be deemed the Exterior Side Lot Line. In the case of a Through Lot or a Corner Lot whose exterior Lot Lines are the same length, the Lot Line where the principle access to the Lot is provided shall be deemed to be the Front Lot Line. Rear Lot Line” means in the case of a Lot having four or more Lot Lines, the Lot Line farthest from and opposite to the Front Lot Line . If a Lot has less than four Lot Lines, there shall be deemed to be no Rear Lot Line. “Side Lot Line” means a Lot Line other than a Front or Rear Lot Line, and shall include Interior Side Lot Line and Exterior Side Lot Line. “Exterior Side Lot Line” on a Corner Lot, means the longer Lot Line abutting a Street. “Interior Side Lot Line” means a Side Lot Line other than an Exterior Side Lot Line. [1] The neighbourhood where the parties' cottages are located is private property. The landowners hold title to their individual properties but all else is owned and maintained by the Richmond Park Cottagers’ Association, comprised of the homeowners in the neighbourhood. None of the streets in the neighbourhood have been assumed by the municipality. [2] The exterior lot lines of the respondents’ property are not the same length. [3] The interpretation accepted by the Chief Building Official was one of two interpretations proffered by the planner and not apparently the planner’s preferred interpretation.

COURT OF APPEAL FOR ONTARIO CITATION: 1476335 Ontario Inc. v. Frezza, 2021 ONCA 822 DATE: 20211118 DOCKET: M52811 & M52846 (C69611) Feldman, van Rensburg and Coroza JJ.A. BETWEEN 1476335 Ontario Inc., Aldo Rotondi, D’Andrea Management Inc. and Rick D’Andrea Plaintiffs (Appellants/Moving Parties) and Brenda Frezza, Onorio Frezza, Elio Ascenzo Frezza, Jane Frezza and Frezza Management Inc. Defendants ( Respondents/Responding Parties ) Anthony J. Gabriele, for the moving parties D. John Kirby, for the responding party Brenda Frezza No one appearing for the responding parties Onorio Frezza, Elio Ascenzo Frezza and Jane Frezza Heard: November 5, 2021 by video conference Feldman J.A.: A. Introduction [1] There were two motions before the court. The first asked the court to determine whether it has jurisdiction to hear the appeal. The second asked for interim relief pending appeal. During the hearing, the court determined that it did not have jurisdiction to hear the appeal or to grant interim relief, but proceeded to hear submissions on whether the court should seek the permission of the Chief Justice of the Superior Court to sit as the Divisional Court for the purpose of considering whether to grant the request for interim relief. B. Background [2] The moving parties are the plaintiffs in an action seeking to set aside three alleged fraudulent conveyances. The conveyances were made in or around 2003, after litigation had been commenced by the current defendants Elio Ascenzo Frezza, Onorio Frezza, and Frezza Management Inc., as well as others, against a number of parties including the current plaintiffs. This prior litigation was dismissed in 2016 and resulted in a significant costs award in favour of the current plaintiffs. [3] While the current plaintiffs have recovered some of the costs awarded to them, $700,000 in costs remains outstanding. In the current action, the plaintiffs allege that during the prior litigation, the current defendants Elio Ascenzo Frezza, Onorio Frezza, and Frezza Management Inc. fraudulently transferred three properties to Jane Frezza and Brenda Frezza, who were not parties to the prior litigation, for nominal consideration. The plaintiffs say that, as a result of these transfers, they are unable to enforce the costs order from the prior litigation against those defendants. They commenced the action for fraudulent conveyance against both the transferors and the recipients of the properties, the current defendants, and sought a certificate of pending litigation to prevent the disposal of the properties. One property is scheduled to be sold in January 2022. [4] The plaintiffs’ motion for a certificate of pending litigation over two properties that are now owned by Brenda Frezza was dismissed by the motion judge on the basis that the fraudulent conveyance action is statute-barred. He also found that in any event, a balancing of the equities favoured the defendants. The plaintiffs took two steps to appeal: they sought leave to appeal to the Divisional Court on the basis that the order denying the certificate may be interlocutory, and at the same time they filed a notice of appeal to this court on the basis that the order may be final. The appellants adopted this unusual procedure on the basis that they were uncertain whether the motion judge’s order was final or interlocutory. The respondents took no position on the jurisdiction issue. [5] The moving parties asked, and the Divisional Court agreed on this occasion, to hold the leave motion in abeyance while a motion for directions was brought in this court to ask the court to determine the jurisdiction issue. The moving parties also brought a second motion in this court asking the court to grant leave to issue and register a certificate of pending litigation as interim relief pending appeal. Brown J.A., sitting in chambers, referred the interim relief motion to the panel to be heard following the panel’s determination whether this court has the jurisdiction to hear the appeal: 1476335 Ontario Inc. v. Frezza , 2021 ONCA 732. The panel heard both motions. C. Issues and Analysis (1) Is the order under appeal a final or an interlocutory order? [6] The first issue to be determined was whether the order under appeal was a final or an interlocutory order. An appeal lies to the Court of Appeal from a final order of a judge of the Superior Court of Justice for an amount of $50,000 or more: Courts of Justice Act , R.S.O. 1990, c. C.43, ss. 6(1)(b), 19(1)(a), and 19(1.2). A final order involving less than $50,000 is appealed to the Divisional Court: ss. 19(1)(a) and 19(1.2). An interlocutory order of a Superior Court judge is appealed to the Divisional Court, and requires leave of that court: s.19(1)(b). Rule 62.02(4) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, sets out the grounds for granting leave to appeal to the Divisional Court: 62.02(4) Leave to appeal from an interlocutory order shall not be granted unless, (a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the panel hearing the motion, desirable that leave to appeal be granted; or (b) there appears to the panel hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in the panel’s opinion, leave to appeal should be granted. [7] A final order disposes of the litigation, or finally disposes of part of the litigation: Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.). An interlocutory order disposes of the issue raised, most often a procedural issue, but the litigation proceeds: Hendrickson v. Kallio , [1932] O.R. 675 (C.A.), at p. 678. [8] As is apparent from the strict requirements for leave to be granted to appeal interlocutory orders, appeals from such orders are intended to be very limited. On the other hand, appeals from final orders are as of right. As a result, the issue of whether an order is final or interlocutory determines not only which court has jurisdiction, but also the extent to which an appeal will lie from the order. [9] The order sought to be appealed in this case is an order denying leave to issue and register a certificate of pending litigation. A number of authorities from this court have held that an order granting or lifting a certificate of pending litigation is an interlocutory order: see Archer v. Archer (1975), 11 O.R. (2d) 432 (C.A.); Amphenol Canada Corp. v. Sundaram , 2019 ONCA 932, 56 C.P.C. (8th) 307; 561895 Ontario Ltd. v. Metropolitan Trust Co. of Canada (1997), 14 C.P.C. (4th) 195 (Ont. C.A.), leave to appeal to S.C.C. refused, 26191 (November 20, 1997). The reason is that the granting or lifting of the certificate does not finally determine the litigation, which is ongoing. The refusal to grant a certificate is analogous. It does not finally determine any issue in the litigation, which remains ongoing. It is therefore an interlocutory order. As a result, the appeal does not lie to the Court of Appeal but to the Divisional Court with leave. [10] The appellants asked the court whether the order could be viewed as final based on the reasons of the motion judge. The motion judge’s primary reason for denying the certificate was that the action is statute-barred. If that finding is binding on a trial or summary judgment judge, then the order that included that finding would be a final order. The answer is no: the reasons for denying the motion for a certificate of pending litigation are not binding on the trial or summary judgment judge. [11] The issue of whether the reasons for dismissing a summary judgment motion constitute binding findings was recently discussed by this court in Skunk v. Ketash , 2016 ONCA 841, 135 O.R. (3d) 180, where Hoy A.C.J.O. set out the following helpful summary of the effect of this court’s jurisprudence, at para. 58: 58      In an attempt to provide greater clarity, I would summarize the effect of this court’s jurisprudence as follows: 1. The general rule is that an order dismissing a motion for summary judgment is an interlocutory, and not a final, order. 2. If a party argues that the motion judge made a final, binding determination of law that disposes of the substantive rights of one of the parties (“Binding Legal Determination”) in dismissing the summary judgment motion, then this court will consider whether the motion judge’s order invokes r. 20.04(4) and references the legal determination that the party argues is a Binding Legal Determination. 3. If the order does not invoke r. 20.04(4) and reference the legal determination that the party argues is a Binding Legal Determination, the court will usually consider whether the precise scope of the point of law determined by the motion judge is clear and whether it is clear that the motion judge intended that her determination be binding on the parties at trial. In this case, it was not clear that the motion judge intended his determination to be binding on the parties at trial. [12] On a summary judgment motion, the Rules contemplate that binding determinations may be made by the summary judgment motion judge, either by invoking r. 20.04(4) or otherwise indicating that one or more findings is intended to be final and binding. This is because a summary judgment motion is intended to dispose of the action, if appropriate, either by granting or denying judgment, or, if that is not possible, to narrow the issues that require a trial. [13] However, the same approach is not appropriate and therefore not available (except possibly on the request or consent of the parties) on a motion that seeks specific interim relief, but does not seek to finally dispose of an issue in the action. On such motions, the record is tailored to the relief sought and may not be the full record required for the final determination of an issue in the litigation. Further, the motion does not request a final determination in the relief sought. As a result, the order that flows from the reasons will only address the relief sought. [14] In this case, the reasons of the motion judge for denying the certificate of pending litigation do not bind the trial or summary judgment judge. They do not constitute the final determination of the limitation issue because the court was not asked to determine that issue for the purpose of granting or denying judgment. The full record for finally determining the issue may or may not have been placed before the motion judge, but only enough to allow the motion judge to make or deny the discretionary order that was sought. In any event, the court was not asked to make a final determination of the limitation issue. (2) Where the court does not have jurisdiction over the appeal, can it make an interim order pending the appeal? [15] Having found that the order sought to be appealed is an interlocutory order which can only be appealed to the Divisional Court with leave of that court, the next issue that was argued was the motion for interim relief. [16] 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. [17] I agree with Brown J.A. that where the court does not have jurisdiction to hear the appeal, it cannot make an interim order because such an order can only be made “pending the appeal”. [18] There have been rare occasions in the past where an appeal has been wrongly commenced in this court and proceeded to an oral hearing before anyone realized that the appeal was in the wrong court, and where, on consent of all parties, the court has requested the authority of the Chief Justice of the Superior Court to sit as the Divisional Court in order to save time and cost: Courts of Justice Act , ss. 13 and 18; Tomec v. Economical Mutual Insurance Company , 2019 ONCA 839, 148 O.R. (3d) 433, at paras. 12-14. [19] This is not an appropriate case to seek to apply this procedure. The appeal to this court was not brought by mistake. The appellants have their leave to appeal motion ready to proceed in the Divisional Court. The appellants may seek their interim relief from the Divisional Court, if they decide to proceed with the appeal to that court. D. Conclusion [20] In the result, the appeal in this court is quashed. The parties agreed that costs in the amount of $5,000, inclusive of disbursements and HST, be awarded to the successful party. As this motion was in essence a motion for the direction of the court, without opposition, the costs of $5,000, which will include the $250 awarded by Brown J.A., will be in the cause of the action. Released: November 18, 2021 “K.F.” “K. Feldman J.A.” “I agree. K. van Rensburg J.A.” “I agree. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Mohamud, 2021 ONCA 820 DATE: 20211118 DOCKET: C68812 Doherty, Pardu and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Abdullqadir Mohamud Appellant Chris Sewrattan and Ashley Sewrattan, for the appellant James D. Sutton, for the respondent Heard: November 12, 2021 On appeal from the conviction entered by Justice J. Bourgeois of the Ontario Court of Justice on December 13, 2019. REASONS FOR DECISION [1] The appellant was convicted after a trial by a judge alone of possession of crack cocaine for the purposes of trafficking. He appealed, claiming the verdict was unreasonable. At the end of oral argument, the court dismissed the appeal with reasons to follow. These are the reasons. [2] An undercover officer arranged to purchase cocaine from a dealer named Capone. The undercover officer received a call telling him the drugs were “two minutes away”. A black Volkswagen pulled up and parked right in front of the undercover officer’s car. [3] The driver of the Volkswagen motioned the undercover officer over to the vehicle. The undercover officer spoke with the driver and satisfied himself that the driver was there to deliver the cocaine the undercover officer had arranged to purchase from Capone. The officer told the driver he had to return to his car to get his money. Other officers moved in quickly and arrested the occupants of the Volkswagen. [4] There were three people in the car. The appellant was seated in the front passenger’s seat. [5] Various forms of contraband were found in different places in the car. A ripped plastic baggy containing 5.5 grams of crack cocaine was found on the front passenger seat where the appellant had been sitting. [6] The appellant did not testify and did not call a defence. [7] The trial judge acquitted the appellant on charges relating to the rest of the contraband found in the car, but convicted him of possession for the purpose of trafficking in respect of the crack cocaine found on the front passenger seat where the appellant had been sitting. [8] The trial judge found, as a fact, that the appellant was either sitting on the baggy containing the crack cocaine, or had it between his legs when the police commenced the “takedown” at the vehicle. The trial judge rejected the submission that the baggy was placed on the seat during the “fracas” caused by the takedown. The trial judge also rejected the submission that the baggy was wedged between the front seat and the passenger side door of the vehicle. [9] On appeal, the appellant submitted the conviction was unreasonable. Counsel argued the trial judge failed to consider that the appellant may have unwittingly sat on the baggy containing the cocaine and had no knowledge of the baggy or its contents. Counsel submitted that the suggestion the appellant could have unwittingly sat on the baggy was a reasonable one in the circumstances and could not be dismissed as speculation. It followed, argued counsel, that the Crown did not meet its burden of proving that the only reasonable inference from the evidence was that the appellant knew the baggy was on the seat and knew there was cocaine in the baggy. [10] There is some attraction in the appellant’s argument. People unknowingly sit on objects on car seats from time-to-time. There was also no evidence other than the appellant’s presence in the vehicle when the drug transaction was to occur connecting the appellant to the drug sale arranged by the undercover officer with Capone. [11] In response, the Crown emphasized two features of this case. First, the appellant did not testify and offer any explanation for how he came either to be sitting on the baggy or sitting with the baggy between his legs. As the Crown correctly observed, this court is entitled to consider the failure to testify in assessing the reasonableness of a verdict: R. v. Pannu , 2015 ONCA 677, at para. 175. [12] Second, the Crown submitted that counsel for the appellant at trial did not suggest, among the various possibilities suggested by counsel, that the appellant my have been unknowingly sitting on the baggy containing the crack cocaine. Crown counsel argued that the failure of trial counsel to suggest his client may have been unknowingly sitting on the baggy speaks volumes about the reasonableness of the inference advanced for the first time on appeal. Crown counsel stressed that the bag contained hard, marble-like pieces of crack cocaine. He argued it would not be reasonable to infer that someone could be sitting on those objects without realizing it. [13] In R. v. Villaroman , 2016 SCC 33, at para. 71, Cromwell J. said this about unreasonable verdict arguments in the context of circumstantial evidence cases: It is fundamentally for the trier of fact to draw the line in each case that separates reasonable doubt from speculation. The trier of fact’s assessment can be set aside only where it is unreasonable. While the Crown’s case was not overwhelming, my view is that it was reasonable for the judge to conclude that the evidence as a whole excluded all reasonable alternatives to guilt. [14] It is difficult for this court to reverse a conviction on the basis that the trial judge failed to consider a reasonable inference inconsistent with guilt when competent and diligent trial counsel for the appellant never suggested that inference was one which could reasonably arise on the evidence. The failure of counsel, who was obviously very familiar with the evidence, to suggest that it was reasonable to think the appellant may have been unknowingly sitting on the crack cocaine speaks to the implausibility of that explanation. [15] As in Villaroman , this was not an overwhelming circumstantial case. We are satisfied, however, it was open to the trial judge to conclude beyond a reasonable doubt that the appellant had physical possession of the baggy containing the crack cocaine when the takedown occurred and knew what was in the baggy. The contents were plainly visible. [16] The appeal is dismissed. “Doherty J.A.” “G. Pardu J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Royal Bank of Canada v. Mundo Media Ltd., 2021 ONCA 832 DATE: 20211118 DOCKET: C69137 Fairburn A.C.J.O., Roberts J.A. and Van Melle J. ( ad hoc ) In the matter of Section 101 of the Courts of Justice Act , R.S.O. 1990 c.C.43, as amended, and in the matter of Section 243(1) of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3, as amended BETWEEN Royal Bank of Canada Applicant and Mundo Media Ltd., Mundo Inc., 2538853 Ontario Ltd., 2518769 Ontario Ltd., 2307521 Ontario Inc., 36 Labs, LLC., Active Signal Marketing, LLC, Find Click Engage, LLC, Fli Digital, Inc., Mundo Media (US), LLC, M Zone Marketing Inc., Appthis Holdings, Inc., Movil Wave S.A.R.L., Mundo Media (Luxembourg) S.A.R.L., and Mogenio S.A. Respondents Richard Howell and David Schatzker, for the appellant Vdopia Inc. Scott McGrath and Rachel Bengino, for Ernst & Young Inc., in its capacity as court-appointed receiver in the within proceeding Heard and released orally: November 12, 2021 by video conference On appeal from the order of Justice Glenn A. Hainey of the Superior Court of Justice, dated January 18, 2021. REASONS FOR DECISION [1] The appellant, Vdopia Inc., appeals the order requiring it to pay the amount of US$373,731.23 to the Court-appointed receiver and manager of the respondents. This amount represents unpaid accounts for advertising services that were rendered to the appellant prior to the receivership order. [2] The appellant’s principal submission is that the motion judge erred in granting this order in light of the fact that the appellant has an outstanding counterclaim for equitable set-off. The appellant maintains that its counterclaim, if successful, will eliminate or at least greatly reduce any indebtedness that it may have. [3] We see no error. The motion judge’s finding of the appellant’s indebtedness is firmly grounded in the record. The motion judge clearly addressed the set-off issue in paragraph 7 of his endorsement, finding that the appellant had failed to adduce any evidence to support that claim, notwithstanding it had ample notice of the Receiver’s position with respect to the amount owing. The motion judge was correct; there was no evidence supporting the appellant’s claim for set-off. [4] There is no basis to interfere with the motion judge’s order. Accordingly, the appeal is dismissed. We also see no basis to stay the enforcement of the motion judge’s order. [5] The Receiver and Manager, Ernst & Young, is entitled to its costs of the appeal payable within 30 days by the appellant in the amount of $8,500, inclusive of disbursements and applicable taxes. “Fairburn A.C.J.O” “L.B. Roberts J.A.” “Van Melle, J. (ad hoc)”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Buffone, 2021 ONCA 825 DATE: 20211119 DOCKET: C64424 Doherty, Gillese and Huscroft JJ.A. BETWEEN Her Majesty the Queen Appellant and Vito Buffone and Jeffrey Kompon Respondents Tanit Gillium, Amber Pashuk and Brian Puddington, for the appellant Mark Halfyard and Colleen McKeown, for the respondent Vito Buffone Frank Addario and William Thompson, for the respondent Jeffrey Kompon Heard: September 15, 2021 by video conference On appeal from the sentences imposed on September 28, 2017, by Justice James A. Ramsay of the Superior Court of Justice. Gillese J.A.: I. OVERVIEW [1] Vito Buffone and Jeffrey Kompon (the “Respondents”) were the leaders of a sophisticated criminal organization that oversaw and directed the importation and trafficking of two tonnes of cocaine into Ontario in a three-year period. According to the Crown, it was the largest importation of cocaine ever prosecuted in Ontario. [2] After a lengthy jury trial, the Respondents were convicted of: possession of cocaine for the purpose of trafficking; trafficking cocaine; conspiracy to import and possess cocaine for the purpose of trafficking; and, committing offences in association with a criminal organization. Mr. Kompon was also convicted of possessing proceeds of crime. [3] Mr. Buffone was given a global sentence of 22 years’ imprisonment (less one year for pre-sentence custody and restrictive bail) and Mr. Kompon a global sentence of 20 years’ imprisonment (less 18 months’ credit for pre-sentence custody and restrictive bail). The sentencing judge also imposed a fine in lieu of forfeiture for the seized funds that Mr. Kompon used to fund his defence. [4] The Respondents appealed their convictions. The Crown appealed the sentences. [5] Mr. Kompon also appealed against sentence, arguing that the sentencing judge erred by imposing a fine in lieu of forfeiture. In light of R. v. Rafilovich , 2019 SCC 51, 442 D.L.R. (4th) 539, which was issued after the sentencing in this case, the Crown conceded this matter. In Rafilovich , the Supreme Court concluded that, generally, a judge should not impose a fine in lieu of forfeiture for funds that have been judicially returned for the payment of reasonable legal expenses associated with a defendant’s criminal defence: at para. 74. [6] In separate reasons, this court dismissed the conviction appeals. [1] These reasons address the sentence appeals. [7] For the reasons that follow, I would allow the Crown’s sentence appeal and sentence each of the Respondents to life imprisonment. I would also allow Mr. Kompon’s sentence appeal. II. BACKGROUND [8] Between 2011 and 2014, the Respondents headed up a sophisticated criminal organization that imported and distributed some two tonnes of cocaine into Canada. The cocaine was hidden inside large stone boulders, first imported from Mexico and later from Brazil. The boulders were shipped to a warehouse near Port Colborne, Ontario, where the cocaine was extracted. The Respondents’ organization imported all of the cocaine, some of which they sold for profit and some of which they passed to other criminal organizations to traffic. Evidence showed that the cocaine was 93 percent pure when it arrived in Canada. [9] The Respondents, along with 12 others, were arrested on September 22, 2014, following a three-year police investigation into the cocaine importation scheme. On “take down day”, the police executed search warrants at approximately 30 locations. In addition to the seizure of cocaine, officers seized a vast number of documents and approximately 100 electronic devices, including laptop computers and cell phones, some of which were encrypted. [10] Some co-accused pleaded guilty. Five others settled the proceedings against them by admitting facts sufficient to convict them and offering no defence. They were sentenced based on joint submissions. [11] The trial against the Respondents proceeded before a judge and jury in the spring of 2017. It ran for approximately four months. The Crown called over 100 witnesses, including experts on cocaine trafficking, proceeds of crime, ion mobile spectrometry, and digital forensics. It also filed approximately 450 exhibits to prove the existence and scope of the multi-year drug importation and trafficking operation. This evidence included intercepted and seized communications, Spanish language translation of communications and documents, as well as accounting records documenting the quantities of cocaine imported, warehoused and sold, and the costs paid and profits earned. [12] After the 50-day jury trial, the Respondents were convicted of the various offences as set out above. [13] At the time of sentencing, Mr. Buffone and Mr. Kompon were 53 and 46 years old, respectively. Neither had a criminal record of significance. The Crown argued that, given the quantity of cocaine and the roles played by the Respondents in the criminal organization, only life sentences were appropriate. The defence position was that a range of 18 to 21 years was appropriate, less credit for pre-sentence custody and restrictive bail. [14] In his reasons for sentence, the sentencing judge set out the following sentences imposed on six co-accused. The first five were the products of joint submissions and the sixth was imposed following a guilty plea. i. Raul Bulhosen: 18 years for possession of cocaine for the purpose of trafficking, conspiracy to import, possession of proceeds, and money laundering; ii. Borja Vilalta-Castellanos: 17 years for trafficking cocaine, conspiracy to import, and money laundering; iii. Marco Cipollone: 12.5 years for conspiracy to import cocaine; iv. John Edward Oliver: 12.5 years for trafficking cocaine, conspiracy to import, possession of a firearm knowing he did not have a licence, and possession of a firearm without a licence; [2] v. Dean Brennan: 8.25 years for conspiracy to import and possess cocaine for the purpose of trafficking; and vi. Victor Lucero (who was involved at the tail end of the conspiracy): 3 years for conspiracy and proceeds over $5,000. [3] [15] The sentencing judge also referred to the nine-year sentence [4] imposed on Guy Caputo, a co-accused who pleaded guilty early in the proceedings to possession for the purpose of trafficking and possession of proceeds of crime over $5,000. [16] I will refer to the six co-accused and Mr. Caputo collectively as the “Co-accused”. [17] The sentencing judge then made the following statement, “For the sake of parity I think that [the] sentences I impose must be based on this range, depending on factors individual to each offender” (the “Statement”). [18] I highlight the Statement because, as you will see below, it plays an important role in this appeal. [19] Next, the sentencing judge observed that there was a significant difference between the Respondents and the Co-accused in that the former were convicted of the criminal organization offence while the latter were not. He found that the Respondents were partners at the head of the criminal organization – Mr. Buffone at the apex and Mr. Kompon “a bit below him” – and that both organized the operation so that they took the least risk of being caught. [20] The sentencing judge noted the following mitigating factors in relation to the Respondents. Both were middle-aged family men without criminal records of significance. Mr. Kompon had a conviction for drinking and driving and Mr. Buffone was fined for possession of a narcotic in 1986 and possession of stolen property in 1994. Mr. Buffone was pardoned for these matters but the pardons were revoked as a result of the convictions in this matter. Favourable references from family and friends were before the court, showing the Respondents’ contributions to society. [21] However, as the sentencing judge observed, the Respondents were involved in a lifestyle of deliberate criminality for over three years and caught only because the police had invested significant resources in the investigation and made courageous tactical decisions. Both Respondents were sophisticated businessmen, making reasonable livings through successful legitimate businesses. They were well able to weigh the risks involved against the potential benefits of the importation scheme. They gained “fantastic amounts of money”. [22] The sentencing judge then spoke of the great harm that cocaine has caused to individuals, their families, and the community. He referred to caselaw, noting that the quantity of cocaine imported in this case was much greater than the “hundreds of kilos” in those cases. He then imposed the following sentences on the Respondents: Count Mr. Buffone’s sentence Mr. Kompon’s sentence 3 – Conspiracy to import and possess cocaine for the purpose of trafficking 20 years’ incarceration 18 years’ incarceration 1 – Possession of cocaine for the purpose of trafficking 15 years’ incarceration, concurrent 18 years’ incarceration, concurrent 2 – Trafficking cocaine 15 years’ incarceration, concurrent 18 years’ incarceration, concurrent 4 – Committing offences in association with a criminal organization 1-year incarceration, consecutive (to reflect a sentence of 2 years, reduced by 6 months for 4 months’ pre-sentence custody, and further reduced by 6 months for restrictive bail) 6 months’ incarceration, consecutive (to reflect a sentence of 2 years, reduced by 1 year for 8 months’ pre-sentence custody, and further reduced by 6 months for restrictive bail) 6 – Possession of proceeds of crime (over $5,000) N/A 4 years’ incarceration, concurrent III. GROUNDS OF APPEAL [23] The Crown submits that the sentencing judge erred by: a. imposing sentences that are demonstrably unfit and by underemphasizing the principles of denunciation, deterrence and of promoting a sense of responsibility in the offender; b. failing to treat as aggravating that the Respondents were the directing minds of a criminal organization; c. overemphasizing the parity principle and failing to account for the significant mitigation earned by the co-accused who resolved their charges early; and, d. failing to make an order for delayed parole for the Respondents. [24] At the oral hearing of the appeal, the Crown advised that it was not pursuing the fourth ground of appeal. Consequently, I say nothing more about it. IV. THE STANDARD OF REVIEW [25] This court must apply a deferential standard of review to sentencing decisions. Sentencing judges are in the best position to determine just and appropriate sentences and are entitled to considerable deference: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 41. Appellate intervention is warranted in only two situations. First, where the sentencing judge commits an error in principle, fails to consider a relevant factor, or erroneously considers an aggravating or mitigating factor, and the error had an impact on the sentence: Lacasse , at para. 44. Second, where the sentence is demonstrably unfit: Lacasse , at para. 51. In either situation, the appellate court may set aside the sentence and conduct its own analysis to determine a fit sentence in all the circumstances. V. ANALYSIS [26] The parity principle, as codified in s. 718.2(b) of the Criminal Code , R.S.C. 1985, c. C-46, is that similar offenders who commit similar offences in similar circumstances should receive similar sentences. The sentencing judge relied on the parity principle in determining the sentences he imposed on each of the Respondents. This can be seen by recalling the Statement, in which he stated that “for the sake of parity” he had to impose sentences on the Respondents based on the range of sentences given to the Co-accused. That range was from 3 to 18 years. [27] Although the Respondents and the Co-accused were involved in the same conspiracy to import cocaine, in my view, the sentencing judge erred in his application of the parity principle. I say this for two reasons. [28] First, most of the sentences the sentencing judge relied on to establish the range for determining the Respondents’ sentences were the result of joint submissions. While the sentencing judge referred to this matter, he failed to appreciate that the sentences imposed on these co-accused under the joint submissions, lost much of their value as comparators. [29] In R. v. Anthony-Cook , 2016 SCC 43, [2016] 2 S.C.R. 204, the Supreme Court established the legal test a sentencing court should apply in deciding whether to depart from a joint submission on sentence: the court should not depart from such a joint submission unless the proposed sentence would bring the administration of justice into disrepute or is otherwise contrary to the public interest: Anthony-Cook , at para. 32. In establishing this test, the Court expressly rejected the notion that a joint submission on sentence should be measured by determining whether it was “fit” or even “demonstrably unfit”: Anthony-Cook , at paras. 46-47. Justice Moldaver, writing for the Court at para. 48 of Anthony-Cook , explained why: Further, both the fitness test and the appellate “demonstrably unfit” test suffer from a similar flaw: they are designed for different contexts. As such, there is an appreciable risk that the approaches which apply to conventional sentencing hearings or sentencing appeals will be conflated with the approach that must be adhered to on a joint submission. In conventional sentencing hearings, trial judges look at the circumstances of the offender and the offence, and the applicable sentencing principles. They are not asked to consider the critical systemic benefits that flow from joint submissions, namely, the ability of the justice system to function fairly and efficiently. Similarly, appellate courts are not bound to consider these systemic benefits on a conventional sentencing appeal. The public interest test avoids these pitfalls. [30] In R. v. MacLeod , 2018 SKCA 1, [2018] 5 W.W.R. 743, at para. 21, the Court of Appeal for Saskatchewan stated that, because a sentence based on a joint submission is not directly evaluated for its fitness, “the sentence imposed on a co-accused under a joint submission loses much of its value as a comparator when it comes to the sentencing of any co-accused who has not entered into a joint submission” (emphasis added). I agree. [31] Consequently, by basing the sentences for the Respondents on those imposed on the Co-accused – the large majority of which had been sentenced based on joint submissions – the sentencing judge used a range of sentences that may or may not have been fit. In short, because the Co-accused’s sentences were not fit comparators, the sentencing judge erred in relying on them to establish the range on which to determine fit sentences for the Respondents. [32] Second, in his application of the parity principle, the sentencing judge failed to adhere to the proportionality principle. [33] All sentencing starts with the proportionality principle: sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Friesen , 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 30. The proportionality principle has long been central to Canadian sentencing and is now codified as the “fundamental principle” of sentencing in s. 718.1 of the Criminal Code : Friesen , at para. 30. [34] Parity is an expression of proportionality and a consistent application of proportionality will lead to parity: Friesen , at para. 32. However, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality: Friesen , at para. 32. That is what occurred in the sentencing below. [35] This can be seen by comparing Mr. Kompon’s sentence with that of Mr. Bulhosen, one of the Co-accused. Mr. Bulhosen was sentenced to 18 years’ imprisonment for his role in the conspiracy to import cocaine. Mr. Kompon was given the same sentence for his role in the conspiracy – which fails to account for Mr. Kompon being a leader of the criminal organization that established and controlled the conspiracy and that he outranked Mr. Bulhosen. [36] Further, the sentencing judge offended the proportionality principle by failing to properly consider the gravity of the offences the Respondents committed and their blameworthiness. [37] In terms of the gravity of the offences, when imposing sentences for conspiracy to import and possess cocaine for the purpose of trafficking, the sentencing judge failed to take into consideration that the Respondents committed the offences in association with a criminal organization. This he was required to do by s. 718.2(a)(iv) of the Criminal Code . It was not sufficient, as the Respondents contend, that the sentencing judge imposed a consecutive sentence for the offence of having committed the conspiracy offence in association with a criminal organization. This aggravating circumstance was relevant to the gravity of the offence of conspiracy to import and had to be considered when imposing a sentence for that offence. That said, the totality principle may, to some extent, moderate the individual sentences imposed for the two offences. In any event, as I would impose life sentences for the conspiracy to import offences, any potential problem with “double counting” disappears. [38] As well, the gravity of the offences required the sentencing judge to adequately address the quantity of cocaine that the Respondents were responsible for importing into Canada. This he did not do. The sentencing judge observed that, in the cocaine importation caselaw he considered, the quantity of cocaine was in the “hundreds of kilos” rather than thousands of kilograms as in this case. In view of this significant difference in quantity, the sentencing judge said, “19 years is not necessarily the top end of the range”. However, he then imposed sentences of 18 and 20 years respectively on Messrs. Kompon and Buffone for the cocaine importation offences. 18 years is self-evidently less than 19 years and 20 years is but one year more. [5] Neither sentence adequately reflects the gravity of the much larger quantities of cocaine that the Respondents were responsible for importing. [39] Moreover, the sentencing judge failed to take into consideration that the Respondents’ degree of blameworthiness was much greater than that of the Co-accused. The Respondents were the “bosses” – the directing minds of the conspiracy. They established the cocaine importation operation and stood at its head. The Co-accused took their orders from the Respondents. [40] These errors on the part of the sentencing judge clearly had an impact on the sentences he imposed on the Respondents. Consequently, it falls to this court to determine fit sentences for them. In the circumstances, it is unnecessary to address the Crown’s contention that the sentences are demonstrably unfit. VI. SENTENCES OF LIFE IMPRISONMENT ARE FIT [41] I recognize that the Respondents have no criminal records of significance and that they enjoy family and community support. Nonetheless, given the gravity of their offences and the degree of their blameworthiness, in my view, each should be sentenced to life imprisonment. [42] I begin by acknowledging the exceptional nature of imposing the maximum sentence: R. v. Cheddesingh , 2004 SCC 16, [2004] 1 S.C.R. 433, at para. 1. However, as the Supreme Court of Canada stated in R. v. L.M. , 2008 SCC 31, [2008] 2 S.C.R. 163, at para. 22: “[T]he maximum sentence cannot be reserved for the abstract case of the worst crime committed in the worst circumstances.” [43] I also acknowledge that the Crown has not identified a single case in Ontario where a life sentence has been imposed for the importation of cocaine. [6] A life sentence was imposed in R. v. Murtaza , 2013 ONSC 4239, but the imported drug in Murtaza was heroin – not cocaine. Because heroin is recognized as a more harmful substance than cocaine, higher sentences are typically imposed for offences involving it: R. v. Sidhu , 2009 ONCA 81, 94 O.R. (3d) 609, at paras. 12-14. [44] I further acknowledge that in R. v. Malanca , 2007 ONCA 859, 88 O.R. (3d) 570, leave to appeal (conviction) refused, [2008] S.C.C.A. No. 71, this court set aside a life sentence for the importation of cocaine and imposed a sentence of 19 years’ imprisonment. However, the facts in Malanca are very different from those in the present case. [45] In Malanca , the appellant was a first-time offender, aged 26 or 27, when he was convicted of conspiracy to import cocaine and of importing about 270 kilograms of cocaine into Ontario. In sentencing the appellant to life imprisonment, the sentencing judge emphasized two features as aggravating: the amount of cocaine imported; and, his finding that the appellant was the “boss” of the conspiracy. [46] This court set aside the life sentence in Malanca because, among other things, the sentencing judge gave little or no consideration to the fact that the appellant was a youthful first-time offender for whom the life sentence was crushing and which left little room for the possibility of his rehabilitation: at paras. 59-60. As well, the court found that it was “not at all clear” that the evidence supported the sentencing judge’s conclusion that the appellant was the “boss” of the conspiracy: Malanca , at para. 61. [47] It is significant that this court stated, at para. 57 of Malanca , that while there was no Ontario authority imposing a life sentence for the importation of cocaine, “a case may cry out for such a sentence”. This is such a case. [48] Unlike Malanca , in which 270 kilograms of cocaine were imported into Canada, in the present case, the Respondents oversaw an importation scheme that resulted in some 2,000 kilograms of cocaine being imported into Ontario over a three-year period. [49] Sentencing for importation of this quantity of cocaine is unprecedented in Ontario. Before this case, the largest conviction for cocaine importation into Ontario was in R. v. Frost , 2011 ONSC 6448. Frost involved an uncontested trial on an agreed statement of facts involving 1,360 kilograms of cocaine. The accused was sentenced to 16.5 years’ imprisonment. His co-conspirator, who pleaded guilty prior to his preliminary hearing, was sentenced to 16 years’ imprisonment based on a joint submission. Neither accused in Frost was alleged to be part of a criminal organization, it was a one-time importation conspiracy, and the accused was a first-time offender (his co-conspirator had one prior offence). [50] The differences between Frost and the present case are readily apparent. In Frost , unlike this case, the sentence followed an uncontested trial. In the case of the co-conspirator, the sentence was the product of a joint submission following a guilty plea. The amount of cocaine was significantly less (1,360 kilograms rather than 2,000 kilograms) and there was a single act of importation versus the 47 shipments of boulders as indicated by Canada Border Services Agency records in this case. Further, and importantly, neither offender in Frost was alleged to be part of a criminal organization. [51] The Respondents also differ materially from the offender in Malanca . They are not youthful first offenders. Each is a middle-aged, sophisticated businessman who enjoyed a good life running a successful, legitimate business. They committed the offences purely for greed, without any concern for the harm that would be visited on the public in Ontario by the importation of such large amounts of cocaine. When serious crimes are well-thought out and motivated entirely by greed, the objectives of specific and general deterrence must move to the forefront. [52] And, significantly, the Respondents were indisputably the “bosses” of the importation conspiracy. On the findings of the sentencing judge, the Respondents were the leaders of the criminal organization that oversaw and directed the importation and distribution of staggering amounts of cocaine in Ontario over a three-year period. They stood at the head of the sophisticated criminal organization which: had established trade routes and three large, remote commercial warehouses; used secure lines of communication and a fleet of company vehicles; employed meticulous record-keeping; and, drew from a reservoir of shell companies, false identities, and fraudulent documents to lend legitimacy to their operations. [53] The Respondents argue that there is little practical difference between sentences of life imprisonment and the sentences imposed by the sentencing judge because of the points at which the Respondents will become eligible for parole. Under the sentences as imposed, the Respondents will be eligible for full parole once they have served one-third of their sentences – that is, approximately seven years for Mr. Buffone and a little over six years for Mr. Kompon. If life sentences are imposed, Mr. Buffone and Mr. Kompon will each be eligible for full parole after approximately seven years, pursuant to s. 120(2) of the Corrections and Conditional Release Act , S.C. 1992, c. 20. [54] However, as the Respondents rightly acknowledge in their factum, the “key difference between the sentences imposed and life imprisonment is that a person serving a life sentence will always be subject to the correctional authorities”. An offender who is released on parole continues to serve their imposed sentence until its expiry, and during this time, remains subject to the conditions of their parole or statutory release: Corrections and Conditional Release Act , S.C. 1992, c. 20, ss. 128(1)-(2). Therefore, under sentences of life imprisonment, the Respondents will remain subject to supervision for the remainder of their lives, including upon release from prison. [55] In this regard, I would simply echo the words of the Supreme Court at para. 62 of R. v. M. (C.A.) , [1996] 1 S.C.R. 500. Even though the conditions of incarceration are subject to change through a grant of parole, if life sentences are imposed, the Respondents would remain under the strict control of the parole system and their liberty would be significantly curtailed for the full duration of those sentences. Thus, the deterrent and denunciatory purposes which animated the life sentences remain in force and the goal of specific deterrence is still advanced because they would remain supervised to the extent and degree necessary to prevent possible further crime, and since they would remain under the shadow of re-incarceration should they commit another crime. As well, the goal of denunciation would continue to operate because the Respondents would still carry the societal stigma of being convicted offenders serving criminal sentences. [56] Sentencing continues to be dictated by the fundamental principle of proportionality – the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: L.M. , at para. 22. The sheer quantity of cocaine imported, in conjunction with the Respondents’ roles and positions in the sophisticated criminal organization that masterminded the importation and trafficking of the cocaine, cries out for the maximum sentence of life imprisonment. A life sentence is proportionate to the gravity of the offences that the Respondents committed and the degree of their responsibility. Life sentences are also necessary to adequately address the principles of denunciation and deterrence, to promote a sense of responsibility in the Respondents, and to convey the clear message to them, and others, that the “cost of doing business” of this sort is extremely high. DISPOSITION [57] For these reasons, I would grant the Crown leave to appeal the sentences and allow the appeals. I would: (i) substitute a sentence of life imprisonment on each of the Respondents for count 3, conspiracy to import and possess cocaine for the purpose of trafficking; (ii) leave unchanged the sentences imposed on counts 1 and 2; and, (iii) leave unchanged the sentence on count 6 (Mr. Kompon only). [58] The sentencing judge made the sentences imposed on count 4 (committing an offence in association with a criminal organization) consecutive to the sentences imposed on count 3 (conspiracy to import and possess cocaine for the purpose of trafficking). He was required to make the sentences on count 4 consecutive by s. 467.14 of the Criminal Code . [59] The parties acknowledge that the sentences on count 4 cannot be made consecutive to life sentences imposed on count 3: see R. v. Sinclair (1972), 6 C.C.C. (2d) 523 (Ont. C.A.), 172 CanLII 1297 and R. v. Cadeddu (1980), 57 C.C.C. (2d) 264 (Ont. C.A.), 1980 CanLII 2968. However, in light of the express language in s. 467.14, in my view, the sentences imposed on count 4 cannot be made concurrent to the life sentences on count 3. [60] Accordingly, I would not alter the sentences imposed on count 4 by the sentencing judge. I would, however, stay the imposition of those sentences to avoid the impossibility of imposing a sentence to be served consecutively to a life sentence. Staying the imposition of the sentences on count 4 would not affect the total sentences imposed nor would it compromise the position or role of the parole board, should an application for parole ever be made. [61] I would also grant Mr. Kompon leave to appeal sentence and grant his appeal, on the consent of the Crown, and set aside the fine imposed in lieu of forfeiture for seized property used to pay Mr. Kompon’s reasonable legal fees for his defence. Released: November 19, 2021 “D.D.” “E.E. Gillese J.A.” “I agree. Doherty J.A.” “I agree. Grant Huscroft J.A.” [1] R. v. Buffone , 2021 ONCA 676. [2] In the reasons for sentence, the sentencing judge states that Mr. Oliver received a 12-year sentence. However, based on the indictment and the reasons for sentence given in respect of Mr. Oliver, it appears that he was sentenced to 12.5 years’ imprisonment . [3] This statement is based on the sentencing judge’s reasons. However, the record calls into question the accuracy of both the offences of which the sentencing judge said Mr. Lucero had been convicted and the sentence(s) imposed. Neither matter is significant for the purposes of this appeal. [4] This appears to be an approximate figure of Mr. Caputo’s sentence. Mr. Caputo was sentenced to 8 years and 5 days, with credit for pre-sentence custody of 240 days, for a total sentence of 8 years and 245 days. [5] The comparison is between the sentences imposed in the caselaw that the sentencing judge considered for large scale cocaine importation with those imposed on the Respondents for such offences. For that reason, I have not included the additional two-year sentences imposed on the Respondents for having committed the offences in association with a criminal organization. [6] The court’s attention was drawn to R. c. Fievet (1997), 191 N.B.R. (2d) 185 (Prov. Ct.), in which a New Brunswick provincial court imposed a life sentence for the importation of 5,400 kilograms of cocaine.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. C.K., 2021 ONCA 826 DATE: 20211119 DOCKET: C68900 Paciocco, Nordheimer, and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and C. K. Appellant Michael Crystal, for the appellant Manasvin Goswami, for the respondent Jonathan Rudin and Sumrana Taher, for the intervener Aboriginal Legal Services Heard: August 30, 2021, by video conference On appeal from the convictions entered by Justice Peter J. Wright of the Ontario Court of Justice on February 1, 2018. Paciocco J.A.: OVERVIEW [1] The Gladue principles place an affirmative obligation on a sentencing judge to consider the experiences of an Indigenous offender that are relevant in determining their level of blameworthiness. Judges are also obliged to consider the offender’s Indigenous background and needs in identifying alternative dispositions that may be more fitting, just, and effective for the offender and their community: R. v. Gladue , [1999] 1 S.C.R. 688. [2] Mr. K seeks to adapt and extend the application of the Gladue principles to apply whenever an Indigenous person moves to withdraw a guilty plea they have entered. He submits that there is an affirmative obligation on trial judges who are aware that it is an Indigenous person who is moving to withdraw their plea to inquire whether the applicant’s Indigeneity may have contributed adversely to their decision to plead guilty. He argues that this affirmative obligation applies even if the Indigenous person does not suggest that their experiences as an Indigenous person compromised the voluntariness of their plea. Mr. K further contends that the trial judge erred in his case by denying his application to strike his guilty pleas without making such an inquiry. [3] It is not uncommon for Indigenous persons to lack confidence in the criminal justice system, and that the associated despair that arises can result in resignation, which may materially affect a decision whether to plead guilty. There is also a strong basis for concluding that Indigenous persons, already vastly overrepresented in Canada’s penal institutions, are more likely to plead guilty than non-Indigenous offenders. However, for reasons that follow, I am not persuaded that there is an invariable obligation on trial judges to question whether an offender’s experience as an Indigenous person may have adversely affected their choice to plead guilty in any case where an Indigenous person moves to withdraw their guilty plea. [4] To be clear, it follows from settled principles that where a trial judge has real reason to believe, at the time a plea is being entered, that the voluntariness of the decision to plead guilty may have been adversely affected by that person’s experiences as an Indigenous person, the trial judge must make the necessary inquiry to ensure that the plea is voluntary. I accept that this obligation continues and that it applies during subsequent applications to strike a guilty plea. [5] However, in the specific circumstances of Mr. K’s case, no such obligation to inquire arose. Not only was there no evidentiary basis for believing that Mr. K’s decision to plead guilty was adversely affected by his experiences as an Indigenous man, the indication is to the contrary. I would grant leave to admit the Gladue report that has been tendered as fresh evidence, but I would dismiss Mr. K’s appeal. MATERIAL FACTS [6] Mr. K went to trial on charges arising from a violent assault that left the complainant, a visitor to Mr. K’s home, with serious injuries. He faced charges of sexual and aggravated assault, unlawful confinement, as well as drug and breach of probation charges. [7] The trial began on July 10, 2017. A purported eyewitness to some of the events testified that day and said that Mr. K admitted to having had sexual intercourse with the complainant. The next day, July 11, 2017, Mr. K discharged his defence lawyer, leading to the trial being adjourned. [8] The trial resumed many months later, on February 1, 2018, after Mr. K retained a new defence lawyer. On that day, the complainant testified, providing disturbing allegations of being abused by Mr. K over the course of four days. Her account was consistent with physical evidence, including not only her injuries but also a hair clip later found by police on the driveway where the complainant said she had been dragged by Mr. K after a failed attempt to escape. [9] After the court recessed for lunch, the trial judge granted an extended break to the parties so that they could continue discussions about the “management of [the] case”. When court resumed, defence counsel indicated that Mr. K wanted to change his plea to guilty on several of the charges he faced, including a count of assault contrary to s. 266 of the Criminal Code , R.S.C., 1985, c. C-46; assault causing bodily harm contrary to s. 267(b); sexual assault contrary to s. 271; and unlawful confinement contrary to s. 279(2). Defence counsel indicated that Mr. K would admit the facts the complainant had testified to as well as other evidence that had been heard. In exchange, the balance of the charges against him would be withdrawn. [10] The trial judge conducted a plea comprehension inquiry before accepting Mr. K’s pleas of guilty. During that plea comprehension inquiry, Mr. K assured the trial judge that his decision was “voluntary”, of his “own free will, without pressure from anyone”. He expressed understanding that by pleading guilty he was giving up his right to “further trial” in relation to the charges. The trial judge explained to Mr. K that in deciding whether to accept the plea he would be relying on the evidence heard so far as well as any other facts that Mr. K might admit. Mr. K expressed his understanding. As well, Mr. K responded “yes” when asked if he understood that if he made those admissions, the trial judge would be in a position to find him guilty of those offences based on his guilty plea, and that he would be sentenced accordingly. [11] The trial judge also explained to Mr. K that he would rely very strongly on counsel’s lengthy discussion about the appropriate sentence, but would not be bound by those discussions and would sentence Mr. K as he saw fit, regardless of the arrangement. Mr. K communicated that he had not previously appreciated this, but said, “I do now”. [12] Mr. K was then rearraigned and pleaded guilty to each of the four charges I have itemized above. The Crown confirmed the evidence that it was relying on to support the pleas that Mr. K had entered. The trial judge asked defence counsel if Mr. K accepted those facts and he confirmed that Mr. K did. The trial judge then asked Mr. K, “do you agree with everything I just heard?”, and he said “yes”. [13] The trial judge then found Mr. K guilty and put the matter over to the next afternoon for sentencing submissions. [14] The next day, the sentencing did not proceed, as Mr. K made it known that he wanted to withdraw his guilty pleas. His counsel requested to be removed from the record. The matter was adjourned. After further administrative appearances, Mr. K’s counsel was removed from the record. A date convenient to Mr. K’s new counsel, April 26, 2018, was set to hear Mr. K’s application to strike his guilty pleas. [15] At the outset of the hearing on April 26, 2018, defence counsel explained that Mr. K’s application to withdraw his pleas was based on his lack of mental capacity to enter a voluntary plea. He told the trial judge that “the basis on which he indicates his incapacity was insufficient was his prolonged period of time in segregation during his detention on the charges before [the] court”.  Trial counsel placed no reliance on the impact Mr. K’s experiences as an Indigenous man may have had on his mental capacity. Indeed, there was no mention of his Indigeneity prior to the hearing or during the evidentiary phase of the hearing. [16] The only evidence Mr. K led during the hearing was related to his segregation. He called a corrections officer who provided testimony, supported by documentation, confirming that Mr. K had been in custody at the Quinte Detention Centre from September 13, 2016, the day after his arrest, until his plea was entered on July 10, 2018, nearly 22 months later. Almost that entire time, including consistently from December 8, 2016, Mr. K was placed in protective custody, at his own request, as the result of injuries he sustained in a serious assault. While segregated, Mr. K was confined to his cell for approximately 23 hours a day with limited movement outside of his cell for yard time, showering, and visits. During his confinement, Mr. K had access to physical and mental health care, as well as telephone and mail privileges, and access to reading and writing materials. [17] The corrections officer presented evidence that, for the first few months of his segregation, Mr. K was housed primarily in his own cell in administrative segregation in “super protective custody” in the maximum-security wing. After early January 2017, he was detained either in the institution’s segregation area, or in an overflow area for segregated individuals in the institution’s health care unit. At times he was housed alone, but while in the health care unit where he spent an appreciable portion of his time, Mr. K was sharing his cell with two other protective custody inmates. [18] Given that Mr. K was in segregation, reviews of his prison placement were regularly held, and, consistent with protocol, his “thoughts and feelings about being in segregation” were sought every thirty days. Each written review that Mr. K provided affirmed that he felt safe only in segregation. On more than one occasion he expressed gratitude for his placement, saying “I feel safe in segregation”, and “thank you for keeping me safe”. [19] The first and only mention of Mr. K’s Indigeneity was at the end of the hearing on April 26, 2018, when defence counsel advised the trial judge that if his application to strike his plea was unsuccessful, Mr. K would be asking for an adjournment “to allow for the completion of the Gladue report because he is – has status as a native Canadian.” No evidence was led during the application about Mr. K’s life experience or mental health. [20] Defence submissions on the application to strike focused entirely on the legal test for striking a guilty plea and on the objective evidence Mr. K had led about the conditions in which he had served his pretrial custody. Trial counsel asked the trial judge to infer, without evidence from Mr. K about the effect that segregation had on him and without medical evidence, that the kind of segregation Mr. K was experiencing at the time the plea was entered would have deprived him of the limited cognitive capacity he needed to enter a voluntary plea of guilty. [21] On May 3, 2018, the trial judge released his decision denying Mr. K’s application to strike his guilty pleas. The reasoning that led the trial judge to find that Mr. K had not established the involuntariness of his plea is captured in the penultimate paragraph of his reasons: [T]he evidence that I received in the course of these proceedings, in my view, support and fortify a finding that the pleas of guilty were voluntary, that the defendant was exercising an operating mind that was in conformity with the voluntariness, and that he was in possession of significant cognitive capacity at the time he entered these pleas. I need only refer back again to the fact that the defendant constantly requested placement in segregation where he felt safe and comfortable. His own comments in writing delivered to the Quinte Detention Centre officials, on more than one occasion, confirmed that without a doubt.  His presentation in court and his ability to respond to questions that were asked of him during the course of the plea comprehension inquiry confirmed that without a doubt. [22] It was not until after Mr. K initiated and then abandoned a stay application based on trial delay, and had discharged the defence counsel who had argued the application to strike the guilty pleas, that the matter proceeded to sentencing with new defence counsel, Mr. K’s fourth defence lawyer. At that point, a Gladue report was ordered. The trial judge, who said he was particularly impressed with the “thorough, comprehensive, detailed, evidence-based” report, admirably summarized its material contents in his Reasons for Sentence: The Gladue report, cast in the nature of [Mr. K’s] Sacred Story through ancestry with the Algonquin and Cherokee, is a terribly sad chronicle of childhood abuse. It is inconceivable in this country that children could be so badly abused right from the very beginning and continuously. His childhood abounded with abuse: physical, mental, sexual, fuelled with drugs and alcohol, poverty, housing insecurity. Not only was [Mr. K] abused, but he witnessed abuse and both mother and father abusing alcohol. He began at an early age to abuse alcohol, as well as drugs. It is not surprising that [Mr. K] suffers from the effects of intergenerational abuse, being the victim of sexual assault himself at his grandfather’s hands, and at the hands of his grandfather’s friends. His parents and grandparents were also victims of abuse. His maternal grandmother suffered abuse while in a religious school. In this terrible environment, [Mr. K] at least was able to grasp some understanding from his maternal grandparents, some learning about his [I]ndigenous identity. He participated in the Shabot Obaadjiwan national gathering, the sweat lodge ceremonies, the sunrise and sunset ceremonies. He tried to connect with his heritage, while his life had been nothing but a turmoil of abuse, neglect, and criminal intervention on a constant basis. [23] The Gladue report contained passages that would have been relevant had it been available and filed in support of his application to strike his guilty pleas. For instance, the Gladue report records comments attributed to Mr. K about the effects that segregation had on his decision-making capabilities: Being in segregation this long, I have developed a disability in my decision-making capabilities . From having all my decisions made for me. My mind set isn’t the same as it was when I started. It has made me short-thinking and short-sighted. Not being able to see the long-term effects of my choices. What I’ve noticed[d] is that I really can’t make a solid decision anymore. When I do, I’m so two-sided wanting to please everybody else that I will compromise myself and making [sic] involuntary decisions, not in my best interest. [Emphasis added.] [24] The Gladue report also describes Mr. K’s problem-solving skills as a personal strength, using his own words: When there’s a situation, where no one knows what to do, my family calls me. I’m the person that can handle myself, taking the most effective straight-forward approach available. I’m intelligent, well spoken, polite, but can also get down to business. [Emphasis added.] [25] The Gladue report also contained two comments by Mr. K explaining why he pleaded guilty. In the first comment, he said he did so to protect his family. In the second comment, he said he pleaded guilty after being threatened by corrections officials, who had already set him up to be assaulted. Specifically, he claimed that on his way to court on the day he pleaded guilty, a transport officer said to him, “you had ample time and opportunity to end this but you didn’t, now we will”. [26] During sentencing submissions, Mr. K’s defence counsel again raised the validity of the plea. He did not raise either of the new explanations disclosed in the Gladue report. Instead, he submitted that the pleas should have been struck because the complainant’s evidence left open possible defences. Once again, no suggestion was made that Mr. K’s experience as an Indigenous man bore on his decision to plead guilty. The trial judge rejected the suggestion that the evidence did not support the validity of the pleas. [27] On November 2, 2018, the trial judge provided detailed Reasons for Sentence and imposed a global sentence on Mr. K, then 41 years of age, of six years’ imprisonment, minus credit for time served. The other charges against Mr. K were withdrawn. ISSUES [28] Mr. K argues that once the trial judge became aware that he was Indigenous, he had an obligation to seek out information relating to the impact that his experiences as an Indigenous person had on the voluntariness of his decision to plead guilty, even though Mr. K had not raised this issue in his application to strike his guilty plea. In a submission that would support Mr. K’s appeal, the intervener, the Aboriginal Legal Services (“ALS”), argued that, at the very least, a trial judge who learns that an Indigenous person is seeking to strike their plea has an obligation to raise the issue to ensure that the applicant can give due consideration to the impact their experiences may have had on their decision to plead guilty. [29] Mr. K also argued that it was unreasonable for the trial judge to treat his request to be segregated and his preference for segregation as voluntary. [30] The respondent Crown not only opposes Mr. K’s submissions on their merits, it argues that since Mr. K. did not raise his Indigeneity as an issue during his application to strike his guilty pleas, he should not be permitted to do so on appeal. [31] There are therefore three issues that require consideration: A. Is Mr. K barred from raising, for the first time on appeal, the failure of the trial judge to seek out information about his Indigeneity before denying his application to set aside his guilty plea? B. If not, given that he was made aware that Mr. K was Indigenous, did the trial judge err by denying Mr. K’s application to strike his guilty pleas without ensuring that he had information about the impact Mr. K’s experiences as an Indigenous man may have had on the voluntariness of his guilty pleas? C. Was it unreasonable for the trial judge to treat segregation as a voluntary choice made by Mr. K? [32] Before I address those three issues, it is helpful to explain why other potential issues alluded to in the foregoing recitation of material facts have not been included in the list of issues that require consideration. Notably, Mr. K did not argue before us that his plea was rendered involuntary because of pressure to protect his family, or because he was under duress from corrections officers. [33] In the interests of completeness, I will nonetheless explain in brief compass why, even if those issues had been argued, they would not have assisted Mr. K’s appeal. [34] Quite simply, even if Mr. K chose to plead guilty because of pressure to protect his family, more evidence would have been needed to show that this pressure undermined the validity of his guilty pleas. As Doherty J.A. explained in R. v. T.(R.) (1992), 10 O.R. (3d) 514 (C.A.), at para. 18: No doubt most accused faced with serious charges and the prospect of a substantial jail term [feel themselves under pressure when they entered their pleas]. Absent credible and competent testimony that those emotions reached a level where they impaired the appellant’s ability to make a conscious volitional choice, the mere presence of these emotions does not render the pleas involuntary. [35] As for Mr. K’s claim in the Gladue report that he was under duress by corrections officers at the time he entered his guilty plea, this is an untested hearsay assertion. To be sure, in an appeal based on the “validity of the trial process”, including an appeal that a guilty plea was involuntary, a generous approach is taken that permits consideration of fresh evidence that may not satisfy the usual fresh evidence admissibility test set out in R. v. Palmer , [1980] 1 S.C.R. 759, at p. 775, and in Truscott (Re) , 225 C.C.C. (3d) 321, at para. 92: R. v. Rajaeefard (1996), 27 O.R. (3d) 323, at p. 228; R. v. T.(R.) , at para. 12. But such evidence must be credible before it will be acted upon: R. v. Krzehlik , 2015 ONCA 168, 124 O.R. (3d) 561, at para. 5. Mr. K has not affirmed or sworn that his account is true, nor has he buttressed it with affidavit evidence: see R. v. Alec , 2016 BCCA 282, 337 C.C.C. (3d) 345, at para. 110. I see no other indicia of reliability or necessity that could provide a reasoned basis upon which the bald assertions made by Mr. K could be credited on appeal. [36] I will therefore only focus on the three issues that were raised and argued. ANALYSIS A. Is Mr. K Barred from raising his indigeneity for the first time on appeal? [37] I would permit Mr. K to raise his Indigeneity for the first time on appeal. Mr. K’s central argument is that the trial judge erred by not taking the initiative of raising Mr. K’s Indigeneity when Mr. K brought his application to strike his pleas. Clearly, if Mr. K had raised this issue at trial, there would have been no need for the trial judge to do so, and the issue under appeal could not possibly have arisen. Put simply, to apply the bar against raising an issue for the first time on appeal in such circumstances would create a catch-22 that would prevent anyone from ever grounding an appeal on the alleged failure of a trial judge to raise an issue that the judge is legally required to raise. [38] For example, as I will explain below, a trial judge, aware that they are sentencing an Indigenous offender, is under an affirmative obligation to seek out pertinent and relevant Gladue information, even if the accused has not raised the issue. If an appeal of that error was to be prohibited unless the accused raised the issue at trial, that rule would become unenforceable. [39] Although this observation is enough to justify proceeding with the appeal on its merits, the same outcome arises from a more formal consideration of the three factors identified in R. v. Reid , 2016 ONCA 156, 132 O.R. (3d) 26, at para. 43, for determining whether it is in the interests of justice to permit an issue to be raised for the first time on appeal. [40] First, the evidentiary record is sufficient to permit this court to effectively and fairly determine the new issue raised on appeal. The only evidentiary record required to determine whether the trial judge erred by not raising Mr. K’s Indigeneity is evidence that the trial judge knew Mr. K to be Indigenous yet did not raise this during his application to strike the guilty plea. Neither point is in contest. [41] Second, I can see no basis for believing Mr. K intentionally reserved this issue for appeal so that he could secure a tactical advantage. It is far more probable that the issue was simply overlooked. [42] Finally, this is not a case where it can be predicted in advance of hearing the appeal that no miscarriage of justice could result if we refuse to consider the issue Mr. K is now raising. Whether a trial judge is obliged in an application to set aside a guilty plea to inquire into the impact the applicant’s experiences as an Indigenous person may have had on the voluntariness of the decision to plead guilty is a serious issue for consideration. [43] I would therefore consider this new issue on appeal on its merits. B. Did the trial judge err by not inquiring into the effect Mr. K’s experiences as an indigenous person had on the voluntariness of his plea? [44] I would not find that the trial judge erred by failing to inquire into the effect that Mr. K’s experiences as an Indigenous person may have had on his decision to plead guilty. I am not persuaded that judges are under a general obligation during an application to set aside a guilty plea to raise the applicant’s Indigeneity where the applicant has not done so. Where, however, there are specific circumstances that raise the question of whether the applicant’s experiences as an Indigenous person may have adversely affected the voluntariness of their decision to plead guilty, a judge is required to inquire. In this case, there were no such circumstances and hence no duty to inquire was breached. (1) The Gladue Principles [45] The Gladue principles are not in controversy. These well-established principles are responsive to the overincarceration of Indigenous persons that has been caused by long-standing systemic and direct discrimination against Indigenous persons in this country. As described in Gladue , at para. 66, and reaffirmed in R. v. Ipeelee , 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 59, those principles require a trial judge, in sentencing an Indigenous offender, to consider: (a) the unique systemic or background factors which may have played a part in bringing the particular Aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular [Indigenous] heritage or connection. [46] The unique systemic or background factors which may have played a part in bringing the particular Indigenous offender before the courts are relevant to the offender’s level of moral blameworthiness as systemic and direct discrimination can destroy opportunities and limit options for positive development in ways that may diminish the offender’s personal culpability. The unique systemic or background factors of an Indigenous offender, in turn, may bear on the type of sentence that is culturally appropriate and therefore effective for that particular offender: Ipeelee , at paras. 72-73. [47] Mr. K is not arguing that his moral blameworthiness is a central consideration during an application to strike a guilty plea, nor is he urging that the fitness of a sentence is a relevant consideration. When he speaks of the application of the Gladue principles during an application to strike a guilty plea, I understand him to be submitting that the systemic or background factors of an Indigenous offender may bear on the integrity of their decision to plead guilty, and that they must therefore be considered by the trial judge. (2) The Obligation to Raise Indigeneity when Sentencing [48] In Gladue , at para. 83, Cory J. and Iacobucci J. described, for the majority, the information that trial judges should consider when sentencing Indigenous offenders. They directed trial judges to take judicial notice of the relevant systemic and background factors that bear on both the degree of responsibility of the offender and the identification of a fit sentence. In making this direction, they remarked that, “for each particular offence and offender it may be that some evidence will be required in order to assist the sentencing judge in arriving at a fit sentence”. [49] In R. v. Wells , 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 54, Iacobucci J. made clear for the court that when such particularized evidence is required, judges are under an affirmative obligation to inquire into the offender’s experiences as an Indigenous person. This court has fulfilled this obligation by seeking such information when required to sentence Indigenous offenders: R. v. Kakekagamick (2006), 211 C.C.C. (3d) 289 (Ont. C.A.); R. v. Macintyre-Syrette , 2018 ONCA 259. [50] In R. v. Sim (2005) , 201 C.C.C. (3d) 482 (Ont. C.A.), at para. 25, Sharpe J.A. explained the genesis of the affirmative obligation on sentencing judges to acquire necessary information about an Indigenous offender’s personal background. He noted that, although our criminal justice system operates on the adversarial principle that it is for the parties to secure and present the relevant evidence, “the special situation of [Indigenous] accused requires the criminal justice system to alter its procedure and adopt a more inquisitorial approach when sentencing an [Indigenous] offender”. He went on to hold that this obligation applies when the Ontario Review Board determines an appropriate disposition for mentally disordered Indigenous offenders at a disposition hearing, and he cautioned that the failure to seek and/or consider such information is a legal error: Sim , at para. 29. (3) The Broader Application of Gladue Principles [51] Mr. K and the ALS argue that the Sim decision illustrates a proposition central to their argument: namely, that the Gladue principles are not confined to sentencing proceedings but imbue the entire criminal justice system, including applications to set aside guilty pleas. They offered, in support of this proposition, cases of high authority that have recognized and addressed systemic and direct discrimination against Indigenous persons by modifying legal rules or practices. Examples include recognition of an absolute right for Indigenous offenders to race-based challenges for cause when selecting juries ( R. v. Williams , [1998] 1 S.C.R. 1128); upholding the abolition of peremptory challenges to prevent their discriminatory use against Indigenous offenders and Indigenous jurors ( R. v. Chouhan , 2021 SCC 26, at paras. 23, 116); taking steps to eradicate prejudicial myths and stereotypes about Indigenous people that can taint judicial reasoning ( R. v. Barton , 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 201); and ensuring that conditional sentences are available to Indigenous offenders, where appropriate ( R. v. Sharma , 2020 ONCA 478, 152 O.R. (3d) 209, leave to appeal granted, [2020] S.C.C.A. No. 311). [52] They also offered illustrations of the extended application of the Gladue principles, including to bail release ( R. v. Robinson , 2009 ONCA 205, 95 O.R. (3d) 309; R. v. Hope , 2016 ONCA 648, 133 O.R. (3d) 154); sanctions for civil contempt ( Frontenac Ventures Corp. v. Ardoch Algonquin First Nation , 2008 ONCA 534, 91 O.R. (3d) 1, leave to appeal refused, [2008] S.C.C.A. No. 357); parole revocation hearings ( Twins v. Canada (Attorney General) , 2016 FC 537, [2017] 1 F.C.R. 79); and Law Society disciplinary proceedings ( Law Society of Upper Canada v. Robinson , 2013 ONLSAP 18). They also point to United States of America v. Leonard , 2012 ONCA 622, 112 O.R. (3d) 496, in which a judicial review of the decision of the Minister to extradite two accused Indigenous offenders succeeded because the Minister did not properly consider their Indigenous status and the Gladue principles in deciding whether their extradition would be contrary to the Charter . [53] In addition, Mr. K and the ALS point out that the Supreme Court of Canada has recognized that “discrimination experienced by Indigenous persons, whether as a result of overtly racist attitudes or culturally inappropriate practices, extends to all parts of the criminal justice system”: Ewart v. Canada , 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 57. They submit that the developments they have identified are examples of a more general obligation on courts that was articulated by Moldaver J. in Barton , at para. 200: [O]ur criminal justice system and all participants within it should take reasonable steps to address systemic biases, prejudices, and stereotypes against Indigenous persons … head on. (4) The Relevance of Overrepresentation [54] Mr. K and the ALS do not rely solely on these analogous developments and the general obligation that they have identified. They point out that the Gladue principles developed in response to the overrepresentation of Indigenous persons in custodial settings, a problem that persists over two decades after that decision was released. They contend that Indigenous persons tend to plead guilty at a higher rate than non-Indigenous persons, thereby exacerbating the problem and giving urgency to the application of the Gladue principles where Indigenous persons apply to withdraw their guilty pleas. [55] Even though Mr. K did not bring a fresh evidence application to establish that Indigenous persons plead guilty at a higher rate than non-Indigenous persons, I am prepared to take judicial notice of this phenomenon for the reasons that follow. [56] Importantly, this is a social framework fact about the social context in which this litigation is occurring. In R. v. Spence , 2005 SCC 71, [2005] 3 S.C.R. 458, Binnie J. affirmed that judicial notice should not be taken of any facts, including social framework facts, unless the test of “notoriety” and “indisputability” has been met. He recognized, however, that a more flexible approach applies when taking judicial notice of social framework facts, rather than adjudicative facts that relate directly to the incident or event being litigated. He explained, at para. 65, that when considering whether to take judicial notice of a social framework fact: [A] court ought to ask itself whether such “fact” would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used , keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the “fact” to the disposition in controversy. [Emphasis in original.] [57] The proposition that Indigenous accused persons plead guilty at higher rates than non-Indigenous accused persons is an important observation, since it adds credence to the suggestion that the experiences of Indigenous persons may influence the decision to plead guilty. Moreover, if a disproportionately high number of Indigenous accused persons plead guilty, this can only exacerbate the relative overincarceration of Indigenous persons in Canadian custodial settings. [58] Given the central purpose for which judicial notice is to be used in this case, a high level of reliability or trustworthiness is needed before judicial notice can be taken. I would conclude that this high level is met for four reasons. [59] First, the proposition advanced is consistent with the notorious and indisputable fact that Indigenous persons are overrepresented generally in the criminal justice system. [60] Second, the Crown has not taken issue with the claim that Indigenous offenders tend to plead guilty at higher rates than non-Indigenous offenders. [61] Third, the urgent need to redress the effects of discrimination in the criminal justice system has promoted a high tolerance for judicial notice relating to discrimination against Indigenous persons and its effects: Ipeelee , at para. 60 [62] Fourth, and most importantly, Mr. K and the ALS have provided a rich body of credible information, much of it stemming from public institutions commissioned to inquire into anti-Indigenous discrimination in the criminal justice system, verifying this phenomenon: First Nations Representation on Ontario Juries: Report of the Independent Review Conducted by The Honourable Frank Iacobucci (Toronto: Ontario Ministry of the Attorney General, 2013), at para. 215; Report of the Aboriginal Justice Inquiry of Manitoba by the Honorable Alvin Hamilton and the Honorable Murray Sinclair (Winnipeg: Aboriginal Justice Inquiry of Manitoba, 1991); Department of Justice, Guilty Pleas among Indigenous People in Canada (Ottawa: Department of Justice Canada, 2017), at pp. 9-13; Kent Roach, “You Say You Want a Revolution?: Understanding Guilty Plea Wrongful Convictions” (2021), online: SSRN <https://ssrn.com/abstract=3869888>; Set Up to Fail: Bail and the Revolving Door of Pre-Trial Detention by Abby Deshman and Nicole Myers (Canadian Civil Liberties Association and Education Trust, 2014), online: <https://ccla.org/wp-content/uploads/2021/07/Set-up-to-fail-FINAL.pdf>. [63] In my view, reasonable people who have taken the trouble to inform themselves would accept that the proposition that Indigenous persons tend to plead guilty at materially higher rates than non-Indigenous persons is reliable and trustworthy enough to be judicially noted for the purpose of determining the proper application of Gladue principles when an Indigenous person applies to withdraw their guilty plea. [64] Several of the reports I have identified offer explanations for this phenomenon. The most relevant explanation was offered by The Honorable Frank Iacobucci in, First Nations Representation on Ontario Juries , at para. 215372, who explained that many Indigenous people plead guilty because they “‘believe they will not receive a fair trial owing to racist attitudes prevalent in the justice system”. I would also accept this proposition, which is a logical outcome of the despair that Indigenous persons no doubt face when caught up in the criminal justice system. [65] Finally, Mr. K relies upon the decision in R. v. Ceballo , 2019 ONCJ 612 as a persuasive precedent illustrating the operation of Gladue principles during an application to withdraw a guilty plea. In Ceballo , Rondinelli J. exercised discretion to permit an Indigenous woman to withdraw her guilty plea after rehearsing the broad application of Gladue principles, and after accepting, at para. 16, the conclusion of the Report of the Saskatchewan Indian Justice Review Committee (Saskatchewan: Saskatchewan Indian Justice Review Committee, 1992) that Indigenous women who are incarcerated “suffer tremendous displacement and emotional stress due to incarceration and separation from family”. This had relevance to Ms. Ceballo, who the judge found to have pleaded guilty in material part because of the inordinate pressure she was under to reunite with her daughter, who was subject at the time to child protection proceedings. He found that this pressure undermined the voluntariness of Ms. Ceballo’s guilty plea. (5) The Legal Test for Withdrawing Mr. K’s Guilty Pleas [66] There is no closed list of valid grounds for withdrawing a plea: R. v. T.(R.) , at para. 10. Naturally, applications to withdraw guilty pleas will tend to allege that one or more of the prerequisites to a valid plea were unsatisfied at the time the plea was entered. There are three such prerequisites. To be valid, a guilty plea must be “voluntary”, “unequivocal”, and “informed”: R. v. T.(R.) , at para. 14. [67] Mr. K does not claim that his plea was equivocal or uninformed. Rather, it is his contention that it was not voluntary. “A voluntary plea refers to the conscious volitional decision of the accused to plead guilty for reasons which he or she regards as appropriate”: R. v. T.(R.) , at para. 16. [68] There are a range of ways that volition can be destroyed, including coercion, improper inducements or pressure imposed, [1] and incapacity. As I have explained, Mr. K has not sought to support his application to withdraw his guilty pleas on the basis that they were coerced. Nor does he suggest that his pleas were induced inappropriately. The claim he advances before us, like the claim he made before the trial judge, is that he lacked the subjective capacity to make a volitional choice to plead guilty. [69] The capacity to make a volitional choice to plead guilty is not high. In R. v. M.A.W . , 2008 ONCA 555, 237 C.C.C. (3d) 560, the Crown argued for a “limited cognitive capacity” test, the same standard used to determine an accused’s fitness to stand trial, or to resolve whether confessions are the voluntary product of an operating mind. The Crown submitted, based on that standard, that no more is required than an ability to understand the process, communicate with counsel, and make active or conscious choices. There is no requirement that those choices be wise or rational or in the accused’s best interest. [70] The appellant in that case encouraged the Court to reject the limited cognitive capacity test and adopt a higher test on the basis that the limited cognitive capacity test would allow pleas to be made by those who, because of their mental state, feel there is no other option than to plead guilty because their thinking is “irrational, hopeless and helpless”. This court nonetheless adopted the Crown’s position, noting in the process that an applicant “cannot succeed if he can merely show that his decision to plead guilty was not rational or in his best interests, or even that he was incapable of making a decision that was rational or in his best interests”: at para. 36. [71] Laskin J.A., for the court, gave two reasons for this outcome. First, he concluded that a uniform standard of mental capacity should apply across related issues, noting that “it would be incongruous to find an accused mentally competent to stand trial, yet unfit to enter a valid plea”: at para. 32. [72] Second, Laskin J.A. concluded that the liberty interests of accused persons supported this standard. In an adversarial system, the autonomy and the choices of an accused person who is capable of conducting his or her own defence should be respected, otherwise the law would inappropriately “smack of paternalism”: at para. 35. [73] There are two further points that deserve emphasis, given the nature of the issue before us. First, as Laskin J.A. emphasized in M.A.W . , at para. 33, the inquiry into volition is entirely subjective, an outcome consistent with the general observations made by Moldaver J. in R. v. Wong , 2018 SCC 25, [2018] 1 S.C.R. 696, including at paras. 12 and 20. [74] Second, it is important to bear in mind that a plea of guilty “entered in open court in the presence of counsel [is] presumed to be voluntary. The presumption is rebuttable” but the onus is on the party seeking to withdraw a guilty plea: R. v. Cherrington , 2018 ONCA 653, at para. 21. Given the issue he raised, then, the onus was on Mr. K to demonstrate, on a balance of probabilities, that he “lacked the capacity to make an active or conscious choice to plead guilty”: Cherrington , at para. 21. (6) Gladue Principles and Applications to Withdraw Guilty Pleas [75] I fully accept the general obligation of judges to take reasonable steps to address systemic bias, prejudice, and stereotypes against Indigenous persons. I am not persuaded, however, that this translates into a specific obligation to inquire in every case where a person known to the judge to be Indigenous seeks to withdraw a guilty plea. I will offer three reasons for my conclusion. [76] First, Mr. K and the ALS are not simply asking us to apply the Gladue line of authority by recognizing the impact that systemic and direct discrimination play in the criminal justice system and to take measures to ensure that this crucial appreciation is applied during applications to withdraw guilty pleas. They are asking us to impose an affirmative duty on trial judges, faced with an application to withdraw a guilty plea, to raise the issue of whether the experiences of an Indigenous person have affected the volition of their decision to plead guilty, even when the Indigenous person or their counsel have not done so. [77] As I have explained, Canadian courts have appropriately modified traditional adversarial principles and imposed such duties before but in every case, this has been where courts are imposing sanctions or dispositions on offenders. An application to withdraw a guilty plea does not involve the imposition of a sanction or disposition on offenders. Quite simply, acceding to the position that Mr. K and the ALS advance would not mark another application of existing Gladue principles. Instead, it would mark a material and problematic extension of the affirmative obligation that has been imposed pursuant to those principles. I will elaborate. [78] Gladue itself is a sentencing case. During a sentencing hearing, the trial judge is charged with the responsibility of arriving at a fit sentence. In Gladue , the Supreme Court of Canada recognized that the systemic and direct discrimination against Indigenous persons is an omnipresent evil, and that the effect of discrimination on the offender is highly relevant information required to arrive at a fit sentence. In those circumstances, the case law evolved to make it crystal clear that Indigeneity is so important a consideration in arriving at a fit disposition that judges must be obliged to augment the adversarial system by ensuring that they have the information they need to discharge their existing responsibility to impose a just disposition. [79] Parallel reasoning suggests that anytime courts are discharging their obligation to identify a fit disposition for Indigenous offenders, the same duty should apply. This line of reasoning explains the extension of the original Gladue principles to bail hearings, disposition hearings for mentally disordered offenders, hearings to sanction civil contempt, parole revocation hearings, and hearings to identify professional disciplinary sanctions. Even in Leonard , the Minister was required to consider the experiences of the Indigenous accused in order to gauge whether the Americans were apt to impose a disposition that was disproportionately harsh relative to the sentence a Canadian court would consider to be just, and therefore contrary to the Charter . [80] In contrast, in an application hearing to determine whether a plea can be withdrawn, a trial judge is not being asked to impose a disposition or sanction on the applicant. Nor is the trial judge discharging a duty to identify a fit disposition or sanction at the behest of a prosecutor. Instead, they are responding to an application initiated by an applicant that is based on their subjective state of mind. [81] Indeed, unlike a hearing where the judge has a duty to arrive at a fit sentence or sanction, in an application to withdraw a guilty plea, the applicant bears the onus of proof. This onus involves raising the material issues and presenting the required evidence. [82] Simply put, I see a world of difference between requiring a judge to acquire information about the Indigenous experiences of an offender that is needed to discharge an existing judicial obligation to arrive at a fit disposition, and requiring a judge to open a new issue relating to the effect that the Indigeneity of an accused person may have had on their subjective state of mind, when the accused person, who bears the onus, has not themselves raised any suggestion that their experiences as an Indigenous person have had any relevant effect. [83] Second, given the legal test that a judge must apply in determining whether an accused person has entered a voluntary plea, the experiences of the accused as an Indigenous person will not have the pervasive relevance that they tend to have when sanctions or dispositions are being imposed. Indeed, the hard truth is that Indigenous experiences are not commonly going to be relevant during an application to withdraw a guilty plea, given the state of the law. Even accepting the proposition that an Indigenous person’s experiences can engender feelings of hopelessness and resignation, such feelings are not apt to be material to such an application unless those feelings of hopelessness or resignation are of such intensity that they veritably preclude the ability of the individual to make active or conscious choices. It is not enough that the person has made the choice to give up and has decided to plead guilty. Save in those cases where the experiences of an Indigenous person have compromised their mental fitness, the proposed inquiry is not likely to lead to relevant information. Under the current state of the law there is therefore no need for the kind of routine inquiry that is being suggested. [84] It is important to reaffirm in this regard that, unlike situations where the absence of volition is undercut by unseen coercion or unknown inducements or pressure exerted, I am speaking of the mental capacity of the individual seeking to withdraw the plea. If that individual is so broken by their experiences that they have lost the ability to make active or conscious choices and are unfit to stand trial, there will almost certainly be signs that something is amiss. As I will explain below, where there are signs that something is amiss relating to the capacity of the accused to enter a guilty plea, the trial judge has a duty to make the required inquiries. [85] Third, the submission that is being advanced before us has unappealing practical implications. I am not referring to the risk, discussed during oral submissions, that the proposed inquiry would delay the application to withdraw. I am concerned that if the obligation being imposed exists when an Indigenous accused person applies to withdraw a guilty plea, that same obligation would have to apply at the time the guilty plea is entered. There is no principled basis for confining the obligation to the former situation and not the latter. Every time an Indigenous person offers a guilty plea, the presiding judge would therefore be required to raise that person’s Indigeneity to effectively determine if they are mentally competent to enter the plea. Although well-intentioned, it risks undermining the integrity and competence of Indigenous persons to presume that such inquiries are required. Opening the door, as Mr. K and the ALS ask us to, would risk promoting offensive stereotypes about the ability of Indigenous peoples to make important personal decisions free from paternalistic interference. Indeed, this is the very inquiry into the ability of an accused to make a voluntary guilty plea that Laskin J.A. cautioned would “smack of paternalism” in M.A.W . at para 35. [86] Moreover, as Mr. K and the ALS have emphasized, Indigenous offenders remain tragically and significantly overrepresented in the criminal justice system. Those who have toiled in the courts are aware that few pleas occur on the set trial date. They instead tend to occur in busy plea courts where significant numbers of individuals, too many of them Indigenous, plead guilty, often for time served or short sentences of incarceration. The proposed obligation would not only add to court delay – a secondary concern – but it could result in delay in receiving the pleas of Indigenous offenders who for legitimate reasons simply want to resolve the matter expeditiously. [87] Indeed, many Indigenous offenders plead guilty in dedicated Gladue courts. These courts typically carry heavy dockets, not only because of the overrepresentation of Indigenous offenders but also because of the focused attention that each offender is given in order to meet the demands of the Gladue principles. The proposed obligation could aggravate delay in Gladue courts, prolonging the exposure of Indigenous offenders to the stresses and restrictions of the criminal process. [88] Simply put, although the proposal to impose an affirmative duty on trial judges to raise the issue of whether the experiences of an Indigenous person have affected the volition of their decision to plead guilty is offered as a way to improve the liberty of Indigenous offenders, it would in my view be more likely to have the opposite effect of delaying liberty. [89] My rejection of the proposed affirmative obligation of inquiry that Mr. K and the ALS advocate should not be taken as a rejection of Gladue principles or of the obligation that judges have to address bias, systemic discrimination, and prejudicial stereotypes against Indigenous persons. Rather, to my mind, there is a better way of addressing the concern that Mr. K raises, which is already grounded in existing principles. (7) The Duty to Inquire [90] Section 606(1.1) of the Criminal Code permits a court to accept only voluntary guilty pleas. It provides: 606 (1.1) A court may accept a plea of guilty only if it is satisfied that (a) the accused is making the plea voluntarily; (b) the accused understands (i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea, and (iii) that the court is not bound by any agreement made between the accused and the prosecutor; and (c) the facts support the charge. [91] Section 606(1.2) provides: 606 (1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea. [92] In R. v. G.(D.M.) , 2011 ONCA 343, 105 O.R. (3d) 481, at para. 42, Watt J.A. explained the effect of these provisions. He affirmed that “s. 606(1.1) imposes an obligation on the presiding judge to satisfy him or herself of the voluntary and informed nature of the plea”.  He then said that even though the failure to make an inquiry does not affect the validity of the plea, “an inquiry is mandatory nonetheless”. [93] This is not a toothless obligation. The fact that a failure by a judge to discharge that obligation is not per se a reversible error, reflects the fact that an appeal based on an improper guilty plea alleges a miscarriage of justice, and a miscarriage of justice does not occur unless the act, omission, or event complained of is prejudicial: Wong , at paras. 1, 5-6, 44, and 78. If the failure of a trial judge to conduct a plea inquiry had no prejudicial effect because the plea was informed, unequivocal, and voluntary, there is no sound basis to raise the judge’s failure to conduct a plea inquiry as a ground of appeal. [94] This is sensible. The duty to inquire into the validity of a guilty plea is not meant to be a pro forma exercise that leads to an automatic reversal if not attended to. It is a purposeful obligation, and if the failure to discharge that obligation is of no consequence because the plea was nonetheless valid, no ground of appeal arises. This does not mean that the failure to inquire cannot affect the outcome of an appeal. As the decision in R. v. Beckford , 2019 ONCA 998 reflects, at para. 43, a judge’s failure to conduct a plea inquiry can leave the door more readily open to a finding that a plea was not valid. [95] Quite clearly, to discharge the mandatory duty to inquire that arises from s. 606(1.1), a judge must inquire into apparent indications that there may be a problem with the validity of the guilty plea. Even in the era prior to the passage of s. 606(1.1) when there was no general mandatory judicial duty to inquire, it was expected that judges would exercise discretion to conduct inquiries if, in the circumstances, it was made to appear that a plea of guilty was improper: Brosseau v. The Queen , [1969] S.C.R. 181 at pp. 188-190; R. v. Adgey , [1975] 2 S.C.R. 426, at pp. 442-44. [96] Based on this settled law, it follows that if there are indications at the time a plea is being entered that an Indigenous person’s experiences may be having an adverse effect on the integrity of the guilty plea that is being entered, the trial judge is obliged to inquire to see if this is so. In my view, that same obligation would hold true where an Indigenous person subsequently applies to withdraw their guilty plea. After all, the authority of a trial judge to allow the withdrawal of a plea is a continuation of the discretionary authority to accept a plea: R. v. Eizenga , 2011 ONCA 113, 270 C.C.C. (3d) 168, at para. 44. Moreover, the criteria for accepting a guilty plea – that it be informed, unequivocal, and voluntary – remain the same. [97] It is not entirely clear from the decision in Ceballo who raised the issue of the impact of Ms. Ceballo’s Indigeneity on her decision to plead guilty. If it was Rondinelli J. who did so, Ceballo would provide commendable example of the discharge of this obligation. In that case, Rondinelli J. noted at para. 14: In my view, there is pressure and then there is pressure . This was not a situation in which Ms. Ceballo felt the type of anxiety and pressure that accused persons typically feel when they decide to plead guilty to a criminal offence. Instead, this guilty plea came at a very trying time in Ms. Ceballo’s life. She was in custody at the time of the guilty plea; she was dealing with some other outstanding significant criminal matters; and she was dealing with court proceedings relating to the custody of her daughter. I had the opportunity to observe Ms. Ceballo’s demeanour on a number of court appearances. I noted a growing sense of frustration and despair with each passing court appearance. As Ms. Ceballo testified, “I haven’t been given a fair chance in life, period. Not just in the courts.” Ms. Ceballo had trouble retaining counsel … With each day in custody, Ms. Ceballo saw her chances of being reunited with her children slipping away. [Emphasis in original.] [98] In these circumstances, there is a foundation for believing that Ms. Ceballo’s experiences and perspective as an Indigenous woman may well have influenced the pressure she was under, thereby compromising the voluntariness of her guilty plea. A trial judge encountering a similar situation would be right to initiate an inquiry. [99] In this way, by considering the impact that the experiences and perspectives of an accused Indigenous person may have had on the integrity of their decision to plead guilty in any case where those experiences appear to be relevant, courts can discharge their obligation to address systemic discrimination. (8) The Duty to Inquire was not Triggered [100] In this case, nothing occurred to require the trial judge to inquire into Mr. K’s experiences as an Indigenous man during the application to withdraw his guilty pleas. Mr. K did not raise the issue, and there is nothing on the record before us that should have caused the trial judge to make such an inquiry. In fact, there were factors that strongly suggested that Mr. K’s decision to plead guilty was voluntary and competent such that no inquiry would be needed. [101] First, a plea inquiry was conducted. Not only did Mr. K pledge the voluntariness of his plea during the plea inquiry, but as the trial judge observed, his responses in court revealed “significant cognitive capacity”. [102] Second, when Mr. K brought his application to withdraw his guilty plea, he identified a particular event that allegedly altered his capacity, namely his time in segregation. Implicit in his dedicated claim that segregation deprived him of capacity is an acknowledgment by him that prior to segregation, despite any challenges he experienced as an Indigenous man, he had the capacity to make active or conscious choices. [103] Indeed, the evidence in the Gladue report that was furnished to the trial judge prior to Mr. K’s sentencing affirmed that Mr. K’s volition was not compromised by his experiences as an Indigenous person. As the underlined passages from the Gladue report, reproduced above in paras. 23-24, show, Mr. K is quoted speaking of his strong problem-solving skills, and of how segregation caused him to “develop” a “disability in [his] decision-making capabilities” such that his “mind set isn’t the same as it was when [he] started”. He complained of not being able to make decisions “anymore”. Once again, this evidence can only be understood as an affirmation that Mr. K’s capacity to make decisions was unaffected by his experiences as an Indigenous person. [104] In sum, Mr. K’s application before the trial judge turned on the impact that segregation had on his volition. The trial judge considered that claim and exercised his discretion to reject it. There was nothing requiring him to go further and initiate an inquiry into the impact that Mr. K’s experiences as an Indigenous person had on his volition. Even if the trial judge had been under a duty to make such an inquiry, this ground of appeal would fail. The admissions made by Mr. K in the Gladue report about his capacity despite his painful experiences as an Indigenous person show beyond all question that such failure to inquire would not have resulted in a miscarriage of justice. [105] I would therefore dismiss this ground of appeal. C. Was it unreasonable for the trial judge to treat segregation as a voluntary choice made by Mr. K? [106] The trial judge’s consideration of Mr. K’s request to be placed in segregation was not unreasonable. The issue, as posed by Mr. K, does not fairly capture the trial judge’s reasoning. The trial judge did not deny Mr. K’s application because his decision to go into segregation was “voluntary”. To the trial judge, the relevance of Mr. K’s request for segregation, and his thankfulness for having been segregated, arose from the indisputable fact that segregation helped alleviate Mr. K’s concern about his safety, notwithstanding the horrendous conditions of being placed in segregation. Since Mr. K wanted segregation, even as a desperate measure for self-preservation, the stress of being in segregation was lessened by the relief that segregation offered him. I see no problem with this reasoning. [107] I would therefore dismiss this ground of appeal. CONCLUSION [108] In my view, the trial judge gave a cogent, well-reasoned basis for rejecting Mr. K’s claim that the segregation deprived him of the capacity to make a voluntary decision to plead guilty. Moreover, the circumstances surrounding the plea at issue strongly suggest that Mr. K made the choice to plead guilty because of the imposing strength of the case against him, and to demonstrate that he accepted responsibility for his actions in the hope that by doing so he could temper the significant punishment he had coming for the brutal crimes he committed against the complainant. I can see no basis for setting aside Mr. K’s plea. [109] For the reasons above, I would dismiss Mr. K’s appeal. Released: November 19, 2021 “David M. Paciocco J.A.” “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “S. Coroza J.A.” [1] See R. v. Lamoureux (1984), 13 C.C.C. (3d) 101 (Que. C.A.) and R. v. Rajaeefard (1996) 27 O.R. (3d) 323 (C.A.).

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Elenezi, 2021 ONCA 834 DATE: 20211119 DOCKET: C68748 Hoy, Coroza and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Ali Elenezi Appellant Ewan Lyttle, for the appellant Hannah Freeman, for the respondent Heard and released orally: November 18, 2021 On appeal from the sentence imposed on December 12, 2018 by Justice Hugh R. McLean of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant seeks leave to appeal his sentence for contempt of court. [2] He was part of a group of men who concocted a plan to lure a victim to a parking lot to assault and kidnap him as retribution for providing information to the Ottawa Police. When the plan was carried out, the 18-year-old victim attempted to flee. He was shot twice, causing his death. [3] The appellant accepted a plea deal for manslaughter. At his guilty plea, he affirmed that the agreed statement of fact, which included that one of two men – Nedeljko Borozan and Mohamed Mohamed – was the shooter, was true and complete. The appellant was sentenced to 12 years’ imprisonment. [4] Mr. Borozan and Mr. Mohamed were subsequently tried before a jury for first degree murder and kidnapping. After another intended Crown witness from the group refused to testify, the trial judge signed orders requiring the appellant and the other members of the group who, like the appellant, had pled guilty, to testify. The appellant appeared and, having received legal advice, refused to be sworn or testify at their trial. He said he was fearful of the consequences for himself and his family if he testified. At the time he refused to testify, he was 20 years of age. Both accused were subsequently acquitted. [5] The appellant was found guilty of contempt of court and sentenced to three years, consecutive to his 12-year sentence for manslaughter. [6] An appellate court can only intervene to vary a sentence if a sentencing judge made an error in principle that had an impact on the sentence or the sentence is demonstrably unfit: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11. [7] The appellant argues that the sentencing judge erred in principle by failing to consider three relevant factors – his youth, his rehabilitative prospects, and the totality principle – and that the sentencing judge’s failure to do so impacted on the sentence imposed. He further argues that the sentencing judge gave unreasonable weight to his refusal to testify. He submits that his sentence should be reduced from three years to one year. [8] We are not persuaded that there is any basis for this court to vary the sentence imposed. [9] The sentencing judge delivered brief oral reasons following lengthy submissions by counsel. The appellant’s youth and rehabilitative prospects were a focus of the sentencing hearing. The sentencing judge acknowledged the arguments made about the appellant’s youth and rehabilitative prospects. He did not fail to consider them. Rather, he concluded that denunciation must nonetheless be the primary principle, despite the appellant’s youth and rehabilitative prospects. [10] The sentencing judge also considered the totality principle and the need to avoid a crushing sentence. He found that a sentence of three years was required to give effect to the need to denounce the appellant’s entirely separate offence of contempt of court. [11] The trial judge did not give unreasonable weight to the appellant’s refusal to testify. The sentencing judge – who was also the judge at the murder trial – appreciated the context surrounding the appellant’s refusal to be sworn. But he concluded that notwithstanding the appellant’s concerns, the court “must bring home a denunciatory sentence to indicate to persons, being the accused and likeminded individuals, that this kind of behaviour will simply not be tolerated.” [12] As this court observed in R. v. Yegin , 2010 ONCA 238, the justice system’s response to a refusal to testify “must be firm and direct – significant jail terms above and beyond whatever other period of incarceration the individual is, or might be, facing for his own participation in the relevant events must be imposed.” The sentence imposed was consistent both with the jurisprudence and the actual sentences imposed for other youthful offenders. In R. v. McLellan , 2016 ONSC 3397, sentences of 30 months were imposed on youthful offenders for refusing to testify in a murder trial. And in R v. Omar , 2017 ONSC 1833, aff’d 2018 ONCA 599, leave to appeal refused, [2018] S.C.C.A. No. 398, a three-year sentence for a youthful offender was upheld by this court. [13] Accordingly, leave to appeal sentence is granted but the appeal is dismissed. “Alexandra Hoy J.A.” “S. Coroza J.A.” “Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Deakin, 2021 ONCA 823 DATE: 20211119 DOCKET: C67995 Fairburn ACJO, Rouleau & Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Brian Deakin Appellant Carter Martell, for the appellant Samuel Greene, for the respondent Heard: October 28, 2021 by video conference On appeal from the conviction entered on October 24, 2019, and the sentence imposed on December 11, 2019, by Justice R.S. Gee of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant appeals his conviction for robbery and wearing a disguise with intent to commit an indictable offence as well as his four-year sentence. [2] The appellant entered a convenience store wearing a face-covering to conceal his identity. He was brandishing a knife and what appeared to be a firearm and demanded that the clerk open the till. He stole several hundred dollars and escaped with an accomplice. [3] The issue at trial was identity. [4] After the robbery, the police obtained surveillance video from the convenience store. The police then released pictures from the video showing the two perpetrators to the public. [5] The appellant’s sister, Mellissa Deakin, saw the photos and recognized the appellant as one of the perpetrators depicted. She then contacted the police. [6] The Crown called Ms. Deakin as a witness at trial. A voir dire was held to determine if, because of her prior acquaintance with the appellant, she was in a better position than the trier of fact to identity the perpetrator: see R. v. Leaney [1989] 2 S.C.R. 393 at pp. 412-13. At the conclusion of the voir dire , defence counsel conceded that Ms. Deakin’s opinion on identification was admissible subject to the trial judge’s determination of its ultimate reliability. As the trial judge noted, just because a witness is qualified to give the evidence does not necessarily mean that it ought to be accepted and relied on by the trier of fact. [7] In the course of her testimony, Ms. Deakin was shown five video clips drawn from surveillance video at the convenience store. They depicted the appellant walking in or in front of the store. She had not seen them before. In some videos, the appellant wore a face covering but, in two of the videos, the appellant’s face was uncovered although a baseball cap partially shielded the upper portion of his face. Ms. Deakin was certain that the person depicted in the video was her brother, the appellant. She noted the appellant’s distinctive walk which she described as a “thug walk” and recognized certain features of his face visible in parts of the videos. [8] The trial judge found Ms. Deacon to be a credible witness and her identification of the appellant to be reliable. He entered a conviction. He then imposed a sentence of three years for the robbery and one year for the wearing of a disguise to be served consecutively, resulting in a total sentence of four years. [9] The appellant’s principal ground of appeal is that the trial judge failed to appreciate the frailties in the identification evidence. He argues that, properly viewed, the identification evidence was so unreliable as to be incapable of grounding a conviction. [10] At the outset, the appellant explains that the photos the police released to the media from which Ms. Deakin identified her brother contain insufficient detail to allow for reliable identification. Ms. Deakin provided no explanation as to how she was able to recognize the appellant from these photos. In the appellant’s submission, the animus that Ms. Deakin felt toward her brother is likely what led her to attend at the police station and identify her brother as the person depicted in the photos. The two had had a falling out over the appellant’s discreditable lifestyle approximately one year before the robbery. The appellant argues that his sister was expecting him to get in trouble so, in effect, she placed him in the photo. [11] When Ms. Deakin attended at the police station, her belief that it was the appellant depicted in the photos was, in the appellant’s submission, reinforced by the police’s failure to prepare a photo lineup. Rather, they showed Ms. Deakin a different photograph said to be of the appellant, one drawn from Facebook that she was familiar with, and had her confirm that the second photo was also of her brother. This is said to have further tainted her identification. [12] According to the appellant, Ms. Deakin would therefore have expected to see her brother when she was shown the videos at trial. In the appellant’s submission, this confirmation bias was not adequately considered by the trial judge. [13] The appellant goes on to argue that the videos are simply incapable of supporting the identification of the appellant. The alleged distinctive walk Ms. Deakin described as “thug walk” is, in his submission, generic in nature and provides little support for the identification. As for the photos in which the appellant’s face is partially revealed, Ms. Deakin was unable to adequately describe any distinctive facial features to justify the confidence in the identification she asserted. [14] Finally, the appellant notes that Ms. Deakin conceded that she was estranged from her brother. She had not seen him for about a year before the surveillance videos and two years by the time of trial. In the period since she had last seen him, she said that his appearance had changed somewhat. [15] Given these problems with the identification evidence, the appellant argues that, although the trial judge cautioned himself on the frailties of identification evidence and the danger of conflating credibility with reliability, he did not heed this caution. His reasons give no indication that he had in fact appropriately considered and weighed the problems. [16] We do not accept this submission. In his reasons for judgment, the trial judge adverted to the dangers of eyewitness identification. He acknowledged that, just because a witness is qualified to give recognition evidence, this does not absolve the trial judge of his responsibility to make his own assessment of the evidence and be satisfied beyond a reasonable doubt of its accuracy. He also noted that confidence does not equate with accuracy. [17] Mindful of these dangers, the trial judge then carefully analyzed Ms. Deakin’s evidence. He noted that Ms. Deakin acknowledged the change in the appellant’s appearance since she had last seen him. Aware that Ms. Deakin had had a falling out with her brother, the trial judge found that this affected neither her credibility nor the reliability of her evidence. He viewed Ms. Deakin as having testified “in [a] careful, candid and honest manner”. He accepted that the distinctive walk described by Ms. Deakin constituted a feature that “his sister knowing [the appellant] as she does and for as long as [she] does, would be able to recognize.” It was open to the trial judge to come to this conclusion. [18] As for the portions of the video depicting the appellant’s face, the trial judge focussed on two clips. With respect to the first, he found that “given its quality and the amount of the face visible, especially in profile, Ms. Deakin’s identification from it is accurate and reliable.” With respect to the second clip, he noted Ms. Deakin’s evidence to the effect that “based on the shape and outline of the face, the nose and the lips, there is no doubt in her mind that the person was her brother.” When describing what she recognized in the clip, the transcript reveals that Ms. Deakin got up to show on the video what she was describing. After recognizing that “a witness’ confidence does not equate with accuracy”, the trial judge found that “this clip gives a very good view of the person’s face and is clear and of high quality, such that again I am satisfied in the accuracy of Ms. Deakin’s identification.” [19] As a result, we see no error in the trial judge’s approach. [20] In addition, despite the capable submissions made, we do not accept the suggestion that Ms. Deakin’s identification of the appellant was tainted by the manner in which the police carried out the investigation. Ms. Deakin independently identified the appellant from the photos released to the public and did so without any prompting. [21] We reject the suggestion that Ms. Deakin identified the appellant in the videos because she expected to see him in them. The record demonstrates otherwise. When shown the videos for the first time at trial, she testified that she was not able to identify the person in the first two clips. She only confirmed that the person depicted in the videos was her brother when shown clips of the perpetrator walking and clips that revealed portions of his face. Despite their falling out, Ms. Deakin was not looking to inculpate her brother. As she explained, she did not want to believe that it was her brother. When she first saw the picture, her “heart kind of dropped. I felt like crap.” [22] The appellant conceded at trial that Ms. Deakin’s opinion on identity was admissible. The weight to be given to that evidence was a matter for the trial judge. We see no error in his acceptance as to the accuracy of Ms. Deakin’s identification of her brother as the perpetrator in the surveillance videos. [23] Second, the appellant argues that the verdict is unreasonable. As we have explained, we see no error in the trial judge’s conclusion that the videos were sufficiently clear so as to allow Ms. Deakin to identify the appellant as the perpetrator. As the trial judge noted, the videos are of high quality and the amount of face visible in those videos is sufficient to allow the identification, particularly when combined with what the trial judge perceived to be the appellant’s distinctive walk. We reject this ground of appeal. [24] The appellant also tenders and seeks to admit fresh evidence. The fresh evidence relates to the appellant’s trial on charges for having made threats against Ms. Deakin. That trial was held approximately a year following the decision in the present case. The appellant was acquitted of those charges and he argues that Ms. Deakin’s testimony in that case was rejected by the trial judge. In addition, her testimony is in some measure inconsistent with testimony she gave in this case. In the appellant’s submission, the evidence is important for a full and proper appreciation on appeal of the reliability of Ms. Deakin’s evidence. [25] We do not admit the fresh evidence. In our view, it is simply not cogent. Ms. Deakin’s testimony in the later trial does not say anything about her credibility and reliability when she testified in the present matter. At best, it would show inconsistent testimony suggesting that her memory of events shifted in the time between the two trials. [26] Finally, the appellant appeals his four-year sentence on the basis that the trial judge did not explain why he made the one-year sentence for wearing a disguise consecutive to the three-year sentence for robbery. [27] We see no error in the trial judge’s sentence. This was a planned and deliberate robbery and involved a knife and what appeared to be a firearm. The appellant had a lengthy record and the sentence imposed fell well within the range. In fact, at the sentencing hearing, defence counsel submitted that an appropriate sentence was “three to four years, probably, in fairness, probably close to the four, if not the four.” Although the trial judge should perhaps have explained why he chose to make the two sentences consecutive, it is clear, in our view, that he considered a four-year sentence to be appropriate in the circumstances. In our view, the sentence is fit. [28] For these reasons the appeal is dismissed. “Fairburn A.C.J.O.” “Paul Rouleau J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Adam v. Ledesma-Cadhit, 2021 ONCA 828 DATE: 20211122 DOCKET: C67828 Brown, Roberts and Zarnett JJ.A. BETWEEN Abudu Ibn Adam, May Hyacenth Abudu, Ibrahim A.C. Abudu (a minor by his litigation guardian, Abudu Ibn Adam), and The Estate of Aminatawalla Napoga Chidinma Abudu (by the litigation administrator, Abudu Ibn Adam) Plaintiffs (Appellants) and Christine J. Ledesma-Cadhit, GlaxoSmithKline Inc. , Her Majesty the Queen in Right of Canada, Her Majesty the Queen in Right of Ontario Defendants ( Respondent ) Jasmine M. Ghosn, for the appellants Randy C. Sutton, Kate Findlay and Justine Smith, for the respondent GlaxoSmithKline Inc. Heard: June 28, 2021 by video conference On appeal from the judgment of Justice Markus Koehnen of the Superior Court of Justice, dated December 10, 2019, with reasons reported at 2019 ONSC 7066. Brown J.A.: OVERVIEW [1] Amina Adam was the daughter of the appellants, May Hyacenth Abudu and Abudu Ibn Adam. Amina died on November 28, 2009. She was five years old. [2] Five days prior to her death, Amina had received a vaccine called Arepanrix, which was manufactured and distributed by the respondent GlaxoSmithKline (“GSK”). Arepanrix was designed to protect against the H1N1 influenza, known as the “swine flu”. [3] An autopsy concluded that the cause of Amina’s death was unascertained, with sudden arrhythmic death syndrome not excluded. The investigating coroner found that the most likely cause of death was sudden arrhythmic death syndrome. However, the Paediatric Death Review Committee of the Office of the Chief Coroner ultimately classified Amina’s cause of death as “undetermined”. [4] Amina’s parents believed the vaccine had caused their daughter’s death. They commenced this action against GSK, Dr. Christine J. Ledesma-Cadhit, their family physician who had administered the vaccine to Amina, Her Majesty The Queen in Right of Canada, and Her Majesty The Queen in Right of Ontario, alleging that Arepanrix had caused their daughter’s death. [5] Prior to trial, the appellants discontinued the action against Dr. Ledesma-Cadhit, and in 2014 the action was dismissed against the two government defendants: 2014 ONSC 5726. [6] Following a three-week trial, the trial judge dismissed the action against GSK. He began his reasons for judgment by observing that “[a] parent can suffer no greater loss than that of a young child.” As a father and grandfather, I share that sentiment; this is a very sad case. However, the trial judge concluded that the appellants had not introduced evidence that would demonstrate, on a balance of probabilities, that GSK breached the applicable standard of care or that Arepanrix caused Amina’s death. [7] The appellants appeal. I will examine each of their grounds of appeal later in these reasons. However, having examined the evidence from the trial, I have concluded that the trial judge did not commit any reversible error that would justify interference by this court. Accordingly, I would dismiss the appeal. BACKGROUND The distribution of Arepanrix in the fall of 2009 [8] In early 2009, the World Health Organization (“WHO”) learned about the development of a new strain of influenza virus: H1N1, commonly known as the swine flu. The WHO declared H1N1 to be a pandemic and, in the summer of 2009, called on drug manufacturers to begin clinical trials for a vaccine to combat H1N1. [9] GSK developed two vaccines: Arepanrix and Pandemrix. Pandemrix was manufactured and distributed in Europe; Arepanrix was manufactured and distributed in Canada. Clinical trials for Arepanrix began in 2008 but had not been completed when the pandemic was declared. [10] The Canadian Minister of Health authorized the sale of the Arepanrix vaccine pursuant to an interim order dated October 13, 2009 (“Interim Order”). As part of the Interim Order process, Health Canada agreed to indemnify GSK for any claims brought against it in relation to the administration of the Arepanrix vaccine. [11] Although human trials of Arepanrix were not finished by the time Health Canada authorized the vaccine’s use, the product was not without clinical history. GSK had developed other pandemic vaccines on which the H1N1 vaccine was based. The principal precursor was the H5N1 vaccine, developed in the early 2000s against bird flu that had developed in Hong Kong. The H5N1 vaccine was developed for use with an adjuvant, the role of which was explained by the trial judge: An adjuvant is a substance that enhances the body's immune response to an antigen. When used with vaccines, an adjuvant is administered as a second injection separate from the vaccine. Use of an adjuvant is beneficial when dealing with an unexpected strain of influenza because manufacturing a sufficient number of vaccine doses for an unexpected virus can be problematic. An adjuvant, in effect, boosts the power of a vaccine, thereby allowing a lower dosage of the vaccine to be used.  This in turn allows a given number of vaccines to be distributed over a larger population than would be possible without an adjuvant. [12] Arepanrix was based on the H5N1 vaccine. The adjuvant that was used together with the vaccine had already been approved by Health Canada in another context. While clinical trials of both Arepanrix and Pandemrix showed a higher incidence of adverse events, particularly when used with an adjuvant, the intensity and frequency of the events were not sufficiently severe to cause regulatory concern. [13] Clinical trials of Arepanrix involving children had not started when Health Canada issued the Interim Order, nor was there any data about the use of Arepanrix in children at the time GSK received authorization for its sale. However, there was data on the use of the adjuvant with the H5N1 vaccine on children. The administration of Arepanrix to Amina [14] Amina received the Arepanrix vaccine on Monday, November 23, 2009 from her family physician, Dr. Ledesma-Cadhit. Amina’s mother and older brother received vaccinations at the same time from the same vials. Dr. Ledesma-Cadhit told Amina’s mother to give the children Tylenol in the event of discomfort or fever. [15] Although Amina complained that she was not feeling well, she continued to attend school for the balance of the week. [16] On Saturday, November 28, Amina again complained that she was not well – she had pain in her feet and an upset stomach, but she continued to eat, although not as much as usual. Ms. Hyacenth took the children to a pharmacy across the street from their apartment to buy more Tylenol. As described by the trial judge: After returning home, Ms. Hyacenth had decided to bring Amina to the emergency ward of a nearby hospital but would give Amina a bath and something to eat before doing so. Ms. Hyacenth ran a bath for Amina. Amina needed to use the toilet. Ms. Hyacenth left her alone to do so but told her to call out when she was done.  Ms. Hyacenth returned to the kitchen to check on the soup she was cooking. When Ms. Hyacenth had not heard anything for a few minutes, she sent her son Ibrahim to check on Amina.  Upon entering the washroom he screamed for help. Amina appeared to have collapsed off of the toilet halfway into the tub. Ms. Hyacenth rushed to get Amina, laid her out on the living room floor and began administering cardiopulmonary resuscitation. An ambulance was called.  Amina was taken to Scarborough General Hospital where she was pronounced dead shortly after arrival. ISSUES ON APPEAL [17] The appellants advance five grounds of appeal: Breach of the standard of care: (i) The trial judge erred in finding that GSK provided an adequate warning to Amina and her mother, as caregiver to Amina, with respect to Arepanrix; (ii) The trial judge erred in finding that GSK discharged its duty to warn by relying on the “learned intermediary rule”; (iii) The trial judge erred in failing to find that GSK did not meet the standard of care required of it with respect to its “post-marketing commitments” in terms of its continuing duty to the consumer to evaluate adverse events; Causation: (iv) The trial judge erred in failing to find that the circumstantial evidence in this case raised an inference of negligence that called for an explanation from GSK; Costs: (v) The trial judge erred in failing to award the unsuccessful appellants their full indemnity costs. The appellants submit that this case required adjudication by the courts as it was in the public interest and met the test of “novelty”, thereby justifying an award of costs to them. FIRST ISSUE: The adequacy of the warning by GSK SECOND ISSUE: The application of the “learned intermediary rule” [18] I propose to deal with the first and second issues together as the application of the learned intermediary rule is subsumed within the larger issue of whether GSK discharged its duty to warn of risks of the vaccine. The governing legal principles [19] The general principles governing the duty to warn by manufacturers of medical products are well known, not in dispute, and were summarized by the Supreme Court in Hollis v. Dow Corning Corp. , [1995] 4 S.C.R. 634, at paras. 20 to 29: (i) A manufacturer of a product has a duty in tort to warn consumers of dangers inherent in the use of its product of which it has knowledge or ought to have knowledge; (ii) The duty to warn is a continuing duty, requiring manufacturers to warn not only of dangers known at the time of sale, but also of dangers discovered after the product has been sold and delivered; (iii) All warnings must be reasonably communicated and must clearly describe any specific dangers that arise from the ordinary use of the product; (iv) The nature and scope of the manufacturer’s duty to warn varies with the level of danger associated with the ordinary use of the product. Where there are significant dangers, it will rarely be sufficient for manufacturers to give general warnings concerning those dangers. Instead, the warnings must be sufficiently detailed to give the consumer a full indication of each of the specific dangers arising from the use of the product; (v) Manufacturers of products such as drugs that are ingested, consumed or otherwise placed in the body, and thereby have a great capacity to cause injury to consumers, are subject to a correspondingly high standard of care under the law of negligence; (vi) There is a heavy onus on manufacturers of drugs to provide clear, complete, and current information concerning the risks inherent in the ordinary use of their product ; (vii) As a general rule, the duty to warn is owed directly by the manufacturer to the ultimate consumer. However, an exception known as the “learned intermediary rule” applies where a product is highly technical in nature and is intended to be used only under the supervision of experts, such as physicians, or where the nature of the product is such that the consumer will not realistically receive a direct warning from the manufacturer before using the product. Where an intermediate inspection of the product is anticipated or where a consumer is placing primary reliance on the judgment of a “learned intermediary”, such as a physician, and not on the manufacturer, a warning to the ultimate consumer may not be necessary and the manufacturer may satisfy its duty to warn the ultimate consumer by warning the learned intermediary of the risks inherent in the use of the product; (viii) The “learned intermediary” rule presumes that the intermediary physician is “learned”, in the sense that the physician is fully apprised of the risks associated with the use of the product. A manufacturer can only be said to have discharged its duty to the consumer when the intermediary’s knowledge approximates that of the manufacturer. To allow manufacturers to claim the benefit of the rule where they have not fully warned the physician would undermine the policy rationale for the duty to warn, which is to ensure that the consumer is fully informed of all risks. [20] In Hollis , the Supreme Court identified the overarching question to be answered as whether the manufacturer owed the patient a duty to warn of a specific risk. The Supreme Court broke that overarching question down into two sub-questions: (i) Did the manufacturer have a duty to warn recipients of the medical product directly or could it satisfy its duty by warning a learned intermediary, such as a physician? (ii) If the manufacturer could properly discharge its duty by warning the physician, did it adequately warn the physician of the specific risk in light of its state of knowledge at that time? [21] I will follow the framework used by the Supreme Court in Hollis and review the trial judge’s reasons in light of the following two questions: (i) Did the trial judge err by concluding that GSK could satisfy its duty to warn recipients of Arepanrix by warning a learned intermediary physician, in this case Amina’s family doctor, Dr. Ledesma-Cadhit? (ii) If GSK could properly discharge its duty by warning the physician, did the trial judge err in concluding that GSK adequately warned Dr. Ledesma-Cadhit of the relevant risks of Arepanrix in light of its state of knowledge at that time? [22] Whether GSK discharged its duty of care is a question of mixed fact and law, as it involves applying legal principles to facts, which requires interpreting and weighing evidence. That exercise attracts a standard of review of palpable and overriding error: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 29 and 36. Did the trial judge err by concluding that GSK could satisfy its duty to warn by warning an intermediary physician? [23] The trial judge held, in effect, that GSK could satisfy its duty to warn by informing Amina’s family doctor of the risks associated with Arepanrix through the product monograph that accompanied each vial of vaccine and a Product Information Leaflet that was posted on the websites of GSK and Health Canada. He wrote, at paras. 37 and 38: GSK did disclose in its Product Information Leaflet for the Arepanrix vaccine and in its product monograph that Health Canada had authorized the sale of the vaccine based on only limited clinical testing and no clinical experience at all with children. Dr. Ledesma-Cadhit believes she knew this from the Health Canada website.  She was also aware that Arepanrix was authorized through a special process because of the pandemic. The product monograph for Arepanrix disclosed that there was limited clinical experience with an investigational formulation of another adjuvanted vaccine but no clinical experience with children.  In addition, the product information leaflet and product monograph disclosed a number of risks. [24] The appellants contend that the trial judge erred in so holding. [25] The appellants first submit that since Amina’s mother independently learned about the vaccine and sought it out for her children, the learned intermediary rule does not apply. I disagree. The vaccine was a product that was highly technical in nature and which could only be obtained and used under the supervision of an expert, in this case Amina’s family doctor. Those circumstances bring the vaccine squarely within the ambit of the learned intermediary rule. [26] The appellants next submit that Amina’s family doctor did not possess the same level of information as GSK regarding the risk of a high fever in a child after receiving the vaccine and how to treat such a high fever. Specifically, they argue that: (i) on November 16, 2009, about a week before Amina received her dose of the vaccine, Health Canada had emailed GSK asking for more information about three cases of significant or high-level fever observed in children who had received the full dose antigen plus adjuvant. Yet, following that request for information, GSK did not publish to the general public any advisory regarding fever; and (ii) GSK prepared a Product Information Leaflet, which was approved by Health Canada. In its November 12, 2009 communication about the Minister’s authorization of the vaccine sent out to about 50,000 physicians, GSK advised physicians to consult the Leaflet for detailed information about the vaccine and provided links to the document on the websites of Health Canada and GSK. The Leaflet contained a “Consumer Information” section that stated a “common” side effect of the vaccine was fever. The Leaflet advised that “common” side effects were usually mild and should only last a day or two. It went on to state: “If any of these side effects occur, please tell your doctor or nurse immediately. If any of the side effects gets serious, or if you notice any side effects not listed in this leaflet, please tell your doctor.” However, the product monograph placed in boxes of Arepanrix distributed to physicians did not contain the “Consumer Information” section. [27] It is clear the trial judge did not accept that either consideration prevented GSK from relying on Amina’s family doctor to satisfy its duty to warn. Although the trial judge’s reasons do not offer a specific reason for that conclusion, the answer is clear from and supported by two pieces of evidence that came out of the testimony of Dr. Ledesma-Cadhit: see R. v. G.F. , 2021 SCC 20, 71 C.R. (7th) 1, at para. 70. The record disclosed that: (i) Dr. Ledesma-Cadhit testified that, prior to administering the vaccine to Amina, she told Amina’s mother that the side effects included fever and, if a fever appeared, she should administer Tylenol. As far as she could remember, Dr. Ledesma-Cadhit told Amina’s mother to return to her office if she had any concerns, if the children experienced any side effect the mother considered to be serious, or if the common symptoms described lasted a day or two; (ii) Dr. Ledesma-Cadhit also confirmed that before administering the vaccine to Amina, she had read the GSK product monograph for Arepanrix. The adverse reactions section of that document was identical to that in the Product Information Leaflet, describing the incidence of significant and high-level fevers in children who were part of the H5N1 study. Dr. Ledesma-Cadhit testified that she believed she went to the Health Canada website mentioned in the product monograph to obtain information about the vaccine. Dr. Ledesma-Cadhit’s evidence also suggested that she had probably read GSK’s November 12, 2009 letter sent to physicians. [28] As well, during his cross-examination, Dr. Gaston De Serres, a medical doctor and epidemiologist called by GSK who was qualified as an expert witness at trial, responded to questions about the information included in the Arepanrix product monograph: Q. Well, regardless of what’s in Amina’s record, I’m just asking a clean question here on whether there is anything in the product monograph that gives guidance to doctors around use of the vaccine with children who have some history of respiratory illness? A. I have not read this whole document but I would probably guess that there was none. Q. Okay. And would – are you aware of any guidance given to doctors around the issue of fever as an adverse event that’s coming out with the adjuvanted vaccine and how to manage the fever in the document? A. Well, as I wrote in my report, this is not part of what we expect from product leaflet or inserts. This is done by, you know, how you care or how you manage patients with fever or adverse events following immunization is completely outside the realm of what is put in product leaflets. This is not done by manufacturers, it’s done by medical groups – advisory groups and is not put in that kind of product information sheet. And that’s true not only for this product, it’s true for drugs, it’s true for everything, you know. [29] In light of that evidence, I see no reversible error in the trial judge applying the learned intermediary rule in the circumstances of this case. Did the trial judge err in concluding that GSK adequately warned Dr. Ledesma-Cadhit of the relevant risks of Arepanrix in light of its state of knowledge at that time? [30] At trial, the appellants advanced several reasons why GSK had failed to adequately warn Dr. Ledesma-Cadhit about relevant risks associated with Arepanrix: some countries had refused to make the vaccine available because of safety concerns; Arepanrix was not appropriate for people with asthma; GSK had failed to convey at an early stage findings concerning “unexplained” phenomena and harm caused by its product; and the adverse event of Amina’s death was not included in tracking data about the vaccine. [31] The trial judge addressed each submission. He held that the evidence did not establish the deficiencies asserted by the appellants: (i) There was no reliable evidence about the reasons why some other countries did not make Arepanrix available and the “simple fact that certain jurisdictions did not approve Arepanrix is not enough to prove that GSK fell short of its standard of care by distributing Arepanrix in Canada”; (ii) The medical evidence at trial was consistent that patients with asthma were preferred candidates to receive the vaccine because asthmatics can suffer more serious complications from flu than non-asthmatics and, in any event, Amina was never diagnosed with asthma; (iii) There was no evidence that GSK failed to convey at an early stage findings concerning “unexplained” phenomena and harm caused by Arepanrix. At paras. 43 to 51 of his reasons, the trial judge reviewed in some detail GSK’s ongoing disclosure of information about the vaccine; and (iv) Although Amina’s death was not reported directly to GSK, Dr. Ledesma-Cadhit had filed a timely adverse event report with Toronto Public Health Authorities, one of the approved channels for reporting adverse events. [32] The trial judge concluded, at para. 60: The issues surrounding the standard of care here involve an understanding of the appropriate standards applicable to manufacturing, testing and approving drugs, as well as standards of disclosure to governments, physicians and the public when drugs are distributed.  In the absence of expert evidence that GSK failed to meet a particular standard and in the face of evidence that demonstrates GSK acted responsibly to disclose information, test products and manufacture products all in circumstances of urgency, I cannot find any breach of a standard of care. [33] On appeal, the crux of the appellants’ challenge to this holding by the trial judge is found in para. 56 of their factum where they list eight matters that GSK should have disclosed to Amina’s mother, including the risk of a high fever. [34] I have already concluded that there is no reversible error in the trial judge’s finding that GSK was entitled to rely on a learned intermediary, Amina’s family doctor, to satisfy its obligation to convey information about risks to the recipients of the vaccine. Further, the product monograph that accompanied the vaccine vial identified in some detail known adverse reactions to the vaccine, as disclosed both in the H1N1 studies conducted up until that time, as well as in the prior studies of the H5N1 vaccine which used the AS03 adjuvant. The appellants have not pointed to any evidence that GSK failed to disclose adverse risks that were known or ought to have been known at the time. [35] Moreover, the regulatory information published at the time informed the public of the cost/benefit assessment that led the Minister to make the Interim Order authorizing the administration of Arepanrix. GSK summarized the key parts of that regulatory information in the opening of the Arepanrix product monograph, which Amina’s family physician testified that she read: Health Canada has authorized the sale of Arepanrix™ H1N1 based on limited clinical testing in humans under the provision of an Interim Order (I0) issued on October 13, 2009. The authorization is based on the Health Canada review of the available data on quality, safety and immunogenicity, and given the current pandemic threat and its risk to human health, Health Canada considers that the benefit/risk profile of the Arepanrix ™ H1N1 vaccine is favourable for active immunization against the H1N1 2009 influenza strain in an officially declared pandemic situation . [Emphasis added] [36] Given the making of the Interim Order, the onus of proof that lies on a plaintiff in any negligence action required the appellants to establish, on the balance of probabilities, that GSK did not meet its duty to provide Amina’s family physician with clear, complete, and current information concerning the risks and dangers inherent in the ordinary use of Arepanrix: F.H. v. McDougall , 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 40. The record discloses that the appellants failed to do so. As observed by the trial judge, one of the forensic difficulties of the appellants’ case at trial was that they did not adduce expert evidence that GSK had failed to adequately warn about specific risks of the vaccine. As a practical matter, e xpert evidence concerning the complex area of vaccine manufacture and distribution was necessary in the circumstances of this case for the court to reach a conclusion of a breach in the standard. Given the lack of any such evidence adduced by the plaintiffs, I see no reversible error in the trial judge’s conclusion that the appellants had failed to establish, on the requisite balance of probabilities, that GSK breached the applicable duty to warn. [37] I am not persuaded by this ground of appeal. THIRD ISSUE: GSK’s post-marketing commitments [38] As stated in the Explanatory Note accompanying the Interim Order that authorized the sale of Arepanrix, GSK was required “to submit all the safety and effectiveness data available at the time of the vaccine submission as well as a plan to allow for the collection, assessment and reporting of information about the vaccine’s safety and effectiveness.” [39] Although the appellants’ Fresh as Amended Statement of Claim did not allege that GSK was negligent because it had failed to meet its post-marketing commitments, at trial the appellants alleged that GSK’s failure to include Amina’s death in its post-marketing tracking data constituted a breach of the standard of care. [40] The trial judge did not accept that submission. He held that although GSK did not learn of Amina’s death until this lawsuit was started, the family doctor, Dr. Ledesma-Cadhit, had filed an adverse event report regarding Amina’s death with the Toronto Public Health authorities. [41] The trial judge also found that “there was no evidence to suggest that the tracking system that GSK or any of the public health authorities established somehow fell short of the standard of care applicable to tracking systems of this sort.” Dr. Carole Legare, who in 2009 had been assigned to the Biologics and Genetics Therapies Directorate of Health Canada, testified about the post-marketing review of data concerning Arepanrix conducted by that agency. Dominique Barbeau, an employee of GSK, testified that the company had met all the post-marketing commitments that it had agreed to perform. The appellants did not lead any evidence to the contrary. [42] On appeal, the appellants repeat the submission they made at trial, in even stronger terms. As put in para. 68 of their factum: “GSK’s failure to investigate Amina’s severe adverse event, and its significant reliance on government actors, amounts to bad faith and ought to have attracted punitive damages awarded to Amina’s estate.” [43] I do not accept this submission for several reasons. [44] First, this submission confuses the purpose of a civil trial with the purpose of a public inquiry or coroner’s inquest. Amina’s parents understandably want a definitive explanation about what caused their daughter’s death. The coroner’s investigation and the resulting conclusion that the cause of Amina’s death was “undetermined” did not provide them with such certainty. However, a civil trial is not a form of coroner’s inquest or public inquiry. While the civil pre-trial discovery process may disclose information not previously known by a party, the plaintiffs in a civil action labour under an obligation to establish, on a balance of probabilities, that some identifiable legal wrongdoing by the defendant caused an injury or death. The record fully supports the trial judge’s conclusion that the appellants failed to do so. [45] Second, the appellants’ action alleges that the administration of Arepanrix to Amina caused her death. Establishing liability for Amina’s death would require the appellants to demonstrate, on a balance of probabilities, that some act or omission of GSK that took place prior to Amina’s death caused her death. It is difficult to conceive how an act or omission of GSK that took place after Amina’s death could have contributed to her death, which is essentially the thrust of the appellants’ breach of post-marketing commitment allegation. If, however, the appellants’ contention is that GSK’s post-marketing activities failed to disclose a risk of the vaccine that should have been known to GSK before the vaccine was administered to Amina, their argument fails in light of the trial judge’s finding to the contrary, which they have not demonstrated is tainted by palpable and overriding error. [46] Finally, GSK’s November 12, 2009 Letter to Health Care Professionals, which had been approved by Health Canada, asked physicians to report any case of serious or unexpected adverse events in patients receiving Arepanrix to their local public health authorities, the Public Health Agency of Canada, or GSK. On December 8, 2009, Dr. Ledesma-Cadhit sent an adverse event report to Toronto Public Health that reported Amina’s death five days following her vaccination. While there certainly is common sense merit to the appellants’ contention that local public health authorities should pass on adverse event information to a drug manufacturer, the failure to do so in this case did not cause or contribute to Amina’s death and, therefore, cannot be a basis for civil liability in negligence against GSK. [47] Accordingly, I am not persuaded by this ground of appeal. FOURTH ISSUE: The inference of negligence from the circumstantial evidence [48] The appellants also take issue with two findings made by the trial judge: (i) there was no direct or circumstantial evidence from which he could infer that GSK breached the standard of care ; and (ii) there was no evidence that Arepanrix could cause or in fact caused Amina’s death.  In challenging those findings as errors, the appellants advance submissions that blend the issue of negligence (breach of standard of care) with the issue of causation. They argue that: (i) The circumstances surrounding Amina’s death required the trial judge to call on GSK to explain Amina’s death; (ii) If a risk falls within the realm of possibility, no matter how small or miniscule, causation is proved; and (iii) Consequently, if GSK could not rule out the vaccine as a cause of Amina’s death, then GSK should “share the family’s burden” and be found liable. [49] The appellants summarized their submission in para. 117 of their factum, stating: The experts could not rule out Arepanrix H1N1 as a cause of Amina’s death. We must, therefore, conclude that it is within the realm of possibility that Arepanrix H1N1 was a cause of Amina’s death. Once that conclusion was reached, given that only GSK as the distributor of Arepanrix H1N1, could possibly have the relevant expertise to answer to the concerns arising from such conclusion, GSK must carry the burden (not the Plaintiffs) of going to the next step of ruling it out. [50] In considering this ground of appeal, I will first deal with the aspect of inferring a breach of the standard of care from circumstantial evidence and then with the aspect of causation. (1) Inferring a breach of the standard of care from circumstantial evidence [51] The appellants’ submission that the circumstances surrounding Amina’s death required the trial judge to call on GSK to explain her death contains echoes of the discarded maxim of res ipsa loquitur , which dealt with the use of circumstantial evidence in negligence cases. The old maxim provided that a plaintiff could establish negligence by a defendant if (i) the thing that inflicted the damage on the plaintiff was under the sole management and control of the defendant, (ii) the occurrence in issue was such that it would not have happened without negligence, and (iii) there was no evidence as to why or how the occurrence took place: Fontaine v. British Columbia (Official Administrator) , [1998] 1 S.C.R. 424, at para. 18. [52] In Fontaine , the Supreme Court of Canada concluded that whatever value res ipsa loquitur may once have provided to the adjudicative process had long since passed and went on to clarify, at para. 27, the proper use of circumstantial evidence in negligence cases: It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions.  After all, it was nothing more than an attempt to deal with circumstantial evidence.  That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant.  Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed. See also: Dickie v. Minett , 2014 ONCA 265, at para. 3. [53] The trial judge followed the approach directed by Fontaine but it led him to conclude that there was no direct or circumstantial evidence from which he could infer that GSK breached its standard of care. Paragraphs 57 to 59 of his reasons explain the basis for that conclusion: Arepanrix was developed based on the fully tested H5N1 vaccine. Even though Arepanrix was distributed and administered before the full course of clinical testing had run its course, that was done for valid public health concerns and with government approval, not by virtue of carelessness. There was no evidence at trial to suggest that GSK had failed to disclose relevant information to Health Canada or to physicians. Similarly, there is no evidence to suggest that GSK disclosed false or misleading information to Health Canada or to physicians. Manufacture of Arepanrix was subject to government testing. Proactive measures were taken to become aware of safety signals once administration of Arepanrix began. In the absence of contrary expert evidence about industry or regulatory standards, these circumstances indicate that GSK was acting responsibly and meeting its standard of care. While I agree it is possible that GSK breached its standard of care in one or more of these steps or may have otherwise breached its standard of care, I am not able to make such a finding based on the evidence before me. I note that GSK had a standard of care expert whom they did not call at trial after I questioned whether it was necessary to take trial time for that expert given the absence of any evidence on the issue from the plaintiffs. [Emphasis added] [54] The appellants have not established that those conclusions of the trial judge rest on any misunderstanding of the applicable law, misapprehension of the evidence, or palpable and overriding error of fact. (2) Causation [55] To succeed in an action for negligence, a plaintiff must establish that the defendant’s breach of the standard of care caused the injury or death: Clements v. Clements , 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 6. In Rothwell v. Raes (1990), 2 O.R. (3d) 332 (C.A.), leave to appeal refused, [1991] S.C.C.A. No. 58, it was alleged that the administration of a vaccine to an infant had caused him brain damage. This court stated, at p. 333, that unless it was established that the vaccine could cause such damage, the plaintiff could not succeed. If such a general causal relationship was found to exist, the question became whether the vaccine did cause the damage suffered by the infant plaintiff. [1] [56] In the present case, the trial judge carefully and accurately reviewed the evidence of the expert and lay witnesses relating to causation. He held that there was no evidence that the vaccine was capable of causing death and there was an absence of medical evidence that the vaccine caused or contributed to Amina’s death: at paras. 119-120. Those findings were firmly anchored in the evidence adduced at trial. [57] The appellants’ submission that if a risk falls within the realm of possibility, no matter how small or miniscule, causation has been demonstrated mis-apprehends the established legal principles concerning causation. The trial judge properly rejected that submission when, at para. 64, he accurately stated and applied the governing legal principles: The plaintiffs point to a number of witnesses, including defence experts, who agreed that the vaccine could not be excluded as a cause of death. That, however, is not the test that the plaintiffs must meet. The plaintiffs must prove on a balance of probabilities that the vaccine caused Amina’s death. The fact that it could not be excluded as a possible cause does not meet the burden the plaintiffs must meet. [58] Further, the appellants’ submission that they had established the vaccine caused Amina’s death because some defence experts, Drs. De Serres and Langley, testified they could not rule out the vaccine as the cause of her death ignores the entirety of those experts’ evidence. [59] In examination-in-chief, Dr. De Serres testified that in his opinion, Amina’s death was not caused by the Arepanrix vaccine. On cross-examination, he testified as follows: Q. So then doctor, would you say then confidently, there is no risk of a death in a child five days post vaccination with Arepanrix? A. I would say that the likelihood of such an event... Q. I’m asking if there is a zero risk. Are you confident in stating there is zero risk? A. Nobody would ever say zero risk. We’d just – we can never rule that out. [60] On re-examination, Dr. De Serres testified that the likelihood the vaccine contributed to Amina’s death was “extremely low”. [61] In her expert report, which was treated as her evidence-in-chief, Dr. Langley opined: There is no evidence to support sudden death or cardiac arrest in humans at any point following receipt of H1N1 vaccine, and no evidence in that it led to this most unfortunate death in this child. The autopsy, biochemical tests and cultures do not identify a cause of death. [62] On cross-examination, Dr. Langley expressed the opinion that Amina’s death was unexplained. She went on to testify that “ because we don’t know the cause we can’t exclude anything.” Since there was no evidence of what caused Amina’s death, “anything could be the cause really, but we have no evidence.” [63] When fairly read in their entirety, the testimony of Drs. De Serres and Langley provide no assistance to the appellants’ task of establishing, on a balance of probabilities, that the vaccine caused Amina’s death. [64] I am not persuaded by this ground of appeal. FIFTH ISSUE: The failure to award costs to the unsuccessful appellants [65] The appellants’ final ground of appeal concerns the trial judge’s award of costs to GSK. [66] While the appellants were unsuccessful at trial, they sought a cost award of $564,559.30 on the basis of the case’s exceptional circumstances. [67] The trial judge concluded that this was not one of those exceptional cases in which the unsuccessful party should be awarded costs. He rejected the appellants’ submission that there were prelitigation circumstances that had provoked the litigation, making this case an exceptional circumstance. As well, he noted that prior to trial, GSK had made three settlement offers to the appellants, which increased in amount from the payment of $150,000 to the appellants to $300,000. [68] Although GSK’s partial indemnity costs of the action were about $450,000, the company only sought costs of $50,000, which the trial judge awarded on the basis that GSK was the successful party at trial. [69] The appellants submit that cost award was an error. They advance several reasons why the trial judge should have made an exceptional award of costs to them notwithstanding they had failed to prove their case: (i) the vaccine could not be excluded as a cause of Amina’s death; (ii) the family had incurred the cost of investigating Amina’s death “which was a severe adverse event to Arepanrix H1N1”; (iii) the information collected pursuant to GSK’s post-marketing commitments increased knowledge about the vaccine; (iv) GSK had a duty to investigate Amina’s death; (v) when “Amina took the jab, this benefited the community as a whole as part of the concept of ‘herd immunity’”; and (vi) the case involved a matter of public interest, namely the consumer protection of vulnerable children. [70] I am not persuaded by the appellants’ submissions. Absent an error in principle or a clearly unreasonable result, deference is owed to a trial judge’s exercise of discretion in awarding costs. The trial judge recognized that he could award costs in favour of the unsuccessful appellants, but he concluded that “this is not a case that even approaches the circumstances in which such an order should be made.” Specifically, he wrote: While it may have been appropriate for the plaintiffs to commence the action when they did, none of the information as it evolved pointed to the GlaxoSmithKline vaccine as a cause of death. As noted in my reasons, this was not a case that came close to establishing liability nor was it anywhere near a “tough call.” There was simply no evidence to relate Amina’s death to the vaccine. By the time the plaintiffs had their own expert’s report they should have known that it was highly unlikely that they could establish causation. By the time the plaintiffs had the defence expert’s reports, that became even clearer. In those circumstances, an offer of $300,000 shortly before trial was one that was objectively highly attractive. [71] I see no basis upon which to interfere with the trial judge’s discretionary award of costs to GSK. He took into account factors relevant to a request for costs by an unsuccessful party and explained why those factors did not justify departing from the generally applicable principle that costs follow the cause. DISPOSITION [72] For the reasons set out above, I would dismiss the appeal. [73] If the parties are unable to agree on the costs of the appeal within 15 days of the release of these reasons, they may submit written cost submissions, which are not to exceed 5 pages in length, excluding any cost outline or bill of costs. Released: November 22, 2021 “DB” “David Brown J.A.” “I agree. L.B. Roberts J.A.” “I agree. B. Zarnett J.A.” [1] In the defective drug jurisprudence, whether a drug is capable of causing harm is referred to as general causation; whether it in fact caused harm to the plaintiff is known as individual or particular causation. For a discussion, see Harrington v. Dow Corning Corp . , 2000 BCCA 605, 82 B.C.L.R. (3d) 1, at paras. 42 to 46, leave to appeal refused, [2001] S.C.C.A. No. 21; Batten v. Boehringer Ingelheim (Canada) Ltd. , 2017 ONSC 53, at para. 38, aff’d 2017 ONSC 6098 (Div. Ct.), 20 C.P.C. (8th) 414, leave to appeal to Ont. C.A. refused, M48535 (February 28, 2018); Wise v. Abbott Laboratories, Limited , 2016 ONSC 7275, 34 C.C.L.T. (4th) 25, at para. 340; Patricia Peppin, “Vaccines and Emerging Challenges for Public Health Law” in Tracey M. Bailey, C. Tess Sheldon, Jacob J. Shelley, eds., Public Health Law and Policy in Canada , 4th ed. (Toronto: LexisNexis Canada, 2019), §III.

COURT OF APPEAL FOR ONTARIO CITATION: Boehme (Re), 2021 ONCA 831 DATE: 20211122 DOCKET: C69027 Hoy, Coroza and Sossin JJ.A. IN THE MATTER OF:  Ralph Peter Boehme AN APPEAL UNDER PART XX.1 OF THE CODE Ralph Peter Boehme, acting in person Erin Dann, appearing as amicus curiae Nicholas Hay, for the respondent, the Attorney General of Ontario Gavin S. MacKenzie, for the respondent, Ontario Shores Centre for Mental Health Sciences Heard: November 16, 2021 On appeal against the disposition of the Ontario Review Board dated, December 15, 2020, with reasons dated January 13, 2021. REASONS FOR DECISION [1] On August 23, 2011, the appellant was found not criminally responsible by reason of mental disorder on charges of uttering threats to cause death or bodily harm and failure to comply with a probation order. He has been under the jurisdiction of the Ontario Review Board since that time. His current diagnoses are delusional disorder and alcohol use disorder. [2] The appellant appeals the Board’s disposition of December 15, 2020, granting him a conditional discharge. He argues that the Board’s finding that he continues to pose a significant risk to public safety is unreasonable. The index offence did not involve violence and he does not have a history of violent aggression. He submits there was no evidence before the Board that he would not pursue his grievances through appropriate legal channels. He has behaved well at his residence and has not missed any appointments at the hospital. He wishes to reside at the apartment he occupied at the time of the index offence. He seeks an absolute discharge. [3] Amicus curiae submits that the Board erred by not fully exercising its general inquisitorial powers and requests that the Board be directed, or urged, at the appellant’s next hearing, to ensure adequate efforts are being taken to further the appellant’s reintegration in the community, despite the seemingly intractable nature of his delusional disorder. [4] We are not persuaded that the Board’s finding that the appellant continues to pose a significant risk was unreasonable. The appellant’s treatment team was clear that absent the Board’s supervision, the appellant “would almost certainly return to substance abuse, discontinue his medication (particularly clozapine), gravitate towards inappropriate housing, and pursue the victim of the index offence (and perhaps others by whom he felt wronged or slighted) in a harassing and threatening manner causing serious psychological harm.” The Board was entitled to accept that assessment. [5] Nor are we persuaded that there is any basis to interfere with the Board’s exercise of its general inquisitorial powers. [6] On the appellant’s appeal of the Board’s previous disposition, amicus argued that the Board failed to properly inquire into what it submitted was a treatment impasse. The court rejected that argument, finding that there was little in the record to establish that there was an impasse: Boehme (Re) , 2020 ONCA 735. However, the court added this, at para. 5: That said, the appellant has been under the supervision of the Board since 2011. We are concerned that there has been a lack of real progress in addressing the appellant’s condition since that time. The evidence does show that, at least recently, the appellant’s medical team has been considering alternate diagnoses and other forms of treatment. We would urge the Board to look closely at these efforts at the appellant’s next review (which is to be held shortly) and ensure that adequate steps are being taken to try and advance proper treatment of the appellant’s condition. [7] Amicus argues that the Board failed to heed this direction. In particular, it failed to probe the appellant’s treating physician Dr. Hartfeil’s explanation that the appellant derived “very little benefit” from the alternate form of treatment, namely one-on-one cognitive behavioural therapy, that had been under consideration at the time of the previous hearing and was “not willing to participate any further”. Amicus says that the Board should have asked what further alternative forms of treatment or therapy could be tried and asked why there was “very little benefit”. Amicus suggests that there may have been “very little benefit” because of the need to provide sessions by phone or video because of the COVID-19 pandemic, or because at the time the appellant was overusing lorazepam to treat his anxiety. Similarly, amicus argues that the Board should have asked the appellant why he was unwilling to participate in this therapy. [8] Amicus concedes that this is not a situation where there is a treatment impasse. The appellant’s situation has improved, as reflected in his conditional discharge. The treatment team found an appropriate treatment for the appellant’s anxiety, which the treatment team explained contributes to his use of substances and “possibly also contributes to his sort of obsessionality or preoccupation with his various grievances”, and therefore affects his risk of reoffending. The appellant has developed a better rapport with his treatment team and shown an ability – with the assistance of the treatment team – to manage his risk factors in the community without readmission to hospital. [9] The Board is afforded broad discretion in determining “when additional information is necessary, in [its] view”: Kassa (Re) , 2020 ONCA 543, at para. 34. In our view, this expert Board was fully engaged and appropriately exercised its general inquisitorial powers. It carefully reviewed the court’s endorsement with Dr. Hartfeil and explored whether non-pharmacological treatment could be revisited. Dr. Hartfeil explained that the challenges the appellant faces in benefitting from psychotherapeutic interventions are “most[ly] related to his personality” and “some cognitive deficits” as well. The Board also explored whether an occupational therapist might be able to assist and what could be done to build community-based supports over the upcoming year. Dr. Hartfeil indicated that all of those things could be pursued, and we expect that the Board’s attentiveness to these issues will continue. [10] Accordingly, the appeal is dismissed. “Alexandra Hoy J.A.” “S. Coroza J.A.” “Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: MDS Inc. v. Factory Mutual Insurance Company, 2021 ONCA 837 DATE: 20211122 DOCKET: C68300 Feldman, Harvison Young and Thorburn JJ.A. BETWEEN MDS Inc. and MDS (Canada) Inc. c.o.b. MDS Nordion Plaintiffs (Respondents) and Factory Mutual Insurance Company c.o.b. FM Global Defendant (Appellant) Paul J. Pape, David E. Liblong, Shantona Chaudhury and Cristina Senese, for the appellant, Factory Mutual Insurance Company Brian J.E. Brock, Q.C., for the respondents, MDS Inc. and MDS (Canada) Inc. Glenn A. Smith and Nina Bombier, for the intervener, Insurance Bureau of Canada Heard: April 15, 2021 by video conference On appeal from the judgment of Justice Janet Wilson of the Superior Court of Justice, dated September 9, 2020, with reasons reported at 2020 ONSC 1924 (damages) and 2020 ONSC 4464 (interest and costs). COSTS ENDORSEMENT [1] This appeal was about whether the appellant insurer, Factory Mutual Insurance Company (“FM Global”), was required to provide insurance coverage for losses arising from an unplanned shutdown of the Atomic Energy of Canada Limited (“AECL”) Nuclear Research Universal (“NRU”) reactor located in Chalk River, Ontario on May 14, 2009. [2] The respondent MDS Inc. is a global health science company. The respondent MDS (Canada) Inc. is its Canadian subsidiary. They are together referred to as “MDS”. MDS agreed to buy radioisotopes from AECL to be produced at the NRU reactor. FM Global issued MDS an all-risk insurance policy (“the Policy”). [3] The central issues at trial were (i) the interpretation of the corrosion exclusion in the Policy and (ii) whether MDS’ business losses arising from the shutdown of the NRU reactor were payable pursuant to the exception to the exclusion for physical damage caused by corrosion. [4] The issues raised on appeal were (i) the standard of review to be applied to the interpretation of the Policy, (ii) the interpretation of the Policy and in particular, whether the term “corrosion” was ambiguous and should be interpreted to mean “the anticipated and predictable process of corroding” and whether the exception to the exclusion for “physical damage” in the Policy was ambiguous and should be interpreted to include loss of use; and (iii) if there was coverage, whether compound prejudgment interest at the rate of actual borrowing costs should have been ordered given that this was not contemplated in the Policy agreement. [5] The appeal was allowed. The corrosion exclusion was held to apply. The term “physical damage” in the exception to the exclusion clause was held not to apply to economic losses caused by the inability to use the equipment during the shutdown. MDS’ losses were not covered by the Policy and coverage was therefore denied. [6] The court ordered costs of the appeal to the appellant, FM Global. Those costs were agreed to by the parties. [7] In keeping with this court’s decision in St. Jean v. Cheung , 2009 ONCA 9, at para. 4, and Hunt v. TD Securities , 66 O.R. (3d) 481 (C.A.) at para. 188, since the appeal was allowed, the trial judge’s decision on costs was set aside. [8] The parties were unable to agree on the quantum of costs to be awarded to FM Global for trial costs and written submissions were therefore received from the parties. [9] FM Global seeks trial costs in the amount of $561,103.95 (fees of $241,284 plus HST at a partial indemnity rate and disbursements of $255,268.17 plus HST). This sum reflects costs detailed in the appellant’s Bill of Costs that was provided to the trial judge. [10] By comparison, the amount of costs awarded by the trial judge to MDS was $1,266,105.48 (including fees of $1,104,242.36 at a partial indemnity rate and disbursements of $161,863.12). [11] FM Global seeks an award of costs that is approximately 25 percent of the costs awarded to MDS by the trial judge. [12] While not all issues analyzed at trial were raised on appeal, FM Global was entirely successful on appeal and is therefore entitled to its reasonable costs of the trial. [13] Section 131(1) of the Courts of Justice Act , R.S.O. 1990, c. C.43, provides that costs of a proceeding are within the discretion of the court. We have considered the factors set out in r. 57.01(1) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. In particular, the importance of the issues, the conduct of the parties, the principle of indemnity including the lawyers’ experience, rates charged and hours spent, the fact that the appeal was neither improper nor vexatious, and the amount the losing party could reasonably expect to pay. [14] First, the issues pursued at trial and on appeal were both complex and important. Over CA$56 million was at stake and several experts were engaged by each of the parties to determine the claim. Moreover, this court’s interpretation of the Policy was of precedential value as the claim involved a standard form policy that is used by insurers throughout the insurance industry across North America. [15] Second, FM Global’s counsel’s hourly rates, as indicated in their submitted docket entries, were very reasonable. Further, the fees requested by FM Global reflect a partial indemnity rate. Therefore, it is unnecessary and inappropriate to take the approach the trial judge used to calculate MDS’s counsel’s partial indemnity costs, which was to reduce its full indemnity bill by 50 percent. [16] Third, we agree that FM Global should be allowed to recover the disbursements for expert advice regardless of whether the expert reports were introduced at trial or relied on by the trial judge. [17] Each of the parties engaged multiple experts, and the court itself appointed an expert. All expert fees were incidental to the litigation. The experts quantified the losses and responded to issues raised by the opposing parties’ experts. [18] FM Global’s expert accounting firm, Matson, Driscoll & Damico (“MDD”), analyzed MDS’ expert reports. MDD’s expert advice concerned the quantification of loss from the date of the shutdown for the entire duration of the outage and the quantification of prejudgment interest. Although the expert report was not introduced at trial, the amounts were reasonably incurred to respond to the issues raised by MDS. [19] We note that reasonable expert fees for expert reports reasonably necessary for the conduct of the proceeding are recoverable whether or not the expert is called to give evidence : Charlesfort Developments Limited v. Ottawa (City) , 2021 ONCA 542, at para. 6, leave to appeal S.C.C. requested, 39818. Nonetheless, the fact that the expert was not called to give evidence is a factor to be taken into account in determining the reasonableness of the overall fees charged: Charlesfort , at para. 7. [20] The reasonableness of retaining the expert is to be considered at the time the expense is incurred not in hindsight: Fan (Guardian ad litem of) v. Chana , 2011 BCCA 516, 345 D.L.R. (4th) 453, at para. 56. Neither the retainers nor the amounts charged are, in our view, untoward. [21] Disbursements for a retainer to Claims Services International Ltd. and Granitetown Services Inc. to locate the Chief Nuclear Officer at AECL, who was a key witness for FM Global, were reasonably incurred. Further, the expert fees for a r. 53 expert, Dr. Revie, to interpret and analyze MDS’ expert reports were also reasonably incurred even though not relied on by the trial judge. [22] For these reasons, as requested, FM Global is awarded its partial indemnity costs and disbursements in the amounts of $561,103.95 (including fees of $241,284 plus HST and disbursements of $255,268.17 plus HST). “K. Feldman J.A.” “A. Harvison Young J.A.” “J.A. Thorburn J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. D.Q., 2021 ONCA 827 DATE: 20211122 DOCKET: C68138 MacPherson, Simmons and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and D.Q. Appellant Andrew Furgiuele, for the appellant Frank Au, for the respondent Heard: November 1, 2021 by video conference On appeal from the convictions entered on November 20, 2019 by Justice Robert B. Reid of the Superior Court of Justice. MacPherson J.A.: A. Introduction [1] The appellant was convicted of several sexual offences. At his trial, the appellant testified. During his testimony, the Crown proposed to ask him questions about prior sexual activity. Defence counsel objected. The Crown suggested that the appellant should be excluded from the courtroom while the objection was being discussed. The trial judge agreed. Defence counsel did not object. The trial judge ordered the appellant to leave the courtroom. After very brief submissions (probably a minute at most), the trial judge made a brief ruling (one paragraph) prohibiting the proposed line of questions. The trial continued. [2] The parties agree that the exclusion of the appellant during a portion of his trial was a clear violation of s. 650(1) of the Criminal Code which provides, in relevant parts, “an accused … shall be present in court during the whole of his or her trial.” [3] The respondent Crown seeks to save the conviction on the basis of the proviso in s. 686(1)(b)(iv) of the Criminal Code . The appellant resists this argument on the merits. In the alternative, the appellant contends that this should not be considered under the proviso rubric; rather, relying on a fairly recent decision of the New Brunswick Court of Appeal, the appellant contends that the proper analytical framework for this and similar cases should be a combination of sections 7, 11(d) and 24(1) of the Canadian Charter of Rights and Freedoms . B. facts (1) The parties and events [4] The appellant was charged with one count each of sexual assault, sexual interference, and invitation to sexual touching. The appellant was in high school at the time of the alleged incidents and was around 16 or 17 years old. The complainant was about 10 to 12 years old at the same time. [5] The appellant was a babysitter for the complainant and his younger brother at the time of the incidents. The evidence was that the younger brother was asleep during the incidents and no one else was at home. [6] The complainant’s testimony at trial was that the appellant told him about a “game of truth or dare” that he played with some of his teenage friends. The appellant used this game as a basis for suggesting to the complainant that they engage in various sexual activities. According to the complainant, sexual activities included the complainant stroking the appellant’s erect penis and putting his mouth on it. The complainant also testified that the appellant would perform oral sex on him. These activities took place in several locations throughout the house, including a living room chair, the basement, a bathtub, and the complainant's bedroom. [7] The complainant testified that the appellant was never violent or abusive; he was simply a nice and pleasant guy. The complainant felt he had no choice but to participate. Aside from mentioning one incident to the appellant’s brother, the complainant did not tell anyone about the sexual incidents until 21 years later. (2) The appellant’s exclusion from the trial [8] The appellant testified at trial. He strongly denied all of the complainant’s allegations. During his cross-examination, the Crown introduced the topic of the appellant’s prior sexual history when he was a younger teenager and even pre-teen. This led to an objection by defence counsel, a request by the Crown, and a ruling by the trial judge. All of this took place in about two or three minutes and is recorded in two pages of trial transcript, which I set out as follows: Q.      Were you ever sexually active with her? [a previous elementary school girlfriend] A.      I mean, we were very young so to say sexually active, I mean, we kissed, we held hands. Very light petting. Q.      What's – what is "petting" mean? [Defence counsel]:          I don't know – I don't know how relevant all of this is, Your Honour; where my... THE COURT:        [Crown]? [Defence counsel]:          ...friend is going with this. [Crown]:       It's – well, perhaps we can ask the witness to step out. THE COURT:        All right. [Defence counsel]:          Well, these..... THE COURT:        [D.Q.], perhaps you can just step outside the courtroom. Don’t go far away. A.      Okay. THE COURT:        We'll have a discussion and we'll get you back in. ...WITNESS IS EXCUSED [Crown]:       Your Honour, I think [D.Q.]’s sexual history, particularly as a young child, a teen, preteen, a teenager, is relevant to whether or not he would be sexually active at 17 – at 18 years old, for instance, when these allegations were made. So I just want to know if he is – was sexually active throughout his younger years. The allegations are that he was having oral sex and masturbating the complainant. I think it's relevant to know when he became sexual active. And if he was, when he was babysitting or during the time period he was babysitting the – the complainant. [Defence counsel]:          Does my friend suggest if he was an active sexual teenage boy, that he's more likely to have sexually assaulted a young boy?        I mean, that – there's no connection to that. I mean, if he's a teenager where he's sexually active, does that make him more likely to have committed this offence? There's no correlation, in my respectful submission. R U L I N G [Trial judge] (Orally) We have an individual, who at that age of 16 or 17, has said that he had a relationship most of his high school years and prior to that had another relationship during elementary school. When he became sexual active, it seems to me, is of very minimal, if any, relevance to this inquiry. It would not be surprising that any 16 or 17 year old boy in high school with a relationship with another individual is engaged in some form of sexual activity. I'm not suggesting intimate sexual activity. That's just the way it goes. And I think I can take judicial notice of that. When or whether that relationship existed with another person in elementary school, I think has no bearing on this inquiry. [Crown]:       Thank you, Your Honour. [Defence counsel]:          Thank you. THE COURT:        Let's have [D.Q.] back in the courtroom, please. ...WITNESS RESUMES STAND [9] The appellant’s sole ground of appeal relates to the trial judge’s ruling excluding him from a portion of his trial. C. issues [10] Although there is substantial intersection and overlap between the two issues advanced by the appellant on this appeal, I propose to address them in this order: 1. Did the exclusion of the appellant from a portion of his trial violate s. 650(1) of the Criminal Code and, if so, should this error be remedied by application of s. 686(1)(b)(iv) of the Criminal Code ? 2. Did the exclusion of the appellant from a portion of his trial violate ss. 7 and 11(d) of the Charter and, if so, should this error be remedied by an application of s. 24(1) of the Charter ? D. analysis (1) The proviso issue [11] The parties agree that s. 650(1) of the Criminal Code was breached in the appellant’s trial. The Crown should not have requested that the appellant be ordered to leave the courtroom during his own testimony. Defence counsel should have opposed this request. The trial judge should not have made the order. [12] The Crown’s sole response to this state of affairs is reliance on s. 686(1)(b)(iv) of the Criminal Code which provides: 686(1) On the hearing of an appeal against a conviction … the court of appeal (b) may dismiss the appeal where (iv) notwithstanding any procedural irregularity at trial, the trial court had jurisdiction over the class of offence of which the appellant was convicted and the court of appeal is of the opinion that the appellant suffered no prejudice thereby …. [13] The Crown’s position is that the trial judge’s order briefly excluding the appellant from his trial caused him “no prejudice”. [14] Fortunately, there is a good deal of case law from the Supreme Court of Canada, this court, and other provincial appeal courts dealing with the interplay between ss. 650 and 686(1)(b)(iv) of the Criminal Code . I propose to consider some of that case law and then apply it to this appeal. [15] An early leading case was the decision of this court in R. v. Hertrich (1982), 67 C.C.C. (3d) 510 (Ont. C.A.), a case involving a trial judge interviewing, without the accused being present, two jurors about two anonymous telephone calls one of them had received the day before. Martin J.A. eloquently described the underlying rationale for s. 577, the predecessor section to the present s. 650 of the Criminal Code , at para. 81: The essential reason the accused is entitled to be present at his trial is that he may hear the case made out against him, and, having heard it, have the opportunity of answering it. … The right of the accused to be present at his trial, however, also gives effect to another principle. Fairness and openness are fundamental values in our criminal justice system. The presence of the accused at all stages of his trial affords him the opportunity of acquiring first-hand knowledge of the proceedings leading to the eventual result of the trial. The denial of that opportunity to an accused may well leave him with a justifiable sense of injustice. [16] The leading decision of the Supreme Court of Canada in this domain is R. v. Barrow , [1987] 2 S.C.R. 694, a case involving a trial judge considering claims for exemption from the jury panel in the courtroom but out of earshot of all counsel and the accused. [1] In Barrow , at para. 20, Dickson C.J. endorsed Martin J.A.’s “two important principles that underlie s. 577”, and continued, at para. 48: It is important for the accused to see and hear the entire process by which he or she is tried so that he or she sees that the trial is fair. … The public perception of the fairness of the trial process would be damaged if potential jurors were excluded after private conversations with the judge. … Finally, the trial judge’s error in this case was of a fundamental nature and therefore the curative provisions in … the Code should not be applied. [17] In Ontario, there are three leading cases dealing with the interplay between ss. 650 and 686(1)(b)(iv) of the Criminal Code . [18] In R. v. Simon , 2010 ONCA 754, in a second degree murder trial, the trial judge discussed his proposed jury instructions in chambers with counsel but without the accused. [19] Watt J.A. determined that the chambers discussion was part of the trial; he said, at para. 109: To determine whether something that happened in the course of a trial was part of the “trial” for the purposes of s. 650(1) requires an examination of whether what occurred affected the “vital interests” of the accused. No one can gainsay that what was discussed here, the contents of final jury instructions, affected the vital interests of the appellant. [20] Turning to the potential application of the proviso, Watt J.A. said, at paras. 118-19: Where something takes place in the absence of the accused that is part of the “trial” for s. 650(1) purposes, it does not inevitably follow that a new trial must be ordered if the accused is convicted. Section 686(1)(b)(iv) of the Criminal Code came into force on December 4, 1985. Its real focus seems to have been to inter the jurisprudence that regarded procedural errors that caused trial courts to lose jurisdiction as incurable, even on appeal: R. v. Khan , [2001] 3 S.C.R. 823, at para. 12. Its embrace includes but is not limited to the procedural irregularity caused by the absence of the accused during his or her trial. [21] Watt J.A. continued by articulating a test that could be applied when considering whether the proviso should be applied in a case where s. 650 of the Criminal Code has been breached. He said, at para. 123: To determine whether a breach of s. 650(1) may be salvaged by the application of the proviso in s. 686(1)(b)(iv) requires a consideration of all the circumstances surrounding the violation. Relevant factors may include, but are not limited to: (i) the nature and extent of the exclusion, including whether it was inadvertent or deliberate; (ii) the role or position of the defence counsel in initiating or concurring in the exclusion; (iii) whether any subjects discussed during the exclusion were repeated on the record or otherwise reported to the accused; (iv) whether any discussions in the accused’s absence were preliminary in nature or involved decisions about procedural, evidentiary or substantive matters; (v) the effect, if any, of the discussions on the apparent fairness of trial proceedings; and (vi) the effect, if any, of the discussions on decisions about the conduct of the defence. [22] In the second Ontario case , R. v. E. (F.E.) , 2011 ONCA 783, the accused was excluded during the entire pre-jury charge conference in the trial judge’s chambers. He was also excluded during a brief period (about nine minutes) regarding discussions about a potential question being put to him during cross-examination. [23] On the broader issue, Watt J.A. spoke bluntly and ordered a new trial. He said, at para. 52: Final instructions to a jury in a criminal case are of the utmost importance to the person whose liberty is at stake. Those instructions explain the basis upon which the accused’s liability will be decided and his or her defence assessed. An accused is entitled to hear why some instructions are included and others are omitted from the charge – first-hand, the complete version and not a synopsis after the fact. The exclusion of an accused from the entire pre-charge conference undermines both the appearance and the reality of the due administration of justice. [24] On the narrower issue, which is very similar to the issue on this appeal, the court reached a different conclusion. Watt J.A. said, at para. 44: What happened here was that the intentional and understandable exclusion of a witness resulted in the exclusion of the appellant and a breach of s. 650(1) of the Criminal Code . This should not have occurred. An accused has the right to be present throughout the entirety of his or her trial, including during discussions pertaining to cross-examination. Nonetheless, in the circumstances of this case as I have described them, if this nine-minute exclusion stood alone, I would apply s. 686(1)(b)(iv) to the procedural irregularity and preserve the finding of guilt on the ground that the appellant suffered no prejudice from it. [25] In the third Ontario case, R. v. D.B. , 2012 ONCA 301, as in E. (F.E.) the accused was excluded from the courtroom during his cross-examination by the Crown while counsel made submissions about certain questions the Crown proposed to put to him. The trial judge permitted some of the questions to be asked. Later, the Crown brought the improper exclusion of the accused to the attention of the court. Defence counsel did not seek a mistrial or any other remedy. [26] On appeal, the Crown conceded that the accused should not have been asked to leave the courtroom. However, the court applied the proviso. Doherty J.A. said, at para. 17, that the questions asked after the accused returned to the stand were “inconsequential to the result of the trial”. He applied E. (F.E.) and concluded, at para. 19, that “the appellant was not in any way prejudiced by his relatively brief absence from the courtroom during the trial.” [27] Against this backdrop of relevant case law over an extended period, I turn to the application of the governing principles to the facts of this case. In my view, the best path forward is to apply the six factors identified by Watt J.A. in Simon . [28] The first factor – whether the exclusion of the accused was inadvertent or deliberate – favours the Crown. The exclusion was surely inadvertent in the sense that all three of the trial judge, Crown counsel and defence counsel simply forgot about s. 650 of the Criminal Code . If any one of them had remembered s. 650, the exclusion of the appellant would not have happened. [29] The second factor favours the Crown. Defence counsel did not object to the brief exclusion of his client during his cross-examination. [30] The third factor favours the appellant. It appears that when he returned to the stand after his brief departure, nothing about the subject discussed during his absence was put on the record or reported to him. [31] The fourth factor favours the appellant. The discussion in the absence of the accused related to an evidentiary matter – namely, would the Crown be allowed to ask him questions about possible sexual activity in his elementary school years. [32] The fifth factor overwhelmingly favours the Crown. The accused was out of the courtroom for about two minutes. The trial judge’s ruling was 100 percent in his favour; the Crown was prohibited from asking questions of the accused in the category he proposed. [33] The sixth factor also strongly favours the Crown. The very brief discussion in the courtroom in the absence of the accused and the trial judge’s ruling entirely in his favour had no effect on the conduct of the defence. Indeed, the trial judge’s ruling helped the defence. [34] Stepping back and considering these factors together, I conclude that they strongly support application of the proviso in this case. In the words of the sports community, “No harm, no foul”. Or, as expressed more elegantly by Hall J.A. in a leading case dealing with the proviso in British Columbia, R. v. Bagadiong , 2013 BCCA 538, at para. 40: “a refusal to apply the curative provision in the present case would be a triumph of form over substance.” (2) The Charter issue [35] The appellant’s alternative submission is that his exclusion for a portion of his trial violates ss. 7 (“liberty … and the right not to be deprived thereof except in accordance with the principles of fundamental justice”) and 11(d) (“fair and public hearing”) of the Charter . In making this submission, the appellant relies on a decision of the New Brunswick Court of Appeal, R. v. Dedam , 2018 NBCA 52. [36] In Dedam , the appellant was excluded from his trial on nine separate occasions and for a variety of reasons. As explained by Quigg J.A., at paras. 1 and 5: [O]n no less than nine occasions Mr. Dedam was excluded from his trial. The occasions of exclusion can be divided into four types: (1) when scheduling issues were addressed in the judge’s chambers; (2) during legal arguments; (3) once when the judge and counsel engaged in a discussion the particulars of which are unknown; and (4) during the course of Mr. Dedam’s own testimony. [Emphasis in original.] [37] I note that on four of the nine occasions, the appellant was excluded from his trial while he was testifying. [38] Against this backdrop, Quigg J.A. considered relevant case law relating to ss. 7 and 11(d) of the Charter and concluded, at paras. 52 and 54: [I]n certain instances, a violation of s. 650(1) can amount to breaches of both ss. 7 and 11(d) of the Charter . The egregious nature of some of the incidents where Mr. Dedam was excluded , particularly in the course of his testifying, raises the violations of s. 650(1) to the level of Charter breaches. In this particular case, there is no remedy short of setting aside the verdict and ordering a new trial that can correct the violations. Mr. Dedam’s repeated exclusions in the circumstances described above were egregious . It may be that, in other circumstances, a different remedy would be appropriate, but that is not the case with respect to Mr. Dedam. [Emphasis added.] [39] In my view, it is not necessary to determine in this appeal whether there is a Charter route for considering the consequences of a judge’s exclusion of an accused from a portion of their trial, including, especially, during their testimony. I say this for two reasons. [40] First, the remedial framework under s. 686(1)(b)(iv) of the Criminal Code is well-established and appropriate. For more than 30 years, courts from across the country, including the Supreme Court of Canada, this court, and other appellate courts, have considered the issue of a breach of s. 650 of the Criminal Code under the rubric of the proviso in s. 686 of the Code : see Barrow (1987), Simon (2010), E. (F.E.) (2011), D.B. (2012) and Bagadiong (2013) . Resort to the Charter is, therefore, not necessary to fashion a remedy in appropriate cases. [41] Second, I observe that in the only case that applies a Charter ss. 7, 11(d) and 24(1) analysis, Dedam , the language used to lead to a s. 24(1) result was anchored in observations such as: “The egregious nature of some of the incidents where Mr. Dedam was excluded … raises the violations of s. 650(1) to the level of Charter breaches”; “Dedam’s repeated exclusions in the circumstances described above were egregious”. Obviously, there was nothing egregious about the single brief mistake that was made during the appellant’s trial. Accordingly, it is not necessary to consider what might constitute a s. 7 or 11(d) breach and a s. 24(1) remedy in a different case. E. disposition [42] I would dismiss the appeal. Released: November 22, 2021 “J.C.M.” “J.C. MacPherson J.A.” “I agree. Janet Simmons J.A.” “I agree. I.V.B. Nordheimer J.A.” [1] The events in Barrow took place in April 1983, which was prior to the 1985 enactment of the language in the current s. 686(1)(b)(iv) of the Criminal Code .

COURT OF APPEAL FOR ONTARIO CITATION: Caruso v. Bortolon, 2021 ONCA 842 DATE: 20211123 DOCKET: C68970 Gillese, Trotter and Nordheimer JJ.A. BETWEEN Gaspare Caruso Plaintiff (Appellant) and Robert Bortolon, Dean Bortolon, John Hanna Nissan and Martin Citron Defendants (Respondents) Matthew Kersten, for the appellant Adam Jarvis, for the respondents Heard: November 18, 2021 by video conference On appeal from the order of Justice Gordon D. Lemon of the Superior Court of Justice, dated December 17, 2020, with reasons reported at 2020 ONSC 7933. REASONS FOR DECISION Introduction [1] The appellant commenced an action against the defendants alleging that they defrauded him out of shares he claimed to own in 1947755 Ontario Limited (‘the company”). He pleaded that Robert Bortolon fraudulently executed documents that stripped him of his shares on January 25, 2017. He commenced his action more than two years later, on April 23, 2020. [2] The respondents defended the claim by asserting that the appellant was never a shareholder in the company; instead, he was a temporary director and was properly removed from that position on January 27, 2017. They further pleaded that the action is statute barred: Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B. [3] The respondents successfully moved for summary judgment on the basis that there was no genuine issue for trial on the limitations issue. The appellant now challenges the fairness of the proceedings, the correctness of the decision to dismiss his action, and applies to adduce fresh evidence. [4] We refuse to admit the fresh evidence and we dismiss the appeal. The Refusal to Grant an Adjournment [5] The appellant submits that the motion judge erred in not granting him an adjournment to file further documentation to demonstrate fraudulent activity on the part of the respondents in January of 2017. [6] In refusing the adjournment request, the motion judge carefully examined the lengthy history of the proceedings leading up to the hearing date on November 30, 2020. The motion had already been adjourned a number of times. The case was ready to be argued on August 24, 2020 but was adjourned due to a conflict of interest on the part of the appellant’s previous counsel, an issue raised by the presiding judge (not the motion judge). At that time, the presiding judge ordered that the parties were not permitted to file further materials on the motion. [7] The case was spoken to again on September 25, 2020 and on October 19, 2020. On the latter occasion, new counsel for the appellant brought a motion to permit examinations for discovery to take place prior to the hearing of the motion. The request was denied. On November 16 and 26, 2020, appellant’s counsel confirmed that he was prepared to proceed with the motion on November 30, 2020. [8] In light of this history, the motion judge refused the adjournment request. He concluded that it was necessary for the motion to proceed before him that day. Moreover, as the motion judge observed in his written reasons: “The issue for the motion is not whether Mr. Caruso was deprived of his shares in September of 2017. The issue is whether he should have brought the action before it was commenced in April of 2020.” The materials that the appellant sought to file on the day of the motion had no bearing on this issue. [9] We see no error in the motion judge’s decision to refuse an adjournment. The motion judge considered the adjournment request against the backdrop of the multiple proceedings between the parties and the previous delays. This was a discretionary decision that is entitled to substantial deference on appeal: Laski v. BMO Nesbitt Burns Inc . , 2020 ONCA 300, at para. 13. [10] This ground of appeal is dismissed. The Action is Time-Barred [11] On the limitations issue, the motion judge reviewed the documents tendered by the parties and concluded that the appellant’s alleged injury, loss, or damage was discoverable by February of 2017. Although the appellant swore in an affidavit that he only discovered his claim in 2019, the motion judge found that this evidence was undermined by the appellant’s affidavit and cross-examination in a related proceeding that demonstrated his awareness of his claim in February of 2017. This was supported by evidence of the appellant’s former counsel that he was retained by the appellant as early as February 2017. [12] The motion judge also considered the appellant’s failure to reply to a Request to Admit certain facts that related to the limitations issue. The deemed admissions arising from this failure supported the conclusion that the appellant was aware of his alleged injury, loss, or damage by February or March of 2017. [13] The appellant submits that the motion judge erred in relying on the appellant’s deemed admissions because he was self-represented when he was served with the Request to Admit. However, the appellant subsequently retained counsel and was represented at the hearing of the summary judgment motion. Counsel did not seek to withdraw the appellant’s deemed admissions, neither on consent, nor with leave of the court: Rules of Civil Procedure , R.R.O. 1990, Reg. 194, r. 51.05. [14] The totality of the evidence supported the motion judge’s conclusion that the action was time-barred. As of February 2017, the appellant was possessed of information that amounted to more than mere suspicion of a potential claim. Indeed, in a letter sent on his behalf on February 15, 2017, referring to Dean Bortolon holding himself out as the sole shareholder of the company, his lawyer asserted: “we believe this is a total fraud.” That the appellant may have subsequently gathered more evidence in support of his claim did not detract from the motion judge’s conclusion that the claim itself was discoverable in February 2017, and that it was time-barred. In the circumstances, there was no genuine issue for trial. The Fresh Evidence Application [15] The appellant applies to adduce fresh evidence on appeal. In our view, this is nothing more than an attempt to circumvent the motion judge’s refusal to grant an adjournment, which we find to have been justified. Through proper diligence, this material could have been tendered on the summary judgment motion in accordance with the schedules set by other judges leading up to the hearing date. Moreover, this material does not bear on the correctness of the motion judge’s analysis of the limitations issue. [16] The application to adduce fresh evidence is dismissed. Conclusion [17] The appeal is dismissed. [18] Given the inappropriate allegations of misconduct made against respondents’ counsel, both in the appellant’s affidavit and in his Factum, we award costs to the respondents on a substantial indemnity basis in the amount sought by the respondent, namely $9,000, inclusive. “E.E. Gillese J.A.” “Gary Trotter J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Environmental Waterproofing Inc. v. Huron Tract Holdings Inc., 2021 ONCA 835 DATE: 20211124 DOCKET: C69086 Gillese, Trotter and Nordheimer JJ.A. BETWEEN Environmental Waterproofing Inc. and Randy Wilson c.o.b. Maple Hill Electric Plaintiffs (Respondents) and Huron Tract Holdings Inc., John D. Marshall, The Estate of Richard Lehnen, Jake Bulk and United Communities Credit Union Defendants ( Appellant ) Sean N. Zeitz, for the appellant Martha Cook, for the respondents Heard: November 19, 2021 On appeal from the order of Justice Maria V. Carroccia of the Superior Court of Justice, dated January 12, 2021, with reasons reported at 2021 ONSC 278. REASONS FOR DECISION [1] Libro Credit Union Limited (formerly United Communities Credit Union) appeals from the order made by the motion judge in which she dismissed the appellant’s motion for a declaration that it had priority to certain funds held by the Sheriff in response to garnishment proceedings. [2] The issues between the parties arise out of steps that the respondents took to garnish monies that Jokey Plastics North America Inc. (“Jokey”) owed to Huron Tract Holdings Inc. (“Huron”). Huron operated a commercial real estate management company. It was placed into receivership. The respondents were owed monies by Huron. It discovered that Jokey owed monies to Huron. The respondents took garnishment steps against those funds pursuant to a default judgment they had obtained against Huron. [3] Initially, Jokey refused to pay the monies covered by the garnishment. About a month later, the appellant became aware of the garnishment steps. The appellant is a secured creditor of Huron. The appellant advised the respondents of its security interest and of its priority claim to the monies owed by Jokey. [4] The respondents brought a motion to require Jokey to pay the monies to the Sheriff pursuant to the garnishment. The motion came on before Gorman J., who ordered Jokey to pay certain monies to the Sheriff. The monies ordered to be paid to the Sheriff were the monies over which the appellant and the respondents had the priority dispute. Other monies that Jokey owed Huron were paid directly by Jokey to the appellant pursuant to its security interest. [5] The appellant then brought a motion for an order determining that it had the right to receive the monies that had been paid to the Sheriff. That motion initially came on before Garson J., who, on consent, adjourned it to a special hearing date and also set a schedule for the delivery of materials. [6] The appellant’s motion came on for hearing before the motion judge. At the hearing, the respondents took the position that the issue of priority had been determined by Gorman J. and that the appellant’s motion amounted to a collateral attack on that order. The motion judge accepted the respondents’ position and dismissed the appellant’s motion. [7] With respect, the motion judge’s conclusion that Gorman J. had determined the priority issue is simply wrong. There was no such determination made by Gorman J. in her endorsement, and no such determination appears in her order – realities that counsel for the respondents was compelled to acknowledge before us. Indeed, in her endorsement, Gorman J. said, in relation to the priority dispute, “[t]his may indeed be an issue for another day”. While the motion judge refers to this portion of the endorsement, she found that it “does not necessarily assist in answering that question”. [8] The simple fact is that there was never any determination of the priority dispute. The motion judge erred in concluding otherwise. [9] The appeal is allowed, the order of the motion judge is set aside, and the matter is returned to the Superior Court of Justice for a hearing of the priority dispute on its merits before a different judge. The appellant is entitled to its costs of the appeal which are fixed in the agreed amount of $ 20,000 , inclusive of disbursements and HST. The appellant is entitled to its costs of the motion below, which were fixed by the motion judge also in the amount of $ 20,000 , inclusive of disbursements and HST. “E.E. Gillese J.A.” “Gary Trotter J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Browne, 2021 ONCA 836 DATE: 20211124 DOCKET: C66627 Hourigan, Paciocco and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Steven Vanroy Browne Appellant Delmar Doucette and Anne Marie Morphew, for the appellant Jessica Smith Joy, for the respondent Heard: June 23, 2021 by video conference On appeal from the conviction entered on March 24, 2017, by Justice Steven A. Coroza of the Superior Court of Justice, sitting with a jury. Hourigan J.A.: I.        Introduction [1] On November 1, 2012, Dwayne Thompson was shot dead in a parking lot of an apartment building in Mississauga. The jury found the appellant and a co-accused, Amal Greensword, guilty of manslaughter but acquitted another co-accused, Adrian Williams. [2] On appeal, the appellant seeks to substitute an acquittal for the conviction or, in the alternative, obtain an order for a new trial. His primary submission is that the jury’s verdict was unreasonable. In addition, he argues that the trial judge erred in admitting evidence about him giving his phone numbers to his probation officer. [3] As I will explain, I am not persuaded by these arguments. The verdict is not unreasonable, as it was available to the jury on the evidence. Further, I reject the submission that the trial judge erred in law regarding the admission of the evidence about the phone numbers. The provision of those numbers was not compelled and did not violate s. 7 of the Canadian Charter of Rights and Freedoms . Consequently, I would dismiss the appeal. II.       Background Facts [4] To put the issues raised in their proper context, I will first review the facts surrounding the shooting. Then I will consider the evidence adduced at trial relevant to the issues raised on this appeal. That evidence relates to various themes, including the use of mobile phones, car rentals, DNA evidence and the appellant’s appearance. I note that none of the defendants testified or called any evidence. (a) The Events Surrounding the Shooting [5] On the day of the shooting, Mr. Thompson communicated by phone with someone known as "Scarface," who arranged to buy a substantial amount of cocaine from Mr. Thompson. Later that day, Mr. Thompson travelled to an apartment building on Darcel Avenue, Mississauga, to meet Scarface. Accompanying Mr. Thompson were Shawn Edwards, who drove, and a friend of Mr. Thompson's, Margaret Warner. [6] Mr. Edwards remained in the vehicle at the Darcel Avenue property while Mr. Thompson and Ms. Warner walked down the driveway and through the parking lot to the apartment building. Ms. Warner testified that as they walked through the lot, she saw three or four males running to a white car. [7] The video surveillance recording from the building lobby confirmed three men entered the lobby at around 10:03 or 10:04 p.m. and left it at around 10:12 p.m., moments before Mr. Thompson and Ms. Warner entered.  All parties agreed that the appellant was not one of these three men, and the jury was charged accordingly. [8] Mr. Thompson and Ms. Warner entered the building and looked in the back lobby for Scarface. When they did not locate him, Mr. Thompson called Scarface’s phone but got no answer. As they waited in the lobby, Ms. Warner noticed the white car travel back and forth in front of the lobby. When Scarface did not attend, Ms. Warner and Mr. Thompson decided to leave and return to the vehicle where Mr. Edwards was waiting. [9] Mr. Thompson and Ms. Warner left the back lobby at around 10:27 p.m. Ms. Warner testified that the white car, with its doors open, was parked south of the lobby. She further testified that a man stood by the front passenger-side door holding a handgun, a second man stood by the curb, and a third man stood by the front driver-side door. Ms. Warner did not see a fourth man in or near the car. [10] According to Ms. Warner, the man with the gun rushed toward Mr. Thompson and, with one hand on the grip and his second hand steadying the other, put the gun to Mr. Thompson’s head. A second man came off the curb and began to pat Mr. Thompson down. A short argument ensued, and at one-point Mr. Thompson was heard to say, "no, brah, no, brah, I don’t have anything on me.” [11] A few seconds later, as Ms. Warner continued to move quickly toward the vehicle and was no longer looking back, she heard a shot, the thud of Mr. Thompson's body hitting the ground, and then additional shots. Mr. Edwards heard the shots and began to pull out from where he was parked. When Ms. Warner ran up to his vehicle, he let her in and they sped off. [12] Ms. Warner testified that all four car doors of the white car were open. However, she said that she saw only three men by the vehicle and that the men in the parking lot were the same three men she had seen earlier coming out of the lobby. At the time of observing the men, Ms. Warner was not wearing her glasses for distance. She described the three men as all in all-dark clothing, wearing hats or hoods and added the following: · The first man (the gunman who shot Mr. Thompson) was a light-skinned Black man, about 5’8”-5’9” and about 180 pounds, with “scruffy facial hair” and dreads or braids poking out below his hood. · The second man (who rushed down off the curb and frisked Mr. Thompson) was described as a “very black” and “ugly” Black man, about 5’10-5’11”, who appeared to be “chunky” and weighed about 200 pounds. She called him “a fatty,” but suggested that he might have been wearing puffy clothing. · The third person (who stood by the front driver-side door) was described as a Black man in dark clothing. [13] A resident of the apartment building, Neville Henry, testified that he was on his balcony and saw four people in the parking lot before he heard gun shots. Shortly after the gun shots, he observed the four people running. Two fled to a white Chrysler and two ran toward the building. He was unable to provide a description of the people he observed but testified that they moved like males. He described the two people who ran toward the building, indicating that both were between five to six feet and in dark clothing. [14] Mr. Thompson suffered four gunshot wounds, and his body was located approximately 160 feet from the area where Ms. Warner said they initially encountered the men. Using the numbering of the Crown’s expert, Dr. Pollanen, (which did not necessarily reflect the order of the shots), the “first” shot was to the left side of the head and traversed the brain. This wound was fatal. The “second” shot entered the left lower jaw and lodged in the back of the neck. This wound was potentially fatal. The “third” shot entered the back and went through his spleen, a lung and the heart. This wound was fatal. The “fourth” shot entered the back and lodged in the spine. This wound was not in and of itself fatal. [15] If the wounds were received in quick succession, as described by Ms. Warner and the residents in the building who heard the shots, Mr. Thompson would have dropped quickly and been rapidly incapacitated. There was no evidence on the body as to the range of the shots. (b) Mobile Phones [16] On October 23, 2012, after his release from custody, the appellant told his probation officer his contact phone number was 647-862-9200. On November 26, 2012, he provided a different number, 647-537-2507, to his probation officer. [17] At trial, it was an admitted fact that on October 18, 2012, Mr. Greensword, one of the co-accused, told his probation officer that his phone number was 647-606-9424, which was the same number as the “Scarface” number contacted by Mr. Thompson. [18] On November 1, 2012, there were eight texts between Mr. Thompson's BlackBerry and "Scarface." The evidence also established that Mr. Greensword's Scarface phone, the phone of Mr. Williams, and the appellant’s 9200 phone were near the scene at the time of the shooting. (c) Car Rentals [19] The trial judge found that Mr. Greensword was in possession of a white Dodge Avenger on November 1, 2012. The car had been rented on October 31, 2012, by a Mr. Gilbert Johnson, who then let Mr. Greensword access the vehicle. The trial judge found that the white Dodge Avenger was the car that Ms. Warner identified as traveling back and forth in front of the lobby. [20] Mr. Johnson and Mr. Greensword returned the Avenger to the rental agency approximately one week after renting the vehicle. They replaced it with a white Chrysler 200. Mr. Greensword used this car until November 9, 2012, when the police impounded it. (d) DNA Evidence [21] Fingernail clippings were taken from Mr. Thompson during his autopsy and sent to the Centre of Forensic Science (“CFS”) for DNA testing. The clippings were received as sealed items, with clippings from each hand sealed in separate envelopes. One swab was used to collect material from the underside of the fingernail clippings from the left hand and another for the right. Both swabs were then submitted for DNA analysis. [22] Two DNA profiles, one major and one minor, were found on the clippings from Mr. Thompson’s left hand. Mr. Thompson was the source of the major DNA profile. The appellant could not be excluded as the source of the minor DNA profile. Dr. Maja Popovic, a scientist who works at the CFS, noted that the random match probability that someone other than the appellant was the source of the minor DNA profile found on Mr. Thompson’s fingernails was one in 1.6 trillion. [23] Dr. Popovich testified that direct transfer with bodily fluid is the most common way that a significant amount of foreign DNA would be transferred to a person’s fingernails. It was Dr. Popovich’s opinion that the amount of the appellant’s DNA deposit on Mr. Thompson's fingernails was beyond a trace amount. She testified that, while it is not uncommon to find foreign DNA under fingernails, it is rare to detect foreign DNA in sufficient amounts to generate a useable DNA profile suitable for comparison, and a secondary transfer would be rare in this scenario. (e) Appellant’s Appearance [24] Ms. Success Akonzee, the appellant’s former girlfriend, testified that when the appellant returned to the Toronto area around October 20, 2012, he had dreadlocks almost to his shoulders. Police surveillance suggested he had his hair cut sometime before November 26, 2012. Given the lack of evidence showing a temporal connection between the shooting and the haircut, the trial judge instructed the jury not to use the haircut as after-the-fact conduct. (f) Verdict [25] The appellant and his co-defendants, Mr. Greensword and Mr. Williams, were tried for first-degree murder in Mr. Thompson’s death. The jury found the appellant and Mr. Greensword not guilty of first-degree murder but guilty of the lesser included offence of manslaughter. They found Mr. Williams not guilty of any offence. (g) Reasons for Sentence [26] In his reasons for sentence, the trial judge was obliged, according to R.  v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, to find facts consistent with the jury’s manslaughter verdict to the extent that it was necessary to enable him to sentence the appellant and Mr. Greensword. He concluded that, given the manslaughter verdict, the jury found that the appellant was present and was one of the three men whom Ms. Warner described approaching Mr. Thompson after their exit from the lobby, but that he was not the shooter. [27] The trial judge found that the appellant was the darker male who came off the curb and frisked Mr. Thompson. In making this finding, he recognized that Ms. Warner’s description of the man who came off the curb was inconsistent with the appellant's appearance. However, he took into account that Ms. Warner's observations were made while she and the men were in motion, the parking lot was dark, and Ms. Warner was not wearing her corrective lenses. [28] The appellant was found to have aided the man with the gun by accompanying him, approaching Mr. Thompson, and accosting and confronting the deceased. Further, the trial judge concluded that the appellant would have appreciated that bodily harm was the foreseeable consequence of the dangerous activity undertaken by the man holding the gun. (h) Grounds of Appeal [29] The appellant raises two grounds of appeal: (i) the verdict was unreasonable, and (ii) the evidence that the appellant gave the 9200 number to his probation officer was inadmissible. III.      Analysis (a)     Unreasonable Verdict (i)      Legal Principles [30] The law regarding an unreasonable verdict ground of appeal is well settled. A verdict is reasonable if it is one that a properly instructed jury acting judicially could reasonably have rendered. In applying this standard, the appellate court should engage in a limited weighing of the evidence in light of the standard of proof and consider the effect of the evidence.  Where the Crown’s case depends on circumstantial evidence, as in this case, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. [31] In assessing an unreasonable verdict ground of appeal, the appellate court may consider an appellant’s failure to testify: Corbett v. R. , [1975] 2 S.C.R. 275, at pp. 280-81, and R. v. Bains, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 164. [32] The existence of forensic evidence in an unreasonable verdict appeal is often important in establishing an accused’s connection with a crime. However, the reviewing court must first consider whether the whole of the evidence permits the inference that the forensic evidence was deposited in connection with the offence and not at some other time and place. Second, it must determine whether the appellant’s guilt is the only rational conclusion available on the totality of the evidence or lack of evidence: R. v. Mars (2006), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 19; R. v. D.D.T. , 2009 ONCA 918, at para. 15. (ii)     Application of Legal Principles [33] The appellant asserts two arguments in support of his unreasonable verdict ground of appeal. First, he says that there is no evidence capable of supporting a finding beyond a reasonable doubt that he was at the scene and participated in the attack on Mr. Thompson. Second, he argues that the identification evidence was exculpatory. [34] I would not give effect to the submission that there was insufficient evidence placing the appellant at the scene of the shooting. In my view, there was substantial evidence supporting the jury's finding that he was there. [35] First, there was the DNA evidence, which suggested physical contact between the appellant and Mr. Thompson.  There is nothing to support the speculative arguments advanced by the appellant that it could have been deposited at some other time or place and then somehow transferred to Mr. Thompson. The suggestion that it might be the result of a secondary transfer is also contrary to the testimony of Dr. Popovic, who testified that the most common way to transfer significant amounts of DNA would be through direct transfer and that secondary transfer of such amounts would be rare. [36] In addition, there is no compelling evidence that suggests that the appellant and Mr. Thompson knew each other and that there were other, prior opportunities for direct transfer.  Certainly, the appellant did not testify that he had a prior association with Mr. Thompson. Furthermore, the mobile phone records adduced at trial do not show any contact from Mr. Thompson's phone to any phone associated with the appellant. Further, Ms. Akonzee testified that she had never seen the appellant with Mr. Thompson, nor did she know his name or nickname. [37] Consistent with the jurisprudence discussed above, the trial judge correctly instructed the jury regarding the DNA evidence that “[t]he significance of this evidence will depend upon other evidence…heard in this trial.” In my view, additional evidence supported the inference that the appellant's DNA was deposited during the homicide of Mr. Thompson. Further, that evidence is also responsive to the unreasonable verdict ground of appeal. [38] The mobile phone evidence supports a finding of guilt. The appellant advised his probation officer on October 23, 2012, that the 9200 number was his current phone number. Both the 9200 phone number and the phone number associated with Mr. Greensword were using the cell tower closest to the Darcel Avenue property in the lead-up to the shooting. [39] Further, between October 21, 2012, and November 8, 2012, there were 448 communications between the 9200 number and Ms. Akonzee. The latter date was the day when the appellant activated a new phone. Finally, from October 26, 2012, to November 1, 2012, there were 98 contacts between the 9200 number and Mr. Greensword’s number. [40] I recognize that in the period between October 29, 2012, at 8:07 p.m. and November 1 at 5:32 p.m., the appellant contacted Ms. Akonzee via a different phone number. However, communications resumed with Ms. Akonzee via the 9200 phone number on November 2, 2012, two hours after the shooting. [41] The next body of circumstantial evidence to support the inference that the DNA was deposited at the time of the shooting is the association evidence between the appellant and Mr. Greensword. [42] The evidence established that Mr. Greensword was exclusively using the white Avenger rental car at the time of the shooting. There is a video from a Petro Canada station in Toronto on the evening of November 2, 2012, which appears to show Mr. Greensword and the appellant arriving in the Avenger and then purchasing gas. At the time of the video, the 9200 number was using a cell tower in the vicinity of the Petro Canada station. [43] On November 9, 2012, police conducted a routine traffic stop of the Chrysler 2000. Mr. Greensword was driving it. The person in the front passenger seat would not identify himself but was later identified as the appellant. A subsequent search of the vehicle disclosed, among other things, the appellant’s probation order, a receipt in the name of Ms. Akonzee, and a receipt from the Petro Canada station with a date and time that correspond with the date and time of the video surveillance. In addition, mobile phone records show that the appellant’s new phone was using a cell tower located within 100 meters of the traffic stop. [44] Finally, there is the post offence conduct. The Crown submitted that the appellant changed his phone on November 8, 2012, in an effort to distance himself from the shooting. The appellant provided the new number to his probation officer on November 26, 2012, and there were regular and ongoing communications between it and Ms. Akonzee. [45] The jury was instructed that they could consider this evidence if they found (i) that the appellant did change phone numbers after Mr. Thompson was killed and (ii) that this change in phone numbers was related to the offence charged. If these findings were made, the jury was entitled to consider this evidence to assist in determining whether the appellant participated in the shooting. The appellant does not challenge this instruction. Consequently, it was open to the jury to find that the change of phone number was related to his participation in the shooting and supportive of the inference that his DNA was deposited at that time. [46] Given this evidence, the appellant’s argument that there was an insufficient evidentiary basis to find that he was at the scene is unpersuasive. The next question is the reasonableness of the jury's findings regarding the role played by the appellant. I agree with the trial judge that based on the verdict of manslaughter, the jury could not reasonably have found the appellant was the shooter, given that the nature of the shots fired disclosed the requisite mens rea for murder. [47] The appellant argues that the theory of the Crown throughout the trial was that he was the shooter. Therefore, he submits that a verdict of manslaughter was unreasonable in the circumstances of the case. In support of this argument, the appellant makes much of the evidence of Ms. Warner regarding her descriptions of the assailants. He relies on Chartier v. Quebec ( Attorney General), [1979] 2 S.C.R. 47, for the proposition that where there is a material inconsistency between an eyewitness description of a perpetrator and the known appearance of the accused at the time, there is no identification. According to the appellant, Ms. Warner gave uncontradicted exculpatory identification evidence, rendering the jury's verdict unreasonable. I would not give effect to this submission. [48] The rule in Chartier applies to cases in which there is a clear dissimilarity in the witness's identification coupled with a lack of supporting evidence: R. v. Dimitrov (2003), 68 O.R. (3d) 641 (C.A.), at para. 18. In the case at bar, as discussed, there was ample evidence tying the appellant to the shooting beyond the identification evidence, including the DNA and mobile phone evidence. [49] It is also important to remember that Chartier was not a jury case and is not authority for the proposition that in a jury trial, it is the trial judge's function to decide whether there are significant discrepancies in appearance.  These are factual questions that arise out of the evidence and, like other factual questions, are for the jury to decide: R. v. Savoury (2005), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 13. The evidence of Ms. Warner was not clear and reliable regarding her description of the assailants. She was not wearing her glasses at the time and saw the men only briefly. In any event, the jury was instructed that Ms. Warner’s descriptions and the appearance of the defendants could be used to raise a reasonable doubt. It was up to the jury to weigh this evidence along with the other evidence adduced at trial. [50] Ultimately, I am satisfied that the manslaughter verdict was reasonable. I note that the parties agreed that manslaughter was an available verdict. Further, the non-trace amount of the appellant’s DNA was consistent with him physically attacking Mr. Thompson. Ms. Warner did not purport to see all the events leading up to the shooting or the shooting itself. Given the limitations of Ms. Warner’s evidence and the existence of other evidence tying the appellant to the scene, a reasonable trier of fact could have been satisfied beyond a reasonable doubt that the appellant was present and one of the men who participated in the attack but have a reasonable doubt about whether he was the shooter. The jury was not obliged to accept the Crown theory that the appellant was the shooter and was not obliged to acquit when they did not accept this theory. (b)     Admission of Phone Numbers [51] The appellant was in custody on unrelated charges until his release on October 20, 2012. He then became subject to the conditions of a probation order, including the condition that he report in person to his probation officer within two days of his release. At the time of his release, a probation officer explained to the appellant that he could be prosecuted for breaching his probation order. [52] When the appellant reported to his probation officer on October 23, 2012, the probation officer requested the appellant provide his address and phone number. Pursuant to this request, the appellant gave his 9200 phone number. On November 26, 2012, he provided a different number to his probation officer. Mr. Greensword also gave his mobile phone number to his probation officer. The police obtained the phone numbers from the probation officers and obtained production orders for the records associated with those numbers. [53] The appellant and Mr. Greensword brought an application seeking to exclude the evidence regarding the phone numbers on the grounds that: (i) the Crown had not proven that the phone numbers were provided voluntarily to the probation officers; (ii) the disclosure of the phone numbers by the probation officers to the police violated the s. 8 Charter rights of the accused; and (iii) the statements to the probation officers were compelled statements, and the admission of this evidence infringed s. 7 of the Charter . [54] The appellant’s probation officer testified on the voir dire that the provision of a phone number was not required as part of the probation order, and failure to provide a phone number would not result in a breach of the probation order. Neither the appellant nor Mr. Greensword testified on the voir dire . [55] The trial judge first considered whether the phone numbers were voluntarily provided. Relying on R. v. S.G.T. , 2010 SCC 20, [2010] 1 S.C.R. 688, he correctly observed that the appellant had an evidentiary burden to establish that the receiver of the statement was in a position of authority. The trial judge was not satisfied that when the appellant made the statements regarding his phone numbers that the probation officer was acting in concert with or for the police. He noted that when the 9200 number was given, the shooting had not yet taken place. When the second number was given, there was an existing investigation, but the trial judge found that the probation officers were not involved in the investigation, apprehension and prosecution of a criminal offence. Consequently, he ruled that the Crown was not required to establish the voluntariness of any statements made by the appellant to the probation officer relating to his phone numbers. [56] Regarding the alleged s. 8 breach, the trial judge ruled that the phone numbers do not reveal core biographical data that constitute intimate and private information about the accused. Furthermore, he noted that the appellant did not testify, and thus there was no evidence of his subjective belief that he had a reasonable expectation of privacy. The trial judge also concluded that neither the police officers nor the probation officers violated the Ministry of Correctional Services Act , R.S.O. 1990, c. M. 22, in exchanging the information about the phone numbers. Accordingly, he found that there was no s. 8 breach. [57] Concerning the alleged s. 7 breach, the trial judge focused on the core issue of whether the appellant held an honest and reasonable belief that he was required by law to provide the phone numbers, noting that the appellant had the onus on the s. 7 application. [58] The trial judge found that the appellant had not met his onus, as there was no evidence that he had a subjective and reasonably held belief that he must provide a phone number and, objectively, there was no evidence that would suggest the statement was compelled. In support of this conclusion, the trial judge relied on the following: · First, since that the appellant did not testify, there was no direct evidence of his subjective belief. · Second, there was no requirement for a phone number on the probation orders, and there could be no charge of breach of probation for failing to provide the number. Thus, there is no evidence that the appellant believed that a failure to provide the phone number would have led to a breach charge. · Third, he was not satisfied that the direction provided to each accused, as part of their intake, to provide a phone number objectively meant that the accused were compelled to make the statements to the probation officer, because the intake interview and direction did not have the force of a probation order. · Fourth, he did not find that the probation officers created any psychological or emotional pressure on the appellant to make the statements. In that regard, he observed that probation officers simultaneously perform two distinct functions, rehabilitation and enforcement. [59] On appeal, the appellant submits that the trial judge erred in not finding that his provision of the phone numbers was a compelled statement taken in violation of s. 7. He submits that the trial judge failed to consider that two probation officers explained to him that he could be prosecuted for violating his probation order. Further, he argues that he was subjected to a high level of coercion to provide his phone number and that he was in an adversarial relationship with the probation officers. [60] These submissions are unpersuasive. The trial judge carefully considered these issues, and I concur with and adopt his analysis. As noted, the appellant did not testify, and thus there was no direct evidence that he felt coerced to provide his telephone number. Nor am I satisfied that coercion can be inferred in the circumstances. The intake form filled out by the appellant indeed included a section that asked for a "telephone number, where you can be reached." However, the probation officer testified that the order did not have a term that a phone number be provided. Further, she testified that she did not tell the appellant that the failure to provide a phone number would be considered a breach of the probation order. [61] The appellant’s reliance on R. v. Charles , 2013 ONSC 6704, aff’d 2016 ONCA 892, is misplaced. Charles had provided the probation office with several phone numbers in a probation intake form. In a subsequent voice mail message, he also left a mobile phone number (the “mobile phone number”). The link between Charles and the mobile phone number was incriminating. At his trial, Charles sought the exclusion of evidence that he had provided the mobile phone number to the probation officer, claiming that he had done so under coercion. The trial judge disagreed and admitted the evidence. In explaining that decision, the trial judge contrasted Charles’ provision of his home phone numbers in the probation intake form, commenting that Charles had a reasonably held belief that the provision of his home phone number on the probation intake form was mandatory: Charles , at para. 32. This obiter comment by the trial judge is of no assistance to the appellant. The cases are factually distinguishable. In Charles , the evidence of the probation officer was that the provision of a phone number was mandatory if a client was attending counselling: at para. 17. Moreover, the appellant, in that case, testified that he felt coerced. [62] Based on the foregoing, I would not give effect to this ground of appeal. IV.     Disposition [63] I would dismiss the appeal. Released: November 24, 2021 “CWH” “C.W. Hourigan J.A.” “I agree. David M. Paciocco J.A.” “I agree. B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Thrive Capital Management Ltd. v. Noble 1324 Queen Inc., 2021 ONCA 846 DATE: 20211124 DOCKET: C69156 Strathy C.J.O., Pepall and Pardu JJ.A. BETWEEN Thrive Capital Management Ltd., Thrive Uplands Ltd., 2699010 Ontario Inc. and 269901 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. COSTS ENDORSEMENT [1] The issues of costs awarded by the motion judge and the costs of the appeal remain. The motion judge awarded the plaintiffs costs of $36,011.97 for the costs of the hearing to determine whether the defendants were in contempt, $48,816.31 for the costs of the hearing to determine the sanction to be applied for contempt, and as he granted judgment to the plaintiffs, $109,142.80 for the costs of the action. The finding of contempt was not contested; however, the sanction – judgment in the action – was set aside and the matter was remitted to the Superior Court for determination of the sanctions to be imposed for contempt, or other issues that might be raised together with that issue. [2] Since the finding of contempt was not challenged, we see no basis to intervene in that award. Given the conduct of the defendants, and the difficulty in persuading them to disclose their assets, those costs in the sum of $36,011.97 should be paid from the $70,000 that the defendants were ordered to post as security for costs of the appeal and of the proceedings. [3] The defendants were successful in setting aside the sanction ordered because there were procedural flaws in the process followed to determine the appropriate sanction. Their contemptuous conduct, however, is the root cause of the proceedings that followed. Under those circumstances, we set aside the costs awards of $48,816.31 for the sanctions hearing, and the costs of the action in the sum of $109,142.80 and order no costs for those steps in the proceeding at this time. For the same reason, we would order no costs on the appeal. [4] As it seems likely that these proceedings will continue, and some form of sanction for contempt will be imposed against the defendants, the remaining funds held in court as security for the appeal and the proceedings below will continue to be held in court, to be applied to any future costs award in favor of the plaintiffs. “ G.R. Strathy C.J.O. ” “S.E. Pepall J.A.” “G. Pardu J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Blair v. Ford, 2021 ONCA 841 DATE: 20211125 DOCKET: C68965 Benotto, Miller and Sossin JJ.A. BETWEEN R.W. (Brad) Blair Plaintiff (Appellant) and Premier Doug Ford Defendant (Respondent) Julian N. Falconer, Ryder Gilliland and Asha James, for the appellant Gavin Tighe and Alex Melfi, for the respondent Heard: October 29, 2021 by video conference On appeal from the orders of Justice Edward Belobaba of the Superior Court of Justice, dated November 23, 2020, November 30, 2020 and December 15, 2020. Benotto J.A.: OVERVIEW [1] In November 2018, Premier Doug Ford (“Ford”) announced that an OPP Commissioner had been appointed. Interim Commissioner Brad Blair (“Blair”) was not chosen. The new Commissioner was a friend of the Ford family. Blair wrote a scathing letter on official police letterhead to the provincial Ombudsman alleging improprieties in the selection process and requesting an independent review. The letter was made public. [2] When reporters questioned Ford about the letter, Ford suggested that Blair had breached the Police Services Act R.S.O. 1990, c. P.15 (“ PSA ”) . Blair sued Ford for defamation. Ford brought a motion under the provision of s.137.1 of the Courts of Justice Act , R.S.O. 1990, c. C.43. Section 137.1 was designed to address lawsuits against individuals who speak out about an issue of public interest. This type of motion is often referred to as an anti-SLAPP motion. SLAPP is the acronym for Strategic Lawsuit Against Public Participation. [3] The action against Ford was dismissed. Blair now appeals. Ford cross-appeals the motion judge’s determination with respect to costs. [4] I would dismiss the appeal and allow the cross-appeal in part. BACKGROUND [5] The background facts are not in dispute. [6] On September 5, 2018, the then OPP Commissioner announced his retirement effective November 2, 2018. The appellant Brad Blair became the Interim Commissioner. A job competition for the permanent position was publicly posted, seeking applications from police officers at a rank of Deputy Police Chief or higher or Assistant Commissioner or higher in a major police service. Within days, the job requirements were amended to remove the minimum rank requirement. On November 29, 2018, the province announced who the new OPP Commissioner would be. The new appointee was known to be a friend of Premier Ford. The appointee would not have qualified for the job but for the amendment to the qualifications. [7] On December 11, 2018, Blair sent a nine-page letter to the provincial Ombudsman and released a copy to the public. The letter was sent on OPP letterhead and alleged several improprieties in the appointment process of the OPP Commissioner as well as general misfeasance by Ford. [8] The Ministry of the Attorney General (MAG) briefed Ford. The Briefing Note concluded that aspects of Blair’s letter could arguably constitute breaches of the PSA Code of Conduct which prohibits police officers from communicating to the media without proper authority and from disclosing confidential information. The Briefing Note was subject to several qualifications and unknowns, including whether Blair acted in good faith and whether he had proper authority to write the letter. [9] Ford received the Briefing Note and was made aware of the conclusion some time before December 18, 2018. Within a few days, a retired police officer (unrelated to this action) also filed a complaint with the Ontario Independent Police Review Director. The officer accused Blair of breaching the PSA on substantially the same grounds as those listed in the MAG Briefing Note. [10] On three occasions, reporters questioned Ford about the letter from Blair. Ford said the following: · December 18, 2018: You know my friends this is gonna move forward. I could sit here and give you all the items that weren't accurate in that Letter and there's endless ones. I could give you a list of all the…the Police Act that was broken throughout that whole Letter, but none of you want to report on that. So, what I'm gonna do, I'm taking the high road. I'm gonna take the high road and let the review go through. · January 14, 2019: Well, I am not surprised that Global has asked me at an automotive show like this. But anyways run through the proper process and [the family friend] was the person they choose, and I was thoroughly disappointment (sic) with uh Brad Blair uh you know the way he has been going on. Breaking the Police Act numerous times is disturbing to say the least. · January 14, 2019: It's unfortunate that one person has sour grapes, and it is very disappointing actually, and reacting the way he's been reacting and breaking the Police Act numerous times. Someone needs to hold him accountable I can assure you of that. [11] Blair was fired from the OPP in March 2019 for reasons unrelated to Ford’s statements. In a separate action, he is suing Ford for approximately $15 million. [12] Ultimately, a different person – not the family friend – was appointed as OPP Commissioner. [13] Blair sued for defamation on the basis of Ford’s three statements. Ford brought a motion to dismiss the action pursuant to s. 137.1. [14] There was extensive evidence filed on the motion with resulting cross-examinations and demands for production. Significant legal fees were incurred. Blair brought preliminary motions relating to Ford’s refusals to answer questions and requesting more time for further examinations. [15] The motion judge dismissed the preliminary motions on November 23 and 30, 2020. He heard the s. 137.1 motion on December 4, 2020 and dismissed the action. The motion judge deviated from the presumptive award of full indemnity costs and awarded Ford partial indemnity costs based on the motion judge’s own calculations. He also ordered that half of the costs be paid immediately with the other half payable when Blair’s separate action was settled or disposed of. [16] Blair appeals the preliminary motions and the main motion. Ford cross-appeals the order for costs on the main motion. THE NATURE OF THE S.137.1 MOTION [17] Section 137.1 was meant to address SLAPP lawsuits. These lawsuits are described as follows in 1704604 Ontario Ltd. v. Pointes Protection Association , 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 2: SLAPPs are generally initiated by plaintiffs who engage the court process and use litigation not as a direct tool to vindicate a bona fide claim, but as an indirect tool to limit the expression of others. In a SLAPP, the claim is merely a façade for the plaintiff, who is in fact manipulating the judicial system in order to limit the effectiveness of the opposing party’s speech and deter that party, or other potential interested parties, from participating in public affairs. [18] Section 137.1 allows a defendant to move at an early stage to dismiss such a lawsuit. A motion under s. 137.1 to dismiss such a lawsuit involves a shifting burden and a framework that was set out in Pointes Protection , at para. 18: In brief, s. 137.1 places an initial burden on the moving party – the defendant in a lawsuit – to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing is made, the burden shifts to the responding party – the plaintiff – to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit and the moving party has no valid defence , and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression . If the responding party cannot satisfy the motion judge that it has met its burden, then the s. 137.1 motion will be granted, and the underlying proceeding will be consequently dismissed. It is important to recognize that the final weighing exercise under s. 137.1(4)(b) is the fundamental crux of the analysis … legislative debates emphasized balancing and proportionality between the public interest in allowing meritorious lawsuits to proceed and the public interest in protecting expression on matters of public interest. Section 137.1(4)(b) is intended to optimize that balance. [Emphasis added.] [19] Often a SLAPP is used to protect speech and combat a power imbalance sometimes present in defamation cases, where the plaintiff has significant resources and the defendant is vulnerable. DECISION OF THE MOTION JUDGE [20] The motion judge recognized that although the action did not possess the classic hallmarks of a SLAPP, the provisions of s. 137.1 of the Courts of Justice Act applied because the expression involved public interest. [21] Following the provisions in the Act , he dismissed the defamation action because: (i) Ford had a “valid defence” to the action; and (ii) the public interest in protecting Ford’s expression outweighed the public interest in allowing the action to continue. [22] In considering “valid defence”, the motion judge concluded that Blair did not show that the defence of fair comment had no real prospect of success. He also found that the expressions by Ford were devoid of malice. When he weighed the public interests, the motion judge concluded that Blair did not suffer harm so serious that the public interest in permitting his defamation action outweighed the public interest in protecting Ford’s expression. He also concluded that there would be limited public interest in allowing the defamation action to continue when Blair was simultaneously pursuing a different action seeking recovery for essentially the same harm. On the other hand, there was significant public interest in hearing Ford’s comments about Blair’s letter. The weighing of public interests favoured Ford. [23] Ford sought a full indemnity costs award of $578,194.86. The motion judge concluded the appropriate scale was partial indemnity. Ford’s partial indemnity costs were $357,250.48. The motion judge reduced these costs to $320,000, and then further reduced the costs to $130,000, with $65,000 to be payable immediately and $65,000 payable when the plaintiff’s wrongful dismissal action settled or was finally adjudicated. ISSUES [24] The following issues are raised by the appeals: (i) Does this court have jurisdiction to hear the appeal from the preliminary orders? (ii) Did the motion judge err in his consideration of s. 137.1? (iii) Did the motion judge err in his determination with respect to costs? ANALYSIS (1) Does this court have jurisdiction to hear the appeal from the preliminary orders? [25] Before hearing oral submissions with respect to the appeal, the parties were cautioned by the Senior Legal Officer that this court may not have jurisdiction over the preliminary orders. The parties agreed to file written submissions with respect to jurisdiction. The court reviewed the written submissions and heard oral submissions on the matter. The parties were advised during the hearing that, for reasons to follow, this court lacks jurisdiction with respect to the preliminary orders. [26] The preliminary orders were with respect to refusals to answer questions and provide certain legal documents (November 23, 2020) and with respect to further cross-examination (November 30, 2020). They are interlocutory orders. An appeal from an interlocutory order of a judge lies to the Divisional Court with leave pursuant to s. 19(1)(b) of the Courts of Justice Act . Leave must be sought within 15 days pursuant to r. 61.03(1)(b) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. Leave was not sought. [27] The appellant submits that the interlocutory orders are interrelated with the appeal and that leave would “inevitably” have been granted. He argues that this court should therefore assume jurisdiction. This argument was rejected for two reasons. [28] First, this proposal has been repeatedly rejected by this court. The court said the following in Mader v. South Easthope Mutual Insurance Company , 2014 ONCA 714, 123 O.R. (3d) 120, at para. 55: Only if leave is obtained from the Divisional Court can the appeal be combined with an appeal that lies to Court of Appeal in the same proceeding under s. 6(2) of the Courts of Justice Act : Cole v. Hamilton (City) (2002),2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284, [2002] O.J. No. 4688 (C.A.), at paras. 11, 15. And said the following in Brown v. Hanley, 2019 ONCA 395, at para. 19: In general, where an order has both interlocutory and final portions, the appeal lies to this court only from the final portion of the order: Cole v. Hamilton (City) (2002), 2002 CanLII 49359 (ON CA), 60 O.R. (3d) 284 (C.A.), at para. 9. Leave to appeal from the interlocutory portion must be obtained from the Divisional Court, at which point a party may move to have the appeals heard together in this court: Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, at para. 25; Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6 and 19(1)(b). [29] Second, the preliminary orders were dated November 23 and 30, 2020. The s. 137.1 motion was heard on December 4, 2020. Had the interim relief sought been integral to the main motion, the appellant could have – but did not – ask for an adjournment so that leave to the Divisional Court could be sought. It is not appropriate to await the outcome of the motion to then assert that the issue is intrinsically interrelated. [30] For these reasons, the appeals from the preliminary orders were quashed. (2) Did the motion judge err in his consideration of s. 137.1? [31] The parties agreed that the first threshold – that the expression relates to a matter of public interest – was met. The burden then shifted to Blair to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit and Ford has no valid defence, and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. [32] Blair submits that the motion judge erred by: (i) Ignoring the indicia of a SLAPP in his s. 137.1 analysis. (ii) Using the wrong test for “no valid defence” and then misconstruing the defence of “fair comment”. (iii) Incorrectly finding that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression. [33] I turn to these issues now. (1) Indicia of a SLAPP [34] The motion judge recognized that the action was “not, strictly speaking, a SLAPP suit” because Blair was not a large and powerful organization using litigation to intimidate and silence a vulnerable opponent. He determined that, nonetheless, because Ford’s expressions relate to public interest, s. 137.1 was engaged. [35] The appellant submits that the motion judge’s overall approach to s. 137.1 was flawed because, though the motion judge found that the appellant’s claim did not have the indicia of a SLAPP, he did not use this finding in his analysis of s. 137.1. In my view, the appellant is implicitly submitting that s. 137.1 did not apply at all. But he further says that even if it did apply, the fact that it did not possess all the indicia of a SLAPP should have been considered in the analysis by the motion judge. [36] I disagree with both propositions. [37] The fact that the usual indicia of a SLAPP were not present does not mean that s. 137.1 does not apply. In this regard the appellant is importing a requirement that does not exist in the statute or in the jurisprudence. The Supreme Court has clarified that s. 137.1 should be broadly construed to apply to proceedings that arise from expression. As the motion judge articulated, the legislature specifically avoided reference to the term “SLAPP” in the provision. In Pointes Protection , at para. 24 the Supreme Court specified the following: What is crucial is that many different types of proceedings can arise from an expression, and the legislative background of s. 137.1 indicates that a broad and liberal interpretation is warranted at the s. 137.1(3) stage of the framework. This means that proceedings arising from an expression are not limited to those directly concerned with expression, such as defamation suits. A good example of a type of proceeding that is not a defamation suit, but that nonetheless arises from an expression and falls within the ambit of s. 137.1(3), is the underlying proceeding here, which is a breach of contract claim premised on an expression made by the defendant Indeed, the [Anti-SLAPP Advisory Panel: Report to the Attorney General] explicitly discouraged the use of the term “SLAPP” in the final legislation in order to avoid narrowly confining the s. 137.1 procedure … and the legislature obliged . [Emphasis added.] [38] Nor do I accept the appellant’s submission that the indicia of a SLAPP should have been specifically addressed at each step in the judge’s analysis. This too has been clarified in Pointes Protection , at paras. 78-79: I note that in Platnick v. Bent , 2018 ONCA 687, 426 D.L.R. (4th) 60 , at para. 99, Doherty J.A. made reference to recognized “indicia of a SLAPP suit” (emphasis omitted). He recognized four indicia in particular: (1) “a history of the plaintiff using litigation or the threat of litigation to silence critics”; (2) “a financial or power imbalance that strongly favours the plaintiff”; (3) “a punitive or retributory purpose animating the plaintiff’s bringing of the claim”; and (4) “minimal or nominal damages suffered by the plaintiff” (para.99). Doherty J.A. found that where these indicia are present, the weighing exercise favours granting the s. 137.1 motion and dismissing the underlying proceeding I am of the view that these four indicia may bear on the analysis only to the extent that they are tethered to the text of the statute and the considerations explicitly contemplated by the legislature. This is because the s. 137.1(4)(b) stage is fundamentally a public interest weighing exercise and not simply an inquiry into the hallmarks of a SLAPP. Therefore, for this reason, the only factors that might be relevant in guiding that weighing exercise are those tethered to the text of s. 137.1(4)(b), which calls for a consideration of: the harm suffered or potentially suffered by the plaintiff, the corresponding public interest in allowing the underlying proceeding to continue, and the public interest in protecting the underlying expression. [Emphasis in original.] [39] Pointes Protection requires the motion judge to “scrutinize” what is really going on in the case before them. The reasons of the motion judge read as a whole indicate that he did just that. The motion judge’s comment that the “defamation action is not, strictly speaking a SLAPP” because “the plaintiff is not a large and powerful entity that is using litigation to intimidate a smaller and more vulnerable opponent” confirm that he was alive to any perceived power imbalance that the appellant references. [40] I would not give effect to this ground of appeal. (2) Test for “no valid defence” and consideration of “fair comment” [41] Blair had the burden to show that the defence put forward by Ford had “no real prospect of success”: see Pointes Protection , at paras. 50, 60. The motion judge described a “real prospect of success” as meaning “a solid prospect of success” and “less than a “likelihood of success” but more than merely “some chance of success” or even “a reasonable prospect of success.” [42] The appellant submits that this is the wrong test. He says it raised the burden on him and that he should have only been required to prove that a reasonable trier of fact could reject the defences advanced by Ford. The appellant relied on Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166, 144 O.R. (3d) 291 to support this argument. [43] The test established by this court in Bondfield was refined in Pointes Protection . The perspective to apply is not that of a reasonable trier at a subsequent trial, but rather the subjective perspective of the motion judge. Pointes Protection clarifies the following at para. 41: Importantly, the assessment under s. 137.1(4)(a) must be made from the motion judge’s perspective. With respect, I am of the view that the Court of Appeal for Ontario incorrectly removed the motion judge’s assessment of the evidence from the equation in favour of a theoretical assessment by a “reasonable trier” … The clear wording of s. 137.1(4) requires “the judge” hearing the motion to determine if there exist “grounds to believe”. Making the application of the standard depend on a “reasonable trier” improperly excludes the express discretion and authority conferred on the motion judge by the text of the provision. The test is thus a subjective one, as it depends on the motion judge’s determination. [44] I do not agree that the motion judge used the wrong test or raised the bar for Blair with respect to “valid defence.” While the motion judge did not track the wording in Pointes Protection, his analysis makes it clear that he found that Blair did not demonstrate that Ford’s defence of fair comment had no real prospect of success. [45] There are five elements to the defence of fair comment: (i) the comment must be on a matter of public interest; (ii) the comment must be based on fact; (iii) the comment, although it can include inferences of fact, must be recognizable as comment; (iv) the comment must be one that any person could honestly make on the proved facts; and (v) the comment was not actuated by express malice. [46] The appellant submits that the motion judge erred because: (i) he relied on the compliant by made by another officer; (ii) the statements were not recognizable as comment; and (iii) the statements were demonstrative of malice. [47] The motion judge concluded that the comments were ones that any person could have made on the facts. He relied on the complaint made by a retired police officer based on the same conduct by Blair. The appellant submits that this was an error because this complaint post-dated the impugned comments by Ford. This objection by the appellant is of no moment in light of the motion judge’s findings based on Ford’s evidence that he had an honest belief in the truth of his statements. [48] Blair submits that a reasonable member of the public would infer that Blair had been tried and convicted of breaking the PSA . [49] The motion judge concluded that no reasonable journalist or member of the public would have taken the defendant's statements that the plaintiff “broke the Police Act” as meaning that the plaintiff had already been tried and convicted of breaking this law . This was his finding to make and it is entitled to deference. [50] In any event, Blair’s submission in this regard is at odds with Ford’s statements that: “I'm gonna take the high road and let the review go through” (December 18) and “Someone needs to hold him [Blair] accountable” (January 18). Both these statements make clear that a formal legal process had not yet taken place. [51] With respect to malice, the appellant submits that Ford was reckless in relying on the MAG Briefing Note, which was qualified. Again, I do not agree. [52] The motion judge accepted Ford’s evidence that he reasonably relied on the MAG Briefing Note when he made the impugned public statements and that he honestly believed that Blair had breached the PSA . [53] It must also be remembered that the Briefing Note also said that Blair’s letter clearly disclosed confidential information related to the OPP, including most notably the following: (i) details about the process by which Commissioner was selected; (ii) details about matters related to OPP security arrangements for the Premier; and (iii) that these disclosures could be construed as a breach of section 2(1)(e) of the PSA Code of Conduct if they were not made with proper authority. [54] Finally, the motion judge had the opportunity to view the videos of the three media events. He concluded that Ford spoke calmly, without emotion and without evidence of any retaliation or reprisal. These conclusions are entitled to deference. [55] I would not give effect to these grounds of appeal. (3) Weighing the two public interests [56] While the above conclusions were sufficient to dismiss the action, the motion judge proceeded with the last step of s. 137.1(4)(b) when he balanced the public interests. I will do the same. [57] Blair was required to satisfy the court that the harm he suffered as a result of Ford’s expression is sufficiently serious that the public interest in permitting the action to continue outweighs the public interest in protecting that expression. [58] In Pointes Protection , at para. 68 the Supreme Court noted that before the weighing exercise begins, the plaintiff must show two things: (i) the existence of some harm; and (ii) that the harm was caused by the defendant's expression. [59] The appellant submits that the motion judge erred by finding no evidence of either harm or causation. He claims the motion judge ignored his affidavit evidence outlining the emotional harm and the damage to his reputation. The motion judge found only bald assertions of emotional or psychological harm, and found no evidence of any resulting financial or economic harm. There is no evidence that the plaintiff was disciplined by the OPP for “breaching the PSA ”, that he was suspended from his duties because of these allegations, or that he lost any pay. The claim of a lost job opportunity because of the defendant’s PSA allegations is also without credible evidentiary support. [60] The motion judge concluded that, to the extent that there was harm, it is captured by the multi-million-dollar lawsuit that Blair initiated. A draft statement of claim was before the motion judge. The statement of claim has now been issued. Although the motion judge referred to it as a wrongful dismissal action, the issued claim includes damages for misfeasance in public office, negligence, negligent misrepresentation, intentional infliction of mental suffering, Charter breaches, and damages of approximately $15 million including special, punitive, and exemplary damages. [61] The motion judge said the following: there is little to no public interest in permitting the defamation action to continue when the alleged loss or damage is the subject of another action that will shortly be proceeding in this court. [62] Balanced against the importance of freedom of expression, the matters raised are of considerable public interest that justify expression and debate in the public forum. The motion judge’s finding – that the harm suffered as a result of Ford’s expression is not sufficiently serious that the public interest in permitting the action to continue is outweighed by the public interest in protecting that expression – is a discretionary finding entitled to deference. [63] I would not give effect to this ground of appeal. (3) The cross-appeal: did the motion judge err in his determination with respect to costs? [64] Ford seeks leave to appeal the motion judge’s determination with respect to costs. He submits the following: (i) he was awarded significantly less than the presumptive award of full indemnification set out in s. 137.1(7); and (ii) the costs order which tethered half of his recovery to another action was in error. [65] Section 137.1(7) states the following: If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. [66] Ford claimed full indemnity costs of $578,194.86. [67] In choosing to reject full indemnity costs, the motion judge said the following: In my opinion, a full indemnity costs award is not appropriate on the facts herein because, as I made clear in my reasons for decision, the plaintiff’s defamation action was not a SLAPP suit. I found as follows: The plaintiff is not a large and powerful entity that is using litigation to intimidate a smaller and more vulnerable opponent and silence their public expression. Mr. Blair is not a powerful entity that is suing the Premier to gag his public expression but a genuinely aggrieved individual trying to vindicate what he reasonably believes is a bona fide defamation claim. Nonetheless, because the impugned public statements made by the defendant relate to a matter of public interest, the s. 137.1 analysis is engaged. [68] Ford claimed partial indemnity costs of $357,250.48. The motion judge adjusted this and determined that his partial indemnity costs were $320,000. (He found Blair’s partial indemnity costs to be $192,000). [69] The motion judge gave detailed reasons, including his repeated admonishments to counsel that much of the evidence being advanced related to the merits of the defamation action and allegations that were not necessary for the motion. The motion judge described it as an unnecessary “deep dive” into the evidence that greatly increased costs. Applying the considerations of r. 57.01 of the Rules of Civil Procedure , he concluded that the appropriate amount for Ford’s partial indemnity costs was $130,000. [70] I see no error in the motion judge’s determination which is entitled to a high degree of deference. I would not give effect to this aspect of the cross-appeal. [71] The order tethering the costs to another action is different. The motion judge gave no reasons for the order requiring half of the costs to be paid immediately and the other half to be paid when Blair’s “wrongful dismissal action is settled or finally adjudicated”. This condition was added by the motion judge in the last substantive paragraph of his reasons. The parties had no opportunity to address this extraordinary order. Recall that the so called “wrongful dismissal” action had not even been commenced at the time of the reasons. I would grant the cross-appeal on this basis and amend the costs order to provide that the entire $130,000 award be payable in full as of the date of the order which is February 1, 2021. CONCLUSION [72] For these reasons the appeals from the preliminary orders were quashed. I would dismiss the appeal with respect to dismissal of the action and would allow the cross-appeal in part. I would grant leave to appeal the costs, dismiss the appeal with respect to the quantum of costs, and allow the appeal with respect to the timing of the payment. [73] In accordance with the agreement between counsel, the respondent is entitled to his costs of the appeal fixed at $30,000 inclusive of disbursement and taxes, and there will be no costs of the cross-appeal. Released: November 25, 2021 “MLB” “M.L. Benotto J.A.” “I agree B.W. Miller J.A.” “I agree Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Mandel v. 1909975 Ontario Inc., 2021 ONCA 844 DATE: 20211125 DOCKET: C68675 Feldman, van Rensburg and Sossin JJ.A. BETWEEN Robert Mandel and Ellen Pike Applicants (Appellants) and 1909975 Ontario Inc., 2458730 Ontario Inc., 2458721 Ontario Inc., HarrisonPike Inc., MatthewPike Inc. and Attorney General of Canada Respondents (Respondents) Peter H. Griffin, Matthew B. Lerner and Adam H. Kanji, for the appellants Diana Aird and Michael Ding, for the respondent Attorney General of Canada Mark A. Ross, for the respondents 1909975 Ontario Inc., 2458730 Ontario Inc., 2458721 Ontario Inc., HarrisonPike Inc. and MatthewPike Inc. Heard: May 19, 2021 by video conference On appeal from the order of Justice Markus Koehnen of the Superior Court of Justice, dated September 8, 2020, with reasons reported at 2020 ONSC 5343. Feldman J.A.: [1] The appellants restructured their family trusts in 2014 and 2015 to avoid a deemed disposition of the assets after 21 years and to maintain control of the underlying assets. As part of the restructuring arrangements, the appellants incorporated holding companies for their adult children (the “Child Corporations”) in which the appellants each subscribed for Class A voting shares and Class B convertible shares for a subscription price of $10 for the Class A shares and $100 for the Class B shares. The corporate documents stated that all the issued shares were fully paid. However, the appellants say that payment of $110 for the shares was never actually made. [2] In 2019, the Canada Revenue Agency (“CRA”) reassessed the appellants for the tax years 2014 and 2015, increasing each appellant’s taxable income by close to $15,000,000 on the basis that their receipt of shares in the Child Corporations constituted a taxable benefit under s. 15(1) of the Income Tax Act , R.S.C. 1985, c. 1 (5th Supp.). [3] The appellants brought an application in the Superior Court of Justice for a declaration that because the shares were not paid for before they were issued, as required by s. 23(3) of Ontario’s Business Corporations Act , R.S.O. 1990, c. B.16 (“ OBCA ”), they were not validly or lawfully issued, and that the appellants were never shareholders of the Child Corporations. They also sought an order for rectification of the share registers of the Child Corporations under s. 250(1) of the OBCA . [4] The application judge declined to exercise jurisdiction over the application, deferring to the jurisdiction of the Tax Court of Canada. He also found that he would not have granted the declaration or ordered rectification had he assumed jurisdiction. The appellants appeal from that ruling to this court. [5] The application judge’s decision to decline jurisdiction to grant a declaration is a discretionary decision. I see no reviewable error in the application judge’s exercise of that discretion. For that reason, I would dismiss the appeal. A. Facts [6] The families of each of the appellants hold a 25% interest in a successful manufacturing corporation through holding corporations. In the 1990s, the appellants transferred some of their interests in the holding corporations to family trusts, whose beneficiaries were the appellants’ respective children. In order to avoid a deemed disposition of the assets of the trusts at fair market value after 21 years, to defer the taxes that would become payable, and using a structure that would maintain control for the appellants, in 2014 and 2015 the family trusts reorganized their assets. [7] The application judge set out the details of the reorganizations in his reasons. For the purpose of these reasons, it is sufficient to summarize the structure that was employed for each Child Corporation: a Child Corporation was incorporated for each child of each of the appellants (three Mandel children and two Pike children); one of the appellants became the first director of each corporation; by-law no. 1 was passed for each corporation, providing, in accordance with s. 23(3) of the OBCA , that no share could be issued until it is fully paid for; the appellant subscribed for 1,000 Class A voting shares for a price of $10, signing corporate documents of the Child Corporation stating that the subscription price had been paid in full; the family trust then transferred Class D voting shares of the holding company that owned the shares of the manufacturing corporation to the child, who transferred those shares to the Child Corporation in exchange for 100 non-voting common shares of the Child Corporation; after that, the appellant subscribed for 100,000 Class B convertible shares in the Child Corporation for the price of $100, again signing documents that said that the purchase price for the shares had been paid in full. [8] In the result, each Child Corporation held shares in the family holding company, the appellants held Class A and Class B shares in each of the Child Corporations, and each child held non-voting common shares in their respective Child Corporation. Through this mechanism, the appellants each had control of the Child Corporations, and, in the event of a breakdown in any child’s marriage, by converting the Class B shares, the majority of the value of the Child Corporation would be protected. [9] Between 2014 and 2019, the appellants signed numerous documents relating to the Child Corporations in their capacities as sole directors and as shareholders, including shareholder agreements that described their shares as issued, outstanding, fully paid and non-assessable. The only contemporaneous evidence to the contrary was a “Notice to Reader” contained in the financial statements of the Child Corporations, prepared by Ernst & Young, which recorded a “Sundry Receivable” of $110 within each Child Corporation. However, those financial statements also indicated that the shares had been issued, and recorded shareholders’ equity of $110 in respect of the shares. [10] On June 5, 2019, the CRA advised each of the appellants that it proposed to reassess them for 2014 and 2015 and increase their respective taxable incomes on the basis that they had received a taxable benefit under s. 15(1) of the Income Tax Act by the issue of controlling shares in the Child Corporations for undervalue. Despite receiving submissions opposing the reassessment, the CRA proceeded with the reassessments on September 16, 2019, and Notices of Objection were filed on November 26, 2019. The CRA did not respond to the appellants’ Notices of Objection within 90 days. As a result, the appellants may appeal to the Tax Court, but at the time of the application, they had not yet done so. [11] In February 2020, after the application was commenced, transactions within each Child Corporation resulted in each child becoming the controlling shareholder and a director of their respective Child Corporations. [12] The appellants commenced this application on December 6, 2019 for a declaration that their shares in each Child Corporation were never validly issued because they did not pay for them, and for an order under s. 250(1) of the OBCA rectifying the share registers to reflect that the appellants never owned validly issued shares in the Child Corporations. In support of the applications, the appellants filed affidavits in which they explained that they never actually provided any consideration for the shares in each of the Child Corporations, and that those corporations never had bank accounts that would allow them to receive any monetary consideration. The appellants were not cross-examined on their affidavits. B. Findings by the Application Judge [13] The application judge accepted the submission of the CRA that the court should decline jurisdiction over the application because the matter should be determined by the Tax Court of Canada. Specifically, he found that: The Tax Court is much better placed than is this court to determine whether, for tax purposes, the applicants should be considered to be controlling shareholders of the Child Corporations. The Tax Court has expertise in dealing with sophisticated corporate structuring and assessing the tax consequences of planning exercises of that nature. Given its specialized expertise, the Tax Court is also better placed to make findings of fact and draw inferences about whether the applicants paid for their shares, why they recorded the purchase price as a receivable (if the “Sundry Receivable” in fact relates to the shares) and whether any of these findings or inferences should have a bearing on the application of s. 23(3) to the tax assessment. [14] The application judge also noted that the raison d’être for this application is the tax assessment, and referred to other cases where the Superior Court had declined jurisdiction in favour of the Tax Court: Baxter v. Attorney General of Canada , 2013 ONSC 3153, at paras. 8-29 and GLP NT Corp. v. Canada (Attorney General) (2003), 65 O.R. (3d) 840 (S.C.), at paras. 11-20. The application judge also referred to Danso-Coffey v. Ontario , 2010 ONCA 171, 99 O.R. (3d) 401, where this court found that the court below had erred by declaring that Ms. Danso-Coffey was not liable for retail sales tax rather than deferring jurisdiction on the tax liability issue to be determined under the Retail Sales Tax Act , R.S.O. 1990, c. R.31 scheme. [15] However, in that case, this court also upheld the decision of the court below to make a declaration that Ms. Danso-Coffey was not a director of the bankrupt corporation. The application judge distinguished that aspect of the case as well as Orman v. Marnat Inc. , 2012 ONSC 549, 108 O.R. (3d) 81, both relied on by the appellants. In Danso-Coffey , the court granted a declaration in favour of the applicant that she was never a director of the corporation, because the facts were not disputed and the applicant had other potential reasons beyond retail sales tax for wanting to be absolved of the status of director, to which she never consented, and the range of personal liabilities that may arise by virtue of that status. [1] [16] The application judge also distinguished the case of Orman , where the Superior Court granted a declaration that certain funds in an investment vehicle constituted a return of capital rather than income. In that case, the judge relied on the decision in Juliar v. Canada (Attorney General) (2000), 50 O.R. (3d) 728 (C.A.), leave to appeal refused, [2000] S.C.C.A. No. 621, where the court found that it should not decline relief because it might affect a tax assessment. However, Juliar has since been overruled by the Supreme Court of Canada in Canada (Attorney General) v. Fairmont Hotels Inc. , 2016 SCC 56, [2016] 2 S.C.R. 720. [17] Despite declining jurisdiction to determine the application, the application judge nevertheless addressed whether he would have granted the declaration requested by the appellants. [18] On the issue of the proper interpretation of s. 23(3) of the OBCA , and whether its effect is that if the appellants did not pay for the shares then the shares were never effectively issued and the appellants were never shareholders of the Child Corporations, the application judge found that there was no definitive answer. Referring to Dunham v. Apollo Tours Ltd. (1978), 20 O.R. (2d) 3 (H.C.), he stated that the case “demonstrates that the application of s. 23(3) is not absolutely black and white but depends on the context and purpose for which the section is being applied.” In that case, the court allowed the shareholder, who had not paid for his shares, to pay the share price of $1 in order to obtain standing as a shareholder to bring an application to wind up the corporation. [19] The application judge gave three further reasons why he would not have granted the declaration. First, there was contradictory evidence in the record regarding whether or not the appellants had paid for the shares. Second, he noted that there was no dispute within the Child Corporations about the status of the shares, and third, there could be unknown consequences to a retroactive declaration of invalidity of the shares. Based on these three considerations, he concluded that there was no injustice in declining to grant the declaration. [20] Finally, the application judge refused to make an order under s. 250(1) of the OBCA rectifying the share register. This flowed from his determination that if he had exercised his discretion to assume jurisdiction, he would have declined the declaration. He also found that such an order would not reflect the intentions of the parties at the time of the transactions, and referred to the Fairmont Hotels case for the principles that apply to equitable rectification. [21] The application judge emphasized that nothing in his analysis was intended to have any bearing on the Tax Court’s adjudication of the tax assessment dispute and its interpretation or application of s. 23(3) of the OBCA . C. Issues [22] There are four issues raised on this appeal: 1. Jurisdiction to hear the appeal: Is the appeal from the application judge properly brought to this court or to the Divisional Court? 2. Jurisdiction of the application judge: Did the application judge err in law in declining jurisdiction over the application in favour of the Tax Court? 3. Does a corporation’s failure to comply with s. 23(3) of the OBCA by issuing shares without payment make the issuance of such shares invalid and void? 4. Did the application judge err in declining to order rectification of the share register under s. 250(1) of the OBCA ? D. Analysis (1) Issue 1: Is the appeal from the application judge properly brought to this court or to the Divisional Court? [23] In their application to the Superior Court, the appellants sought a declaration under s. 97 of the Courts of Justice Act , R.S.O. 1990, c. C.43, that the shares of the Child Corporations were not validly issued under s. 23(3) of the OBCA because the subscription price was not paid, and an order for rectification of the share registers under s. 250(1) of the OBCA . [24] Section 255 of the OBCA provides that an appeal lies to the Divisional Court from any order made by the Superior Court under the OBCA . In this case, while the appellants sought relief under s. 250(1) of the OBCA , they were obliged to seek a declaration under s. 97 of the Courts of Justice Act in order to obtain the relief they sought as a result of the application of s. 23(3), because no order for relief for failure to comply with that section is mandated by the OBCA . An appeal from an order that grants or refuses a declaration of the Superior Court lies to the Court of Appeal. As a result, s. 6(2) of the Courts of Justice Act applies to this appeal: The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of Appeal. [25] The court therefore accepts the submission of all parties that this court has the jurisdiction to hear this appeal. (2) Issue 2: Did the application judge err in law by declining jurisdiction over the application in favour of the Tax Court? [26] The appellants submit that the application judge erred in law by declining to assume jurisdiction to decide the issues as a matter of corporate law. They argued that the Superior Court is the only court with jurisdiction over the issues raised in the application. They submitted that a declaration that bound the corporate and family parties could not be made by the Tax Court. They also submitted that the application was not about “whether for tax purposes” the appellants should be considered the controlling shareholders of the corporations. Instead, the issue was “whether shares in an OBCA -incorporated corporation were validly issued and if not, what the appropriate remedy should be. It was about correcting an error in the share register.” [27] Sections 23(3) and 250(1) of the OBCA provide: 23(3) A share shall not be issued until the consideration for the share is fully paid in money or in property or past service that is not less in value than the fair equivalent of the money that the corporation would have received if the share had been issued for money. 250(1) Where the name of a person is alleged to be or have been wrongly entered or retained in, or wrongly deleted or wrongly omitted from, the registers or other records of a corporation, the corporation, a security holder of the corporation or any aggrieved person may apply to the court for an order that the registers or records be rectified. [28] The appellants’ position on jurisdiction is that only the Superior Court may grant an order for rectification pursuant to s. 250 of the OBCA , and it is the jurisdiction of the Superior Court to determine the proper interpretation of s. 23(3), as a matter of law. While the Tax Court has the jurisdiction of a superior court and therefore may interpret the OBCA provision when determining cases arising under the Income Tax Act , the appellants say that they are entitled to a declaration of the status of their shares on the basis of a correct interpretation of s. 23(3), and as a matter of corporate law, and to rectification of the share register in accordance with that interpretation. [29] The appellants’ position on interpretation is that where shares of a corporation are issued without the corporation first receiving payment, the issuance of the shares is invalid and void, and the share register must be corrected to remove the shareholders’ names. [30] The contrary position is that while shares that are not fully paid for are issued in contravention of s. 23(3), they are nevertheless validly issued. This is the result provided in the OBCA where shares are issued without full payment because the directors of the corporation have authorized a share issuance for consideration other than money, such as property or past services, and where they have overvalued that consideration. In that event, s. 130(1) of the OBCA provides that the directors are responsible to the corporation for the difference between the actual value of the non-monetary consideration paid and the monetary value assigned to the shares. The share issuance is not void. The shares remain validly issued and the directors are liable to the corporation to make up the shortfall. [31] The issue before this court is whether the application judge erred in the exercise of his discretion by declining to answer the question and, instead, deferring jurisdiction in favour of the Tax Court of Canada. On matters of judicial discretion, this court will defer to the application judge unless the judge misdirected himself, gave no or insufficient weight to relevant considerations, or came to a decision that was clearly wrong, amounting to an injustice: Penner v. Niagara (Regional Police Services Board) , 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27; Ewert v. Canada , 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 83; and Holmes v. Schoenfeld Inc. , 2016 ONCA 148, 345 O.A.C. 162, at para. 14. [32] The application judge gave one reason for declining jurisdiction in favour of the Tax Court, and also added three reasons why declining a declaration would not cause injustice, which reinforced his discretionary decision to decline to exercise jurisdiction. He understood that no appeal of the assessments had yet been taken to the Tax Court because the appellants were first pursuing this application. However, it is expected that depending on the outcome of this application, an appeal may be filed with the Tax Court. [33] The main reason the application judge gave for deferring to the Tax Court is that the only dispute in this case is between the appellants and the CRA, and that dispute is within the expertise of the Tax Court. He noted that pursuant to the Tax Court of Canada Act , R.S.C. 1985, c. T-2, the Tax Court is a superior court of record and has exclusive original jurisdiction to hear and determine appeals on matters arising under the Income Tax Act : ss. 3 and 12(1). As a superior court, it may interpret and apply provisions of the OBCA in the context of a tax dispute. [34] Related to the fact that the only dispute between any parties in this case is the appellants’ dispute with CRA, is the fact that the Child Corporations support the appellants in their request for relief. The application judge referred to this fact as the first reason that supported his conclusion that declining the declaration would not amount to an injustice. There is no dispute among the families or within the corporations about what should be done with the shares. In fact, as of February 2020, the families have reorganized the share structure such that each child was issued 2,000 Class A voting shares, becoming the controlling shareholder and a director of their Child Corporation. The respective shareholders meetings at which each child was elected as director of their Child Corporation proceeded on the basis that each child was the sole voting shareholder. [35] Therefore, although the appellants argue that unlike the Superior Court, the Tax Court has no authority to make a binding order that would bind the Child Corporations, in fact the parties do not require such an order to correct mistakes and amend the register. Consequently, the application judge concluded that the effect of the relief sought by the appellants would primarily be to “force the outcome of a tax dispute with the CRA before the taxpayers have pursued the remedies available under federal statute”. [2] [36] The second ground relied on by the application judge as demonstrating no injustice in declining the declaration request was the unclear factual record regarding whether the appellants paid for their shares and why the Child Corporations recorded the purchase price as a receivable in the financial statements. He concluded that the factual findings should be made within the tax context, where the court could determine what bearing the findings would have on the application of s. 23(3) to the tax assessment. [37] This application was brought under r. 14.05 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. Rule 14.05(3)(d) allows an application to be brought for the determination of rights that depend on the interpretation of a statute. That rule could apply to this proceeding; however, there are both statutory interpretation and factual issues to be determined. Rule 14.05(3)(h) allows proceeding by an application “where it is unlikely that there will be any material facts in dispute requiring a trial.” An application under r. 14.05(3)(h) gives the application judge limited jurisdiction to make factual findings where the judge is satisfied that a trial is not needed. [38] Whether or not the application judge could have made the findings based on the record before him, he was entitled to determine that it was not appropriate for him to do so on this application. That decision regarding procedure on an application for a declaration also supports the decision not to take jurisdiction, but to defer to the Tax Court which has the full jurisdiction to decide the legal and factual issues put before the court in the context of an income tax appeal. The Tax Court has the expertise to resolve the uncertainty surrounding the appellants’ shareholdings to determine the tax consequences that flow from them, even if it does so by interpreting s. 23(3) only in the context of this specific tax dispute. [39] The third reason the application judge gave to support the justice of his decision to decline to grant a declaration was that if he were to accede to the appellants’ position that shares issued but not paid for are void ab initio , that finding could have unintended consequences regarding the status of transactions and other steps taken by the corporation and its directors before the shares were declared void. [40] This concern must be tempered by s. 17(3) of the OBCA , which provides: 17(3) Despite subsection (2) and subsection 3(2), no act of a corporation including a transfer of property to or by the corporation is invalid by reason only that the act is contrary to its articles, by-laws, a unanimous shareholders agreement or this Act. [41] In light of this section, I do not share the application judge’s concern generally, although it is possible that there could be unforeseen consequences to a retroactive order, if a court were to accept the appellants’ position on nullity. However, because the Tax Court cannot order an amendment to the share register, but can only make a decision on the tax issue, it would not be making an order with retroactive effect on others. Again, that supports the decision to defer to the Tax Court. [42] In my view, the application judge made no error in considering the factors he did — most importantly, that the only dispute is between the appellants and the CRA — in exercising his discretion to decline jurisdiction in favour of the Tax Court. [43] The appellants’ position that they are not seeking a tax determination but solely a declaration interpreting a corporate law statute and an order for rectification, over which the Superior Court has exclusive jurisdiction, may be seen, in effect, as an assertion that in this case the application judge had no discretion to decline jurisdiction. In their factum, they refer to the Superior Court as having “exclusive” jurisdiction over the application. Put another way, their position is that they are entitled to have the Superior Court determine the meaning of s. 23(3) of the OBCA . [44] I would reject that proposition. The appellants are correct that the Superior Court has the exclusive jurisdiction to grant an order under s. 250(1). However, that order would only follow if the declaration were granted, and would not be necessary if the Tax Court accepted that, for tax purposes, the shares were never properly issued and never belonged to the appellants. [45] In circumstances where parties to an action have a dispute that requires the court to interpret the meaning and effect of a statutory provision, the court is not being asked to exercise a discretionary jurisdiction. It is required to answer the questions necessary to decide the dispute. However, where a party seeks a declaration of right, the court will only assume jurisdiction to decide the issue where the nature of the request meets criteria defined in the Rules or in a statutory provision. In such cases, the court has the discretion to decline jurisdiction. This is such a case. [46] I would test it this way: if there were no CRA assessment, and the family members brought an application for a declaration under r. 14(3) for a ruling by the court whether the effect of what occurred was that the issuance of the appellants’ shares was void, but the parties could point to no issue that would turn on the outcome, the court would likely decline jurisdiction for the reason that its ruling would not be necessary to determine the rights of the parties (r. 14(3)(d)). In this case, although the Child Corporations support the appellants, and seek clarification regarding the status of the appellants’ shares, they have corrected the situation for the future, and have pointed to no issue in the past that would turn on the outcome of the declaration. In such circumstances, the parties have not established that a discretionary declaration is warranted in these circumstances. [47] To conclude, in my view, the application judge was entitled to exercise his discretion to decline jurisdiction over the issue raised by the appellants regarding the interpretation of s. 23(3) of the OBCA in favour of the Tax Court, to be considered in the context of a tax appeal of the CRA assessments. (3) Issues 3 and 4: Determining the meaning and effect of s. 23(3) and rectifying the share register under s. 250(1) [48] In light of my conclusion that the application judge made no error by declining jurisdiction to determine these issues, it is neither necessary nor appropriate to address these issues on this appeal. E. Conclusion [49] I would dismiss the appeal. I would order costs to the respondent CRA in the agreed amount of $10,000, including HST and disbursements. Released: November 25, 2021 “K.F.” “ K. Feldman J.A.” “I agree. K. van Rensburg J.A.” “I agree. Sossin J.A.” [1] In Danso-Coffey , the Ontario Minister of Revenue did not object to the court granting the declaration, unlike in this case. See footnote 2 below. [2] Counsel for the CRA confirmed that an order for rectification would be binding on the CRA’s tax assessment. In Dale v. Canada , [1997] 3 F.C. 235, the Federal Court of Appeal held that an order for rectification was “binding on all the world”, including the CRA, despite the fact that the CRA was not a party to the corporate dispute.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. L.C., 2021 ONCA 848 DATE: 20211125 DOCKET: C67671 Strathy C.J.O., Hourigan and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and L.C. Appellant William R. Gilmour, for the appellant David Friesen, for the respondent Heard: November 22, 2021 On appeal from the conviction entered on May 1, 2019, by Justice Erika Chozik of the Superior Court of Justice, sitting without a jury. REASONS FOR DECISION I.        Introduction [1] The appellant was charged with sexual interference and sexual assault. The three complainants, who are sisters, are the nieces of the appellant. They alleged that the appellant committed the sexual offences between 1993 and 2000, when they were each between the ages of four and nine. [2] The trial judge found the appellant guilty of one count of sexual assault and one count of sexual interference. The sexual assault charge was stayed pursuant to the Kienapple principle: Kienapple v. R. , [1975] 1 S.C.R. 729. The trial judge sentenced the appellant to nine months’ imprisonment. [3] In her reasons for judgment, the trial judge focused on the issue of “collusion”. She found that there had been “far more discussion of the details of the allegations” between two of the nieces than either was prepared to admit in their testimony. These discussions gave rise to a “real concern that the similarities of their accounts are the product of collusion, whether conscious or unconscious.” [1] The trial judge was thus unable to find beyond a reasonable doubt that the appellant sexually assaulted or interfered with either of these two nieces. [4] Rejecting the appellant’s evidence as “unreliable and suspect”, the trial judge ultimately convicted the appellant of the offences committed against the third niece. The third niece shared her memories of the appellant’s sexual offences via a text to one of her sisters, before either of her two sisters told her about their experiences with the appellant. Therefore, the trial judge found that the third niece’s memory was not tainted. [5] The appellant appeals his conviction. He does not take issue with any aspect of the trial or with the trial judge’s reasons for judgment. [6] The appellant’s sole ground of appeal is based upon proposed fresh evidence in the form of two affidavits, submitted by his sister, who is the aunt of the three complainants. The appellant argues that the fresh evidence directly contradicts the credibility of the third niece. Accordingly, he seeks a new trial. [7] For the following reasons, we are not persuaded by the appellant’s arguments and refuse to admit the fresh evidence. Consequently, we dismiss the appeal. II.       Proposed Fresh Evidence [8] The appellant’s sister swore two affidavits: one dated October 22, 2019 and the second dated November 21, 2020. In her first affidavit, the appellant’s sister claimed that the third niece had told her that she discussed the appellant’s sexual offences with her two sisters much earlier than the third niece indicated at trial. [9] The facts surrounding the alleged admission of collusion are as follows. The appellant’s sister stated that on May 18, 2017, the day before the appellant was charged, she was working at the family business and observed a meeting between the three nieces and their father. After the meeting, the three nieces and their father left the premises and seemed upset. The appellant’s sister said she called the third niece later that evening to ask if she was all right. The third niece shared that there were “serious allegations about a member of the family” and the appellant’s sister guessed that the member of the family was the appellant. [10] The appellant’s sister swore that she spoke with the third niece again on May 19, 2017. According to the appellant’s sister, the third niece told her that two to three weeks earlier, the three complainants had spent the evening together drinking wine and had discussed the appellant’s sexual offences. Finally, the appellant’s sister said that she did not offer this evidence earlier because she was not aware that collusion between the three sisters was a relevant issue until she read the trial judge’s reasons for decision. [11] In her second affidavit, dated some thirteen months after the first, the appellant’s sister submitted additional evidence, claiming that “we kind of rushed the [first] affidavit” and that the purpose of the second affidavit was to “fill in the blanks”. According to the appellant’s sister, the third niece told her on May 19, 2017 that “she couldn’t remember anything” about the appellant’s sexual offences. The appellant’s sister then asked the third niece “why, if she couldn’t remember anything, she wanted to put [the appellant] in jail”. [12] The appellant argues that his sister’s fresh evidence directly calls into question the third niece’s credibility on a key issue of evidence – that is, the existence of collusion between the third niece and her two sisters. In essence, the appellant submits that the conversation that the three nieces allegedly had over wine, two to three weeks before police charged him, tainted the third niece’s memory. III.      Analysis [13] This court has broad discretion to receive fresh evidence on appeal where “it considers it in the interests of justice”: Criminal Code , R.S.C. 1985, c. C-46, s. 683(1). The Supreme Court of Canada established the test that governs the admission of fresh evidence in Palmer v. The Queen , [1980] 1 S.C.R. 759, at p. 775. This court has since reformulated the Palmer test: R. v. Truscott , 2007 ONCA 575, 225 C.C.C. (3d) 321, at para. 92. The inquiry consists of three questions: 1. Is the evidence admissible under the operative rules of evidence? (admissibility criterion) 2. Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict? (cogency criterion) 3. What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence? (due diligence criterion) [14] The appellant submits the fresh evidence to demonstrate that the third niece, a Crown witness, made a prior inconsistent statement. The respondent concedes that the proposed fresh evidence meets the admissibility criterion. [15] The cogency criterion consists of three prongs: Truscott , at para. 99. In considering cogency, this court asks the following questions: 1. Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial? 2. Is the evidence credible in that it is reasonably capable of belief? 3. Is the evidence sufficiently probative that it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result? [16] As the respondent acknowledges, the adduced evidence is relevant because it bears on the decisive issue of the third niece’s credibility. The trial judge’s finding that the third niece was credible was central to the ultimate conviction of the appellant. [17] In our view, the proposed fresh evidence is not credible for the following reasons. First, the appellant’s sister was less than forthright in her affidavits. During her cross-examination, she declared that she was able to submit her second affidavit over a year after the first affidavit because she had a “very good memory”. Yet she failed, in either affidavit, to mention a text message that she had sent to the three complainants on May 19, 2017, when the three nieces were at the police station. In that text, the appellant’s sister pleaded with the nieces to not “go to the police,” since “putting [the appellant] in jail is not going to change anything and when my mom finds out and if he goes to jail, she will die”. [18] In addition, the appellant’s sister refused to admit the extent of her knowledge of the allegations against the appellant. In cross-examination, she denied that she knew anything about the nature of the complainants’ allegations against the appellant. Yet in her May 19, 2017 text message to the complainants, she seemed to appreciate that the appellant had committed a wrong and might go to jail and suggested that the involved family members seek help from a psychiatrist. [19] Further, despite her professed neutrality, we find that the appellant sister’s evidence was tainted by her evident desire to keep her brother out of jail. During cross-examination, she declared that she still did not believe that the appellant ought to go to jail. She also agreed, when questioned, that she disbelieved the complainants and believed the appellant “without knowing any information”. Clearly, the appellant’s sister was an interested and partial affiant.  For these reasons, we conclude that the appellant has not met his onus to establish that the fresh evidence is credible. [20] Finally on the credibility point, it should be noted that in addition to her testimony on collusion, the appellant’s sister testified in her second affidavit that the third niece stated that she had no memory of the appellant’s sexual offences. It is difficult to believe that the appellant’s sister would not have appreciated the significance of this admission when it was provided to her. The appellant’s sister has offered no credible explanation as to why she did not immediately bring the third niece’s alleged admission to the attention of defence counsel or her brother. [21] In addition, we are also not persuaded that the fresh evidence is sufficiently probative. The key piece of evidence upon which the trial judge relied was the text conversation between the third niece and one of her sisters. In that conversation, the third niece described how the appellant would sit her on his lap and engage in “dry humping”. The trial judge reasonably concluded that the text conversation was the first occasion on which the third niece described her experiences to her sister and that her evidence was untainted by collusion. [22] In contrast, the appellant sister’s claims beggar belief. If her central claim – that the three nieces colluded by discussing the appellant’s sexual offences at a conversation over wine – is taken as true, then the only logical conclusion is that the three complainants anticipated that collusion would become an issue at trial. The third niece would have had to fabricate a narrative in her text conversation with her sister in the hopes that the trial court would see her evidence as reliable and untainted. [23] Such conclusions are implausible, and we see no basis to interfere with the trial judge’s conclusion that the third niece was a credible and reliable witness. Her text conversation with her sister was a critical piece of evidence, and nothing in the appellant sister’s affidavits successfully contradicts that evidence. [24] In conclusion, we refuse to admit the proposed fresh evidence and consequently dismiss the appeal. “G.R. Strathy C.J.O.” “C.W. Hourigan J.A.” “David M. Paciocco J.A.” [1] In R. v. C.G . , 2021 ONCA 809, at paras. 28-32, Nordheimer J.A. explained the analytical difference between “conscious” or “advertent collusion”, on the one hand, and “unconscious” or “inadvertent collusion”, on the other. Specifically, “advertent collusion” is a form of conspiracy between witnesses that undermines their credibility. In contrast, inadvertent collusion caused by innocent exposure to another’s version of events undermines the reliability of a witness’s evidence by confusing their memory. He recommended that since the word “collusion” connotes conspiracy, it is preferable to refer to “inadvertent tainting”.

COURT OF APPEAL FOR ONTARIO CITATION:  R. v. Leduc, 2021 ONCA 843 DATE: 20211125 DOCKET: C62285 Fairburn A.C.J.O., MacPherson and Benotto JJ.A. BETWEEN Her Majesty the Queen Respondent and Marc Leduc Appellant Howard L. Krongold, for the appellant Grace Choi, for the respondent Heard: November 19, 2021 On appeal from the convictions entered by Justice Hugh R. McLean of the Superior Court of Justice, sitting with a jury, on June 2, 2016. REASONS FOR DECISION [1] This is an appeal from two convictions for first-degree murder. The appeal was dismissed with reasons to follow. These are our reasons. [2] Two women were murdered about three years apart. They were vulnerable sex workers who lived and worked in the Ottawa area. The circumstances surrounding the murders were highly similar. Both victims were found dead in areas frequented by the public. Both victims showed signs of significant and similar struggle, resulting in similar injuries to their face and scalp areas. Both victims had foreign objects inserted into their bodies while they were still alive – a plastic bag in one case and a tree branch in the other. Both victims were found with the foreign objects left inside of them. Both victims were found naked from the waist down. Both victims were found with their bras lifted above their breasts. Both victims had suffered fresh injuries to their vaginal and pubic areas. And both victims were asphyxiated by compression to their necks. [3] The appellant’s DNA was found on both women’s bodies. He was charged and tried for both murders in a single trial. Prior to the trial, the appellant brought an application under s. 591(3)(a) of the Criminal Code , R.S.C. 1985, c. C-46, which permits the trial judge to sever the counts where “the interests of justice so require”. The trial judge considered the relevant factors and gave multiple reasons for dismissing the application, the most significant of which was the “striking similarity between the two events”, which made it “likely” that the Crown’s similar act evidence application would be allowed later in the trial: see R. v. Last , 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 18. [4] At trial, the elements of first-degree murder were not in dispute. The only real issue for the jury’s consideration was whether the Crown had proven the appellant’s identity as the killer beyond a reasonable doubt. To help satisfy its burden, the Crown successfully brought a similar act evidence application, permitting the jury to consider the evidence of each woman’s murder across counts. [5] The appellant raises three issues on appeal. Since the appellant maintains that the first two issues are inextricably linked, they will be considered together. [6] First, the appellant argues that the trial judge erred in admitting the similar act evidence across counts. In specific, the trial judge is said to have misunderstood the purpose for admitting the evidence across counts, a misunderstanding that caused him to apply an erroneously diluted standard for admission. Second, and relatedly, the appellant argues that this first error pervaded the pre-trial severance application, which was primarily denied because of the likely success of the later similar act application. [7] The trial judge reasoned that the purpose for admitting the evidence across counts was to rebut the possibility that the defence would suggest to the jury that it was sheer coincidence that the appellant’s DNA was found on both victims’ bodies. The trial judge concluded that the circumstances surrounding the two murders held such “striking similarity” that, considered across counts, the evidence would work to rebut the suggestion of coincidence. [8] The appellant contends that, whether or not the evidence could be characterized as rebutting coincidence, the cross-count evidence was really being tendered to prove the appellant’s identity as the murderer in both cases. By failing to appreciate that the similar act evidence was directed at proving identity, rather than disproving coincidence, the trial judge is said to have failed to apply the correct admissibility test. [9] The appellant further contends that, had the trial judge approached the matter correctly, he would have appreciated – as this court should – that the evidence fell short of the high degree of similarity required when the evidence is admitted across counts to prove identity. [10] We do not agree that the trial judge applied the wrong admissibility test or that the evidence fell short of the required degree of similarity. [11] When similar act evidence is used to prove identity, the law insists upon a particularly high degree of similarity between the acts, one that makes it “likely that they were committed by the same person”: R. v. Arp , [1998] 3 S.C.R. 339, at para. 50. The required degree of similarity has been described differently over the years, including that the acts are “strikingly similar” in nature: R. v. Durant , 2019 ONCA 74, 144 O.R. (3d) 465, at paras. 89, 98. Where the purportedly similar acts meet that standard, “the possibility that the accused would repeatedly be implicated … purely as a matter of coincidence is greatly reduced”: Arp , at para. 43. [12] Regardless of whether the trial judge described the issue in dispute as one of proving identity or disproving coincidence, he found that there was a “striking similarity” between the murders. In the trial judge’s ruling on the pre-trial severance application, he observed that, “consider[ing] all of the evidence, it would appear there is a striking similarity between the two events.” He explained his conclusion in some detail. In particular, he relied on both victims’ autopsy reports and the testimony of one victim’s medical examiner, all of which demonstrated the rarity of strangulation deaths, objects placed in victims’ bodies, and sexually motivated homicides. [13] The trial judge’s view did not change after the Crown’s case had been called and he was asked to rule on the cross-count similar act evidence application. In that ruling, the trial judge considered Arp and adopted his earlier conclusion that the two murders were strikingly similar in nature. [14] While the appellant points to some dissimilarities between the murders, such as where the foreign objects were found within the bodies of the deceased women, it is not for this court to redo the trial judge’s analysis. In light of the many strong similarities canvassed earlier in these reasons, the trial judge’s conclusion was entirely reasonable. His ultimate assessment of the probative value and prejudicial effect of the evidence, and where the balance lay as between them, involved an “exercise of judicial discretion and, correspondingly, significant deference on appellate review”: R. v. Doodnaught , 2017 ONCA 781, 358 C.C.C. (3d) 250, at para. 153, referring to R. v. Shearing , 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73. [15] As for the impugned severance ruling, it was largely based upon the view that the similar act application would “likely” succeed. The appellant does not suggest otherwise. In light of the conclusion we have reached on the similar act ruling, we see no basis to interfere with the trial judge’s severance ruling. [16] Third, the appellant argues that, even if this court finds that the similar act evidence was properly admissible across counts, the jury was incorrectly instructed on how to approach that evidence. The jury was told that they could use the evidence across counts “only for one purpose … to disprove that the two incidents were merely the result of coincidence, but absolutely for no other purpose.” [17] The jury was instructed that, before using the evidence to disprove coincidence, they had to first “make certain findings”, specifically whether there was a “distinct pattern of conduct” by the appellant, in which case they “might find that it defies coincidence.” The trial judge walked the jury through the similarities and differences between the murders. He carefully warned them to avoid improper propensity reasoning. He then reminded the jury that they could only use the evidence to “disprove the possible coincidence” if there was a distinctive pattern of conduct which suggested that the two murders were “similar events.” If the jury was unable to find “such a distinctive pattern of conduct”, they were instructed to “not use the evidence to disprove a coincidence nor for any other purpose.” [18] The appellant argues that this instruction fell short of the mark. It is said to have failed to bring home to the jury that the evidence was available for their consideration to prove the identity of the perpetrator. Given that it was admitted for purposes of identity, the jury should have been instructed that there was only one way in which the evidence from one count could be used to reach a verdict on the other count: if the “way in which the offences charged were committed is so similar that the same person likely committed both (all) of them”: D. Watt, Watt's Manual of Criminal Jury Instructions , 2nd ed. (Toronto: Carswell, 2015), Final 28-B (Evidence of Other Count(s) Similar Acts to Prove Identity of Perpetrator). [19] Respectfully, the difficulty with this submission is that it conflicts with the defence position at trial. The trial Crown asked the trial judge to provide the classic jury instruction on identity as just described, but defence counsel objected. Indeed, defence counsel actively dissuaded the trial judge from giving such an instruction, explaining that it was “not the appropriate charge to give”, and that the jury should be instructed about rebutting “the defence of innocent association [with the murdered women] which is not the same thing as to prove identity.” This position further accorded with defence counsel’s closing address, where the jury was told, “We’ve all seen in our lives how coincidences can and do happen.” Now, on appeal, the appellant says that the very instruction resisted at trial by experienced defence counsel should have been given. [20] Therefore, this is not simply a case where the defence failed to object to a charge. Rather, this is a case where defence counsel asked that a charge not be given, the trial judge acceded to that request, and now, on appeal, the absence of that charge is said to constitute reversible error. In our view, this position cannot succeed. [21] Aside from the fact that the trial judge acceded to the request made by defence counsel, the language emphasizing a “distinctive pattern of conduct” was adequate to the task. [22] In our view, the factual circumstances of this case meant that the jury’s decision would not have turned on a distinction between the wording used (“distinctive pattern of conduct”) and the wording that the appellant now says should have been used (“so similar that the same person likely committed both”). Indeed, in the circumstances of this case, where the appellant’s DNA was found on both victims’ bodies, the “distinctive pattern of conduct” expression may well have inured to the appellant’s benefit. In any event, given the similarities between the murders, there was a distinctive pattern of conduct that demonstrated that they were likely committed by the same person. In these circumstances, the wording utilized in the charge was adequate to the task. [23] The appeal is dismissed. “Fairburn A.C.J.O.” “J.C. MacPherson J.A.” “M.L. Benotto J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: D.C. v. T.B., 2021 ONCA 850 DATE: 20211126 DOCKET: C69736 Roberts and Thorburn JJ.A. and Tzimas J. ( ad hoc ) BETWEEN D.C. Applicant (Appellant) and T.B. Respondent (Respondent) Michael J. Stangarone and Aria MacEachern, for the appellant Christina Doris and Jessica Luscombe, for the respondent Heard and released orally: November 22, 2021 On appeal from the order of Justice Clayton Conlan of the Superior Court of Justice, dated April 30, 2021. REASONS FOR DECISION [1] The appellant mother appeals from the final order of the trial judge granting the respondent father sole custody/decision making responsibility with respect to their child, R., who is 12 years old. The order also temporarily suspended any contact between R. and the appellant or members of the appellant’s family. This order was made following a six-day trial of the respondent’s motion to change the final order of Gibson J. dated November 9, 2016. Under the latter order, R. resided primarily with the appellant. [2] The appellant submits that the trial judge made several reversible errors. First, he misapplied the best interests of the child test, particularly in the absence of expert evidence, by making the order he did and failing to consider less draconian options. Further, the appellant argues, the trial judge failed to give adequate weight to R.’s views and preferences, and he misapprehended and failed to give appropriate weight to evidence, specifically, that the appellant attempted to facilitate the relationship between R. and the respondent. [3] We see no merit in any of these submissions. [4] This was a very difficult case of parental alienation. In his lengthy and sensitively written reasons, the trial judge painstakingly reviewed the evidence and the parties’ arguments. He began and ended his reasons with the same focus, namely, that the most important person in this case is R. His analysis was centred entirely on her best interests. Given the trial judge’s finding of the appellant engaging in parental alienation and manipulation of R., it would not have been particularly useful to ascertain R.’s views and preferences by way of a further assessment or having her testify. [5] The trial judge’s conclusion that the appellant has alienated R. from her father and “has consistently and for many years now engaged in conduct that amounts to parental alienation” is, as the trial judge stated, “well-grounded in the trial evidence”, and detailed by the trial judge in his reasons, see, for example, at paragraph 163. His thorough reasons can leave no doubt as to the clear basis for his decision. In our view, expert evidence was not required to permit the trial judge to come to his determination of parental alienation based on the evidence that he heard and accepted at trial. We see no error in the trial judge’s treatment of Dr. Fidler’s evidence which was appropriate in the context of all the evidence. [6] There is no question that the final order under appeal changes the status quo and that the trial judge was alert to the fact that the order would represent a drastic change. But the trial judge’s reasoning for doing so appropriately followed the court’s guidance in A.A. v. S.N.A. , 2007 BCCA 363, 243 B.C.A.C. 301, and A.M. v. C.H. , 2019 ONCA 764, 32 R.F.L. (8th) 1, and is unassailable. As he stated, at para. 185 of his reasons: Given this Court's findings, in particular that T. has never abused R. in any way, and that he has never been violent with D. as alleged by her, and that he once had a better relationship with R., and that D. has engaged in a consistent and long-term pattern of conduct that has alienated the child from her father, I have concluded that to maintain the status quo would be an error. I cannot focus too much on the short-term effects on the child that would result from a drastic change in "custody", and therefore keep the child with the parent who has been responsible for the manipulation. [7] The trial judge’s order also provides for therapy for R. and other means to assist with the transition. It must also be kept in mind that the non-communication order is temporary and will be revisited on November 25, 2021. [8] The trial judge’s final order depended heavily on his assessment of the evidence and the credibility and reliability of the parties and the other witnesses. The appellant is dissatisfied with the trial judge’s findings, particularly those adverse to her credibility, and asks this court to reweigh the evidence and revisit those findings. That is not this court’s task. We have not seen any error that would permit appellate intervention. [9] The appellant seeks leave to appeal the $175,000 costs award against her on the basis that she was motivated by the best interests of her daughter and that the amount of $80,000 would have been appropriate. We do not see any error in the trial judge’s costs award that would warrant leave being granted. An award of costs is highly discretionary. While the amount of the award is high, it is supported by the trial judge’s findings in this very difficult case. [10] Accordingly, the appeal is dismissed. [11] As agreed, the appellant shall pay the respondent costs of the appeal in the amount of $15,000, inclusive of disbursements and applicable taxes. “L.B. Roberts J.A.” “J.A. Thorburn J.A.” “E. Ria Tzimas, J. (Ad Hoc)”

COURT OF APPEAL FOR ONTARIO CITATION: Ottawa (City) v. ClubLink Corporation ULC, 2021 ONCA 847 DATE: 20211126 DOCKET: C69176 Juriansz, Tulloch and Roberts JJ.A. BETWEEN City of Ottawa Applicant (Respondent on Appeal) and ClubLink Corporation ULC Respondent (Appellant) and Kanata Greenspace Protection Coalition Intervener Matthew P. Gottlieb, James Renihan, Mark R. Flowers and John Carlo Mastrangelo, for the appellant Kirsten Crain, Emma Blanchard, Kara Takagi and Tamara Boro, for the respondent Heard: June 17, 2021 by video conference On appeal from the judgment of Justice Marc R. Labrosse of the Superior Court of Justice, dated February 19, 2021, with reasons reported at 2021 ONSC 1298. L.B. Roberts J.A.: A. Overview [1] This appeal involves the application of the rule against perpetuities. At its core, this appeal turns on whether the contractual terms in issue create an interest in land or a mere contractual right to acquire property. [2] The rule against perpetuities is not controversial. Of ancient origin, the rule arises out of the public policy against the fettering of real property with future interests dependent upon unduly remote contingencies. It applies to extinguish an interest in land if the interest does not vest within 21 years. The rule does not apply to a contractual right that does not create an interest in land. It serves only to invalidate contingent interests in land that vest too remotely. See: Canadian Long Island Petroleums Ltd. et al. v. Irving Industries Ltd. , [1975] 2 S.C.R. 715, at pp. 726-27, 732-33; 2123201 Ontario Inc. v. Israel Estate , 2016 ONCA 409, 130 O.R. (3d) 641 at para. 20; London and South Western Railway Co. v. Gomm (1882), 20 CH. D. 562 (C.A.), at pp. 580-82. [3] In January 1997, the appellant, ClubLink Corporation ULC (“ClubLink”), acquired property subject to various historical land development agreements affecting its use, which were made in 1981, 1985, and 1988 between Campeau Corporation (“Campeau”) and the former City of Kanata (“Kanata”) (“the Agreements”). ClubLink assumed the former owners’ rights and obligations under the Agreements (“the Assumption Agreement”). In issue are the provisions contained in ss. 5(4) and 9 of the agreement entered into on May 26, 1981 (“the 1981 Agreement”) that: Campeau, or its successors and assigns, must operate a golf course on the property in perpetuity (“the golf course lands”), failing which, the golf course lands are to be conveyed at no cost to Kanata, now part of the respondent, the City of Ottawa (“the City”); and, if the golf course lands are conveyed, the City is obliged to continue using the golf course lands for recreation or natural environmental purposes, failing which, they are to be reconveyed to Campeau. [4] ClubLink has operated the golf course for over 24 years. Due to declining membership, ClubLink started exploring the possibility of developing the golf course lands for residential and open space purposes. To that end, in October 2019, ClubLink submitted planning applications for a zoning by-law amendment and approval of a plan of subdivision and publicly accessible green space on the golf course lands. [5] The City brought an application for an order requiring ClubLink to withdraw its applications; alternatively, it claimed that ClubLink’s applications triggered its right to demand conveyance of the golf course lands and it sought conveyance of the golf course lands to the City at no cost. The City requested a declaration that ClubLink’s obligations remain valid and enforceable. It also sought a declaration that if the golf course lands were conveyed to the City, the City would not be required to reconvey the golf course lands if it ceased to operate them as a golf course, so long as it used the golf course lands for recreation and natural environmental purposes. [6] ClubLink resisted the City’s application because the City’s right to call on a conveyance had not vested within the 21 years following the 1981 Agreement. Therefore, ClubLink argues, the provisions requiring the operation of a golf course in perpetuity are void as contrary to the rule against perpetuities. [7] The application judge interpreted the 1981 Agreement and allowed the City’s application in part. Importantly, he determined that the parties did not intend to create an interest in land because they never intended for the conveyances to materialize. He declared that the 1981 Agreement continues to be a valid and binding contract and that ClubLink’s obligations remain enforceable. ClubLink is therefore required to operate the golf course in perpetuity or convey the golf course lands to the City if it ceases to do so. However, he declared that in the event the golf course lands were conveyed to the City, the City is not required to operate the golf course in perpetuity so long as it uses the lands for recreation and natural environmental purposes. The application judge dismissed the City’s application for an order requiring ClubLink to withdraw its zoning bylaw amendment and plan of subdivision applications or alternatively to offer to convey the golf course lands to the City at no cost. Issues and the Parties’ Positions [8] ClubLink submits that the application judge made several reversible errors. In my view, ClubLink’s first argument that the application judge erred in finding that ss. 5(4) and 9 of the 1981 Agreement are not void for perpetuities disposes of the appeal. It is therefore not necessary to consider the other issues. [9] ClubLink submits that in determining whether the parties to the 1981 Agreement intended to create a contingent interest in land, the application judge made extricable errors of law. It argues the application judge erred in three principal ways. First, he did not correctly consider the parties’ intentions as set out in ss. 5(4) and 9 of the 1981 Agreement. Second, he did not interpret the 1981 Agreement in light of the agreement dated December 20, 1988 (“the December 20, 1988 Agreement”), which expressly states that the 1981 Agreement runs with the land. Third, he did not apply binding jurisprudence that suggests control over exercise of the option and the expectation that the contingent interest holder will acquire the land are not determinative of whether the parties intended to create an interest in land. [10] The City submits that the application judge made no reversible errors in his analysis: he properly focused on the parties’ intentions, considering “control” over the conveyance as only one factor, and correctly determined that the intent of the 1981 Agreement was to ensure that 40% of the parcel of land that the original owner wished to develop would be set aside in perpetuity as open space for recreation and natural environmental purposes (“the 40% principle”). Further, while he referred to subsequent agreements, he correctly identified the limits of using post-contractual conduct in contractual interpretation. As a result, the City argues, the application judge correctly found ss. 5(4) and 9 serve as mere contractual mechanisms for safeguarding the 40% principle and do not create interests in land. [11] For the reasons that follow, I agree with ClubLink that the application judge erred in his analysis of ss. 5(4) and 9 of the 1981 Agreement. Specifically, the application judge erred in his determination that because the parties never intended the rights to the conveyances to “crystallize”, there was no intention to create an interest in land. In my view, when the correct legal principles are applied, in the context of all the Agreements, the plain language of ss. 5(4) and 9 creates a contingent interest in land. Sections 5(4) and 9 are therefore void and unenforceable as being contrary to the rule against perpetuities because the City’s right to call upon a conveyance of the golf course lands did not vest during the perpetuity period. I would therefore allow the appeal. B. Analysis [12] This case is about contractual interpretation and the application of the rule against perpetuities. As such, the application judge was required to consider the factual matrix to “deepen [his] understanding of the mutual and objective intentions of the parties as expressed in the words of the contract”: Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 57. [13] Accordingly, I start my review of the application judge’s decision with a summary of the factual matrix that the application judge considered and that is not in dispute. I shall then analyze the application judge’s decision in light of the determinative issues on this appeal. (i) The Agreements and Factual Matrix [14] In 1981, Campeau applied to the then Regional Municipality of Ottawa-Carleton (“the Region”) to amend its Official Plan to permit the development of a property described as the “Marchwood Lakeside Community” in Kanata. Campeau proposed to designate approximately 40% of the development area as recreation and open space. [15] To that end, Campeau and Kanata entered into the 1981 Agreement, which was registered on title to the property under development. The key provisions respecting the uses that can be made of the property for the purpose of this appeal are contained in ss. 3, 5, and 9. [16] Section 3 sets out the provisions enshrining the 40% principle and the particular uses that can be made of the open space areas, as follows: 3. Campeau hereby confirms the principle stated in its proposal that approximately forty (40%) percent of the total development area of the ‘Marchwood Lakeside Community’ shall be left as open space for recreation and natural environmental purposes which areas consist of the following: (a) the proposed 18-hole golf course (b) the storm water management area (c) the natural environmental areas (d) lands to be dedicated for park purposes. [Emphasis added.] [17] Under the title, “Methods of Protection”, s. 5 prescribes the use in perpetuity of the land to be provided for the golf course: 5. (1) Campeau covenants and agrees that the land to be provided for the golf course shall be determined in a manner mutually satisfactory to the parties and subject to sub-paragraphs 2 and 3 shall be operated by Campeau as a golf course in perpetuity provided that Campeau shall at all times be permitted to assign the management of the golf course without prior approval of Kanata. (2) Notwithstanding sub-paragraph (1), Campeau may sell the golf course (including lands and buildings) provided the new owners enter into an agreement with Kanata providing for the operation of the golf course in perpetuity , upon the same terms and conditions as contained herein . (3) In the event Campeau has received an offer for sale of the golf course it shall give Kanata the right of first refusal on the same terms and conditions as the offer for a period of twenty-one (21) days. (4) In the event that Campeau desires to discontinue the operation of the golf course and it can find no other persons to acquire or operate it, then it shall convey the golf course (including lands and buildings) to Kanata at no cost and if Kanata accepts the conveyance, Kanata shall operate or cause to be operated the land as a golf course subject to the provisions of paragraph 9 . (5) In the event Kanata will not accept the conveyance of the golf course as provided for in sub-paragraph (4) above then Campeau shall have the right to apply for development of the golf course lands in accordance with The Planning Act, notwithstanding anything to the contrary contained in this agreement. [Emphasis added.] [18] Section 9 provides for the circumstances under which Kanata would be required to reconvey the land to Campeau at no cost: 9. In the event that any of the land set aside for open space for recreation and natural environmental purposes ceases to be used for recreation and natural environmental purposes by Kanata then the owner of the land, if it is Kanata, shall reconvey it to Campeau at no cost unless the land was conveyed to Kanata as in accordance with Section 33(5)(a) or 35b [ sic ] of The Planning Act. [Emphasis added.] [19] Sections 4 and 10 expressly contemplate that further agreements concerning specific open space areas may be required to designate the golf course lands and to implement the agreed upon 40% principle. [20] Section 12 stipulates that the 1981 Agreement “shall be registered against the lands”. [21] By agreements dated June 10, 1985 and December 29, 1988, both of which were registered on title, Campeau and Kanata defined the improvements and, in particular, the size, precise location, and required safety measures for the golf course. Both agreements contain provisions providing that the agreement shall extend to, be binding upon and enure to the benefit of Campeau and Kanata and their successors and assigns. [22] Finally, in the December 20, 1988 Agreement, which was registered on title, Campeau and Kanata amended the 1981 Agreement to provide that the 1981 and December 20, 1988 Agreements would apply only to the “Current Lands” as designated in the Schedules to the December 20, 1988 Agreement, including the golf course lands. [23] Section 7 of the December 20, 1988 Agreement stipulates that the 1981 and 1988 Agreements “ shall enure to the benefit of and be binding upon the respective successors and assigns of Campeau and the City and shall run with and bind the Current Lands for the benefit of the Kanata Marchwood Lakeside Community” (emphasis added). [24] On March 30, 1989, Campeau transferred the land to Genstar Development Company Eastern Ltd. (“Genstar”). Genstar assumed all of Campeau’s rights and obligations under the Agreements. [25] Genstar, which later amalgamated with Imasco Enterprises Inc., and ClubLink entered into an asset purchase agreement dated August 6, 1996 by which, among other things, ClubLink agreed to purchase the golf course lands. On January 8, 1997, Imasco transferred the property to ClubLink. [26] Under s. 3 of the Assumption Agreement, dated November 1, 1996, ClubLink agreed that all of its predecessors’ assumed liabilities and obligations under the Agreements would “apply to and bind [ClubLink] in the same manner and to the same effect as if [ClubLink] had executed the same in the place and stead of Campeau or Imasco.” [27] Section 11 of the Assumption Agreement stipulates as follows: The parties to this Agreement acknowledge and agree that nothing in this Agreement alters the manner in which approximately 40% of the total development area of the “Marchwood Lakeside Community” is to be left as open space for recreation and natural environmental purposes (the “Open Space Lands”) as referred to in Section 3 of the 1981 Agreement , so that the calculation of the Open Space Lands will continue to include the area of the Golf Course Lands including, without limitation, any area occupied by any building or other facility ancillary to the golf course and country club located now or in the future on the Golf Course Lands. If the use of the Golf Course Lands as a golf course or otherwise as Open Space Lands is, with the agreement of the City, terminated, then for determining the above 40% requirement, the Golf Course Lands shall be deemed to be and remain Open Space Lands. [Emphasis added.] [28] On January 1, 2001, by operation of the City of Ottawa Act, 1999 , S.O. 1999, c. 14, Sched. E, twelve municipalities, including Kanata and the Region, were dissolved and the City of Ottawa was constituted. As a result, the City stands in the place of Kanata. All of Kanata’s assets and liabilities, including all rights, interests, entitlements, and contractual benefits and obligations under the Agreements and the Assumption Agreement, became the assets and liabilities of the City: City of Ottawa Act , s. 5(3)(b). (ii) Interpretation of the 1981 Agreement Standard of Review [29] It is common ground that the application judge’s interpretation of the Agreements attracts a deferential standard of appellate review: Sattva, at paras . 50-52 . Contractual interpretation is a question of mixed fact and law requiring the application of principles of contractual interpretation to the words of a contract and its factual matrix: Sattva , at para. 50. Absent an extricable question of law, which courts should be cautious in identifying, or palpable and overriding error, appellate intervention is not warranted: Sattva , at paras. 53-54. [30] An extricable question of law includes a legal error made in the course of contractual interpretation such as the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor: Sattva , at para. 53. [31] Respectfully, I am of the view that the application judge made an extricable error of law in his interpretation of ss. 5(4) and 9 of the 1981 Agreement. As I shall explain, it was an extricable error of law to conclude that contracting parties must intend a contingent interest in land to materialize in order to create a contingent interest in land. The Application Judge’s Interpretation of the 1981 Agreement [32] According to the application judge, ss. 5(4) and 9 were intended only as “off ramps” that served as “safeguards which preserve the true intent of maintaining the 40% principle”. The “true intent of the 1981 Agreement”, according to the application judge, “does not involve Kanata ever becoming the owner of the Golf Course (lands and buildings).” The application judge explained that, as the parties never expected, nor intended for, the interest in land to “crystallize”, they had no intention to create an interest in land. Sections 5(4) and 9 were mere contractual provisions. The application judge summarized his conclusions at para. 104 of his reasons, as follows: • Section 5(4) was not intended to allow for Kanata to eventually own and operate the Golf Course. This section created nothing more than an “ off-ramp” to ensure that the true intention of the 1981 Agreement – to maintain 40% open space within the Campeau Lands through the use of a golf course – was carried out; • Section 9 also was not intended to create an interest for Campeau to regain possession of the lands no longer used for open space. The intent is to provide an alternative should Kanata no longer use the land for open space. It is to allow for an alternate use of the land should Kanata change the anticipated use. • Both ss. 5(4) and 9 create contractual rights that may or may never crystallize. The question is not when the ownership changes but if the ownership changes; • Support for this conclusion is also found in (a) the absence of any control given to Kanata to trigger the conveyance of the Golf Course Lands, and (b) the absence of any control to Campeau to trigger the reconveyance of open space lands…. [Emphasis in original.] [33] Respectfully, the application judge erred in using the expectation that a contingency would materialize as a factor to distinguish between an intent to create an interest in land and a contractual right. As earlier noted, the rule against perpetuities applies only to contingent interests in land that vest too remotely. Whether the contingent interest in ss. 5(4) and 9 was intended to materialize is not the question; it is the nature of all contingent interests that they may never materialize. Moreover, the lack of control over the triggering of the conveyances does no more here than emphasize the contingent nature of the interests in issue. [34] The governing case law establishes that a contingent interest in land can be created without the intention that it will one day “crystallize” and that control over the triggering event is not determinative. [35] In City of Halifax v. Vaughan Construction Company Ltd. and the Queen , [1961] S.C.R. 715, Weinblatt v. Kitchener (City) , [1969] S.C.R. 157, [1] and Jain v. Nepean (City) (1992), 9 O.R. (3d) 11 (C.A.), leave to appeal refused, [1992] S.C.C.A. No. 473 , three decisions that are factually similar to the present case, the courts found an interest in land even though there was no expectation that the interest would “crystallize”. Like here, the contractual provisions in issue allowed the municipalities to control development and were not intended to ensure the land would one day be conveyed to the municipalities. In all three cases, the conveyance of the properties to the municipalities was contingent on the owners failing to fulfil their core contractual obligations. As here, the owners’ default, which triggered the right to conveyance, was not in the interest holders’ control. While the rule against perpetuities was not found to be infringed in these cases, they establish that an expectation that the interest will “crystallize” is not required to create an interest in land. [36] In Halifax , the Supreme Court interpreted an agreement between the City of Halifax and the Maritime Telegraph and Telephone Company. The latter made certain covenants, which were later assumed by Vaughan Construction Company Limited upon purchasing the property, to either build within a reasonable time or reconvey the property for a specific sum if it decided not to build. The deed provided that the covenant would run with the lands until the construction of the building. The court affirmed that the City of Halifax held an equitable interest even though it was not the holder of an option that it could exercise at any time. Importantly, the court held that Vaughan had no uncontrolled right to determine whether it would reconvey; unless it complied with the building covenants within a reasonable time, the City of Halifax could have enforced a reconveyance. Therefore, the City of Halifax had an interest in the land because the construction company could not prevent the exercise of the City of Halifax’s right under the covenant by doing nothing; they had to build the building or reconvey the property. [37] Similarly, in Weinblatt , the parties entered into an agreement that provided for the reconveyance of property to the City of Kitchener for the purchase price if the purchaser failed to commence construction of a seven-story building within a specified period. The builder applied to construct a two-story building instead but was refused. Weinblatt then purchased the property from the builder but his proposal to erect a building was also not in conformity with the agreement and was likewise rejected. The City of Kitchener’s claim for reconveyance of the property was successful. The court held that the City of Kitchener had a contingent interest in property that ran with the land because the covenant provided that Weinblatt had to meet the building conditions under the agreement or reconvey the property. [38] Finally, this court’s decision in Jain is apposite. In issue was the interpretation of a contract that contained a condition, which was included in the deed, designed to ensure development: the City of Nepean would be entitled to repurchase the property for a particular amount if Jain did not start constructing a building of a specific size within 12 months of registration of the transfer. The court found the City of Nepean had an equitable interest in the land that always existed even though the right of reconveyance was contingent on the default of the development conditions. In this case, the mortgagee took its interest with notice of the City’s equitable interest in the property. [39] The application judge adverted to Halifax , Weinblatt , and Jain in his review of relevant case law but only as examples of “[t]he more traditional circumstances where a right to repurchase has been found to create a contingent interest in land”. These decisions, in which the circumstances are almost identical to those of the present case, found an interest in land arose notwithstanding the absence of an expectation that the right to the reconveyance would crystallize and the lack of the municipalities’ control over triggering the reconveyance. The trial judge’s conclusion that there was no contingent interest in land because there was no expectation the right to the reconveyance would crystallize constitutes an error of law: Deslaurier Custom Cabinets Inc. v. 1728106 Ontario Inc. , 2016 ONCA 246, 130 O.R. (3d) 418, at para. 41, aff’d 2017 ONCA 293, 135 O.R. (3d) 241, leave to appeal to refused, [2016] S.C.C.A. No. 249. [40] The City submits that Halifax , Weinblatt , and Jain are distinguishable from the present appeal because all three cases involve provisions for a re - conveyance of property to the original vendor. The argument follows that since Kanata never owned the golf course lands, this is not the case of a landowner who is controlling the use of their land after they have sold it. I disagree that this factual difference distinguishes these cases. Whether the municipalities were the original vendors does not change the nature of the right: the municipalities were able to control development of the land through a covenant that ran with the land. The contingent interest fettered the land by controlling development, regardless of whether the interest holder was a former owner. [41] The application judge applied the Superior Court decision in Loyalist (Township) v. The Fairfield-Gutzeit Society , 2019 ONSC 2203, relied on by the City, for the proposition that no interest in land arises where there is no expectation that the right to repurchase will crystallize. He determined that the court in Loyalist (Township) used this factor to distinguish this court’s decision in 2123201 , put forward by ClubLink. In 2123201 , this court concluded that an option to repurchase was an equitable interest in land; the court in Loyalist (Township) characterized the right to repurchase as a contractual right. The application judge explained at para. 72 of his reasons that in 2123201 , “there was an expectation that the option to repurchase would crystallize at some point (i.e., once the gravel was removed)”; whereas, in Loyalist (Township) , there was no such expectation: “the right to repurchase arose only if the Society wished to dispose of its interest to an organization that had different objectives from those of the Society … [t]hus, there was no expectation that the right to repurchase would crystallize”. As a result, the application judge reasoned that the 1981 Agreement was similar to the agreement in Loyalist (Township) and distinguishable from the agreement in 2123201 because Kanata did not expect its right to call for a conveyance of the golf course lands would “crystallize”. [42] As I earlier explained, a contingent interest in land may never materialize. Moreover, I do not read Loyalist (Township) as standing for the proposition relied upon by the application judge: the expectation that a contingent interest would materialize was simply “[a] distinguishing feature” noted by the court in Loyalist (Township) between that case and 2123201 , and not a determining factor in the court’s analysis: at para. 35. Notably, the court in Loyalist (Township) made no reference to Halifax , Weinblatt , and Jain . Moreover, the court’s determination in Loyalist (Township) that the right in question was a contractual right and not an interest in land flowed from the court’s conclusion that the agreement creating the right did not purport “to impose rights that would attach to the land”: at para. 36. [43] The court’s reasoning in Loyalist (Township) reflects the well-established distinction that a contingent interest in land differs from a mere contractual right insofar as the agreement giving rise to the rights purports to attach the rights to the land, such as the right to call for a conveyance, which affect the landowner’s rights to freely use, manage, develop or dispose of its property: Gomm , at pp. 580-82; Loyalist (Township) , at para. 36.; Manchester Ship Canada Company v. Manchester Racecourse Company , [1901] 2 Ch. 37 (C.A.), at pp. 50-51. [44] A return to the public policy underpinning the rule against perpetuities further assists in distinguishing between a contingent interest in land and a mere contractual interest. The public policy attempts to prevent “the grasp of the dead hand to be kept on the hand of the living” in the form of restrictions on the subsequent landowner’s ability to use or dispose of its property that run with the land: Thomas Edward Scrutton, Land in Fetters , (Cambridge: Cambridge University Press, 1896), at p. 108; Canadian Long Island Petroleums, at pp. 726-27. As stated in Weber v. Texas Co. , 83 F.2d 807 (5th Cir. 1936), at p. 808, and affirmed by the Supreme Court in Canadian Long Island Petroleums , at p. 732: The rule against perpetuities springs from considerations of public policy. The underlying reason for and purpose of the rule is to avoid fettering real property with future interests dependent upon contingencies unduly remote which isolate the property and exclude it from commerce and development for long periods of time, thus working an indirect restraint upon alienation, which is regarded at common law as a public evil. [45] In consequence, a contingent interest in land “fetters” real property, excluding it from “commerce and development” and working “an indirect restraint upon alienation”. It is this “public evil” that the rule against perpetuities targets by imposing a 21-year limitation. A mere contractual right is “within neither the purpose of nor the reason for the rule” because it does not forestall or “restrain free alienation” and is therefore not objectionable: Weber , at p. 808; Canadian Long Island Petroleums , at pp. 732-733. [46] As there were extricable errors of law in the application judge’s construction of the contractual provisions of the 1981 Agreement, his decision is not entitled to deference and must be set aside: Sattva , at para. 53 . [47] I shall now consider afresh the contractual provisions in issue. The parties intended to create contingent interests in land [48] As I shall explain, I am of the view that the parties intended by ss. 5(4) and 9 of the 1981 Agreement to create contingent interests in the golf course lands. [49] The dispute centres on the characterization of the provisions for the conveyance of the property, ss. 5(4) and 9, either as creating contingent interests in land or contractual rights. It is common ground that if the conveyance provisions create an interest in land, the rule against perpetuities applies and the provisions are void because the conveyance did not occur within the 21-year perpetuity period. Alternatively, if they give rise to a contractual right, the rule against perpetuities does not apply and, subject to the other issues raised on this appeal, the provisions remain valid and enforceable. [50] Contractual provisions do not always fit neatly within the common dichotomy, which is found in many of the perpetuity cases, of an option to purchase that creates a contingent interest in land and a right of first refusal that does not. Accordingly, the fact that the language in s. 5(4) (or s. 9) of the 1981 Agreement may not be typical of the language used to define an option to purchase, as the application judge noted, is not determinative. [51] This classification difficulty was recognized in 2123201 . Rather than attempting to impose a rigid classification scheme, this court clarified in 2123201 , at paras. 38 to 41, that the issue is one of basic contract interpretation to determine the true intent of the parties at the time the agreement is made. As such, the analysis should focus on whether the parties intended to create an interest in land or a mere contractual right. The indicia of that intention include the purpose and terms of the agreement and the context in which it was made: 2123201 , at paras. 38-43. [52] As the application judge rightly stated, the basic rules of contract interpretation require the determination of the intention of the parties in accordance with the ordinary and grammatical words they have used, in the context of the entire agreement and the factual matrix known to the parties at the time of the formation of the contract, and in a fashion that corresponds with sound commercial principles and good business sense: Weyerhaeuser Company Limited v. Ontario (Attorney General) , 2017 ONCA 1007, 77 B.L.R. (5th) 175, at para. 65, rev’d on other grounds, Resolute FP Canada Inc. v. Ontario (Attorney General) , 2019 SCC 60, 444 D.L.R. (4th) 77. [53] Here, to ascertain the parties’ intentions, it is necessary to read all the Agreements. The City submits that the December 20, 1988 Agreement was concluded at a different time and for a different purpose. However, the subsequent agreements were expressly contemplated in the 1981 Agreement and the four agreements, read together, give effect to the parties’ intentions. Moreover, ClubLink assumed the rights and obligations of its predecessors not simply under the 1981 Agreement but under all the Agreements. [54] As a result, the related contracts principle is also engaged in the interpretative process here. Under the related contracts principle, where more than one contract is entered into as part of an overall transaction, the contracts must be read in light of each other to achieve interpretive accuracy and give effect to the parties’ intentions: 3869130 Canada Inc. v. I.C.B. Distribution Inc. , 2008 ONCA 396, 239 O.A.C. 137, at paras. 33-34; Salah v. Timothy’s Coffees of the World Inc. , 2010 ONCA 673, 268 O.A.C. 279, at para. 16; Fuller v. Aphria Inc. , 2020 ONCA 403, 4 B.L.R. (6th) 161 , at para. 41, 51; Catalyst Capital Group Inc. v. Dundee Kilmer Developments Limited Partnership , 2020 ONCA 272, 150 O.R. (3d) 449, at para. 50. [55] I start with the overall purpose and nature of the Agreements. [56] The Agreements formed a development contract that allowed Campeau to develop its own land but subject to certain limits to further the City’s public policies, most notably, the 40% principle. [57] There is no question that the 40% principle was an important contractual feature that allowed Campeau to advance the development of property and further the City’s public policies. The City wanted to ensure that 40% of the property to be developed would remain as open space to be used in certain ways. One of the ways was the operation in perpetuity of a golf course. That said, the 40% principle, by itself, does not determine the issue of whether the parties intended to give Kanata (and its successors and assigns) an interest in land or a contractual right to protect the 40% principle. [58] In my opinion, when the Agreements are read and interpreted as a whole, and in the context of the factual matrix, the provisions in ss. 5(4) and 9 were intended to restrict or “fetter” the use that could be made of 40% of the property in order to further the City’s open space development policy. As such, I see the rights created by the Agreements as indistinguishable in substance and effect from the contingent property interests created in Halifax , Weinblatt , and Jain , earlier reviewed, where restrictions were used to control development. [59] In Halifax , Weinblatt , and Jain , the municipal right holder did not hold an option that it could exercise at any time and the right to the conveyance only arose if the landowner did not develop or use the lands according to the agreements. Once the triggering event occurred, for example development did not commence within the agreed upon time, the landowners were obligated to reconvey the properties to the holder of the right. The juridical nature of this right of conveyance was determined to be an interest in land. [60] The rights in issue in the present case are indistinguishable. As in Halifax , Weinblatt , and Jain , the Agreements here impose rights that expressly run with the land and were registered on title. The conveyance to the City would occur only if and when Campeau or its successors and assigns ceased to use the land as a golf course and could not find someone to take over its operation. Other than determining whether to use the land as a golf course, Campeau had no discretion over the conveyance. If it chose to stop using it as a golf course and could not find someone to continue this use, then it had to convey the property to the City. The automatic transfer of ownership triggered by the contingency of a future event creates a contingent property interest. [61] The conveyance provisions under ss. 5(4) and 9 of the 1981 Agreement fall squarely within the public policy purpose of the rule against perpetuities, namely, to prevent contingent property interests from vesting too remotely. The conveyance provisions purport to control in perpetuity the use that can be made of the golf course lands: if the owner ceases to use the golf course lands as a golf course, the lands will be conveyed to the City. [62] The parties’ intention to create an interest in land also manifests in the plain and explicit language of the Agreements. According to the “cardinal presumption” of contract interpretation, the parties intended what they wrote: Weyerhaeuser , at para. 65. For example: i. The 1981 Agreement uses clear conveyance language with respect to the contingent interests created under s. 5(4) (“convey” and “conveyance”) and s. 9 (“reconvey” and “conveyed”). I contrast this conveyance language with the contractual “right of first refusal” that appears in s. 5(3). ii. Section 12 of the 1981 Agreement stipulates that the Agreement shall be registered on the title to the entire property, including the golf course lands. All four Agreements were registered on the title to the property. iii. Section 7 of the December 20, 1988 Agreement expressly states that the 1981 and 1988 Agreements “shall enure to the benefit of and be binding upon the respective successors and assigns of Campeau and the City and shall run with and bind the Current Lands for the benefit of the Kanata Marchwood Lakeside Community” (emphasis added). [63] While each of these examples taken in isolation may not be determinative, I view them, together with the factors that I have just reviewed, as demonstrating the parties’ intention to create contingent interests in land. Similarly, I read the requirement under s. 5(2) that subsequent owners must contractually assume the obligations under the Agreements, as simply a mechanism to ensure compliance. It does not, by itself, derogate from the parties’ intention to create contingent interests in land as provided for in ss. 5(4) and 9 of the 1981 Agreement. [64] In summary, the parties intended by the clear language and purpose of their Agreements to create contingent interests in the golf course lands under ss. 5(4) and 9 of the 1981 Agreement that ran with and fettered the land: under s. 5(4) of the 1981 Agreement, the City’s interest in the golf course lands was contingent on Campeau (or its successor or assign in title) ceasing to operate the golf course; and under s. 9, the reconveyance was contingent on, first, the conveyance under s. 5(4), and, second, the City ceasing to use the lands as prescribed. [65] The owners have operated the golf course for more than 21 years. Neither the City’s right to a conveyance nor ClubLink’s right to a reconveyance have vested within the perpetuity period. As a result, these contingent interests in the golf course lands are now void. Is all or part of the 1981 Agreement void? [66] ClubLink renews here the argument that if the rule against perpetuities applies, then ss. 5(4) and 9 cannot be severed from the 1981 Agreement and all or part of the 1981 Agreement fails. As noted in para. 146 of his reasons, the application judge did not consider this issue given his conclusion that the 1981 Agreement continues to be valid and enforceable. [67] ClubLink argues that ss. 5(4) and 9 are integral to the 1981 Agreement and that severing ss. 5(4) and 9 from the balance of the contract fundamentally changes the 1981 Agreement with the result that ClubLink would be saddled with a perpetual obligation to run a golf course (or find a buyer willing to do the same) with no escape mechanism. According to ClubLink, there is no evidence the parties would have agreed to this bargain. ClubLink submits that severance is therefore inappropriate and, as a result, the appropriate remedy is to void the 1981 Agreement in whole, or, alternatively, all the provisions related to the golf course lands. [68] In my view, this court is not in a position to consider ClubLink’s argument. [69] First, ClubLink did not identify which provisions of the 1981 Agreement are so interrelated to ss. 5(4) and 9 and the void contingent interests in land that they must necessarily be inoperative. Further, there is no basis to void myriad other provisions in the 1981 Agreement that are unrelated to the golf course and that have already been performed. [70] Moreover, the focus of the submissions before this court was on the validity and enforceability of ss. 5(4) and 9 of the 1981 Agreement. We do not have the benefit of the application judge’s findings on the larger question raised by ClubLink. And, in my opinion, the determination that ss. 5(4) and 9 of the 1981 Agreement are void and unenforceable may affect provisions of not simply the 1981 Agreement but also the 1985 and 1988 Agreements, as well as the Assumption Agreement. In my view, if the parties cannot agree, this larger question should be remitted to the application judge for determination. Disposition [71] Accordingly, I would allow the appeal. Sections 5(4) and 9 of the 1981 Agreement are void and unenforceable. [72] By letter dated June 22, 2021, the parties advised of their agreement that the successful party is entitled to costs of the appeal in the amount of $59,000, all inclusive. Accordingly, I would award costs of the appeal to ClubLink in this amount. [73] If the parties cannot agree on the disposition of costs for the application below, I would allow them to make brief written submissions of no more than two pages, plus a costs outline, within five days of the release of these reasons. Released: “R.G.J.” NOV 26, 2021 “ L.B. Roberts J.A.” “I agree. R.G. Juriansz J.A.” “I agree. M. Tulloch J.A.” [1] Some have argued that there are inconsistencies between Canadian Long Island Petroleums , Halifax , and Weinblatt : Paul M. Perell, “Options, Rights of Repurchase and Rights of First Refusal as Contracts and as Interest in Land” (1991) 70:1 Can. Bar. Rev. 1 . However, this court in Jain largely resolved these issues and found that the holdings in Halifax and Weinblatt are still good law despite the reasoning in Canadian Long Island Petroleums : see Jain , at p. 19.

COURT OF APPEAL FOR ONTARIO CITATION: 1386444 Ontario Inc. v. 2331738 Ontario Ltd., 2021 ONCA 845 DATE: 20211123 DOCKET: C69166 Gillese, Trotter and Nordheimer JJ.A. BETWEEN 1386444 Ontario Inc. and Surinder Singh Binepal Applicants (Respondents) and 2331738 Ontario Ltd. operating as Century Cabinet Doors Inc., Harpal Singh Bhambra, Amanpreet Kaur Bhamra, and Peel Condominium Corporation No. 473 Respondents (Appellants) Ajay Duggal and Maneesh Mehta, for the appellants James S. G. Macdonald and Melisa Rupoli, for the respondents Heard: November 19, 2021 On appeal from the judgments of Justice Heather A. McGee of the Superior Court of Justice, dated October 21, 2020, and February 22, 2021. APPEAL BOOK ENDORSEMENT [1] The appellants seek to appeal two judgments made in this proceeding. The first judgment, dated October 21, 2020, declared that the Appellants’ operation of their cabinet door manufacturing business constituted a significant and unreasonable nuisance that interfered with the Respondent’s use and enjoyment of their condominium (the “October 2020 Judgment”). In the second judgment, dated February 22, 2021 (the “February 2021 Judgment”), the court granted a permanent injunction restraining the Appellants from operating any noise causing machinery in their condominiums between 9 a.m. and 5 p.m., Monday through Friday excluding statutory holidays. [2] This court does not have jurisdiction to hear that part of the appeal in which the Appellants challenge the October 2020 Judgment because of the Appellants’ prior actions in respect of that judgment. The Appellants filed an appeal of the October 2020 Judgment on November 2, 2020 (the “First Appeal”). The First Appeal was dismissed for delay by order of the Registrar of this court dated January 20th, 2021 (the “Dismissal Order”). At the oral hearing of this appeal, the Appellants advised that, in fact, they abandoned the First Appeal shortly before the Dismissal Order was made. Be that as it may, the Appellants’ First Appeal has been dismissed and, consequently, this court does not have jurisdiction to adjudicate upon it again. To permit the Appellants, without more, to challenge the October 2020 Judgment through this appeal would be an impermissible collateral attack on that judgment. [3] However, as the Appellants made clear at the oral hearing of this appeal, they wish to appeal both the October 2020 Judgment and the February 2021 Judgment. [4] Assuming that the Appellants are correct in their submission that this court has the power to set aside the Dismissal Order and/or their earlier abandonment, the court declines to exercise that power. The Rules of Civil Procedure set out a process that is to be followed should a party wish to set aside a dismissal order. That process is designed to ensure fairness to both sides of this dispute. Further, such a process must be followed so that the court can fairly hear and decide whether to set aside the Dismissal Order. [5] Consequently, as we declared at the oral hearing of this appeal, this appeal is adjourned to a date to be fixed by the court’s Appeal Scheduling Unit, such date to be no earlier than 60 days from the date of this endorsement. The 60-day period gives the Appellants the opportunity to bring a motion to set aside the Dismissal Order, should they so decide. Regardless of whether the Appellants make such a motion and, if they do, regardless of whether they are successful on that motion, the appeal shall be rescheduled because that part of it which relates to the February 2021 Judgment remains to be decided. [6] Costs thrown away today are awarded to the Respondents, fixed at $1,600, all inclusive.

COURT OF APPEAL FOR ONTARIO CITATION: Grand River Conservation Authority v. Geil, 2021 ONCA 861 DATE: 20211130 DOCKET: C69028 Benotto, Huscroft and Miller JJ.A. BETWEEN Grand River Conservation Authority Applicant (Respondent in Appeal) and Jason Geil & Geil Style Enterprises Inc. Respondents (Appellants) Sean Biesbroek, for the appellants Steven J. O’Melia, for the respondent Heard and released orally: November 29, 2021 On appeal from the order of Justice J.W. Sloan of the Superior Court of Appeal, dated December 16, 2020. REASONS FOR DECISION [1] The appellant was found in contempt of a consent order that he and his agents refrain from dumping fill on wetlands controlled by the Grand River Conservation Authority. [2] He appeals the motion’s judge’s finding arguing that the motion judge erred by, (i) relying on hearsay in the supporting affidavits; (ii) making a finding of contempt without evidence as to when the fill arrived on the property; and (iii) relying on an affidavit that was filed after the time required by the Rules. [3] We see no merit to these submissions. [4] The appellant filed no material on the motion. The motion judge relied on firsthand evidence that the fill was placed on the property. The affidavit evidence established that the fill was deposited after the date of the court order. The precise date does not matter. The judge did not err by relying on the affidavit filed late because accepting it was within his discretion. The motion judge applied the correct test on a contempt motion, and it was open to him to conclude that the appellant was in contempt of the order. This finding is entitled to deference. [5] The appeal is dismissed with costs to the respondent in the amount of $20,000 plus HST. “M.L. Benotto J.A.” “Grant Huscroft J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Hamza v. Law Society of Ontario, 2021 ONCA 852 DATE: 20211130 DOCKET: C69618 van Rensburg and Roberts JJ.A. and Tzimas J. ( ad hoc ) BETWEEN Oussama Hamza o/a Hamza Law Applicant (Appellant) and Law Society of Ontario, Ismail Aderonmu, Jessica Soubas, Yevgeniya Huggins, and Vincent Rocheleau Respondents (Respondents on Appeal) Oussama Hamza, acting in person Katherine Hensel, for the respondent, Law Society of Ontario Daniel Mayer, for the Ministry of the Attorney General Heard: in writing November 26, 2021 On motion under Rule 2.1 of the Rules of Civil Procedure for consideration of the appeal from the order of Justice Thomas A. Heeney of the Superior Court of Justice, dated April 28, 2021. REASONS FOR DECISION [1] The appellant is appealing an order dated April 28, 2021. This order, granted by Heeney J. (the “motion judge”), dismissed the appellant’s application seeking relief against the Law Society of Ontario (the “LSO”) and various individuals, some of whom, like the appellant, are lawyers and members of the Ontario bar. [2] The motion judge provided detailed reasons in which he outlined the appellant’s pleadings and explained their deficiencies. It is unnecessary to recite in any detail the appellant’s various allegations. It is sufficient to say that the motion judge, at para. 27 of his reasons, described the notice of application, affidavit and factum of the appellant as follows: The Notice of Application, affidavit and Factum filed by the applicant together amount to over 1,000 pages of rambling, pseudo-intellectual attacks on the LSO and the other respondents, expressions of his opinion on their character and integrity, racist and misogynist attacks on the respondents and the judiciary, arguments that amount to little more than incomprehensible legal gibberish, and supposedly “historical” references to things such as genocide, colonization and slavery that can have no possible connection to what this case is, at its base, all about: his objection to the fact that the respondents made complaints to the LSO that he acted in a manner unbecoming of a member of the legal profession, and that the LSO had the audacity to investigate these complaints. [3] After providing examples from the appellant’s materials, the motion judge observed, at para. 30, that it was plain and obvious that the pleadings were scandalous, frivolous, or vexatious, and that the appellant’s attempt to use the application proceeding “as a forum for his racist, misogynist and bizarre views” was an abuse of the court’s process. [4] The appellant commenced an appeal to this court. His notice of appeal names the motion judge as an additional respondent in the title of proceedings. The Attorney-General (which represents the judge as a named party to the appeal) asked this court to exercise its authority under r. 2.1 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 to dismiss the appeal as a proceeding that is frivolous, vexatious or otherwise an abuse of the process of the court. [5] In accordance with the procedure prescribed by r. 2.1.01, the court invited written submissions, first from the appellant, and then from the respondents. The LSO responded on behalf of all respondents other than the motion judge, adding its own request that the court dismiss the appeal under r. 2.1, and setting out its submissions in a factum. The Attorney-General advised that he would be satisfied if the appellant removed the motion judge as a party to the appeal. The appellant has confirmed that the motion judge is not a party to the appeal, and he has prepared, but not yet formally filed, an amended notice of appeal. [6] The use of r. 2.1 is “limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process”: Scaduto v. The Law Society of Upper Canada , 2015 ONCA 733, 343 O.A.C. 87, at para. 8. In determining whether an appeal should be dismissed summarily under r. 2.1, the court must determine “whether on its face, and in light of any submissions, the proceeding is frivolous, vexatious or an abuse of process”: Scaduto , at para. 11. [7] We have reviewed the appellant’s notice of appeal, which has been served and filed with this court, as well as the appeal book and factum he has been attempting to file. We have also considered the appellant’s email communications with the court staff and counsel for the respondents in relation to the appeal and the r. 2.1 motion. The notice of appeal and factum do not raise any issues or arguments with respect to the order under appeal that are relevant to any arguable ground of appeal. Instead, they continue to make racist and misogynistic statements and include personal attacks on the respondents, as well as the motion judge and the respondents’ legal counsel. The appellant did not provide any submissions seeking to explain or justify his approach to the litigation or the appeal. [8] We are satisfied that the appeal is frivolous, vexatious and an abuse of the process of the court. This is a clear case for the use of r. 2.1. Accordingly, the appeal is dismissed. “K. van Rensburg J.A.” “L.B. Roberts J.A.” “E. Ria Tzimas, J. (ad hoc)”

COURT OF APPEAL FOR ONTARIO CITATION: Kumarasamy v. Western Life Assurance Company, 2021 ONCA 849 DATE: 20211130 DOCKET: C69084 MacPherson, Simmons and Nordheimer JJ.A. BETWEEN Kamalavannan Kumarasamy Plaintiff (Respondent) and Western Life Assurance Company and Morris National Inc. Defendants ( Appellant ) Elizabeth Bennett-Martin and Heather M. Gastle, for the appellant Adam B. Kuciej, for the respondent Heard: November 1, 2021 by video conference On appeal from the order of Justice Jana Steele of the Superior Court of Justice, dated January 14, 2021, with reasons reported at 2021 ONSC 337. Nordheimer J.A.: [1] Western Life Assurance Company appeals from the dismissal of its summary judgment motion, in which it sought to have this action dismissed on the basis that the respondent’s claim is statute-barred under the Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B. For the following reasons, I would allow the appeal, grant the summary judgment motion, and dismiss the respondent’s action. A. Background [2] The respondent was injured in a car accident on August 25, 2014. He has been unable to work since that time. At the time of the accident, the respondent was working as a truck driver. He says that, as a result of the accident, he suffered injuries to his back, neck, shoulders and right leg. He also suffers from severe depression, anxiety and chronic pain disorder, which he has treated with various anti-depressants and anti-psychotic medications. His medical condition following the accident is such that his driver’s licence has been medically suspended by the Ministry of Transport. [3] At the time of the accident, the respondent was employed by Morris National Inc. (“Morris”), and was covered under Morris’ group long-term disability (“LTD”) policy with the appellant (the “Policy”). Under the terms of the Policy, the deadline for the respondent to provide a Notice of Claim to the appellant, and the first day that LTD benefits would become payable to the respondent, was February 26, 2015. The Policy also provided that a claimant waives their right to claim benefits if they do not provide notice within the prescribed time. [4] On August 26, 2014, the respondent retained litigation counsel to represent him with respect to his tort and accident benefits claims. He did not retain these lawyers with respect to any potential long-term disability claim. The respondent’s lawyers wrote to Morris to advise it that they had been retained by the respondent with respect to his accident benefits claim. [5] The respondent’s sister worked as a legal assistant for the lawyers that the respondent had retained. As found by the motion judge, the respondent’s sister: [p]resumably, as a personal favour to her brother (who had limited ability in English and no knowledge whatsoever of legal matters), emailed his employer, Morris, for a notice of LTD claim form on December 15, 2014. She did this to help her brother put Western Life on notice regarding a potential LTD claim. [6] Morris emailed the Notice of Claim form to the respondent’s sister. The respondent completed the form (again, presumably with help from his sister). The sister signed the form as the respondent’s “representative”, and noted the name of the law firm representing the respondent in parentheses. It was the sister who faxed the form to the appellant on March 9, 2015. This initial Notice of Claim is a brief form, not a completed LTD application. [7] On March 11, 2015, the appellant says that it sent an acknowledgement letter directly to the respondent requesting that he complete the LTD application forms, which were enclosed. However, the respondent said that he never received this letter. The motion judge found that the respondent did not receive it. [8] The appellant sent three follow-up letters to the respondent, including a letter dated June 2, 2015, that advised the respondent that it had closed the respondent’s file because he had not forwarded the completed LTD application forms. The motion judge found that, while the respondent did not receive the other letters, he did receive the June 2, 2015 letter. [9] There is no evidence that anything consequential occurred between that time and October 13, 2016, when the respondent’s lawyers, although still not retained to deal with the respondent’s potential long-term disability claim, wrote to the appellant requesting the respondent’s LTD claim file. [10] On November 8, 2016, the appellant responded to the lawyers to advise that the file had been closed on June 2, 2015, as the plaintiff had not sent the required LTD forms. The appellant enclosed a copy of the Notice of LTD claim form submitted by the respondent and a copy of the Certificate of Insurance for Group Benefits underwritten for Morris. [11] The motion judge found that, between November 8, 2016 and February 10, 2017, and once again “presumably”, the respondent met with his lawyers to discuss what had happened to his LTD claim. On February 10, 2017, the respondent signed a retainer with his lawyers to also represent him on his LTD claim. [12] On February 24, 2017, the lawyers wrote to the appellant to advise that they had now been retained by the respondent to assist with his LTD application. The lawyers requested copies of earlier letters that the appellant had sent to the respondent but that the respondent had not received. They also requested a copy of the claim forms. [13] On March 9 and 10, 2017, the appellant sent the lawyers copies of the missing letters together with blank LTD claim forms. On March 30, 2017, the lawyers sent the completed LTD claim forms to the appellant. A couple of weeks later, the appellant contacted the lawyers to advise them that the appellant would require an authorization signed by the respondent, so that the appellant could discuss the claim with the lawyers. The signed authorization was sent to the appellant by the lawyers through email on May 2, 2017. [14] On May 10, 2017, the appellant and the lawyers had a call to discuss the respondent’s claim. After the call, the appellant provided the lawyers with a letter dated April 19, 2017, which the respondent had not previously received. In that letter, the appellant had advised the respondent of certain additional information that the appellant required from the respondent to evaluate his claim. In that letter, the appellant advised the respondent that he “should be aware that by reviewing your claim, we are not waiving our right to rely on any statutory or Policy provision including any time limitations”. [15] On June 14, 2017, there was another telephone call between the appellant and the lawyers to further discuss the respondent’s LTD claim. After the call, the lawyers sent some information to the appellant by email. The lawyers also attempted to explain the reasons why the respondent had been delayed in making his LTD claim. [16] On June 28, 2017, the appellant wrote to the respondent advising that his claim was denied “as the information provided in your letter does not support reasonable cause for the delay”. Presumably the letter referred to is actually a reference to the lawyers’ email of June 14, 2017. The letter also provided information on how the respondent could appeal the claim decision. The respondent did appeal the decision, but the appeal was denied. [17] The respondent issued a statement of claim against the appellant and Morris on June 28, 2019. B. THE DECISION BELOW [18] The motion judge began her analysis with reference to s. 5 of the Limitations Act, 2002 , and this court’s decision in Clarke v. Sun Life Assurance Company of Canada , 2020 ONCA 11, 149 O.R. (3d) 433, for the test on when a claim is discovered. [19] The motion judge set out the opposing views on when the appellant’s claim would have been discovered. The appellant said that the loss to the respondent occurred on the date that it would have been required to pay LTD benefits to the respondent under the Policy (i.e., February 26, 2015). It argued that a reasonable person in the respondent’s circumstances ought to have discovered his claim on June 7, 2015, the date by which he would have received the appellant’s letter closing his file. [20] The respondent, on the other hand, argued that he could not have become aware of the loss until there was a denial of the LTD claim by the appellant. The plaintiff argued that this occurred on June 28, 2017, which was the date of the denial letter. [21] The motion judge did not accept the appellant’s submission that the respondent ought to have discovered his claim on June 7, 2015, when he received the claim closure letter of June 2, 2015. She found that the closure letter was not a denial of the respondent’s LTD claim because, at that point, no claim application had been made. [22] Ultimately, the motion judge stated that the issue to be determined was when the respondent discovered that a proceeding against the appellant was the appropriate means to remedy his loss. She concluded that the claim “was not fully ripened” until the respondent’s LTD claim was denied by the appellant. Because the respondent commenced his claim within two years of this date, his action was not statute-barred. On this basis, the motion judge dismissed the appellant’s summary judgment motion. C. Analysis [23] As I shall explain, the motion judge erred in her analysis of the central question. Section 5(1) of the Limitations Act, 2002 requires consideration of when the plaintiff ought to have known four things: (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. The subsection then requires a determination of the day when a “reasonable person” first ought to have known of these matters. A claim is discovered, within the meaning of the Limitations Act, 2002 , on the earlier of these two dates. [24] Of importance as well is section 5(2). It provides a statutory presumption regarding the state of knowledge of a person with respect to the requirements set out in s. 5(1). Specifically, s. 5(2) reads: 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. The section is a statutory codification of the requirement that an insured person must act with due diligence in pursuing any claim: Longo v. MacLaren Art Centre Inc. , 2014 ONCA 526, 323 O.A.C. 246, at paras. 42-43. [25] In this case, the respondent knew of his injuries at the time of the accident. At the same time, he knew that he was covered by his employer’s long-term disability insurance provided by the appellant. Indeed, he knew enough, with the help of his sister, to ask for an LTD claim form from the appellant, which the appellant provided. By June 7, 2015, the respondent knew that the appellant had closed its file. The respondent had to know, from that fact alone, that his claim for coverage was in jeopardy. Further, from this time forward, the respondent had lawyers representing him with respect to his injuries and, more specifically, with respect to his accident benefits. He therefore had access to legal advice and assistance if he chose to use it. [26] Yet, it is almost a year and a half later before the respondent speaks to his lawyers about his LTD claim. Throughout this time, the respondent knows that he is not receiving any LTD payments from the appellant. The respondent’s lawyers are told that the file has been closed and they have discussions with the respondent about his claim. Notwithstanding those circumstances, the respondent does not expand his lawyers’ retainer to include the LTD claim until February 10, 2017. [27] Thereafter, the lawyers engaged in discussions with the appellant. Both the lawyers and the respondent had to know that there was an issue about whether the appellant was going to agree to coverage. Indeed, by May 10, 2017, the appellant expressly told the respondent’s lawyers that by engaging in a review of the respondent’s claim, “we are not waiving our right to rely on any statutory or Policy provision including any time limitations”. By this point, the alarm bells ought to have been ringing loudly, and yet the claim is still not commenced until June 2019. [28] The central errors made by the motion judge are her conclusion regarding when the respondent ought to have known that a loss occurred and her conclusion that the required element of discoverability, found in s. 5(1)(a)(iv), that “a proceeding would be an appropriate means to seek to remedy” the injury, loss or damage, was only satisfied when the appellant clearly and unequivocally denied the respondent’s claim. The motion judge does not cite any authority for this conclusion, and it is at odds with other authorities, most notably, this court’s decision in Thompson v. Sun Life Assurance Company of Canada , 2015 ONCA 162, [2015] I.L.R. I-5721. [29] In Thompson , this court found that there were two reasons why the injured party’s claim was barred. One was that the injured party had failed to meet the qualifying conditions of the policy: at paras. 11-12. The other was that the two-year limitation period had expired because the injured party knew of her total disability in August 2008 but did not commence her action until September 17, 2010: at paras. 13-14. The latter conclusion applies equally to this case. The respondent knew of the significance of his injuries by the end of August 2014. However, because of the terms of the Policy, the respondent was not entitled to receive LTD disability payments until February 26, 2015. Applying the Thompson approach, the limitation period would have commenced on February 26, 2015, which was the first day benefits would have been payable had the respondent submitted a timely application and met the Policy’s definition of Total Disability. By that time, the respondent knew that he was injured, he believed that he was entitled to long-term disability payments, and he knew that the appellant was not making those payments. [30] The motion judge attempted to avoid the consequences of Thompson , and other cases in the Superior Court of Justice subsequently decided along the same lines, on the basis of s. 5(1)(a)(iv), that is, that litigation was not an appropriate remedy until the appellant categorically denied the respondent’s claim. While the motion judge said, “I agree with Western Life that a clear and unequivocal denial is not necessarily required to start the limitations clock” (at para. 62), it is evident from the balance of her reasons and her conclusion that that is, in fact, what she required. [31] There is no authority for the proposition that a clear and unequivocal denial is required. It may be that there will be some cases where an insurer may, by its conduct, lead an insured person to believe that their claim has not been denied (and thus litigation is not required). Those cases will likely be rare, and, in any event, this case is not one of them. The appellant did not do anything to lead the respondent into the belief that his claim was still alive and well. In fact, the appellant did the opposite. First, the appellant had told the respondent that his file had been closed. Second, when the issue was raised again, almost two years later, the appellant expressly told the respondent’s lawyers that, in undertaking its re-examination of the claim, the appellant was not waiving any applicable time limits. [32] To accede to the motion judge’s conclusion is to do that which this court cautioned against in Markel Insurance Company of Canada v. ING Insurance Company of Canada , 2012 ONCA 218, 109 O.R. (3d) 652, where Sharpe J.A. discussed the appropriate means requirement in s. 5(1)(a)(iv) and said, at para. 34: To give “appropriate” an evaluative gloss, allowing a party to delay the commencement of proceedings for some tactical or other reason beyond two years from the date the claim is fully ripened and requiring the court to assess to tone and tenor of communications in search of a clear denial would, in my opinion, inject an unacceptable element of uncertainty into the law of limitation of actions. [33] I would add another reason for rejecting any suggestion that a limitation period does not commence until an insurer has made a “clear and unequivocal” denial of a claim. To adopt such an approach would only serve to encourage insurers to make such denials at their earliest opportunity to ensure that the “limitations clock” starts to run. It would thus discourage insurers from undertaking a fair evaluation of the claim before making a decision. It might also lead to the commencement of more premature or needless proceedings, which is contrary to the intent of the subsection: Markel , at para. 34; 407 ETR Concession Co. v. Day , 2016 ONCA 709, 133 O.R. (3d) 762, leave to appeal refused, [2016] S.C.C.A. No. 509, at para. 48. [34] The motion judge’s conclusion in this case is at odds with the jurisprudence from this court regarding the proper interpretation of s. 5(1)(a)(iv), that is, when litigation is an appropriate remedy. It is contrary to the decision in Thompson , as I have already explained. It is also contrary to this court’s decision in Nasr Hospitality Services Inc. v. Intact Insurance , 2018 ONCA 725, 142 O.R. (3d) 561, where Brown J.A. undertook an analysis of the existing authorities on the proper interpretation of s. 5(1)(a)(iv). In doing so, Brown J.A. noted that there are certain circumstances where the conduct of an insurer may, essentially, toll the limitation period. He referred to the decision in Presidential MSH Corp. v. Marr, Foster & Co. LLP , 2017 ONCA 325, 135 O.R. (3d) 321, where Pardu J.A. had identified two such circumstances: (i) where the plaintiff relied on the superior knowledge and expertise of the defendant, especially where the defendant undertook efforts to ameliorate the loss; and (ii) if an alternative dispute resolution process offers an adequate alternative remedy and that process has not fully run its course. Like the situation in Nasr , neither of those circumstances arise in this case. [35] Indeed, in this case, there is little to which the respondent can point in the conduct of the appellant that could give rise to a situation akin to promissory estoppel that is often used in insurance cases to avoid the effect of a limitation period: see the discussion in Nasr at paras. 53-56. Any such suggestion becomes more problematic, in the circumstances of this case, since the respondent had access to lawyers throughout the five years before this action was commenced. [36] In the end result, there are three potential start dates for the limitation period that arise in this case and that would be consistent with the existing jurisprudence. One is February 26, 2015, when the elimination period required by the Policy expired and the respondent should have started to receive LTD payments, if he was entitled to them. Another is June 7, 2015, when the respondent would have received the appellant’s notification that his claim file had been closed. At that point, the respondent knew that, not only was the appellant not making payments to him, but the appellant was also not going to make payments to him in the future. Yet another is November 8, 2016, when his lawyers received copies of the same correspondence. [37] I do not need to decide which of these three dates is the actual start date because the two-year limitation period passed with respect to all of them before this proceeding was commenced on June 28, 2019. The respondent’s claim for LTD benefits under the Policy is therefore statute-barred. [38] Before concluding, I should note that the motion judge did not expressly address s. 5(2) of the Limitations Act, 2002 when conducting her appropriate means analysis. In fairness, it is not clear that the parties raised it. Nevertheless, it was a matter that was required by the terms of the Limitations Act, 2002 to be taken into account. However, it is obvious that the motion judge took the view that the respondent had displaced the presumption that the date of the injury (extended to February 26, 2015 because of the terms of the Policy) was the day he ought to have known that a proceeding was an appropriate means to remedy his loss, because the appellant had not made an unequivocal denial of his claim. I have already explained why the motion judge erred in adopting that approach. D. CONCLUSION [39] I would allow the appeal, set aside the order below, and, in its place, make an order granting the summary judgment motion and dismissing the action. The appellant is entitled to its costs of the appeal, which I would fix in the amount of $10 ,000 inclusive of disbursements and HST. The appellant is also entitled to the costs of the summary judgment motion, which the parties have agreed are to be fixed at $25,000 inclusive of disbursements and HST. Released: November 30, 2021 “J.C.M.” “I.V.B. Nordheimer J.A.” “I agree. J.C. MacPherson J.A.” “I agree. Janet Simmons 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. Bahler, 2021 ONCA 857 DATE: 20211129 DOCKET: M52932 Fairburn A.C.J.O. (Motion Judge) BETWEEN Her Majesty the Queen Respondent and Heidi Bahler Applicant Lydia Riva and Deanna Cristovao, for the applicant Andrew Cappell, for the respondent Heard: November 26, 2021 by video conference [1] A non-publication order under ss. 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. Bahler , 2021 ONCA 857 contains information covered by that order. [3] Accordingly, the decision will be available on the Court of Appeal for Ontario’s 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.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Massey-Patel, 2021 ONCA 860 DATE: 20211130 DOCKET: C67596 Strathy C.J.O., Hourigan and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Timothy Massey-Patel Appellant Gregory Furmaniuk, for the respondent Thomas M. Hicks and Angela Ruffo, for the appellant Heard: November 23, 2021 On appeal from the conviction entered on May 17, 2019 by Justice Feroza Bhabha of the Ontario Court of Justice. REASONS FOR DECISION OVERVIEW [1] The appellant, Timothy Massey-Patel, was working as a dancer at a male strip club. The complainant, who was attending a bachelorette party, hired the appellant for a private dance in a small room in the V.I.P. area of the club. Shortly after leaving the V.I.P. area, the complainant made allegations that led to a sexual assault charge against the appellant. The appellant was tried and convicted on that charge before the Ontario Court of Justice. [2] At the trial the complainant testified that the appellant touched her sexually and inserted his finger into her vagina without her consent. She also testified that the appellant briefly inserted his penis into her vagina, again without her consent. She said that she did not call out for help or vocalize her lack of consent to any of this touching because she was frozen in shock and felt powerless. [3] The appellant did not testify. In a police statement that was admitted into evidence the appellant initially denied that the alleged sexual contact took place. He ultimately admitted to the police that he had in fact digitally penetrated the complainant but described her as an enthusiastic participant and he gave details of her active participation. He denied penetrating the complainant’s vagina with his penis but acknowledged that his penis may have been in the general area of the complainant’s vagina. [4] The trial judge did not believe the appellant’s testimony about the complainant’s consent and was not left in reasonable doubt by that testimony. She believed beyond a reasonable doubt the complainant’s testimony that she had not consented to the sexual activity with the appellant. Although she had a reasonable doubt about whether the appellant penetrated the complainant with his penis, the trial judge found beyond a reasonable doubt that the sexual touching and digital penetration occurred. Although it was not argued before her, the trial judge noted that a belief in consent defence was not available to the appellant because he had not taken reasonable steps to confirm that the complainant was communicating consent. Accordingly, she found the appellant guilty of one count of sexual assault. [5] The appellant appeals that conviction. At the end of the oral argument, we dismissed the appeal for reasons to follow. These are our reasons. ANALYSIS The verdict was not unreasonable [6] The appellant argued that, given her reasonable doubt about whether the appellant penetrated the complainant with his penis, it was unreasonable for the trial judge to have found the appellant guilty of sexually assaulting the complainant by touching and digitally penetrating her without consent. The appellant submits that these outcomes are irreconcilable. We disagree. [7] When the trial judge’s decision is read as a whole, it is clear that her reasonable doubt about whether the appellant penetrated the complainant with his penis did not arise from credibility concerns about the complainant, whose evidence she believed. Instead, the trial judge’s reasonable doubt relating to whether the appellant penetrated the complainant with his penis arose from reliability concerns that in no way impugned the credibility of the complainant’s testimony. [8] As the trial judge explained, her reasonable doubt about the alleged penile penetration arose from “the totality of the evidence”. That evidence included testimony by the complainant that she was in shock, an admission made by the appellant to the police that his erect penis was near her vaginal area, and the complainant’s uncertainty about whether the appellant ejaculated. In these circumstances it was reasonable for the trial judge to have been left in reasonable doubt by the appellant’s denial that he had penetrated the complainant with his penis, while at the same time accepting both the appellant’s admission that he had digitally penetrated the complainant and the complainant’s testimony that she did not consent. [9] Nor was it unreasonable for the trial judge to have rejected the appellant’s police statement that the complainant was an active participant in the sexual contact that occurred. The appellant’s account was discredited by the fact that, during the course of that statement, his version of events moved from “indignant denial” of sexual contact to admitting digital penetration. Quite simply, he lied about the core allegation. Moreover, the appellant told the police that when he touches his clients, he stops if they say no. The trial judge was entitled to rely on this admission as discrediting his account of the conversations he claimed to have had with the complainant about her consent. The trial judge was also entitled to find that the appellant offered a self-serving and exaggerated account of how visible the inside of the booth was to those in the area. Moreover, the trial judge was entitled to rely on the complainant’s abrupt departure from the V.I.P. booth, and testimony from her and her friends about her distraught condition, as supportive of her account. [10] Simply put, we see no merit in the unreasonable verdict appeal. The trial judge did not err in her assessment of the evidence of the cashier and the club manager [11] The trial judge accepted evidence that when she left the V.I.P. area the complainant remarked something to the effect of, “what was supposed to happen in there”, and that she was distraught as she approached her friends. The appellant argues that the trial judge erred in accepting this evidence in the face of the testimony of the cashier to the contrary. We disagree. There was evidence before the trial judge that the cashier was distracted by other patrons, and that the club was noisy. In these circumstances, the trial judge was entitled to conclude that the cashier failed to hear the statement and was not in a position to observe the complainant’s distraught condition described by the complainant and her friends. The trial judge was also entitled to find that the cashier did not have a complete memory of events, given that his testimony that the complainant did not pay any money before leaving the V.I.P. area was contradicted by other witnesses. [12] The trial judge was also entitled to reject the testimony of the club manager that the complainant did not become upset until she failed to pay the required fee, at which point, he said, she decided to begin the “waterworks". The trial judge found the club manager to be partial against the complainant, dismissive of her demeanour and her complaint, and disinterested in inquiring into what happened. As explained immediately below, the trial judge also found that he gave misleading evidence about the limits of appropriate conduct within the club. [13] We are not persuaded that the trial judge erred in assessing the evidence of the cashier and the club manager. The trial judge did not rely on impermissible stereotypes [14] We reject the submission that the trial judge engaged in impermissible stereotypical reasoning. None of the inferences drawn by the trial judge were inappropriate. [15] Specifically, the trial judge relied on her observations about the sexualized culture of the club in discounting the manager’s testimony that the kind of sexual activity complained of would not be tolerated. She commented on the “parade” of men in various states of dress and undress to explain the complainant’s apparent confusion about how the appellant was dressed. And she referred to the complainant’s accurate observation of the “copious amounts of condoms within the V.I.P. area” as an illustration of the complainant’s capacity to observe matters of detail despite her alcohol consumption. Simply put, there is no basis for concluding that the trial judge relied on the sexualized atmosphere of the club as proof that the sexual assault occurred, or to support the improper inference that those who would work in such a place are less worthy of belief. [16] Similarly, there is no basis for concluding that the trial judge relied on the appellant’s general routine during private dances to draw impermissible propensity inferences or to find that he is not of credible character. She referred to the appellant’s general routine during private dances because the appellant relied upon that routine in recounting his version of events, and because his description of his routine included his admission that he would determine whether a client was consenting by touching her and gauging her reaction. There is simply no basis for concluding that the trial judge inferred that as a sex worker, the appellant is less worthy of belief, or more likely to commit sexual offences. [17] Nor is there any basis for concluding that the trial judge relied on the stereotype of the sexually naïve woman to bolster the complainant’s credibility or to undermine the appellant’s credibility. Instead, the trial judge accepted the complainant’s direct testimony that she was shocked at what was taking place, and that based on her one prior visit to a strip club where she had gone for a private dance, she was not expecting the kind of sexual contact that she alleged. These were findings the trial judge was entitled to make. [18] We also reject the appellant’s contention that the trial judge disregarded evidence about the complainant’s conduct leading up to the alleged assault. The trial judge was acutely aware that while attending a bachelorette party at a strip club, and after seeing fully naked men, the complainant purchased a lap dance and voluntarily entered a private booth with the appellant. The trial judge recounted all of this in her reasons for judgment. Although a trial judge must consider the factual context within which allegations are made, as the appellant conceded in oral argument, none of these circumstances required the trial judge to have a reasonable doubt relating to the complainant’s denial of consent. The complainant described her state of mind and the trial judge believed her. No issues of stereotype or double standards arise. [19] Finally, there is no merit in the appellant’s claim that the trial judge evoked the stereotype that sexual activity with a sex worker is “naughty” and something to be ashamed of. It was the appellant who advanced this theory by suggesting that the complainant concocted the sexual assault allegation because she regretted having let things go so far and had “bride’s remorse”. The trial judge’s conclusion that if the complainant had indeed been remorseful, she could easily have kept her conduct secret by saying nothing as the events took place in a private area, was a reasoned and appropriate basis for rejecting the defence theory as implausible. [20] We reject the suggestion that the trial judge employed impermissible stereotypes. The trial judge did not apply uneven scrutiny [21] We are thoroughly unpersuaded that the trial judge applied uneven scrutiny to the evidence. As we have explained, she gave cogent and compelling reasons for rejecting the credibility of the exculpatory claims the appellant made in his police statement. We can find no basis for concluding that the trial judge applied a different standard in finding that the comparatively minor imperfections in the complainant’s evidence did not undermine her credibility. [22] We reject this ground of appeal. CONCLUSION [23] The appeal is therefore dismissed. “G.R. Strathy C.J.O.” “C.W. Hourigan J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: National Bank of Canada v. Guibord, 2021 ONCA 864 DATE: 20211201 DOCKET: M52984 (C70058) Nordheimer J.A. (Motions Judge) BETWEEN National Bank of Canada Plaintiff (Respondent/Responding Party) and Marcel Guibord Defendant (Appellant/Moving Party) Marcel Guibord, acting in person Grand Chief Wabiska Mukwa, acting in person Michael S. Myers, for the responding party Heard: November 30, 2021 by video conference ENDORSEMENT [1] Mr. Guibord brings this motion, on an urgent basis, for an order staying the writ of possession obtained by the respondent pursuant to an order of Mew J. dated October 5, 2021. The writ of possession was part of the relief that arose from the summary judgment granted by the motion judge. [1] [2] At the outset of the hearing, the appellant asked that I allow Grand Chief Mukwa to speak on his behalf. While I would not normally permit that to happen, given the provisions of r. 15.01(3) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, counsel for the respondent consented to having Grand Chief Mukwa speak so I permitted it. In the end result, I had the bulk of the appellant’s submissions from Grand Chief Mukwa, supplemented by submissions from the appellant. [3] The test on a stay motion is well-known. It is set out in RJR-MacDonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 311. The test requires the court to consider three factors: (i) whether there is a serious issue to be tried; (ii) whether the moving party will suffer irreparable harm; and (iii) an assessment of the balance of convenience between the parties. [4] In my view, the appellant fails on all three of these factors. First, I see little merit to the appellant’s grounds of appeal. While I do not question the importance of some of the issues that the appellant raises that surround the question of land claims by Indigenous peoples, those issues, as the appellant attempts to invoke them in his appeal and on this motion, do not relate to any of the issues raised by the motion for summary judgment. That motion dealt with a straightforward commercial arrangement between the parties on which there had been default by the appellant. That default entitled the respondent to exercise its rights under the security which it held, namely a mortgage. The respondent sought, and obtained, summary judgment arising from the default, which included obtaining a writ of possession. The various principles and proclamations to which the appellant refers, including the United Nations Declaration of the Rights of Indigenous Peoples, simply have no proper application to the issues raised on the summary judgment motion. [5] Second, the appellant will not suffer irreparable harm if the writ of possession is enforced. If the appellant suffers any losses arising from that enforcement, those losses are entirely compensable by way of damages. I would note in passing, on this point, that the appellant’s argument that the property in question is worth many times what is owed on the mortgage, begs the question why, if that is the case, the appellant has not simply refinanced the property and paid the mortgage out. On the other side of this factor is the fact that the respondent’s mortgage is a second mortgage. The first mortgage is a reverse mortgage for which no interest payments are required. Rather, the interest accrues and increases the amount due under the first mortgage. Consequently, delay operates to reduce the appellant’s equity in the property and thus prejudices the position of the respondent. [6] Third, the balance of convenience does not favour the appellant. The summary judgment is presumptively valid. The writ of possession is not automatically stayed by virtue of r. 63.01(1) of the Rules of Civil Procedure . The enforcement of security validly given by a party, who is in default, should not be interfered with absent compelling reasons. Otherwise, the essential functioning of these type of commercial arrangements would be undermined. I note that the appellant’s default dates back to January 2019, so he has had time to adjust to the reality that this day would arrive. [7] Other considerations also bear on this factor. One is that the appellant has not given a satisfactory explanation for why he waited until just days before the writ of possession was to be enforced to bring this motion, when the writ of possession arises from a decision of the motion judge that was given almost two months ago. Another is the salient fact that the appellant gave this mortgage to the respondent some four years ago for the express purpose of avoiding the respondent exercising its rights under a writ of seizure and sale that it held. The mortgage was given to obtain the forbearance of the respondent, in order to avoid the eviction of the appellant from the property at that time. Yet another is the fact that the appellant has a number of outstanding costs awards against him, including from this court. A party cannot, on the one hand, seek relief from a court yet, on the other hand, not obey orders made by the court. [8] For all of these reasons, the motion for a stay is dismissed. The respondent is entitled to its costs of the motion, which I fix in the amount of $7,000 inclusive of disbursements and HST, recognizing that the mortgage entitles the respondent to recover its full indemnity costs. “I.V.B. Nordheimer J.A.” [1] National Bank of Canada v. Guibord , 2021 ONSC 6549.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Marzouk, 2021 ONCA 855 DATE: 20211201 DOCKET: C68089 Rouleau, Huscroft and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Ahmed Marzouk Appellant Faisal Mirza and Kelly Gates, for the appellant Jeffrey Wyngaarden , for the respondent Heard: October 29, 2021, by video conference On appeal from the conviction entered on January 9, 2020 with reasons reported at 2020 ONSC 168, and the sentence imposed on March 3, 2020 by Justice Dunphy of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant appeals his conviction for robbery and the resulting three-year sentence. [2] The robbery occurred after the complainant contacted Mr. Jermaine Jackson to arrange for an advance of money to pay his rent. Mr. Jackson was leaving the country and unable to meet the complainant, so he made arrangements whereby a friend, the appellant, would advance the funds. The appellant’s telephone number was provided to the complainant. Following an exchange of texts between the complainant and the appellant, the complainant drove to an agreed rendezvous spot. The complainant had never met the appellant. When he reached the agreed meeting spot, the appellant entered his car, forced the complainant to exit at gun point, and then drove away with the complainant’s car. [3] The central issue at trial was identity. [4] The appellant’s primary ground of appeal is that the identity evidence relied on by the trial judge to convict the appellant was so weak that the verdict is unreasonable. [5] We disagree. The evidence in this case strongly implicated the appellant. The trial judge set out 10 pieces of evidence that support his conclusion that the appellant committed the carjacking. The appellant does not dispute the existence of this evidence, but argues that two of the points relied on by the trial judge – the complainant’s in-court identification of the appellant and the complainant’s identification of the appellant in a photo shown to him by police – were of no value and ought to have been given no weight by the trial judge. [6] The appellant explains that the factors to be considered when assessing the reliability of eyewitness identification raised concerns: see R . v. T at (1997), 117 C.C.C. (3d) 481 (Ont. C.A.). Specifically, the appellant was not known to the complainant; he was seen only briefly in stressful circumstances; and his identification was tainted because the complainant was presented with a single photo by police and was simply asked to confirm that it depicted the perpetrator. In these circumstances, the appellant argues, the identification was worthless. [7] While we agree that the factors noted by the appellant are of concern, they do not render the complainant’s identification valueless. There was considerable additional evidence to support the complainant’s identification, such as the phone number used to arrange the meeting. The trial judge was well aware of the difficulties with each piece of evidence and the limits to its use. We see no error in his analysis and reliance on the complainant’s identification evidence. [8] The appellant also argues that the trial judge overlooked a critical piece of evidence that ought to have raised doubt as to the appellant’s connection with the phone number used by the perpetrator of the crime. That evidence consists of a comment by Mr. Jackson that, when he later received a text message from the phone number associated with the perpetrator, he thought the appellant may have been in custody. [9] We agree with the Crown’s submission that the evidence cited by the appellant was, at best, equivocal. The appellant presented no evidence regarding his whereabouts when Mr. Jackson received this text messages. The trial judge’s failure to advert to this evidence does not constitute an error. [10] In any event, the available evidence links the appellant to the perpetrator’s phone number at the time of the offence. The complainant had never met the perpetrator. Their contact was entirely arranged through the telephone number the complainant received from Mr. Jackson. Mr. Jackson testified that the number belonged to the appellant, and that the appellant was the only person to answer his request for help. [11] The appellant’s final concern with respect to identity is the trial judge’s reliance on the list of 10 items of evidence confirmatory of identity. The appellant argues that each of these items suggests a very tenuous links between the appellant and the crime. Even taken together, they are insufficient to support the trial judge’s conclusion. [12] In our view, the trial judge’s reasons demonstrate that he was clearly aware that, taken in isolation, there were limits and frailties in each individual piece of identification evidence. He concluded, however, that viewed cumulatively, they fully supported a finding that the appellant committed the robbery. The weighing of evidence is clearly within the trial judge’s domain and we see no error in his conclusion in that regard. [13] The appellant’s second ground of appeal is that the trial judge erred in allowing the Crown to call rebuttal evidence. The Crown presented an uncropped version of the photo shown to the complainant by police to identify the appellant. The cropped version was provided to police by Mr. Jackson and was put into evidence by the Crown. In his testimony, Mr. Jackson identified the cropped photo depicting the appellant and explained that the uncropped photo was one of him with the appellant. Prior to providing the photo to police, he cropped it to remove himself from the picture so as to avoid confusion when it was shown to the complainant. Mr. Jackson testified that the photo was taken when he and the appellant were in a relationship. No issue was taken with this aspect of Mr. Jackson’s testimony and he was not cross-examined on these assertions. When the appellant testified in his defence, he denied having had a relationship with Mr. Jackson and strenuously denied that a photo depicting him with Mr. Jackson in fact existed. [14] At the close of the appellant’s case, the trial judge allowed the Crown to lead the uncropped photo as rebuttal evidence. We see no error in the trial judge having done so. The uncropped photo was obtained by the Crown only after its existence became an issue in the course of the appellant’s testimony. In presenting its case, the Crown clearly did not and could not have reasonably expected that the uncropped photo would be an issue. It therefore cannot be faulted for not having sought to obtain it from Mr. Jackson and introduced it as part of its case. In these circumstances, including the appellant’s failure to challenge Mr. Jackson on his evidence relating to the photo and their past relationship, the trial judge did not err in allowing this rebuttal evidence. [15] The final ground of appeal as to conviction is that the trial judge erred in rejecting the appellant’s alibi evidence. The appellant argues that this rejection was based on a misapprehension of the evidence. In his evidence, the appellant claimed that, at the time of the offence, he was attending a course at York University. He presented evidence consisting of the course schedule and confirmation of his registration. In rejecting this alibi evidence, the trial judge noted that “no attendance is taken in class”. The Crown concedes that there was no evidence of this led at trial. [16] We agree with the Crown that this misapprehension is of no moment as it did not play a material part in the judge’s reasoning process. The appellant did not disclose his alibi before trial, and the materials he produced at trial did not prove that he had been in class at the time of the carjacking or even that he had completed the course he was supposed to be attending. The trial judge, finding that the appellant lacked credibility, rejected his evidence and drew an adverse inference against the appellant’s alibi based on its late disclosure. We therefore reject this ground of appeal. [17] We turn now to the sentence appeal. [18] The appellant argues that the three-year sentence over-emphasized general deterrence and denunciation and failed to sufficiently consider the principles of restraint and parity as compared to other youthful first-time offenders with strong rehabilitative prospects. [19] The appellant explains that, although the trial judge indicates that he considered the cases referenced by the parties, he does not cite any of those cases or explain how the sentence he imposed is consistent with those authorities. Had he properly considered the case law, he would have found that similarly situated youthful individuals with no record and excellent rehabilitative prospects received far lesser sentences. In the appellant’s submission, a sentence of 12 months would be more in line with the case law. He notes that, in R. v. Ha ti my , 2014 ONSC 1586, a comparable case involving more serious injuries, the sentence imposed was one year. [20] The appellant also tenders fresh evidence showing that he has continued on his positive progress. [21] The Crown concedes that the appellant has excellent rehabilitative prospects but submits that the trial judge was well aware of this. In the Crown’s submission, the sentence he imposed is entitled to deference and, absent an error in principle or a finding that it is demonstratively unfit, it ought not to be interfered with. The Crown relies on the decision in R. v. Noor , 2007 CanLII 44822 (Ont. S.C.) as being similar. In that case, the sentence was three and a half years. [22] In our view, the case of Noor is quite dissimilar. In that case, the offender did not show strong rehabilitative prospects like those of the appellant. In Noor , the trial judge explained that, following his release after being charged, the offender had “occupied himself almost exclusively, it would seem, with getting into further trouble with the law”. [23] Although the trial judge acknowledged the appellant’s mitigating factors and his excellent rehabilitative prospects, when he turned to the applicable sentencing principles, he referenced only denunciation and deterrence. However, when sentencing a youthful first offender, even for very serious offences justifying incarceration, rehabilitation remains an important consideration: R v. S.K. , 2021 ONCA 619, at para. 12 citing R v. Priest (1996), 110 C.C.C. (3d) 289 (Ont. C.A.). In our view, the trial judge erred in principle by focusing almost exclusively on the objectives of denunciation and deterrence: R v. Borde , 63 O.R. (3d) 417 (C.A.), at para. 36. This error had an impact on the sentence imposed, such that we must intervene: R v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 64. [24] The trial judge properly noted that carjacking is a very serious offence. The appellant planned the robbery from his first contact with the complainant and used an imitation firearm. The ordeal continues to haunt the complainant. However, in the specific context of this case, including the appellant’s exceptional rehabilitative prospects, a fit sentence is one that does not result in a penitentiary sentence for this first offence. We note in particular that, in the period following the laying of the charge, the appellant completed his university degree in kinesiology and health sciences. He also has a strong pro-social family network and established community ties. [25] Therefore, considering the severity of the offence, along with the fact that the appellant is a youthful first-time offender with excellent rehabilitative prospects, we consider a sentence of two years less a day followed by one year of probation to be appropriate. [26] Nonetheless, we would dismiss the motion to file fresh evidence. In our view, the evidence serves only to confirm the appellant’s rehabilitative prospects, the evidence of which was already before the trial judge. As such, it does not meet the test set out in R v. Palmer, [1980] 1 S.C.R. 759. [27] In conclusion, the conviction appeal is dismissed, and the sentence is varied to one of two years less a day followed by one year of probation, subject to the submissions of the parties as to terms. The parties are to provide proposed terms for the probation within 10 days of this decision. The balance of the terms of sentence remains the same. “Paul Rouleau J.A.” “Grant Huscroft J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Bianco v. Deem Management Services Limited, 2021 ONCA 859 DATE: 20211202 DOCKET: C68214 (M52219) Gillese, Trotter and Nordheimer JJ.A. BETWEEN Donald Dal Bianco Applicant (Appellant) and Deem Management Services Limited and The Uptown Inc. Respondents David T. Ullmann and Brendan Jones, for the appellant Eric O. Gionet, for the respondent, Maxion Management Services Inc. R. Brendan Bissell and Joël Turgeon, for the receiver, Crowe Soberman Inc. Jeffrey A. Armel, for EXP Services Inc. Harold T. Rosenberg, for Deep Foundations Contractors Inc. Edward L. D’Agostino, for Kieswetter Excavating Inc. [1] Heard: November 17, 2021 On appeal from the order of Justice Cory A. Gilmore of the Superior Court of Justice, dated March 10, 2020, with reasons reported at 2020 ONSC 1500. Nordheimer J.A.: [1] Donald Dal Bianco appeals from the order of the motion judge, who determined that the lien claimants in this matter, including the respondent, Maxion Management Services Inc. (“Maxion”), had priority over the appellant’s registered mortgage. For the following reasons, I would dismiss the appeal. A. Background [2] The motion proceeded on the basis of an agreed statement of facts. A summary of those agreed facts is sufficient to set the background for the motion. [3] On May 31, 2018, pursuant to an order of the Superior Court of Justice, Crowe Soberman Inc. was appointed as Receiver of: 1. the property known municipally as 215 and 219 Lexington Road, Waterloo, Ontario (the “Real Property”), 2. the assets and undertakings of Deem Management Services Limited related to the property, and 3. the property, assets and undertakings of Uptown Inc. [4] The receivership arose out of a project that contemplated the redevelopment of the Real Property as a seniors’ retirement residence called the Uptown Residences (the “Uptown Project”). The respondent, Maxion, was the general contractor on the Uptown Project. At some point in early 2018, Maxion was advised to cease construction. Shortly after construction ceased, various service providers registered construction liens against title to the property, commencing on March 7, 2018, that ultimately totalled $7,673,672.48. [5] The Uptown Project was sold by the Receiver in the summer of 2018. After making certain distributions, including payment of the first and second mortgages, the Receiver still holds in trust the sum of $5,477,224.57 (inclusive of interest but exclusive of the fees of the Receiver and its counsel) from the proceeds of sale. [6] As a result of competing priority claims between the lien claimants and a third mortgage held by the appellant, the Receiver has not been able to distribute these remaining funds. [2] [7] The third mortgage was granted by Deem Management to the appellant on February 14, 2018 and registered on February 23, 2018. The third mortgage was registered after the time when the first lien arose. The third mortgage secured the principal amount of $7,978,753.45. The amounts secured by the third mortgage were all advanced between 2012 and 2015 without security having been registered. The first advance was made on April 22, 2012, and the final advance was made on January 22, 2015. [8] All of the funds advanced, that were secured by the third mortgage, were intended, and were in fact used, in an improvement within the meaning of s. 78 of the Construction Act , R.S.O. 1990, c. C.30, on the Real Property through the Uptown Project. [9] As for the procedure on the motion, the parties agreed that Maxion would be the moving party, the appellant would respond, and the Receiver would also make submissions. Counsel for some of the other lien claimants appeared on the motion but did not make submissions or file material. Some of the lien claimants also appeared on this appeal, but again did not make submissions or file material. B. THE DECISION BELOW [10] The motion judge began her analysis with reference to various sections of the Construction Act but she focussed on s. 78. [11] The motion judge correctly noted that the general intention of s. 78 is to give priority to lien claimants over mortgages, subject to certain defined exceptions. Those exceptions are set out in s. 78. The motion judge said that the onus is on the mortgagee to prove that its mortgage falls within one of those exceptions in order to gain priority over the lien claimants. In support of these general principles, the motion judge cited Boehmers v. 794561 Ontario Inc. (1993), 14 O.R. (3d) 781 (Gen. Div.), aff’d. (1995), 21 O.R. (3d) 771 (C.A.). [12] The motion judge referred to both of the exceptions that the appellant alternatively sought to bring itself within, namely, ss. 78(2) and 78(6). The motion judge decided that neither of those exceptions applied to the third mortgage. She therefore concluded that the liens had priority over the third mortgage. [13] In reaching her conclusion, the motion judge also explained that the appellant’s position, if accepted, would be contrary to the proper functioning of the Construction Act . She said, at para. 42: If mortgagees are entitled to “lie in the weeds” while advancing funds for the project and then attempt to gain priority later by registering mortgages after liens arise, this would be unfair to lien claimants and contrary to the overall protection intended by the Act. C. JURISDICTION [14] Before turning to my analysis of the issues raised, I should explain how this appeal comes before this court instead of the Divisional Court as would normally be the case under s. 71(1) of the Construction Act . [15] After this appeal was launched, the Receiver brought a motion for directions as to the proper venue for the appeal. A panel of this court ruled that the appeal lay to this court because the order in question had been granted, at least partly, in reliance on jurisdiction under the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3. [3] The panel noted that the Receiver had authority to seek the court’s directions under s. 249 of the Bankruptcy and Insolvency Act and paragraph 34 of the receivership order. Consequently, any appeal of the resulting order lay to this court under s. 193 of the Bankruptcy and Insolvency Act . [16] That decision then led to a motion to quash the appeal, brought by the respondent Maxion, on the basis that leave was required under the Bankruptcy and Insolvency Act because the appeal did not fit within the subsections of s. 193 relied upon by the appellant, namely ss. 193(a)-(c). The appellant subsequently brought a motion for leave to appeal, which was heard by the panel at the same time as the appeal on the merits. [17] I do not consider it necessary to resolve the issue raised by the motion to quash for two reasons. First, the issue was not pressed by counsel at the hearing. Second, even if the appeal does not fit within any of the subsections relied upon (and I do not make any finding in that regard), I would grant leave to appeal under s. 193(e). The issues raised are of importance to the law relating to construction liens generally and the parties have fully argued those issues. D. ANALYSIS [18] As a starting point, it is useful to set out the relevant portions of s. 78, which read: (1) Except as provided in this section, the liens arising from an improvement have priority over all conveyances, mortgages or other agreements affecting the owner’s interest in the premises. (2) Where a mortgagee takes a mortgage with the intention to secure the financing of an improvement, the liens arising from the improvement have priority over that mortgage, and any mortgage taken out to repay that mortgage, to the extent of any deficiency in the holdbacks required to be retained by the owner under Part IV, irrespective of when that mortgage, or the mortgage taken out to repay it, is registered. (6) Subject to subsections (2) and (5), a conveyance, mortgage or other agreement affecting the owner’s interest in the premises that is registered after the time when the first lien arose in respect to the improvement, has priority over the liens arising from the improvement to the extent of any advance made in respect of that conveyance, mortgage or other agreement, unless, (a) at the time when the advance was made, there was a preserved or perfected lien against the premises; or (b) prior to the time when the advance was made, the person making the advance had received written notice of a lien. [19] I will consider the two subsections relied upon by the appellant in the same order that the motion judge did, beginning with s. 78(6). [20] With respect to subsection 78(6), I agree with the motion judge that, on its plain meaning, the subsection does not apply to the third mortgage. In particular, the subsection refers to “any advance made in respect of” the mortgage. In this case, the advances were made well before the third mortgage was given and registered. Indeed, the third mortgage was given and registered more than three years after the last advance and almost six years after the first advance. I do not see how, in those circumstances, it could be said that the advances were “made in respect of” the third mortgage. [21] On this point, a great deal of effort was spent by the appellant with reference to the legislative history of s. 78 and, in particular, the stated intention of the legislature to avoid the effects of the decision of the Supreme Court of Canada in Dorbern Investments Ltd. v. Provincial Bank of Canada , [1981] 1 S.C.R. 459. In Dorbern , the court had held that a subsequent registered collateral mortgage took priority over an unregistered lien even where the work covered by that lien predated the mortgage. Based on The Mechanics’ Lien Act , R.S.O. 1970, c. 267, as it was then worded, the court found that registration set the relevant priorities, absent specific notice of the lien. [22] The appellant criticizes the motion judge for failing to refer to this legislative history. In my view, that criticism is misplaced. While the motion judge may not have referred to the legislative history, her decision is consistent with the intent of s. 78, to the degree that that intent is revealed by the legislative history. Of more importance is the fact that the motion judge’s conclusion is consistent with the wording of s. 78(6). [23] The decision in Dorbern , and its impetus for changes to the provisions of the Construction Act , have limited relevance to the issues raised by this case. Here, the mortgage was not a collateral mortgage but a direct mortgage. Further, the legislative change Dorbern caused, namely the addition of s. 78(5), is of no direct relevance to the issues this court is called upon to determine. [24] The appellant also faults the motion judge for relying on two previous decisions which the appellant submits are distinguishable from this case. Those two decisions are Jade-Kennedy Development Corp. (Re) , 2016 ONSC 7125, 72 C.L.R. (4th) 236, aff’d 2017 ONSC 3421, 72 C.L.R. (4th) 256 (Div. Ct.), and XDG Ltd. v. 1099606 Ontario Ltd. (2014), 186 O.A.C. 33 (Div. Ct.). [25] The appellant attempts to distinguish those two cases on the basis that they involved collateral mortgages used to secure advances unrelated to the property. The appellant points out that the third mortgage was a direct mortgage to secure advances that led to the improvements on the Real Property. [26] However, having attempted to make that distinction, the appellant then curiously goes on to submit that, in enacting s. 78, the legislature did not intend to distinguish between collateral and other mortgages. Having thus eliminated the basis on which it attempts to distinguish these two cases, the appellant resorts to submitting that the two decisions were wrongly decided because those cases also failed to take into account the “true intent” of the legislature. [27] In my view, the appellant’s effort to avoid the effects of these two cases fails. Those two decisions are consistent with what both the motion judge and I say is the effect of the plain wording of s. 78(6), that is, that a mortgage will only be given priority to the extent that any advances are made “in respect of” the mortgage. That was not the factual situation in those two cases, and it is not the factual situation here. Indeed, it was not the factual situation in Dorbern , where the Supreme Court of Canada reached the same conclusion in its interpretation of s. 14(1) of The Mechanics’ Lien Act and the proper meaning to be given to “advances made on account of any conveyance or mortgage”. [28] The appellant’s effort to avoid the effect of Dorbern , on this point, by noting the difference in the wording of the two subsections between “on account of” and “in respect of”, the former being narrower than the latter, is unpersuasive in the context of these cases and these legislative provisions. [29] I now turn to s. 78(2) where the wording is, I accept, less plain. However, notwithstanding that lack of clarity, I reach the same conclusion on the facts of this case. I accept that the thrust of s. 78(2), and the wording “[w]here a mortgagee takes a mortgage with the intention to secure the financing of an improvement”, is to restrict the priority of the lien claims relating to that improvement solely to any deficiency in the holdback amount, and not over the mortgage generally. [30] In this case, though, the appellant cannot bring itself within that exception for the same reason that undercuts the appellant’s reliance on s. 78(6), and that is that the wording of s. 78(2) suggests that the intention to secure the financing operates prospectively. In other words, to fit within s. 78(2), the mortgagee must take the mortgage with the intention to secure financing of an improvement, which financing is then made. It does not operate retrospectively, that is, with respect to an intention to secure financing of an improvement that has already been made. [31] That conclusion with respect to the intention of s. 78(2) is consistent with the intention of s. 78 generally, which is to give priority to lien claimants. If a secured party wishes to propel its claim past the general priority given to lien claimants, then it bears the onus of bringing itself clearly within one of the exceptions set out in s. 78. In this case, the appellant has failed to discharge that onus, both with respect to s. 78(6) and s. 78(2). [32] Before concluding, I will address two other points raised by the appellant. First, the appellant says that the motion judge erred in failing to address the submissions of the Receiver. The motion judge was not required to specifically address any party’s submissions. What the motion judge was required to do was address the substance of all of the submissions made and reach a conclusion in light of all of those submissions. That is what the motion judge did in this case. [33] Second, the appellant complains about the “public policy” point that the motion judge made, in paragraph 42 of her reasons, where she referred to mortgagees not being entitled to “lie in the weeds” while advancing funds. I do not consider it necessary to comment on the manner in which the motion judge expressed the point. The Construction Act sets out the general principle of providing lien claimants with priority. The basic concern that the motion judge identified regarding any conclusion that would undermine that legislative intent remains a valid one. E. CONCLUSION [34] I would dismiss the appeal with costs to the respondent, Maxion, in the agreed amount of $30,000 inclusive of disbursements and HST. The Receiver did not seek costs. Released: December 2, 2021 “E.E.G.” “I.V.B. Nordheimer J.A.” “I agree. E.E. Gillese J.A.” “I agree. Gary Trotter J.A.” [1] Counsel for the lien claimants EXP Services Inc., Deep Foundations Contractors Inc. and Kieswetter Excavating Inc. appeared but did not make any written or oral submissions. [2] The Receiver identified that the third mortgage may be invalid, including under the Fraudulent Conveyances Act , R.S.O. 1990, c. F.29, and the Assignments and Preferences Act , R.S.O. 1990, c. A.33. By order of the Superior Court of Justice, the determination of that issue awaits the determination of the priority issue raised in this case. [3] Dal Bianco v. Deem Management Services Limited , 2020 ONCA 585, 82 C.B.R. (6th) 161.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Burnett, 2021 ONCA 856 DATE: 20211202 DOCKET: C63048 Watt, Benotto and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Andrew Burnett Appellant Mark C. Halfyard and Christopher S. Rudnicki , for the appellant Tracy Kozlowski , for the respondent Heard: September 21, 2021 by video conference On appeal from the conviction entered by Justice Anne M. Molloy of the Superior Court of Justice, sitting with a jury, on April 2, 2015. Watt J.A.: [1] Four people were together in an elevator. J.B., her jealous lover, Cory Campbell (“the deceased”), and J.B.’s friends, the appellant and Jeramy Henry. Everyone had the same destination in mind – J.B.’s apartment. [2] The deceased was armed. He had a knife he had recently picked up tucked into the waistband at the back of his pants. The appellant was armed as well. He had a loaded handgun because he always carried a handgun. [3] As the elevator ascended towards J.B.’s apartment, the appellant and deceased got into a confrontation. J.B. tried to intercede. The elevator doors opened. Jeramy Henry left. The appellant drew his gun. He shot the deceased once in the chest. The shot killed the deceased. [4] The appellant and Jeramy Henry were jointly charged and tried on a count of first degree murder. The Crown alleged that the murder was planned and deliberate. The appellant said it was self-defence. [5] The jury concluded that the appellant did not shoot the deceased in lawful self-defence. But the jury was equally not satisfied that the unlawful killing was planned and deliberate first degree murder. They found the appellant guilty of second degree murder and Jeramy Henry guilty of manslaughter. [6] The appellant challenges his conviction on two unrelated grounds. These reasons respond to his claims of error and explain why I have concluded that his appeal should be dismissed. The Background Facts [7] The circumstances surrounding the death of the deceased are confined to a single day. An overview of them will suffice to put the grounds of appeal in perspective. The Principals and Their Relationship [8] J.B. and the deceased dated for about eight months. Various witnesses [1] described their relationship as turbulent and chaotic. They fought constantly. Each accused the other of infidelity. The deceased tried to control J.B.’s activities. With whom she associated. How she dressed. Her social activities. He was intensely jealous and controlling. [9] J.B. wanted to end her relationship with the deceased. But the deceased was contrary-minded. He harassed her endlessly. With telephone calls. And text messages. And unannounced visits to her apartment. [10] J.B. knew the appellant and the co-accused Henry from their common involvement in different aspects of the music business. [11] Prior to the evening of the deceased’s death, he and the appellant had never met. The co-accused Henry had met the deceased before, but the men were not well acquainted. The Suspicion Intensifies [12] Sometime prior to his death, the deceased’s general jealousy and suspected infidelity of J.B. focused on her friendship with the appellant. The deceased believed that J.B. was sleeping with the appellant. He bombarded her with accusatory telephone calls, texts, and voicemails. In one text message, the deceased threatened to kill J.B.’s paramour. The Afternoon Visit [13] Earlier on the day of the shooting, J.B. called the appellant. She told the appellant that she was going through some troubles and wanted to see him. They had not spoken for some time. The appellant agreed to see J.B. He called the co-accused to arrange for a ride to J.B.’s apartment where they would “hang out” until the appellant’s previously arranged recording session later that day. [14] The appellant and Henry arrived at J.B.’s apartment building shortly after 3:00 p.m. J.B. greeted the men and escorted them upstairs to her apartment. They sat around, drank, and smoked some marijuana. J.B. took a shower. She explained that she was afraid to do so when alone in the apartment for fear that the deceased would break into the apartment when she was in the shower. [15] As the appellant recalled it, J.B. explained that she and the deceased were fighting constantly. He manhandled her and, on one occasion, choked her. J.B. showed the appellant a notebook. In it was a letter she had written to him. J.B. proposed to sleep with the appellant to “get over” the deceased. The appellant thought that she wrote him the letter to avoid disclosing its contents to Henry who was in the apartment with them. He texted her back “when?”. [16] For the balance of the afternoon, the deceased repeatedly called J.B. on her cellphone. He told her that he could hear male voices in the background. He wanted to know who the men were. J.B. put the deceased on speaker phone. The calls continued. The deceased said that he was on his way to J.B.’s apartment. [17] The appellant and Henry left J.B.’s apartment and drove to the recording studio where the appellant had his appointment. The Friend’s Apartment [18] Around 9:00 p.m. or 9:30 p.m. that evening, J.B. took her children to a friend’s apartment on another floor of the building where J.B. lived. She asked her friend to babysit the children because she (J.B.) was embroiled in another argument with the deceased. A short time later, J.B. returned to her friend’s apartment. She asked to use the friend’s phone because the deceased had taken hers. J.B. said she feared for her life. She expected that the deceased was going to attack her. She used her friend’s phone to call the appellant. [19] The deceased arrived at the friend’s apartment. He pounded on the door. He claimed that he wanted to return J.B.’s cellphone. When J.B.’s friend allowed the deceased to come into the apartment, J.B. and the deceased continued to argue. The deceased accused J.B. of infidelity with the appellant. They called each other names. The deceased paced around the apartment. He armed himself with a knife. He said, “I am going to die tonight” and “I’m not going to go like a sucker”. He called members of his family. [20] J.B. made another telephone call from her friend’s apartment, then left the apartment. Shortly thereafter, the deceased left the apartment. The Appellant Returns [21] While the appellant was at the recording studio, Henry received two phone calls from J.B. She was crying, angry, and upset. She and the deceased were fighting yet again. Henry offered to return to J.B.’s apartment to check up on her. The appellant then tried to call J.B. multiple times. The deceased intercepted one of the appellant’s calls to J.B. He accused the appellant of having an affair with J.B. The men argued. The appellant and Henry decided to return to J.B.’s apartment. [22] The appellant was armed with a handgun as he and Henry made their way back to J.B.’s apartment. In 2011, the appellant’s best friend was shot to death on the doorstep of the appellant’s home. The appellant may have been the shooter’s intended target. Since that time, the appellant had always carried a gun. On three previous occasions, someone had shot at him. On another occasion, he had been hit by a stray bullet that left him with a permanent limp. The Shooting [23] The appellant and Jeramy Henry arrived at J.B.’s apartment building at about 11:00 p.m. The elevator door opened in the lobby. J.B. and the deceased were inside. The appellant and deceased exchanged words. Once again, the appellant denied sleeping with J.B. He got into the elevator with J.B. The deceased followed them into the elevator. The deceased continued to confront the appellant. J.B. stepped between them. Jeramy Henry walked into the elevator as it headed towards J.B.’s apartment. [24] As the elevator ascended, the deceased and appellant continued their verbal altercation. When the elevator reached the floor where J.B. lived, the deceased said, “as soon as we leave the elevator, you guys are dead”. The elevator doors opened. Henry ran out into the hall. The appellant followed. The deceased grabbed the appellant by the hoodie and pulled him back. The appellant turned. He saw the deceased reach for a black handle in the waistband of his pants. The appellant believed the black handle was a gun. He pulled his own firearm and shot the deceased in the chest. The appellant fled. He followed Henry to his car. Henry drove them both away. [25] When police responded, they found a large, black-handled kitchen knife tucked into the deceased’s waistband. The Arrest [26] Police arrested the appellant two days later. They seized his cellphone. Several hours after he was arrested, the appellant was interviewed by the lead investigator. The admissibility of the video recorded interview was challenged at trial. The challenge is repeated here. The Grounds of Appeal [27] The appellant advances two grounds of appeal. He says that the trial judge erred: i. in conducting discussions about the contents of the charge to the jury by email in the absence of the appellant, rather than in court, on the record, in the presence of the appellant; and ii. in failing to find a violation of the implementational component of section 10(b) of the Charter and to exclude the record of the interview as evidence under section 24(2) of the Charter . Ground #1: The Violation of Section 650(1) of the Criminal Code [28] A first ground of appeal alleges a violation of the appellant’s statutory right and constitutional entitlement to be present throughout the whole of his trial. The asserted breach arises in connection with pre-charge conferences authorized by section 650.1 of the Criminal Code , R.S.C., 1985, c. C-46, to discuss “the matters that should be explained to the jury… and with respect to the choice of instructions to the jury”. [29] Some further detail is necessary to colour in the background of the alleged breaches. The Essential Background [30] The trial judge began drafting her charge and seeking the assistance of counsel about its contents before the defence case was completed. She indicated that she would provide drafts of her proposed instructions and obtain counsel’s assistance as the evidence continued in the presence of the jury. Prior to March break, the trial judge told counsel that she would email them her first draft for review. She indicated that counsel need not comment on the draft, but could do so if they wished. [31] During March break, the trial judge sent two draft charges to counsel. She made it clear that comment was not necessary, but permissible. Defence counsel indicated that he preferred to make the few comments he had on the record. [32] When proceedings resumed with the jury, the defence case continued to its conclusion. The parties prepared their closing addresses. They exchanged emails with the trial judge. Scheduling. Further draft charges. Their respective positions. Comments on each other’s positions. [33] In large measure, the pre-charge conferences were conducted in open court, on the record, and in the presence of the appellant. During one in-court pre-charge conference, the trial judge asked whether the statutory partial defence of provocation should be left to the jury for their consideration. The parties agreed that provocation was available on the evidence and should be left to the jury. [34] The parties continued to correspond by email about the charge to the jury. In the early evening of the day before the parties were to give their closing addresses, the trial judge expressed her concern about the availability of, hence the need to instruct the jury on, provocation. In an email she asked the parties about their positions on the issue: “I would appreciate hearing from you by email asap”. The judge invited defence counsel to respond first. Ten minutes later, defence counsel answered with a reversal of the position he had taken in the courtroom two days earlier. He wrote that there was no evidence of an act or insult of sufficient proximity to constitute provocation. [35] One night later, the trial judge invited immediate email responses on another subject: the appellant’s pre-trial custody. Later that evening, she circulated another draft charge with the now familiar request of an “as soon as possible” response. Counsel on both sides responded with submissions on manslaughter and self-defence. [36] Jury deliberations began. As they continued, the trial judge emailed the parties. She sought submissions about one aspect of the charge on self-defence. The trial judge asked whether she should further instruct the jury that, if on the evidence there could be more than one purpose to the appellant’s shooting of the deceased, they must find self-defence to be the sole purpose. The parties made significant submissions by email on whether further instructions were required. Defence counsel declined a re-charge on the basis that there was no evidence that the appellant shot the deceased for any other purpose than self-defence. The Arguments on Appeal [37] The appellant contends that the email exchanges with the trial judge about what should be included in or omitted from the charge to the jury were procedural errors that caused a miscarriage of justice in this case. [38] The appellant has a statutory right and a constitutional entitlement to be present throughout the whole of his trial. The “whole of his trial” includes any incident of the trial process that affects the vital interests of an accused. And it is well established that discussions about the legal principles in accordance with which an accused’s guilt will be determined affect an accused’s vital interests. It follows, according to the appellant, that any discussions about the availability of a defence, or what should be said about an available defence, must take place in open court, in his presence, and on the record. Failure to do so is a procedural error. [39] Once a procedural error has been identified, the inquiry focuses on the impact of that error. More specifically, the question becomes whether that error has caused a miscarriage of justice. A miscarriage of justice occurs when the procedural error creates an appearance of unfairness in the trial proceedings. Actual prejudice is not required. [40] Some procedural errors, the appellant acknowledges, may not compromise the actual or apparent fairness of a trial. In those cases, the respondent may be able to persuade the reviewing court that the appellant suffered no prejudice from the error. But that is simply not this case. [41] In addition to the appearance of unfairness inherent in all in absentia discussions, actual prejudice occurred here. Until the in absentia exchange, the parties agreed that the statutory partial defence of provocation would be left to the jury. If successful, this would result in a conviction of manslaughter. But a pre-charge conference held off the record, outside the courtroom, and in the appellant’s absence took away provocation, as well as the possibility of a verdict based on provocation. [42] The appellant says that in their email discussions the trial judge and the parties appear to have concluded that to reach provocation the jury would necessarily have rejected self-defence. Since the evidence relied upon was the same for both self-defence and provocation, this left no air of reality for the statutory partial defence of provocation. [43] To reject the availability of provocation on this basis, the appellant submits, was simply wrong. The partial statutory defence of provocation and the justification of self-defence are not inconsistent or mutually exclusive. A person can fear imminent bodily harm and seek to prevent it (self-defence), but at the same time lose self-control in the face of the impending risk of bodily harm (provocation). [44] In this case, the jury was entitled to be selective about the appellant’s testimony. They could have disbelieved his claim of a confrontation in the hallway, but accepted that the deceased threatened him in the elevator. This threat would satisfy the objective element of provocation. Or the jury could have rejected the appellant’s evidence, but accepted the testimony of the co-accused to the same effect. This finding would also have satisfied the objective test for provocation. [45] The appellant argues further that the jury could have rejected self-defence on the basis that shooting the deceased was disproportionate to the deceased’s conduct of reaching for the waistband of his pants and grabbing the appellant’s hoodie. Were this the case, the statutory partial defence of provocation was available and could have served to reduce what otherwise would have been murder to manslaughter. [46] The appellant accepts that the bulk of the pre-charge conference was conducted as it should have been: in court, on the record, in the presence of the appellant. However, critical substantive and vital issues were discussed and resolved by email. The statutory partial defence of provocation was taken off the table the evening before closing addresses and the charge. The appellant was not present. The issue was not revisited in open court, on the record, in the appellant’s presence. This procedural error cannot be salvaged by the proviso in section 686(1)(b)(iv). [47] The respondent begins with a submission that any email communications occurred within permissible limits. For the most part, the email exchanges involved providing counsel with successive drafts of the proposed instructions, pointing out changes made and explaining that each version would serve as the working copy for their in-court discussions. The preliminary nature of these discussions did not offend section 650(1) of the Criminal Code and, in any event, did not cause or contribute to a miscarriage of justice. [48] The email discussion about the potential unavailability of provocation was preceded by a question in open court from the trial judge: Is there provocation? It’s never been raised. The response of the Crown, “yes”, should not be taken as an acknowledgment that there was an air of reality to the defence or that it should be put to the jury. The response of defence counsel was that manslaughter was available on the basis that the appellant did not intend to kill the deceased. Defence counsel submitted that if manslaughter based on lack of intent were left then “provocation needs to be included. It doesn’t need to be detailed but just, … what was said in the elevator or the utterances that were made before, which would reduce his state of mind from intentionality to manslaughter”. [49] As the record reveals, the respondent accepts that the trial judge, while putting together “Draft 6” of her proposed jury instructions the day before closing addresses were to be given, invited counsel to respond by email to her inquiry about the availability of provocation as a defence. She sought an immediate response because the answers of counsel affected the completion of the charge and the closing addresses scheduled for the next day. Defence counsel responded. He explained why provocation should not be included in the charge to the jury. [50] After defence counsel responded to the trial judge’s question about provocation, the trial judge provided a further draft of her proposed charge. The draft omitted any reference to provocation. The judge invited submissions the following day before closing addresses. Defence counsel made no submissions. [51] In any event, the respondent continues, there was no air of reality to the statutory partial defence of provocation in this case. What was missing was evidence of a wrongful act or insult and of a sudden response that could ground the defence. Neither the deceased’s comment to the appellant and Henry that they would both be “dead” when the elevator doors opened, nor the deceased’s grab of the appellant’s hoodie could qualify. The shooting did not happen suddenly. Nor was the shooting in response to the threat. As the appellant made clear, he shot because he feared for his life: “It was a life or death situation”. [52] In the alternative, the respondent says, any procedural error that may have occurred because of the appellant’s exclusion is saved harmless by the proviso of section 686(1)(b)(iv). [53] The respondent submits that the exclusion was brief. The request for comment did not prompt an objection from defence counsel. The availability of provocation had already been canvassed in open court. A further draft charge was provided. Counsel were invited to discuss it prior to their closing addresses the following day. Defence counsel made no objection either to the removal of provocation as a defence or to the emailed discussion about it the previous evening. Not before and not after the charge was delivered. Indeed, defence counsel made it clear that the sole catalyst for the shooting was in defence of the appellant’s own life. The discussion by email did not cause any actual or apparent unfairness to the trial process. The Governing Principles [54] Little controversy exists about the principles that inform our decision on this ground of appeal. However, the parties are at odds about the result that should follow from the application of those principles to the circumstances of this case. [55] The appellant was statutorily required to be present for the “whole of his trial” under section 650(1) of the Criminal Code , absent any applicable exception under section 650(2). No statutory exception permitting or requiring the appellant’s exclusion applies: R. v. Simon , 2010 ONCA 754, 104 O.R. (3d) 340, at para. 114, leave to appeal refused, [2010] S.C.C.A. No. 459. [56] Whether an aspect or procedural incident of or associated with a criminal trial is part of the trial depends upon whether: what occurred involved or affected the vital interests of the accused; or whether any decision made had a bearing on the substantive conduct of the trial. See Simon , at para. 116; R. v. Hertrich, Stewart and Skinner (1982), 67 C.C.C. (2d) 510 (Ont. C.A.), at p. 539, leave to appeal refused, [1982] S.C.C.A. No. 124; R. v. Hassanzada , 2016 ONCA 284, 130 O.R. (3d) 81, at para. 128. [57] A pre-charge conference, authorized but not required under section 650.1, is held to discuss “the matters that should be explained to the jury” and “the choice of instructions to the jury”. The subject-matter discussed at the pre-charge conference involves and affects the vital interests of the accused. It follows that the pre-charge conference is part of the accused’s trial: Hassanzada , at para. 129; R. v. E. (F.E.) , 2011 ONCA 783, 108 O.R. (3d) 337, at para. 46. And it also follows, subject to the exceptions in section 650(2), that the accused is not only entitled, but required to be present during the conference: Hassanzada , at para. 129; E. (F.E.) , at paras. 46-47. [58] Since pre-charge conferences are part of an accused person’s trial at which they are required by section 650(1) of the Criminal Code to be present, those conferences are required to be held: i. in the courtroom; ii. on the record; iii. in the presence of the accused. See Simon , at para. 137; Hassanzada , at para. 131. [59] This is not the first case in which an appellant has challenged the use of email to conduct substantive discussions about the contents of the charge to the jury. In prior decisions we have indicated that the use of email to provide counsel with copies of proposed jury instructions does not offend section 650(1) of the Criminal Code . In those same decisions, we have made it equally clear that discussions about the content of those draft instructions are not to take place by email. These discussions, whether they solicit or offer submissions about charge content, affect and involve the vital interests of the accused and must take place in the actual presence of the accused. Section 650(1) requires it: Simon , at para. 137; Hassanzada , at paras. 130-131. [60] Few words are required to explain the combined effect of sections 650(1) and 650.1 of the Criminal Code . In court. On the record. In the presence of the accused. No more is required. Nothing less will do. Section 650(2) contains no email exception to the “shall be present in court during the whole of his or her trial” requirement of section 650(1): Simon , at para. 137; Hassanzada , at para. 131. [61] Where substantive pre-charge conference discussions take place outside the courtroom and in the absence of the accused, whether they are conducted in judicial chambers or elsewhere or by email, a procedural error has occurred. There is a violation of 650(1) of the Criminal Code . The result will be a new trial unless what occurred can be saved by the proviso in section 686(1)(b)(iv) of the Criminal Code : E. (F.E.) , at para. 29; Simon , at paras. 119, 122. [62] The discretion to dismiss an appeal under section 686(1)(b)(iv) is engaged when three conditions are met: i. a procedural irregularity occurred at trial; ii. the trial court had jurisdiction over the class of offence of which the appellant was convicted; and iii. the court of appeal is of the opinion that the appellant suffered no prejudice because of the procedural irregularity. See, E. (F.E.) , at para. 30. Provided the conditions precedent to the operation of the section have been met, the section may save harmless a breach of section 650(1) of the Criminal Code : Simon , at para. 122; E. (F.E.) , at para. 31. See also, R. v. Cloutier (1988), 43 C.C.C. (3d) 35 (Ont. C.A.), at p. 49, leave to appeal refused, [1989] S.C.C.A. No. 194. [63] The phrase “jurisdiction over the class of offence” in section 686(1)(b)(iv) refers to the classes of offences described in sections 468, 469, and 785 of the Criminal Code . The offence with which we are concerned here – murder – is an offence listed in section 469 of the Criminal Code . It is an offence within the exclusive trial jurisdiction of the superior court of criminal jurisdiction: R. v. Esseghaier , 2021 SCC 9, at paras. 42, 47, 48. [64] If a reviewing court is satisfied that what occurred was a procedural error and that the trial court had jurisdiction over the offence of which the appellant was convicted, the proviso inquiry turns its focus to the issue of whether the appellant suffered “no prejudice”: Esseghaier , at para. 50. The precise reach of the proviso in section 686(1)(b)(iv) is without clear definition: Esseghaier , at paras. 51-53. However, it has been held that the term “prejudice” encompasses at least: i. prejudice to the ability of an accused to properly respond to the case for the Crown and to receive a fair trial; and ii. prejudice to the appearance of the due administration of justice. See, E. (F.E.) , at para. 33. Whether section 686(1)(b)(iv) will hold harmless the procedural irregularity requires a close examination of all the circumstances including but not only the factors listed in Simon , at para. 123; E. (F.E.) , at para. 36. [65] The standard we are to apply to determine the result of the prejudice inquiry under section 686(1)(b)(iv) has not yet been authoritatively settled: Esseghaier , at para. 52. However, an appellant is not required positively to demonstrate prejudice to foreclose the application of the proviso. If the Crown satisfies the appellate court that the procedural error caused the appellant no prejudice, the proviso is available to dismiss the appeal. The Principles Applied [66] After a careful consideration of all the circumstances, I am not persuaded that this ground of appeal can prevail. This despite the trial judge’s failure to follow binding precedent in favour of a course that put at risk the integrity of the trial process. [67] First, the procedural error. [68] The pre-charge conference affects the vital interests of an accused. As a result of what is said there, decisions are made about the content of the final instructions to the jury. What will be said and how it will be said. And what will not be included. Such as defences. Like provocation. Justifications, like self-defence. And excuses. [69] Procedural incidents of the trial process, such as pre-charge conferences, are part of an accused’s trial. It follows from the statutory requirement of section 650(1) of the Criminal Code , as well as every accused person’s constitutional entitlement to be present at their trial, that the appellant was entitled to be present for the pre-charge conference. The entire pre-charge conference when the availability of the statutory partial defence of provocation was discussed. No statutory exception permitted his exclusion when the subject of the availability of provocation was discussed and decided. Exclusion of the appellant from this discussion contravened section 650(1) of the Criminal Code . [70] Likewise, the discussion about further instructions on self-defence while the jury was deliberating. Self-defence was the principal defence advanced at trial. Any discussions about its availability and about what would be said or not said about it affected the appellant’s vital interests. They were part of his trial. He was statutorily required and constitutionally entitled to be there. His absence, the product of a judicial decision to discuss the issue by email, breached section 650(1). No exception applied. [71] These were unforced, needless errors, heedless of the statutory requirement and constitutional entitlement of an accused’s presence “during the whole of his or her trial”. [72] The appellant acknowledges that for the most part, the pre-charge conferences were held in open court, on the record, and in his presence. This included the initial discussion about the statutory partial defence of provocation. [73] The trial judge raised the issue of provocation. She pointed out that no one had raised it thus far in their discussions about the charge. Defence counsel pointed out that since the included offence of manslaughter was being left to the jury, provocation should be included as well because it (provocation) reduced the state of mind of the shooter. This is not so. Manslaughter committed under provocation is voluntary manslaughter, sometimes called mitigated murder. As the introductory language of section 232(1) of the Criminal Code provides – “Culpable homicide that otherwise would be murder” – the statutory partial defence of provocation has nothing to do with the fault element of murder. And whether voluntary manslaughter should be left to a jury depends on whether there is an air of reality to the defence which is unrelated to whether involuntary manslaughter – an unlawful killing unaccompanied by the fault element required for murder – should be included in the charge. [74] When the trial judge first raised the issue of provocation, pointing out that no one had said anything about it earlier, the trial Crown simply responded “yes”. In the absence of any further affirmation that provocation would be left to the jury, I am not prepared to conclude that her single word response meant that she thought there was a basis for submitting provocation to the jury. [75] The exclusion of the appellant from the discussion on provocation came about early in the evening before counsel were to address the jury. [76] The trial judge sent an email to counsel. She asked whether there was an air of reality to provocation. She appeared to be of the view that provocation should not be included in the charge since provocation was based on the same evidence as self-defence and self-defence was being left to the jury . She asked counsel to respond, the defence first, “asap”. [77] The defence of provocation and the justification of self-defence are not mutually exclusive. The same evidence may support, said otherwise, provide an air of reality for each. Provided the evidence satisfied the air of reality standard for each, then each should be left to the jury. [78] In a similar way, most discussions about self-defence were held in court, in the appellant’s presence and on the record. But once again, while the jury was deliberating, the trial judge began and continued an email exchange with counsel about further instructions on self-defence. She directed counsel to respond “asap” by email. In the end, no further instructions were provided. [79] As we have already seen, our authority to dismiss an appeal despite a procedural irregularity at trial requires that the trial court has jurisdiction over the class of offence with which the appellant was charged and that we be of the opinion that the appellant suffered no prejudice as a result of the error. Since no issue arises about the jurisdiction of the superior court of criminal jurisdiction over the offence with which the appellant was charged – murder – our analysis must focus on the nature and extent of any prejudice caused by the irregularity. [80] Several factors taken together persuade me that the appellant was not prejudiced by the procedural irregularities that occurred here. [81] First, the nature and extent of the exclusions. [82] Each exclusion was initiated by the trial judge to discuss issues about the contents of the charge to the jury. The first was prior to the delivery of the charge. It was followed by a further draft of the charge. Counsel had an in-court opportunity before their closing addresses to make submissions about the exclusion of provocation. Defence counsel did not do so. This is not a case, as in E. (F.E.) , where the entirety of the pre-charge conference was conducted in chambers. In this case, there was also a record of what occurred. The exclusions do not appear to have been lengthy. [83] The second exclusion occurred while the jury was deliberating, again initiated by the trial judge. Counsel responded by email as the trial judge requested with submissions about further instructions on self-defence. No further instructions were given to the jury. This exchange should not have taken place over email. The jury is deliberating. They are in the courthouse. Likewise, the accused, and the trial judge. Counsel are reachable. Notify counsel. Re-assemble the court in the absence of the jury. Discuss the issue. Decide what to do. [84] The email communications and requests by the trial judge would seem to have been a deliberate choice of a method of communication other than that required by section 650(1) of the Criminal Code . Perhaps the trial judge was concerned about ensuring adherence to a schedule provided to the jury about the concluding aspects of the trial. Certainty is desirable. The progress of a trial in its waning moments should not be unduly delayed. But the solution is not to ignore mandatory statutory requirements such as section 650(1) of the Criminal Code . There is no email exception. [85] Second, the position of counsel at trial. [86] Prior to the instances to which objection is taken, defence counsel did reject a request by the trial judge to respond to an issue raised by the trial judge by email. Defence counsel then stated his preference to respond in the courtroom. However, in neither instance to which objection is taken did he, despite his years of experience, object to the method of response requested, express any concerns about it in open court, or make any further submissions about either provocation or self-defence. [87] Third, the impact on trial fairness. [88] Neither the substance nor the timing of the email discussions compromised the appellant’s right to make full answer and defence. Neither discussion related to a tactical decision the defence was required to make. The initial discussion occurred after prior in-court conferences about the substance of the charge to the jury as the defence case was being led. The appellant had already decided to testify. The discussion about the availability of provocation took place after the evidence had been completed. All that remained were the addresses of counsel and the charge. Neither had anything to do with the substantive contents of the appellant’s primary defence – self-defence. [89] Further, the subject matter of the discussions. In each case, the discussion involved jury instructions. Whether the statutory partial defence of provocation should be left for consideration by the jury. Whether the instructions on self-defence required further elaboration. Each related to a subject about which it was unrealistic to conclude the appellant could have assisted counsel had he been present. [90] Moreover, there was no air of reality to the partial statutory defence of provocation. The appellant’s evidence failed to provide a basis upon which the jury could find or have a reasonable doubt that he lost self-control and acted on the sudden. The appellant testified he acted out of fear upon seeing a black object in the back of the deceased’s pants. He never suggested he acted out of anger or rage, let alone to the point that he lost self-control – both precursors to provocation. While the jury could have rejected the parts of the appellant’s testimony inconsistent with provocation, the remaining evidence was insufficient to ground a “coherent narrative” of provocation. As such, the omission of provocation in the jury instruction did not prejudice the appellant. Neither does the appellant advance such an error as a separate ground of appeal. [91] Meanwhile, under the defence of self-defence, there was no evidence that there was more than one purpose for which the appellant shot the deceased. The absence of any recharge on this point did not prejudice the appellant. [92] For these reasons, I would reject this ground of appeal. [93] This is not the first time a trial judge has conducted part of the pre-charge conference in the absence of the accused. Nor is it the first time that an accused has been excluded from some other aspect of the trial process where their vital interests are involved. When they occur and are raised on appeal, the integrity of the jury’s verdict is in jeopardy. And unnecessarily so. These errors are unforced. [94] As we have said in the past and reiterate today, no breach of section 650(1) of the Criminal Code occurs by email transmission to counsel of drafts of proposed jury instructions. But as we have also said in the past and repeat today with emphasis, initiating and receiving by email submissions about the subject-matter contained in or omitted from final instructions does offend section 650(1) of the Criminal Code . The reason is simple. Pre-charge conferences under section 650.1 of the Criminal Code , indeed any discussions about what should be explained to the jury and the choice of instructions to be given, affect an accused’s vital interests, thus are part of the accused’s trial. Section 650(1) is engaged. The accused must be present unless an applicable exception applies. Use of email is not an exception. The message is in the medium. Open court. On the record. In the presence of the accused. [95] The circumstances of this case illustrate the comparative facility with which the issues raised by the trial judge could have been resolved without offending section 650(1) of the Criminal Code . [96] The trial judge became concerned about the inclusion of an instruction on provocation early in the evening before counsel were to address the jury. Schedule discussion of the issue prior to the jury’s return the following day. If the jury cannot be advised in advance of their return to attend later than scheduled, arrange for refreshments for them at the time they are scheduled to return. In the meantime, sort out the provocation issue and the timing of the balance of the day’s events with counsel (and the jury if necessary) and proceed accordingly. [97] The self-defence issue arose while the jury was deliberating. It was a simple matter to notify counsel that an issue had arisen that required their attendance in the courtroom. With all participants in the trial present in the courtroom, except the jury, the self-defence issue could be raised, discussed, and decided. If necessary, the jury could be recalled for further instructions. Ground #2: The Implementational Infringement of Section 10(b) [98] The second ground of appeal challenges the trial judge’s ruling admitting as evidence a video recorded interview of the appellant by the lead investigator, D/Sgt. Idsinga. [99] At trial, the appellant challenged the admissibility of the interview on both voluntariness and section 10(b) grounds. At the conclusion of a blended voir dire , counsel abandoned the voluntariness challenge, but pursued the claim based on an alleged infringement of the implementational component of section 10(b). [100] The trial judge concluded that there had been no breach of the implementational component of section 10(b). This permitted the Crown to cross-examine the appellant on the interview as a prior inconsistent statement should the appellant testify in a contrary way. The trial judge then admitted the statement as evidence of after-the-fact conduct. This permitted the Crown to adduce it as part of her case in-chief. The Essential Background [101] Some further background about what happened between the appellant’s arrest and his interview by D/Sgt. Idsinga will provide the background necessary to evaluate the claim of error advanced here. The Arrest [102] The appellant was arrested at 7:30 p.m. on September 10, 2012, two days after he shot the deceased to death. Police seized his cellphone incident to arrest. The arresting officers, who were not involved in the murder investigation, advised the appellant of the reason for his arrest and explained his right to counsel. The appellant was told that he had the right to call a lawyer and also the right to free legal advice from duty counsel associated with Legal Aid. When asked whether he wished to call a lawyer then, the appellant said “I’m telling you. I don’t understand. What’s going on?”. He did not respond directly to the question whether he wished to call a lawyer at that time. The appellant appeared shocked when the officer read the police caution. The arresting officer was involved with the appellant for about two to three minutes. At the conclusion of the process of arrest, the officer said he didn’t know what the appellant wanted to do about speaking to a lawyer or duty counsel. The officer’s uncertainty arose from the appellant’s failure to answer the officer’s question about calling a lawyer or duty counsel. Transportation to 55 Division [103] The arresting officer turned the appellant over to other officers who were in the area on another call. These officers were advised of the reasons for the appellant’s arrest and assigned the task of transporting the appellant to 55 Division, the precinct in which the shooting occurred. One of the officers, P.C. Hewitt, re-advised the appellant of his right to counsel. The appellant kept asking what this was all about. P.C. Hewitt could offer no assistance on this issue. He was not involved in the investigation and had received no information about it beyond being advised that the allegation was one of murder. [104] The transporting officers seated the appellant, who was handcuffed, in the back of a police cruiser. P.C. Hewitt, in explaining to the appellant his right to counsel, asked “Do you wish to call a lawyer now?”. The appellant responded, “I might as well, I don’t even know what’s going on, but obviously a lawyer is gonna have to deal with this matter”. The appellant explained that he did not have a particular lawyer that he wished to call because he did not know a lawyer. The officer asked about duty counsel. The appellant agreed that he would have to speak with duty counsel. [105] P.C. Hewitt advised the appellant that he (the appellant) would have a chance to speak to a lawyer after they arrived at the police station. The officer was aware of his obligation to hold off asking any questions of the appellant because of the appellant’s wish to speak with a lawyer. P.C. Hewitt was unaware of the details of the investigation so he could not explain them to the appellant or ask him any questions about it. The Booking Procedure [106] More than an hour later, the transporting officers and the appellant arrived at 55 Division. The booker was unaware of the appellant’s request to speak to a lawyer. He told the appellant that he could use the telephone. If he wished to do so, the appellant was to speak with one of the transporting officers because it was their responsibility, not that of the booker, to facilitate exercise of the right to counsel. The appellant did not ask to use the telephone in the booking area. The Interview Room [107] After the booking process had been completed, P.C. Hewitt escorted the appellant to the interview room. The officer advised the lead investigator, D/Sgt. Idsinga, of what had occurred thus far. This included the appellant’s response when advised of his right to counsel. D/Sgt. Idsinga, aware of the appellant’s wish to speak with counsel but that he had not yet done so, told P.C. Hewitt that he (Idsinga) would take it from there. The Interview with Detective Sergeant Idsinga [108] Shortly before 10:00 p.m. on the day of his arrest, the appellant was in an interview room at 55 Division. He had been left there by transporting officers to await the arrival of investigators from Homicide, D/Sgt. Idsinga and Det. Ogg. [109] When D/Sgt. Idsinga entered the interview room, he introduced himself and explained that he wanted to complete some paperwork concerning the arrest and to get the appellant in contact with a lawyer if the appellant wished to talk to a lawyer. [110] D/Sgt. Idsinga then continued: Idsinga: Okay? It’s my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence, which you’re going to be, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a toll free number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand that? Burnett: Yes sir. Idsinga: Do you wish to call a lawyer right now? Burnett: I guess so. Like I don’t know what’s going on. Idsinga: Okay. Well – I can explain to you what’s going [on] but if you want to talk to a lawyer first you can talk to a lawyer first. Burnett: I don’t like I said you might as well explain to me but I really don’t know what’s going on. [111] Over the next few minutes, D/Sgt. Idsinga read the primary and secondary police cautions to the appellant and explained that the appellant need not answer any questions the officer might ask him. The appellant repeated his lack of understanding about what was going on. He was prepared to listen to what the officer had to say. D/Sgt. Idsinga continued the discussion: Idsinga: The decision is y’-yours Andrew. I can take you to the other room; we have a video camera in there. I’ll sit down and show you some things – and explain to you what’s going on. Burnett: Furth’-um --- Idsinga: Or we can call a lawyer first. Or we can call a lawyer afterwards at any point in time if you wanna (sic) call a lawyer we can call a lawyer. Burnett: Ah can I see what you’re talking about and then like, I just wanna (sic) understand what’s going on so Idsinga: Okay. Burnett: --- if you could help me understand then I could help you with whatever you need. I just don’t understand what go on – what’s going on. Idsinga: So, do you wanna (sic) see what I’m talking about --- Burnett: Please and thank you. Idsinga: --- or – we call a lawyer? Burnett: Please and thank you. [112] The officers and the appellant left the interview room and entered a video suite. There, D/Sgt. Idsinga repeated what he had earlier said about the right to counsel and asked the appellant whether he wanted to call a lawyer at that time. The appellant said that he didn’t have a lawyer “on file” and wondered whether it would be possible for a lawyer to come to the police station. D/Sgt. Idsinga explained that lawyers did not come to the police station. The officer offered to put the appellant in contact with a lawyer at that very moment. The appellant said that he wanted to hear first “what’s going on” before talking to a lawyer. The colloquy concluded: Idsinga: You have to understand that you don’t have to say anything to me. You don’t have to answer any of my questions. And you can – call a lawyer – a free lawyer for l’ - free legal advice any time you want. Burnett: Okay. Idsinga: Including right now. Burnett: Okay. Idsinga: Okay? You understand all that? Burnett: Yes sir. Idsinga: Okay. Do you wanna (sic) call a lawyer right now? Burnett: No, not as right now sir. The Ruling of the Trial Judge [113] The trial judge gave written reasons for her conclusion that the video recorded interview had not been obtained in breach of the implementational component of section 10(b) of the Charter . The appellant had been advised on five separate occasions of his right to counsel. He had been read the primary and secondary caution and told that he was under no obligation to speak to the police. He was aware of the nature and extent of his jeopardy and of his right to speak to a lawyer, including duty counsel. He spoke freely to investigators. He waived his right to retain and instruct counsel without delay because he wanted to find out the case against him. [114] The trial judge was satisfied that the implementational requirement in section 10(b) did not arise at all until the appellant arrived at 55 Division. It was not appropriate for the transporting officers to turn off the in-car recording devices to permit the appellant to call counsel from the backseat of a police cruiser. Nor was it appropriate for either transporting officer to give the appellant his (the officer’s) own cellphone to make the call. [115] During the booking procedure, the appellant was told that he could make reasonable use of the telephone in a room adjacent to the booking hall. To do so, the appellant only needed to ask the transporting officers. He made no such request. [116] At the outset of his discussions with D/Sgt. Idsinga, the appellant said he would call a lawyer because he did not know what was going on. But he later changed his mind because he wanted to find out what the officer would tell him about the case first. D/Sgt. Idsinga made it clear to the appellant that he could call a lawyer anytime he wished. But the appellant never did so and never asked that he be permitted to do so. [117] The trial judge was satisfied that the appellant waived his right to counsel before he spoke to police. From the outset, the appellant repeatedly sought information from the police. D/Sgt. Idsinga made it clear that he would provide the appellant with information. But at the same time, he asked the appellant whether he wished to speak with a lawyer before hearing what the officer had to say. The appellant clearly and unequivocally declined the opportunity. The appellant’s choice was free, voluntary, and fully informed. The Arguments on Appeal [118] The appellant contends that at trial the parties accepted that the appellant expressed his desire to speak to counsel shortly after his arrest at 7:30 p.m. At the station, he was paraded and booked in an area where there was private access to a telephone. Yet no one made any attempt to put him in contact with a lawyer in compliance with his earlier express request. Instead, he was shunted off to an interview room to await the arrival of investigators from Homicide. [119] When D/Sgt. Idsinga entered the interview room, he knew that the appellant had asked to speak to a lawyer and that he had not been provided with that opportunity. Yet, D/Sgt. Idsinga did nothing to implement the appellant’s request. Instead, the officer simply repeated the Charter advice and cautions already administered and asked questions the appellant had already answered. [120] When an accused or detainee invokes their right to speak to a lawyer, the appellant says, the police are required to take steps to assist them in doing so without delay. It is only where compelling circumstances exist, such as concerns about officer or public safety, that a delay can be justified. This exception cannot be invoked, as a matter of routine, rather can only be established on a case-specific consideration of the circumstances of the case. None of those circumstances existed here. [121] In this case, the appellant continues, the transporting officers could have facilitated his request by calling Legal Aid, turning off the recording devices in their cruiser, and allowing him to speak with duty counsel. And at the police station, 90 minutes later, facilities were available to give effect to the appellant’s request, but nobody facilitated the call. Instead, he was simply taken to an interview room to await investigators. No telephone was ever provided. [122] When D/Sgt. Idsinga arrived at the interview room, he was well aware of the appellant’s request to speak to a lawyer and that the request had not been implemented. Yet, the senior investigator did nothing to facilitate the unfulfilled request. Instead, D/Sgt. Idsinga simply engaged in a back-and-forth with the appellant about disclosure of the police investigation, on the one hand, and the right to speak to a lawyer, on the other. These serial breaches warranted exclusion of the interview as evidence. [123] The respondent resists the appellant’s claim of constitutional infringement. No breach of the implementational component of section 10(b) occurred here. The police were not required to facilitate a telephone call the appellant was not interested in making. His purpose was in finding out the case against him, not in speaking to duty counsel or any other lawyer. [124] The appellant was repeatedly advised of the reasons for his arrest and his right to counsel, cautioned that he need not speak to the police, and told about the evidentiary consequences of doing so. This occurred on arrest, when transported to the station, and when he was booked at 55 Division. He indicated to the transporting officers that he “might as well” speak to a lawyer and “I guess I’m gonna have to speak to duty counsel” since he didn’t know any lawyers. He suggested that he could do so when they got to the police station. [125] At 55 Division, the Acting Sergeant reiterated the appellant’s section 10(b) rights and explained that he was entitled to reasonable use of the telephone. All the appellant had to do, the officer said, was to tell one of the transporting officers or the investigating officer that he (the appellant) wanted to use the phone. The appellant’s only request was to speak with his mother. An officer facilitated that call. At no time did the appellant ask anyone at the booking desk or one of the transporting officers for use of the phone to call a lawyer or duty counsel. [126] When D/Sgt. Idsinga appeared in the interview room and later in the video suite, he was aware of the appellant’s prior request to speak to a lawyer or duty counsel. He reiterated the appellant’s rights under section 10(b) and inquired about his previous request to call a lawyer. The appellant persisted in his claim that he was unaware about what was going on. Despite D/Sgt. Idsinga’s offer to call a lawyer or duty counsel, the appellant demurred. He wanted to find out the details of the police investigation first before he spoke to a lawyer. [127] The respondent accepts that when a detainee invokes their right to obtain legal advice from a lawyer or duty counsel under section 10(b), the police are required to facilitate that request at the first reasonable opportunity and to hold off taking any further investigative steps to elicit evidence from the detainee until the request has been fulfilled. [128] In this case, the respondent points out, it was never suggested at trial that the appellant should have been permitted access to an officer’s own cellphone to call duty counsel from the police cruiser with the video and audio recording equipment in the cruiser disengaged. Likewise, the appellant’s own cellphone could not be used because he had removed the SIM card from it. At trial, counsel conceded that the first reasonable opportunity was at 55 Division. The Governing Principles [129] This ground of appeal involves one aspect of the right to counsel guaranteed by section 10(b) of the Charter . No issue arises about the adequacy of the information provided to the appellant about the reasons for his arrest as required by section 10(a) of the Charter . Nor is there any complaint about the adequacy of the advice offered to the appellant about his right to retain and instruct counsel without delay as mandated by section 10(b) of the Charter . The failure asserted here has to do with the implementational component in section 10(b), the duty settled on police to ensure that arrested persons are given a reasonable opportunity to exercise their right to retain and instruct counsel without delay. [130] The purpose of the rights under section 10(b) is to allow a detainee or an arrested person not only to be informed of their rights and obligations under the law, but also, of equal and perhaps greater importance, to obtain advice about how to exercise those rights: R. v. Taylor , 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 21, citing R. v. Manninen , [1987] 1 S.C.R. 1233, at pp. 1242-1243. Access to legal advice ensures that an individual who is at once under control of the state and in legal jeopardy is able to make a choice whether to speak to police investigators that is both free and informed: Taylor , at para. 21, citing R. v. Sinclair , 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 25. And the right to retain and instruct counsel without delay is also meant to help detainees regain their liberty, as well as guard against the risk of involuntary or inadvertent self-crimination: Taylor , at para. 21, citing R. v. Suberu , 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 40. [131] The arrest or detention of the person imposes three corresponding duties on the police: i. An informational duty to inform the detainee of their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel; ii. An implementational duty if the detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise their right, absent urgent and dangerous circumstances; and iii. A duty to hold off from eliciting evidence from the detainee until they have had that reasonable opportunity, absent urgent or dangerous circumstances. See, Taylor , at para. 23, citing R. v. Bartle , [1994] 3 S.C.R. 173, at p. 192; Manninen , at pp. 1241-1242. [132] The implementational duty – the duty to facilitate access – arises immediately upon the detainee’s request to speak to counsel. Arresting officers are constitutionally required to facilitate the access requested at the first reasonably available opportunity. Where delay has occurred, the burden is on the Crown to demonstrate in the specific circumstances of the case that the delay was reasonable: Taylor , at para. 24. [133] To facilitate access to counsel at the first reasonably available opportunity includes allowing the detainee on request to use a telephone for that purpose if one is reasonably available: Taylor , at para. 25, citing Manninen , at p. 1242. [134] This implementational duty does not create a corresponding “right” of the detainee to use a specific phone. Nor does it impose a legal duty on police to provide their own cellphone to a detainee. What this aspect of section 10(b) does is to guarantee that the detainee will have access to a phone to exercise their right to counsel at the first reasonable opportunity: Taylor at paras. 27-28. [135] As for the duty to hold off, until the requested access to counsel has been provided, police are required to refrain from taking further investigative steps to elicit evidence from the detainee: Taylor , at para. 26; R. v. Willier , 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 33. The implementational duty and the obligation to hold off are contingent on the detainee’s reasonable diligence in attempting to contact counsel. What constitutes reasonable diligence depends on the particular circumstances of each case: Willier , at paras. 30, 33; Sinclair , at para. 27; R. v. Black , [1989] 2 S.C.R. 138, at pp. 154-155. The Principles Applied [136] I would not give effect to this ground of appeal. I am satisfied that the trial judge’s conclusion not to exclude the video recorded interview on the basis of an infringement of the implementational component of section 10(b) does not reflect error. [137] The appellant was arrested at 7:30 p.m. by officers who were not involved in the homicide investigation. On arrest, a pat down search took place. The arresting officer seized the appellant’s cellphone. Apprised of the reason for his arrest and his right to counsel, the appellant insisted that he did not know what was going on or what the officers were talking about. This would become a constant refrain throughout the appellant’s dealings with police. It was admittedly false. The appellant did not tell the arresting officer that he wanted to speak to a lawyer. [138] Arresting officers turned the appellant over to other officers three minutes later. These officers, also uninvolved in the investigation, were assigned to transport the appellant to 55 Division. When the appellant denied that he had been advised of his right to counsel, an officer repeated the section 10(b) Charter advice. A discussion followed about speaking to a lawyer. The appellant indicated that “I might as well speak to a lawyer” since the lawyer would have to deal with the matter anyway. But the appellant didn’t know a lawyer. Advised of the availability of free legal advice from duty counsel, the appellant said that he was “gonna have to speak to duty counsel”. He would do so, he said, at the police station. [139] The appellant did not suggest at trial, as he does here, that he should have been given access to his own cellphone and left in the police car with the recording equipment turned off so he could speak to a lawyer. The appellant’s cellphone did not work because he had thrown away the SIM card before he was arrested. And there was no obligation on either transporting officer to offer use of their own cellphone so that the appellant could speak to a lawyer. Trial counsel conceded that the first reasonably available opportunity to speak to a lawyer was at the police station. [140] When the appellant arrived in the booking room at 55 Division, the acting sergeant repeated the appellant’s right to retain and instruct counsel without delay. The officer told the appellant that he was entitled to make reasonable use of the telephone at the station. To do so, the appellant could ask either the officers who brought him to the station or the investigating officer. The appellant did ask to speak to his mother. An officer facilitated that call. [141] The appellant did not ask any of the booking officers or either transporting officer to use the phone to call for legal advice. The appellant’s approach to speaking to a lawyer was at best ambivalent, barren of any reasonable diligence. From the outset, he was more interested in knowing the case against him than in obtaining legal advice. [142] Prior to entering the interview room, D/Sgt. Idsinga had been advised by transporting officers that the appellant had received his section 10(b) Charter advice and had indicated that he wished to speak to duty counsel. [143] In the interview room, shortly after they began to speak, D/Sgt. Idsinga asked the appellant whether he wished to call a lawyer “right now”. The appellant responded, as he had previously, “I guess so. Like I don’t know what’s going on”. The officer offered to explain to the appellant what was “going on” but told him that he (the appellant) could talk to a lawyer first. D/Sgt. Idsinga repeated the appellant’s right to call a lawyer on several more occasions, but the appellant declined the offer: “no, not as right now sir”. [144] In these circumstances, the trial judge was correct to find that the appellant had failed to establish a breach of the implementational component of section 10(b) of the Charter . Disposition [145] For these reasons, I would dismiss the appeal. Released: December 2, 2021 “D.W.” “David Watt J.A.” “I agree. M.L. Benotto J.A.” “I agree. Gary Trotter J.A.” [1] J.B. absconded before trial and was not called as a witness.

COURT OF APPEAL FOR ONTARIO CITATION: Csizmazia v. Csizmazia, 2021 ONCA 865 DATE: 20211203 DOCKET: C69660 van Rensburg and Roberts JJ.A. and Tzimas J. ( ad hoc ) BETWEEN Zoltan Csizmazia Applicant (Respondent) and Anita Csizmazia Respondent (Appellant) Eli Karp, for the appellant Taylor Johnson as agent for Sean D. Heeley, for the respondent Heard: November 23, 2021 On appeal from the order of Justice James A. Ramsay of the Superior Court of Justice, dated April 22, 2021. REASONS FOR DECISION [1] The appellant Anita Csizmazia appeals the order of Ramsay J. (the “review judge”), refusing to set aside the final order of Whitten J., that was made after an uncontested trial. [2] The parties have been engaged in family law proceedings that were commenced in October 2017. In January 2020, as a result of the appellant’s non‑compliance with various court orders, including the requirement to pay an interim equalization payment and various costs awards, her pleadings were struck in relation to all issues in the proceedings except for custody and access. Eventually, Chappel J. ordered that the uncontested trial be adjourned to the sittings commencing November 16, 2020 and, recognizing that under r. 1(8.4) of the Family Law Rules , O. Reg. 114/99, the court has the discretion to permit a party whose pleadings are struck to participate in a more limited manner, she required the respondent to serve a copy of her endorsement on the appellant. [3] The uncontested trial proceeded before Whitten J. on December 1, 2020. Whitten J. made a final order dealing with the issues of equalization, child support, s. 7 expenses and costs. In particular, with respect to equalization, Whitten J. ordered that $37,100 be payable to the respondent by the appellant’s pension provider in full satisfaction of his one-half claim to the appellant’s pension during the course of the marriage, and that the appellant pay the respondent the sum of $79,348.59 by way of equalization. The appellant did not attend the uncontested trial. [4] After she received a copy of Whitten J.’s endorsement, the appellant brought a motion under r. 25(19) of the Family Law Rules , seeking to change the final order “on the ground of misrepresentation and concealment of facts by [Mr. Csizmazia], and on the ground that the order [would] cause significant miscarriage of Justice”. Rule 25(19) provides for a motion to change an order that, among other things, (a) was obtained by fraud; or (d) was made without notice. The respondent brought a cross-motion for an order that the appellant be prohibited from filing further motions. [5] The motions were heard in writing. The review judge dismissed the appellant’s motion. He rejected the appellant’s evidence that she was not aware of the date of the uncontested trial, accepting instead the evidence that she had been served personally with a copy of Chappel J.’s endorsement. He also noted that the property issues were moot because the appellant was bankrupt. He granted the respondent’s motion and ordered that the appellant was prohibited from bringing any further motions on the financial issues in the proceedings until all costs orders against her were paid in full, or with leave of the court. [6] The appellant makes one argument in this appeal: that the reasons of the review judge are inadequate to permit appellate review. The appellant contends that the review judge failed to address her submission that Whitten J.’s findings and ruling were based on fraud committed by Mr. Csizmazia at the uncontested trial. [7] In her affidavit sworn December 23, 2020 in support of the review motion the appellant stated, at para. 14: [Mr. Csizmazia] made several amendments to his equalization claims radically different to the position he pleaded at the time my pleadings were struck off. [He] therefore had a new case on Equalization upon which the court has not given me opportunity to defend. [8] At para. 15 the affidavit lists some of the changes the respondent was alleged to have made when he filed a revised net family property (“NFP”) statement before trial that, according to the appellant, showed different amounts for items such as the parties’ respective premarital deductions. The record on appeal contains what appears to be a copy of Mr. Csizmazia’s NFP sworn in October 2020, but does not contain any other documents in support of an allegation of fraud, or for that matter in support of the allegations in paras. 14 and 15 of the appellant’s affidavit. [9] During the hearing of the appeal, the panel requested and was provided with copies of the parties’ written submissions that were before the review judge. Although the bulk of her submissions dealt with her alleged lack of notice of the uncontested hearing, the appellant asserted that paragraphs 14 and 15 of her affidavit “made specific allegations of misrepresentation of facts, which amounted to fraud [and] those paragraphs were uncontradicted by [Mr. Csizmazia]”. According to the appellant’s counsel on appeal (who was not her counsel in the court below), the issue of fraud was clearly before the review judge, whose reasons are deficient because he failed to deal with it. [10] We disagree. In our view the reasons of the review judge are sufficient and clear. Contrary to the appellant’s argument, the review judge did not overlook her assertions about the respondent’s changes to his NFP statement, which she had characterized as fraud in her written argument. Rather, he observed that the financial issues were moot, because of the appellant’s bankruptcy. [11] The appellant filed for bankruptcy on March 18, 2020. The effect of the bankruptcy is that the appellant’s property, including her equalization claims in the family law proceedings, vested in her trustee, and she has “cease[d] to have any capacity to dispose of or otherwise deal with” such property: Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3 (“BIA”), ss. 21 and 71. By order dated September 15, 2020, Bale J. lifted the stay of proceedings pursuant to s. 69.3 of the BIA to permit the respondent to establish the value of his claim against the appellant, and prohibited the enforcement of the claim without further order, except in relation to the division of the appellant’s pension for the purposes of equalization. This order is in the appeal record, and was before the review judge, having been attached as an exhibit to the appellant’s December 2020 affidavit. [12] It was unnecessary for the review judge to address the appellant’s specific allegations about the changes to the respondent’s NFP before the uncontested trial when her property, including her property claims in the litigation, had vested in the trustee upon her bankruptcy, and she had no further rights with respect to equalization – whether by asserting or defending an equalization claim. [13] For these reasons the appeal is dismissed. The appellant shall pay the respondent’s costs of the appeal on a partial indemnity basis fixed in the inclusive amount of $2,500. “K. van Rensburg J.A.” “L.B. Roberts J.A.” “E. Ria Tzimas, J. (ad hoc)”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Artis, 2021 ONCA 862 DATE: 20211203 DOCKET: C65066 Fairburn A.C.J.O., Feldman and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Shane Artis Appellant Michael Lacy and Bryan Badali, for the appellant Lisa Mathews and Leanne Siu, for the respondent Heard: in writing On appeal from the conviction entered by Justice Kofi N. Barnes of the Superior Court of Justice on November 21, 2016, and from the sentence imposed on March 22, 2018. REASONS FOR DECISION [1] On August 10, 2016, the appellant was found guilty of possession of heroin for the purpose of trafficking and conspiracy to possess heroin for the purpose of trafficking. He was told that written reasons for judgment would follow. He was later sentenced to ten years’ incarceration, less about two years of presentence custody. It took over four years for the written reasons for judgment to be delivered. [2] This is an appeal from conviction and sentence. The respondent concedes that the conviction appeal must be allowed on the basis that the reasons were insufficient because they were delivered so long after the verdicts were rendered. We agree. [3] This was a short, judge-alone trial that took place in April 2016. The evidence was complete within three days. After closing submissions were made, the matter was put over for judgment. Despite the brevity of the case, it involved some complex issues. By way of example, the trial judge was called upon to apply the notoriously difficult co-conspirators’ exception to the hearsay rule; to decide upon continuity issues; and to consider expert evidence in determining what inferences, if any, could be drawn from coded language used in seized electronic communications. [4] The scheduled day for judgment was adjourned three times because the trial judge was not ready to proceed. On August 10, 2016, when the trial judge finally rendered the verdict, he announced the following: Mr. Artis, please stand. After trial in this particular matter and after considering all of the evidence, the court has reached the following verdict in this matter. With respect to count 1, importation, not guilty. Count 2, possession for the purpose, guilty. Count 3, conspiracy to import, not guilty. Count 4, conspiracy to, possession for the purpose of trafficking, guilty. So that is the verdict of the court. Written reasons will be released prior to sentencing date … for counsel to consider. So having reached those verdicts, we are to pick a date for sentencing . [Emphasis added.] [5] On November 21, 2016, over three months after announcing the verdicts, and having promised to release written reasons prior to the sentencing date, the trial judge released a handwritten endorsement setting out three conclusions that he had reached: (1) Continuity: The defence objection about continuity of evidence was “speculative and without evidentiary foundation.” The trial judge was satisfied that the “evidence as a whole indicates beyond a reasonable doubt no tampering or contamination of the package and its contents occurred, such as to compromise the integrity of the package and its contents.” (2) Hearsay: The trial judge appears to have decided that the co-conspirator’s exception to the hearsay rule applied. As he put it, “Defence objections to the application of the co-conspirator’s exception to the hearsay rule, on the basis of a failure by the Crown to satisfy the necessity criteria, is dismissed. I am bound by the S.C.C. decision in Mapara [ R. v. Mapara , 2005 SCC 23, [2005] 1 S.C.R. 358] , at para. 31.” (3) Burden of Proof: The trial judge expressed satisfaction beyond a reasonable doubt that the appellant had conspired with another named person and an unidentified person to possess heroin for the purpose of trafficking. He also expressed his conclusion that the unidentified person was “higher up in the drug trade hierarchy” and that the appellant was “situated in the low end of the drug trade hierarchy.” [6] No reasoning was provided to support any of the above conclusions. The handwritten endorsement ended by reinforcing that written reasons expanding on the above findings would be forthcoming and that the sentencing date of November 24, 2016, three days later, would proceed as scheduled. [7] At the appellant’s request, the sentencing did not go ahead as planned. Ultimately, the appellant brought a s. 11(b) Charter application, which was heard on October 13, 2017. On November 8, 2017, the s. 11(b) application was dismissed, again with written reasons to follow: “Mr. Artis’ s. 11(b) motion/application is dismissed. Reasons shall be released in due course.” Sentencing was to proceed on November 14, 2017. [8] On March 22, 2018, now over 19 months after the verdicts had been announced, and with the reasons for judgment and the reasons on the s. 11(b) Charter application still outstanding, the appellant was sentenced to ten years in custody. With presentence custody accounted for, he had over eight years left to serve. [9] The appellant filed a Notice of Appeal prior to the date of sentencing. At that point he was self-represented. In his Notice of Appeal, the appellant raised the failure of the trial judge to provide reasons for conviction and for dismissing the s. 11(b) application, as he put it, “precluding all meaningful appellate review.” On the same day that he was sentenced, the Crown consented to the appellant’s release on bail. Eventually the matter was converted to a solicitor appeal. [10] The reasons for judgment and reasons for dismissing the s. 11(b) application were not released until October 14, 2020. This was over 50 months after the verdicts had been announced and over 35 months after the s. 11(b) application had been dismissed. [11] Reasons for judgment constitute the very means by which judges remain accountable for the verdicts they reach. Transparency in how verdicts are arrived upon is critical to ensuring that justice is not only done, but seen to be done. Remaining accountable to the parties and the public by explaining how verdicts have been arrived upon is fundamental to nurturing respect for the rule of law. [12] Where judges simply announce verdicts and fail to provide reasons for the conclusions reached, it is impossible to know whether justice has been done and, without a doubt, it cannot be seen to have been done: R. v. Sheppard , 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 15. [13] As a practical matter, written reasons for judgment will sometimes follow the announcement of the verdict. While it is always preferable to explain the reasons underpinning a verdict as it is delivered, other overarching considerations may, on occasion, justify the need for a period of time to produce those reasons. Some examples of these overarching considerations in the criminal context were addressed in R. v. Teskey , 2007 SCC 25, [2007] 2 S.C.R. 267, at para. 17, including delivering immediate verdicts of acquittal to ensure an accused is not held in custody longer than necessary or delivering verdicts of guilt at the conclusion of a hearing to secure an earlier date for sentencing. [14] Whatever the circumstances, when verdicts are announced with reasons to follow, those reasons should follow as quickly as possible. Where the reasons underlying a conviction or acquittal remain outstanding for a long time, everyone – accused, victims, other justice system participants, and the public – are left without any explanation or justification for the result reached, often leaving them without any means by which to assess whether justice has been achieved. It also deprives the losing party of a meaningful basis upon which to give consideration to grounds of appeal. [15] Reasons are not meant to be after-the-fact justifications for verdicts reached, but explanations for how those verdicts were actually arrived upon. When reasons are delivered long after verdicts are announced, it can cause reasonable people to question whether the judge has “engaged in result-driven reasoning”, the very antithesis of the trial judge’s duty to consider the matter with an open mind and an indifference to the result: Teskey , at para. 18. [16] While a decision is “presumed to reflect the reasoning that led [the trial judge] to [their] decision”, it is a rebuttable presumption: Teskey , at paras. 19, 21. Where a reasonable person would find that the written reasons for verdict reflect “an after-the-fact justification for the verdicts rather than an articulation of the reasoning that led to the decision”, the reasons must be disregarded on appeal because the presumption of integrity and impartiality will have been rebutted: R. v. Cunningham , 2011 ONCA 543, 106 O.R. (3d) 641, at para. 14, citing Teskey , at para. 23. [17] We agree with the parties that the presumption of integrity and impartiality has been rebutted in this case. [18] Standing on its own, delay in the delivery of reasons will not give rise to the rebuttable presumption: Teskey , at para. 23. Even so, the longer the reasons take from the time of verdict, the heavier that delay will factor into the reasonable person test. In other words, the longer the delay, the more likely it is that a reasonable person would find that the written reasons for judgment reflect an after-the-fact justification for the verdicts reached. The delay of 11 months between verdict and reasons in Teskey combined with other factors to rebut the presumption of integrity and impartiality such that the appeal was allowed, the convictions were set aside, and a new trial was ordered. [19] This case involves a delay that is almost five times as long as the delay in Teskey . Notably, the reasons were delivered about 31 months after the Notice of Appeal had been filed. In our view, this factors very heavily into the assessment of what a reasonable person would think about the integrity of the reasons and whether they could possibly represent anything other than an after-the-fact justification for the verdicts reached. [20] The extraordinary length of time to produce the reasons combines with the fact that there were complex, triable issues in this strictly circumstantial case. The trial judge did engage with those issues in his 27 pages of written reasons. However, like the respondent who concedes this appeal, we have no confidence that the reasoning on those issues and the inferences drawn reflect the actual path to the verdicts, rather than justification of the verdicts in the face of an appeal. [21] In these circumstances, we cannot consider the written reasons for purposes of upholding the verdicts. [22] The respondent has taken the very clear and responsible position that it will not re-prosecute the appellant. Therefore, we are asked by the respondent to acquit the appellant. In light of the evidentiary backdrop involved in this case, though, we decline to enter acquittals. Rather, the proper course is for the matter to return to the trial court and for the Crown to exercise its discretion accordingly. [23] Therefore, the appeal is allowed, the convictions are set aside, and a new trial is ordered. [24] The court expresses its thanks to counsel for their cooperation in this matter. “Fairburn A.C.J.O.” “K. Feldman J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Teefy Developments (Bathurst Glen) Limited v. Sun, 2021 ONCA 870 DATE: 20211206 DOCKET: M52771 Nordheimer J.A. (Motions Judge) BETWEEN Teefy Developments (Bathurst Glen) Limited Plaintiff (Responding Party) and Mei Sun also known as Sun Mei Defendant (Moving Party) Paul Robson, for the moving party Asad Moten, for the responding party Heard: December 3, 2021 by video conference ENDORSEMENT [1] Ms. Sun brings this motion for an order extending the time for her to appeal the judgment granted by Lemon J. on February 2, 2021 after a trial. [1] [2] The action itself arises out of a failed residential real estate transaction. The moving party agreed to purchase a new home to be built by the responding party in a subdivision in the City of Vaughan. When the time for closing arrived, the moving party failed to close. The responding party then sued her for damages that arose from the failed transaction. [3] The responding party brought a motion for summary judgment, which the motion judge dismissed. However, the motion judge directed the trial of certain issues. As it turned out, those issues came on for trial before the same judge as had heard the summary judgment motion. After a two-day trial, the trial judge found in favour of the responding party and awarded it damages in the amount of approximately $200,000. [2] [4] Two preliminary issues were raised on the motion. First, the moving party objected to the responding party including in its responding material reference to certain settlement discussions that occurred between the parties after the trial judgment. I agree that those discussions should not have been included in the record. Settlement discussions are presumptively privileged. I have therefore not considered the material to which the moving party objected in this regard. [5] Second, there is an issue over the date from which the appeal period should run. The reasons of the trial judge are dated February 2, 2021. However, there was a disagreement between the parties regarding the calculation of the damages awarded. That issue was not resolved until March 2, 2021 when the judgment was signed and entered. The parties have advised me, however, that the signed and entered judgment bears the date of February 2, 2021. [6] I do not accept the moving party’s position that the appeal period should run from March 2, 2021. The appeal period runs from the time when the reasons determining the appeal are released. Procedural issues that may arise after the reasons are released, including disagreements over calculations or dates or interest or the like, do not change the date when the action was determined. It is that date from which the appeal period runs. In this case that date is February 2, 2021. [7] The test for extending the time for an appeal is well-established. Four factors are to be considered, as set out in Enbridge Gas Distribution Inc. v. Froese , 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15: The test on a motion to extend time is well settled. The overarching principle is whether the “justice of the case” requires that an extension be given. Each case depends on its own circumstances, but the court is to take into account all relevant considerations, including: (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 in filing; (c)     any prejudice to the responding parties, caused, perpetuated or exacerbated by the delay; and (d)     the merits of the proposed appeal. [Citations omitted.] [8] I am not satisfied that the moving party has met her obligation to satisfy (a), (b) or (d) of these factors. On the first factor, the evidence as to the intention to appeal is decidedly unclear. Prior to speaking to her current lawyer, the moving party had spoken with her trial lawyer and then with another lawyer. It is not apparent why either of those lawyers did not pursue an appeal, if that is what the moving party wanted. Indeed, the moving party, in her affidavit, appears to tie her intention to appeal to her communications with her current counsel which she, herself, places in April 2021, which would be two months after the trial decision was released. Even that date is questionable given the evidence that the moving party did not sign a retainer agreement with her current counsel until May 19, 2021. Further, and for reasons that are unexplained, her current lawyer did not contact the responding party’s lawyers until June 15, 2021. [9] I pause, at this point, to reflect on a rather disturbing issue regarding the moving party’s affidavit filed on this motion. Her counsel advises that the moving party does not read English. When I inquired how she could have then sworn her affidavit in these proceedings, I was met with the remarkable response that “everyone” knows that affidavits are prepared by lawyers and clients simply sign what the lawyers tell them to sign. [10] It should go without saying that that is not the way that any affidavit is properly prepared. The deponent of an affidavit is required to review its contents and swear or affirm to its truth. It is the obligation of the person commissioning the affidavit to ensure, among other things, that he or she administers the oath or declaration in the manner required by law before signing the jurat or declaration: Commissioners for Taking Affidavits Act , R.S.O. 1990, c. C.17, s. 9(3). If the deponent does not understand English, then the affidavit must be translated for the deponent and the jurat on the affidavit must be changed to reflect that fact. [11] The result, in this case, from the apparent failure to follow those fundamental procedures, is that it calls into question the reliance that I can safely place on the contents of the moving party’s affidavit. [12] On the second factor, there is no reasonable explanation for the delay in launching this motion until July 23, 2021. [3] Taking the moving party’s position at its highest, she formed her intention to appeal in April 2021. The only explanation for why the motion was not launched until July 2021 is an asserted delay in getting the file from trial counsel. That is not a satisfactory explanation. The moving party had the trial judge’s reasons. By April, she had had them for a couple of months. The issues that are raised by her with respect to those reasons would be apparent from the face of the reasons themselves. It is not acceptable for the moving party to suggest that she should be allowed yet further time while counsel considered all of the specifics of the case and all of the materials involved in it. The time to appeal was running – indeed it was already passed – and steps ought to have been taken immediately to address that delay. [13] Most importantly, however, is the fourth factor. I see very little merit in this appeal. In the moving party’s factum, 21 grounds of appeal are suggested. Only three were urged on the motion: non est factum ; lack of independent legal advice; and a conflict between the trial evidence and the Agreed Statement of Facts filed. [14] I do not see any merit in the first two grounds. Non est factum was not pleaded, and I do not see any basis for criticizing the trial judge for not considering a defence that was not pleaded. Actions are decided on the basis of the pleadings. Affirmative defences must be pleaded: Rules of Civil Procedure , R.R.O. 1990, Reg. 194, r. 25.07(4). I also do not see any basis for the advancement of a defence that independent legal advice was not provided. This is not a case of a person who is contracting in support of another person, such as one spouse guaranteeing the obligations of the other spouse. Here, the moving party contracted directly to purchase the home. There was no requirement on the responding party to ensure that she had independent legal advice before signing the agreement of purchase and sale. [15] As for the complaint that the trial judge erred in relying on the Agreed Statement of Facts when he rejected contrary viva voce evidence, while that might be a concern in another case, I do not see it as one in this case. The parties agreed on certain facts. It appears that a non-party gave some evidence that contradicted one of those facts. I do not see any error, in those circumstances, when the trial judge decides the case on what the parties have agreed are the facts, even if a non-party might have a different position. However, even if that is an issue in this case, it is not one that I view as having sufficient merit, or sufficient impact on the result, that it would carry the day on the fourth factor. [16] For the sake of completeness, I will mention the third factor briefly, that is, prejudice to the responding party. There is no prejudice here of the type that would preclude an extension of time. The fact that the responding party may be delayed in enforcing its judgment, and that it will incur legal expenses responding to the appeal, is not the type of prejudice to which the third factor is directed. If it were otherwise, every respondent to a proposed appeal would be able to satisfy the prejudice factor. In my view, this case is distinguishable from Bobel v. Humecka , 2021 ONCA 757, on this very narrow point. [17] In the result, the moving party has failed to meet her obligations to satisfy the necessary factors that would warrant extending the time for an appeal. It may well be that the moving party has a claim against others who were involved in the transaction which she is, of course, free to pursue separate and apart from this action. That does not change the fact that she has failed to satisfy me that there are sufficient reasons to extend the time for her proposed appeal of the trial decision. [18] For these reasons, the motion for an extension of time to appeal is dismissed. The responding party is entitled to its costs of the motion, which I fix in the amount of $7,500, inclusive of disbursements and HST. “I.V.B. Nordheimer J.A.” [1] Teefy Developments v. Sun , 2021 ONSC 853. [2] The parties did not provide me with a copy of the signed and entered judgment, so I am unaware of the exact amount awarded. [3] Pursuant to an agreement between the parties, the more than four months that have passed since July 23, 2021 are not to be considered under this factor.

COURT OF APPEAL FOR ONTARIO CITATION: Edgeworth v. Shapira, 2021 ONCA 871 DATE: 20211207 DOCKET: C67654 Doherty, Benotto and Huscroft JJ.A. BETWEEN Annabelle Maritza Edgeworth Plaintiff (Appellant) and Karyn Shapira, Brian Levine, Northbridge General Insurance Corporation and Andrew Evangelista Defendants (Respondents) Rocco Galati, for Annabelle Maritza Edgeworth Thomas M. Slahta, for Karyn Shapira and Andrew Evangelista Todd J. Burke, for Brian Levine David Zuber and David J. Olevson, for Northbridge Insurance Corporation Heard: December 3, 2021 On appeal from the order of Justice Lorne Sossin of the Superior Court of Justice, dated October 11, 2019, with reasons reported at 2019 ONSC 5792. REASONS FOR DECISION [1] Annabelle Maritza Edgeworth appeals an order which dismissed most of the claims in her action. [2] Having been injured in a bicycle accident, Ms. Edgeworth retained Campisi LLP to commence an action against a person who was insured by the respondent Northbridge General Insurance. Northbridge retained Karyn Shapira, of Evangelista Barristers and Solicitors, to defend the action. [3] On October 3, 2016, Ms. Edgeworth made an offer to settle. In January 2017, Brian Levine was retained to conduct a defence medical assessment. The assessment was completed in April 2017. No medical report was ever delivered. On June 7, 2017, Ms. Edgeworth’s outstanding settlement offer was accepted by the defence and the action was formally dismissed on October 12, 2017. [4] Two years later Ms. Edgeworth brought this action alleging that the respondents Ms. Shapira, Dr. Levine, Northbridge and Andrew Evangelista conspired to suppress Dr. Levine’s expert report. She sought damages for unlawful means conspiracy, intrusion on seclusion, conspiracy to injure, and misrepresentation. Campisi LLP represented her. [5] The respondents moved to strike the pleadings against them under rr. 21 and 25 of the Rules of Civil Procedure and to have Campisi LLP removed as solicitor of record. [6] The motion judge granted the motions as follows: 1. The action was dismissed entirely against Dr. Levine, Northbridge and Andrew Evangelista. 2. The claims against Ms. Shapira were dismissed, except for the misrepresentation claim. 3. Campisi LLP was removed as solicitor of record. [7] On appeal, Ms. Edgeworth submits that the motion judge: (i) erred in striking the claims for conspiracy and intrusion on seclusion; (ii) applied the wrong test on a motion to strike; (iii) disregarded the facts alleged in the pleadings; and (iv) erred in removing Campisi LLP from the record. [8] We do not accept the appellant’s submissions. [9] The appellant relies on a failure to comply with r. 33.06 to ground the unlawful means component conspiracy. That rule – limited to a medical report consented to in writing or ordered by the court – requires that the examining health practitioner prepare a written report of any examination and share it with the parties. The motion judge held that this was not the kind of “wrongful act” envisioned in the jurisprudence dealing with unlawful means conspiracy: see Agribrands Purina Canada Inc. v. Kasamekas et al. , 2011 ONCA 460, 334 D.L.R. (4th) 714 and Beaird v. Westinghouse ( 1999), 43 O.R. (3d) 581 (C.A.). The motion judge also rejected the argument that a failure to comply with the rules constituted the crime of obstructing justice under the Criminal Code , R.S.C. 1985, c. C-46 , and thus was actionable. [10] With respect to the claim of intrusion upon seclusion, the motion judge held that the appellant had submitted to the medical examination requested by the defence willingly and with justification, in the context of her own personal injury claim. Therefore, the tort was not made out. [11] Finally, the motion judge held that even if the causes of action were established, the appellant would have the insurmountable barrier of establishing damages. The damages in this case were the result of her choice, with the advice of counsel, to finalize the settlement even though she knew that a written medical report had not been completed. [12] The motion judge reviewed each of the appellant’s causes of action, considered the facts pleaded and found that it was plain and obvious that they could not succeed. He correctly identified the essential elements of each cause of action, considered the facts and applied the correct test under the rules. [13] Nor did the motion judge err in removing Campisi LLP as solicitor of record. The misrepresentation claim turns on what was said between Campisi and Ms. Shapira. As the motion judge said at para. 91, it is hard to imagine a scenario where he would not be required to testify. There is an obvious conflict requiring that he be removed from the record. [14] The appeal is dismissed. As agreed, costs are payable to the respondents in the global amount of $15,000 inclusive of disbursements and HST. “Doherty J.A.” “M.L. Benotto J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ojaghi (Re), 2021 ONCA 867 DATE: 20211207 DOCKET: C69206 Strathy C.J.O., Hourigan and Paciocco JJ.A. IN THE MATTER OF: Mirbabak Ojaghi AN APPEAL UNDER PART XX.1 OF THE CODE Mirbabak Ojaghi, acting in person Paul Socka and Erin Dann, appearing as amicus curiae Heather Fregeau, for the respondent, the Attorney General of Ontario Leisha Senko, for the respondent, the Person in Charge of the Centre for Addiction and Mental Health Heard : November 26, 2021 On appeal from the disposition of the Ontario Review Board, dated February 11, 2021, with reasons dated March 8, 2021. REASONS FOR DECISION [1] Mr. Ojaghi appeals against the disposition of the Ontario Review Board (the “Board”), dated February 11, 2021, ordering that he be detained at the General Forensic Unit of the Centre for Addiction and Mental Health (“CAMH”). He asserts that the detention order was unreasonable and that this court should set it aside and order a conditional discharge. [2] Through amicus , Mr. Ojaghi also submits that the Board erred in removing a provision from his previous disposition, which permitted him to obtain passes for accompanied travel out of Ontario for up to two months, with the itinerary and the person travelling with him being approved by the person in charge. [3] For the reasons that follow, we conclude that the Board’s order was reasonable and dismiss the first ground. With respect to the second ground, we find that the Board breached its duty of procedural fairness to Mr. Ojaghi and reinstate the provision. [4] The facts can be briefly stated. Mr. Ojaghi’s current diagnosis is schizophrenia. He was found not criminally responsible on account of a mental disorder in relation to a charge of assault causing bodily harm in May 2019. He was released on bail and came under the jurisdiction of the Board in November 2019. He was subject to a detention order until being conditionally discharged on November 30, 2020. [5] Sometime in January 2021, Mr. Ojaghi stopped taking his medication and began to decompensate. He was readmitted to CAMH under the committal provisions of the Mental Health Act . An early review hearing was held, resulting in the detention order currently under appeal. [6] At the disposition hearing, the Board heard evidence from Mr. Ojaghi’s outpatient psychiatrist, Dr. Benassi. Dr. Benassi explained that in January 2021, while Mr. Ojaghi was under the conditional discharge, his sister called the hospital expressing concern that he had not been complying with medication requirements and noting some change in his behaviour. A member of the clinical team saw Mr. Ojaghi a few days later and noticed indicia of paranoia. Drug screens revealed that he had not been taking his medication. A caseworker who visited Mr. Ojaghi became fearful as he was quite irate. The hospital requested that police bring Mr. Ojaghi to the hospital and he was readmitted pursuant to the Mental Health Act . Once in the hospital, Mr. Ojaghi was started on an injectable medication. [7] Dr. Benassi was concerned about Mr. Ojaghi’s lack of insight into his condition and concluded that without a detention order, it was unlikely he would take his medication. He suggested Mr. Ojaghi be detained at the General Forensic Unit at CAMH which has more patient privileges and a lower staff-to-patient ratio than the more secure unit. No other evidence was called by the hospital. The Crown did not call any evidence. Mr. Ojaghi’s sister advised that he could continue to live with her and her family. [8] At the hearing that resulted in the disposition at issue, it was not contested that Mr. Ojaghi remained a significant threat to public safety and the hospital sought a detention order on that basis. The Crown supported the hospital’s recommendation. Mr. Ojaghi’s counsel accepted that he was a threat to public safety, but argued for the continuation of a conditional discharge under the terms set out in the November 30, 2020 disposition. The Board ultimately issued a detention order, requiring Mr. Ojaghi to remain at the General Forensic Unit at CAMH. [9] The Board accepted that Mr. Ojaghi remained a significant threat to public safety. It concluded that a detention order was both necessary and appropriate as public safety would be compromised with any other disposition. In this case, it was fortunate that the hospital was able to obtain the cooperation of the police in returning Mr. Ojaghi to the hospital, but the hospital should not have to rely on the police to do so when a patient becomes non-compliant with their medication and significantly destabilizes. [10] The Board accepted Dr. Benassi’s evidence that public safety required that Mr. Ojaghi be returned to the hospital at the earliest sign of any destabilization. The necessary and appropriate way to do so was pursuant to a detention order, which includes a warrant of committal, ensuring his timely and efficient return to hospital. Dr. Benassi also testified that a detention order with a community living privilege would allow the hospital to approve appropriate housing in the community. [11] Mr. Ojaghi submits, through amicus , that any risks could be effectively managed through a conditional discharge. The mechanisms of the Mental Health Act were part of the “ecosystem” of the Board. They were sufficient to manage the risk when Mr. Ojaghi was returned to the hospital in January 2021 and they are appropriate now. A conditional discharge was the least onerous and least restrictive disposition consistent with public safety and the detention order made by the Board was unreasonable. [12] We do not accept this submission. The standard of review is set out in s. 672.78(1) of the Criminal Code , R.S.C., 1985, c. C-46. We can only allow an appeal and set aside an order where we are of the opinion that (a) it is unreasonable or cannot be supported by the evidence; (b) it is wrong on a question of law; or (c) there was a miscarriage of justice. Deference is owed to the Board as an expert and specialized tribunal and we should not interfere as long as the decision falls within a range of reasonable alternatives: R. v. Owen , 2003 SCC 33, 1 S.C.R. 779, at paras. 31-33, 37; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 34, 37, 75, 81, 83-85, 92-93, 99. [13] The Board’s decision was reasonable. There was no dispute on the issue of significant threat. Mr. Ojaghi had been returned to the hospital because he had decompensated after he stopped taking his medication. Dr. Benassi emphasized the need to promptly return him to hospital for treatment if he began to show signs of decompensation. Dr. Benassi testified that a detention order was necessary for this purpose and that the mechanisms of the Mental Health Act could not assure a timely return. The Board was entitled to accept this evidence. We therefore dismiss this ground of appeal. [14] The issue of the travel provision was raised by a panel member following Dr. Benassi’s evidence, and the psychiatrist indicated that he was content that the condition remain in place. The issue was raised again during submissions and Dr. Benassi again stated that he was content with the condition and that he would not approve a travel itinerary unless he was satisfied that Mr. Ojaghi was stable on his medication and that there was a specific travel plan in place. Neither the Crown nor the hospital made any submissions on the issue. [15] The Board’s reasons did not address the issue. The Board’s disposition did not include the travel provision, which had been part of the previous disposition. [16] In our view, in the circumstances of this case, including Dr. Benassi’s support for the provision, if the Board was considering revoking the provision, it had a duty to put Mr. Ojaghi on notice that the travel provision was at issue and to invite submissions. This falls within the Board’s duty to provide a fair hearing because its decisions affect the accused’s rights, privileges, and liberties: Osawe (Re) , 2015 ONCA 280, 125 O.R. (3d) 428, at para. 35. [17] Given the state of the record, and the absence of reasons for the Board’s decision on the travel provision, we cannot conclude with any certainty whether the removal of the provision was intentional or an oversight. The reasons are therefore not susceptible to appellate review, and we set aside the decision on that issue. [18] We therefore reinstate the travel provision and allow the appeal to that extent. In so doing, we acknowledge that the issue may be reconsidered at Mr. Ojaghi’s next review, scheduled for February 2, 2022. “G.R. Strathy C.J.O.” “C.W. Hourigan J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Codina v. Grand Valley Institution for Women, 2021 ONCA 877 DATE: 20211208 DOCKET: C69924 MacPherson, Coroza and Sossin JJ.A. BETWEEN Angelina Codina Applicant (Appellant) and Grand Valley Institution for Women Respondent (Respondent) Angelina Codina, acting in person Ian B. Kasper, appearing as duty counsel Shain Widdifield and James Stuckey, for the respondent Heard and released orally: December 7, 2021 On appeal from the judgment of Justice Michael R. Gibson of the Superior Court of Justice, dated September 17, 2021, with reasons reported at 2021 ONSC 6164. REASONS FOR DECISION [1] The appellant was convicted of four counts of providing advice or representation contrary to s. 91(1) of the Immigration and Refugee Protection Act , 2001, c. 27 and one count of knowingly counselling a person to make a misrepresentation in relation to the administration of the IRPA , contrary to s. 126. [2] The appellant is a disbarred lawyer and is not a licensed immigration consultant under the IRPA . [3] The appellant is currently incarcerated at Grand Valley Institution pursuant to a warrant of committal issued by Molloy J. of the Superior Court on May 29, 2018. [4] The appellant appealed her conviction; the appeal was dismissed by this court: R. v. Codina , 2020 ONCA 848. The appellant appealed her sentence; the appeal was dismissed: R. v. Codina , 2019 ONCA 986. [5] The appellant applied for a writ of habeas corpus challenging the validity of the warrant of committal. The application was dismissed by Gibson J.: Codina v. Grand Valley Institution for Women , 2021 ONSC 6164. The application judge said, at paras. 20, 21, 25 and 26: Ms. Codina has unsuccessfully tried the arguments in her present application multiple times before this Court and the Court of Appeal. The basis for her arguments is identical or essentially the same. In this application, she has sought to recast them in a slightly different guise. I agree with the submission of the Respondent that in the present habeas corpus application, Ms. Codina offers only the veneer of new argument. In accordance with s.782, [of the Criminal Code ], Ms. Codina’s warrant of committal alleges that she was convicted, and there is a valid conviction to sustain the warrant, as has been determined by the Court of Appeal. I am satisfied that the application does not show a substantial ground for the order sought, that the application is frivolous, vexatious and constitutes an abuse of the court’s process, and that it can be determined without a full hearing. [6] The appellant appeals from the application judge’s decision. [7] We see no merit in the appellant’s appeal. We specifically endorse the application judge’s analysis and conclusion. That conclusion is, in a word, obvious. [8] The appeal is dismissed. “J.C. MacPherson J.A.” “S. Coroza J.A.” “Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: London District Catholic School Board v. Michail, 2021 ONCA 882 DATE: 20211208 DOCKET: M52903 (C68942) Simmons, Roberts and Trotter JJ.A. BETWEEN London District Catholic School Board Applicant/Responding Party (Respondent/Responding Party) and Myriam Michail Respondent/Moving Party (Appellant/Moving Party) Myriam Michail, acting in person Liam Ledgerwood, for the responding party London District Catholic School Board Ryan Cookson, for the intervener Attorney General of Ontario Heard and released orally: December 7, 2021 REASONS FOR DECISION [1] The appellant moves to review a case management order which required that her motion challenging the constitutionality of s. 136 of the Courts of Justice Act be treated as a motion for leave to introduce a new issue on appeal and be heard with her appeal and that her appeal be perfected within 30 days. [2] The motion judge constituted himself as a case management judge to address how to deal with the procedural issues regarding the motion. He was entitled to do so and did not exceed jurisdiction in doing so. [3] We see no basis on which to interfere with the motion judge’s exercise of discretion. The appellant is concerned that without the remedy available to her via her motion, she will be precluded from having access to audio recordings or transcripts of the proceeding below. We reject that submission. [4] The appellant has other remedies to obtain such relief apart from a constitutional challenge. She has not availed herself of those remedies. The constitutional challenge is properly dealt with on the appeal. This review motion is dismissed. [5] Costs of the review motion will be to the responding party the London District Catholic School Board on a partial indemnity scale fixed in the amount of $1,000, inclusive of disbursements and applicable taxes in the cause of the appeal. “Janet Simmons J.A.” “L.B. Roberts J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Leroux-Blake, 2021 ONCA 868 DATE: 20211208 DOCKET: C62717 Fairburn A.C.J.O., Feldman and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Carole Leroux-Blake Appellant Carter Martell, for the appellant Lisa Mathews and Ildikó Erdei, for the respondent Heard: in writing On appeal from the conviction entered on June 9, 2016 by Justice Patricia C. Hennessy of the Superior Court of Justice, sitting without a jury. REASONS FOR DECISION [1] The appellant appeals from her conviction for possession of cocaine for the purpose of trafficking. The cocaine was found in a trailer that belonged to the appellant and her co-accused, her former husband. Each maintained their innocence. [2] The appellant’s main ground of appeal is an ineffective assistance of counsel claim arising from a conflict of interest. [3] Trial counsel originally represented the appellant’s co-accused, including at his preliminary inquiry. The Crown withdrew the charges against the co-accused at that proceeding. This was done in exchange for a statutory declaration from the co-accused that he had no knowledge of the fact that there were drugs in the trailer. [4] While the record is unclear as to when the appellant officially retained the same trial counsel, by the time that her trial commenced in the Superior Court of Justice, that counsel was clearly on the record and representing her. [5] The appellant denied that the drugs were hers and told counsel that she wanted to plead not guilty. Trial counsel accepts that she told him this. [6] Trial counsel’s view was that the case against her was strong because of what he perceived to be an inculpatory utterance she had made at the time of arrest. Yet the appellant denied that she made that utterance. Trial counsel accepts that he never asked the Crown whether the Crown intended to use the utterance in the prosecution case. He also accepts that he never interviewed the appellant, just in case she admitted knowledge and control to him, which he believed would limit the defence he could run at trial. [7] Despite all of this, trial counsel determined that the appellant had no substantive defence and that the case could only be won by challenging the search warrant that had been executed on the trailer, resulting in the discovery of the cocaine. His view was that the success of any such application would be “determinative” of the case. Therefore, without explaining matters to the appellant, counsel made an agreement with the trial Crown that, in exchange for consent to cross-examine the affiant on a Garofoli application, [1] he would concede that the search warrant challenge would be determinative of the trial. The trial judge was advised that this was the defence position. [8] Importantly, the fresh evidence shows that the trial Crown did not raise the conflict issue because he believed, based on trial counsel’s position, that possession of the drugs was not at issue. In the trial Crown’s view, the only live issue at trial would be the viability of the search warrant. The trial Crown acknowledges in the fresh evidence that, had the matter gone to trial, the Crown would have had to call the appellant’s former co-accused as a prosecution witness to deny that he had knowledge and control over the cocaine, because the only people with control over the trailer in which the cocaine was found were the appellant and her co-accused. This would have given rise to a clear conflict of interest because their interests were immediately and directly adverse to one another; any substantive defence put forward on behalf of the appellant would necessarily implicate the appellant’s former co-accused, to whom trial counsel still owed a duty of loyalty: R. v. Baharloo , 2017 ONCA 362, 348 C.C.C. (3d) 64, at para. 34. Had the appellant’s former co-accused testified, her trial counsel would have had to cross-examine him, bringing this conflict into stark relief. [9] As acknowledged by the respondent, it is clear that the appellant’s interests were directly adverse to her former co-accused’s interests. The miscarriage of justice arising from the conflict of interest is exposed to light when one considers how the matter unfolded. [10] When the Garofoli application was dismissed, despite having been told by the appellant that she did not want to plead guilty, and without consulting her, trial counsel proceeded with a nolo contendere procedure where an agreed statement of facts was presented to the court that resulted in a finding of guilt, without a guilty plea being entered. [2] For all intents and purposes, it was a guilty plea. [11] The manner in which counsel proceeded by way of an agreed statement of facts rendered the verdict unreliable and a miscarriage of justice has resulted. [12] We therefore accept the respondent’s concession that this appeal must be allowed and the appellant’s conviction set aside. The respondent has clearly stated that the appellant will not be re-prosecuted. In these circumstances, a new trial is ordered, and the respondent will undoubtedly take the appropriate steps to bring the matter to a conclusion without a trial. [13] Given the respondent’s position, the appellant is not required to surrender in accordance with her bail condition. “Fairburn A.C.J.O.” “K. Feldman J.A.” “A. Harvison Young J.A.” [1] R. v. Garofoli , [1990] 2 S.C.R. 1421. [2] The trial judge relied upon counsel’s representations and did not question the appellant as to whether she agreed to proceeding in this fashion.

COURT OF APPEAL FOR ONTARIO CITATION: Herold Estate v. Canada (Attorney General), 2021 ONCA 883 DATE: 20211209 DOCKET: C68393 & C68467 Fairburn A.C.J.O., Miller and Zarnett JJ.A. BETWEEN DOCKET: C68393 The Estate of William Albin Herold, deceased Applicant (Respondent) and Attorney General of Canada , Curve Lake First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First Nation Respondents ( Respondent / Appellants ) AND BETWEEN DOCKET: C68467 The Estate of William Albin Herold, deceased Applicant (Respondent) and Attorney General of Canada , Curve Lake First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First Nation Respondent ( Appellant / Respondents ) Robert Janes, Candice S. Metallic, and Aubrey Charette, for the appellants (C68393)/respondents (C68467) Curve Lake First Nation, Hiawatha First Nation and Mississaugas of Scugog Island First Nation Daniel E. Luxat, for the appellant (C68467)/respondent (C68393) Attorney General of Canada D. Jared Brown, for the respondent (C68393/C68467) Estate of William Albin Herold Heard: March 2, 2021 by video conference On appeal from the order of Justice Clyde Smith of the Superior Court of Justice, dated February 28, 2020, with reasons reported at 2020 ONSC 1202. COSTS ENDORSEMENT [1] By reasons dated August 24, 2021, we allowed the appeals and set aside the orders of the application judge: Herold Estate v. Canada (Attorney General) , 2021 ONCA 579, 461 D.L.R. (4th) 683. [2] In our reasons, we awarded costs of the appeals to the appellants in the total sum of $43,000, divided equally between the appellant First Nations and the appellant Attorney General of Canada. We did not address the costs of the proceedings below. [3] In correspondence dated December 3, 2021, counsel have advised that the parties had reached certain agreements relating to costs, reflected in a letter to the court dated March 11, 2021. That letter did not previously come to the panel’s attention. [4] In accordance with the agreement reflected in the March 11, 2021 letter, we fix the costs below at $154,530.76. The letter states that the appellant First Nations seek those costs if successful on the appeal, and given their success, those costs are awarded to the First Nations. The appellant Attorney General of Canada does not seek costs in the court below. [5] The March 11, 2021 letter also provides that the parties agree that $43,000 is the appropriate amount for costs of the appeal, but that no costs are sought on the appeal by the Attorney General of Canada. We interpret the letter to mean that the amount is appropriate for the successful party or parties on the appeal who are seeking costs. We therefore vary the costs award of the appeal so that $43,000 inclusive of disbursements and applicable taxes is awarded to the appellant First Nations, and no costs are awarded to the Attorney General of Canada. “Fairburn A.C.J.O.” “B.W. Miller J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Murphy v. Mullen, 2021 ONCA 872 DATE: 20211209 DOCKET: C68513 Rouleau, Hoy and Thorburn JJ.A. BETWEEN Judith Ann Murphy and Jason Andrew Murphy Plaintiffs (Respondents) and Timothy Mullen and T.S. Mullen Farms Ltd. Defendants (Appellants) Larry M. Najjar, for the appellants Nour Jomaa, for the respondents Heard: September 20, 2021 by video conference On appeal from the judgment of Justice Pamela L. Hebner of the Superior Court of Justice, dated February 26, 2020, with reasons at 2020 ONSC 1261. Hoy J.A.: A. Introduction [1] The trial judge granted summary judgment in favour of Judith Ann Murphy [1] , holding that the appellants, Timothy Mullen and T.S. Mullen Farms Ltd., trespassed on the Murphy property. The trial judge also scheduled a hearing on the issue of damages. Following that hearing, the trial judge ordered the appellants to pay Ms. Murphy $213,471.27 as damages for trespass. [2] The appellants do not contest liability but do challenge the quantum of damages ordered on multiple bases. [3] This court is not entitled to interfere with the trial judge’s damages award unless it is shown that she erred in law, she misapprehended the evidence, there was no evidence on which she could have reached her conclusion, she failed to consider relevant factors in the assessment of damages or considered irrelevant factors, or she otherwise, in the result, made “a palpably incorrect” or “wholly erroneous” assessment of damages: Naylor Group Inc. v. Ellis-Don Construction Ltd. , 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 80; Michel v. Spirit Financial Inc. , 2020 ONCA 398, 151 O.R. (3d) 583. [4] I am not persuaded that there is any basis for this court to interfere with the trial judge’s damages award, and so I would dismiss this appeal. [5] Below, I first provide some background as to the facts and the trial judge’s damages assessment. Then I outline and address what I would characterize as the essentially 12 arguments the appellants raise on appeal, which I organize in my discussion into four categories: (1) foreseeability-related arguments; (2) other arguments related to Ms. Murphy’s intention to build a house on her property and her affinity for trees; (3) drainage-related arguments; and (4) other arguments. B. BACKGROUND Facts [6] Mr. Mullen owns T.S. Mullen Farms Ltd. It in turn owns the farm property adjacent, to the west, to Ms. Murphy’s 40-acre property. [7] Prior to the trespass, both the Mullen property and the Murphy property were used as farmland. They were separated by a drainage ditch and a column of mature trees. The line of trees was approximately 2,000 feet long and 60 feet deep. The drainage ditch was on the Murphy property. [8] Mr. Mullen entered the Murphy property and cut and removed the trees. After removing the tree line, he filled in the drainage ditch beside it. He would later argue that Ms. Murphy had given him permission to do so. Ms. Murphy acknowledged that probably one half of the trees removed were on the Mullen property. [9] The Mullen property did not have proper drainage. It had no direct outlet to two existing municipal drains. Mr. Mullen took the action he did to improve drainage on the Mullen property and make it a viable farming operation. After it was apparent that Ms. Murphy did not agree with his actions, he petitioned the town for a municipal drain to address the drainage issues on the Mullen property. The municipality eventually constructed a drain. The costs were assessed to both properties under the Drainage Act , R.S.O. 1990, c. D.17. Of the total cost of $102,000, $77,032 was assessed to the Mullen property, and $24,968 to the Murphy property. Trial Judge’s Reasons [10] On the appellants’ summary judgment motion, the trial judge found that Mr. Mullen had not discharged his burden of proving he had leave and licence to do any work on Ms. Murphy’s property. Accordingly, she found the appellants liable for trespass on the Murphy property. [11] There was a separate four-day hearing on the issue of damages, which gave rise to this appeal. [12] At the time of the hearing, Ms. Murphy lived in the United States. The Murphy property had been in the Murphy family for generations. There had been no house on the Murphy property since the 1870s. [2] Nevertheless, the trial judge accepted that Ms. Murphy intended to build a house on the southwest corner of the property close to the tree line, and retire there. As I will discuss below, several of the appellants’ arguments arise out of the trial judge’s acceptance of Ms. Murphy’s evidence that she intended to build a house on the Murphy property. [13] The trial judge also found that the trees were important to Ms. Murphy. Her evidence was that she had planted over 100 trees on her property in Richmond, Michigan. The tree line on the Murphy property had provided a sound and light barrier from the residential subdivision and the fairgrounds located to the west of the Mullen property. It was a habitat for wildlife and provided a wind break and a visual screen between the Murphy and the Mullen properties. [14] The trial judge carefully reviewed the law on the issue of damages for loss of trees. [15] She observed that the determination of compensation for loss of trees is a highly fact-dependent exercise and may vary depending on a number of factors: Generally, the court will try to place the plaintiff in the same position as they were before the trespass was committed as far as having privacy restored or aesthetic beauty replaced, but not necessarily the replacement of the exact tree lost. If replacement is possible but not practicable, the court will look at what is reasonable in the circumstances. [16] The trial judge noted that the appellants submitted that the court had three options on which to base its award: (1) the value of the trees; (2) the decrease in valuation of the land resulting from the cut trees; or (3) the cost of reasonable restoration. [17] There was no evidence as to either the value of the trees or the decrease in value of the land. In any event the trial judge concluded that the appropriate approach to damages was that taken in Kates v. Hall , 1991 CanLII 1127 (B.C.C.A.), aff’g [1989] B.C.J. No. 1358 (S.C.), namely the amount “sufficient to pay for the remedial work which a reasonable person without monetary constraints in the plaintiff’s position would have implemented had the loss been caused without fault on anyone’s part”: Kates , at p. 6. [18] The trial judge rejected the appellants’ argument that the trees would have had to be removed in any event given the subsequent placement of an open drain on the property line between the Mullen and Murphy properties and, accordingly, they should not be responsible for the cost of replacing the trees. She reasoned that had the tree line and ditch remained in place, Ms. Murphy likely would have opposed their removal to accommodate a municipal drain. The municipality could have placed the drain in a different location or considered different drainage options. Therefore, it was not at all certain that trees would have had to be removed. [19] The trial judge found that the value of the trees was in their placement. She concluded that a reasonable person in Ms. Murphy’s position would arrange for the planting of trees along the property line for the portion (200 metres) of the full 610-metre length of the former tree line near where Ms. Murphy planned to build a house, and not along the north end of the property intended to be used for farmland. [20] The trial judge accepted the evidence of Ms. Murphy’s son that, when he had walked the tree line, he had counted 300 trees. The tree line included trees that were 40 to 60 feet tall. [21] The trial judge concluded that it was reasonable to use 40 to 50 mm caliper trees that were approximately 8 to 10 feet tall as replacement trees. Based on the expert evidence of the arborist called by Ms. Murphy, she found that the approximate cost of replacing one third of the tree line was $73,902. She accepted the expert’s evidence that irrigation and a fence to protect the new trees from the deer would be necessary and assessed $20,000 for irrigation and $13,000 for fencing. [22] The trial judge found that the ditch Mr. Mullen had filled in had provided sufficient drainage for the Murphy property. Accordingly, she added the cost of the survey Ms. Murphy had to obtain for the purpose of the new drain constructed by the municipality, and the Drainage Act costs of $24,968 assessed against the Murphy property. [23] Finally, the trial judge added the sum of $75,000 for “loss of amenities”. This amount recognized that Ms. Murphy would be waiting at least 20 years before she had mature trees at the place where she plans to build her house and that she would most likely never have trees along the entire length of the property line as she did before. As I will outline below, the trial judge explained how she determined that, in the circumstances, $75,000 was the appropriate amount. [24] The trial judge declined to make an order for punitive damages. C. DISCUSSION (1) Foreseeability-related arguments [25] As noted above, the trial judge accepted Ms. Murphy’s evidence that she intended to build a house on the southwest corner of the Murphy property close to where the tree line had been. She also concluded that a reasonable person in Ms. Murphy’s position would replace a portion of the tree line that Mr. Mullen removed. [26] The appellants argue that, unless waived, the concept of foreseeability applies to the quantification of damages for the tort of trespass and that the trial judge failed to apply this concept. While they conceded in their oral submissions that it was foreseeable that somebody, at some time, might build a house on the Murphy property, they argue that it was not foreseeable that the person building the house would have an affinity for trees and would use land that could otherwise be used for farming to plant replacement trees. [27] The appellants also argue that, in a trespass case, it is assumed that the plaintiff would have used her land in the usual way such land was used at the time of the trespass . The appellants say deviation from this principle is justified only where objective evidence establishes that a change in land use was imminent at the time of the trespass or, at a minimum, was a realistic and likely outcome of a process already underway. The Murphy property was used for farmland and construction of a house was not imminent. In fact, Ms. Murphy had taken no concrete steps towards constructing a house. Accordingly, it should have been assumed that Ms. Murphy would not build a house, or, if she did, would not use land that could otherwise be used to plant crops to plant replacement trees. Paul Lantin, the tenant farmer who had farmed the Murphy property for many years, testified that about “20 feet of grain” was lost because of the trees. [28] I reject these two arguments. Because my discussion of these two arguments overlaps, I will address them together. [29] As I will explain, even accepting for the purpose of argument that the concept of foreseeability is generally relevant in assessing damages for the tort of trespass to land involving the removal of trees, in this case there is no merit to the appellants’ foreseeability argument. Moreover, the trial judge was not required to assume that Ms. Murphy would use her land in the way it was used at the time of the trespass . [30] The appellants rely on a decision of the Saskatchewan Court of Appeal – Wood Mountain Lakota First Nation No. 160 v. Goodtrack , 2020 SKCA 10, at paras. 24-26, leave to appeal refused, [2020] S.C.C.A. No. 345 [3] – in support of their foreseeability argument. Notably, they do not point to any decisions of this court or any decisions from the Supreme Court of Canada. [31] Wood Mountain is not a trespass case involving the removal of trees. It relies on a passage from G.H.L. Fridman, The Law of Torts in Canada , 3rd ed. (Toronto: Thomson Reuters, 2010), at pp. 57-59: Foreseeable loss is recoverable, and for this purpose it is assumed that the plaintiff would have used his land in the usual way such land is used. In a footnote to this sentence, Professor Fridman cites three cases: De Wurstemberger v. Royalite Oil Co. , [1935] 2 D.L.R. 177 (Alta. S.C. (A.D.)); Buckingham v. Graham (1996), 174 N.B.R. (2d) 330 (Q.B.); and Shewish v. MacMillan Bloedel Ltd. (1990), 48 B.C.L.R. (2d) 290 (C.A.). [32] From my review of the cases cited by Professor Fridman, the quoted passage derives from De Wurstemberger , which in turn cites another Alberta case, Marsan v. G. T. P. Ry. Co. (1912), 4 Alta. L.R. 167 (S.C. (A.D.)). Neither case involves quantification of damages in trespass cases for the removal of trees. These cases stand for the proposition that, generally, a trespasser is liable for damages that the trespasser could fairly be expected to anticipate from their act, and that a trespasser can always be fairly expected to anticipate that the plaintiff intends to use her property “in any reasonable and usual way” (emphasis added). These cases do not stand for the proposition that in assessing damages it must be assumed that the plaintiff will use her land in the usual way it was used at the time of trespass. The proposition arises in the context of a foreseeability analysis and the cases cast the foreseeability net more widely. [33] In support of their argument that it must be assumed in assessing damages that the plaintiff would have used her land in the usual way such land was used at the time of trespass, the appellants cite two trespass cases: G.T. v. D. Saunders , 2014 ONSC 4422, at para. 75, and Costello v. Calgary (City) (1995), 163 A.R. 241 (Q.B.), at para. 54, rev’d in part, 1997 ABCA 281, 152 D.L.R. (4th) 453, leave to appeal refused, [1997] S.C.C.A. No. 566. [34] Saunders is a case where the damages awarded included damages for the removal of trees. It, in turn, refers to the passage in The Law of Torts quoted above. As I explain above, in the context of the cases on which Professor Fridman relies, the above-quoted passage does not stand for the proposition that it must be assumed that the trespasser will use her land in the way it was used at the time of trespass. Moreover, the above-quoted passage was not material to the analysis in Saunders . Pierce R.S.J. concluded that the modest amount of damages sought by the plaintiff to replace the trees removed was reasonable in the circumstances: the damage was located in a far corner of the plaintiffs’ property and was not immediately visible from their residence. [35] Costello did not involve the removal of trees; it involved a trespass flowing from an expropriation subsequently declared void. In determining damages for the owner’s temporary loss of use of the property, the trial judge cited Marsan . In Marsan , the Alberta Supreme Court (Appellate Division) wrote that “[a] trespasser must be held to know that the owner of the land will try to use it in any usual and reasonable way which would be profitable to him” (at p. 173). In Costello , the court accepted that the plaintiff would have proceeded to develop a new motel on the expropriated site and awarded damages for loss of operating revenue from the operation of the proposed larger motel. Costello does not stand for the proposition that it must be assumed that the trespasser will use her land in the way it was used at the time of trespass. [36] Therefore, none of the appellants’ authorities establish that the trial judge was under an obligation to “assume” that Ms. Murphy would only use her land for farmland. That being so, it is unnecessary to consider in what circumstances a trial judge may deviate from that assumption. [37] As to the application of foreseeability in general, it is not clear to what extent the limiting principle of foreseeability is applicable to intentional torts, such as trespass to land, in Ontario. [38] As noted above, the appellants rely on a decision of the Saskatchewan Court of Appeal in support of their foreseeability argument. [39] In response, Ms. Murphy points to an Ontario decision, albeit a decision of a lower court, in support of the argument that foreseeability is not applicable to intentional torts: Allan v. New Mount Sinai Hospital (1980), 28 O.R. (2d) 356 (H.C.J.), rev’d (1981), 33 O.R. (2d) 603 (C.A.) [4] , citing Bettel v. Yim (1978), 20 O.R. (2d) 617 (Co. Ct.), per Borins J. In Allan , Linden J. commented, at p. 365, that “[t]he limitation devices of foresight and remoteness are not applicable to intentional torts, as they are in negligence law.” [40] Bettel v. Yim [5] was also cited by the Supreme Court in Non-Marine Underwriters, Lloyd’s of London v. Scalera , 2000 SCC 24, [2000] 1 S.C.R. 551, at para. 99, where Iacobucci J. noted that “if a tort is intended, it will not matter that the result was more harmful than the actor should, or even could have foreseen.” This comment was made in the context of a discussion about the elements of the tort of sexual battery. [6] [41] In Murano v. Bank of Montreal (1998) , 163 D.L.R. (4th) 21 (Ont. C.A.), this court also commented on foreseeability in the intentional tort context. Morden A.C.J.O. noted that “[g]enerally, a trespasser can be liable for unforeseen consequences.” While he did “not suggest that there can be no limit on the damages recoverable as a result of an intentional tort”, in the case before him (which dealt with the torts of trespass and conversion) it was “unnecessary to explore the possible limits.” [42] Here too it is unnecessary for this court to resolve the application of the concept of foreseeability in assessing damages for the tort of trespass to land involving the removal of trees. [43] The remoteness inquiry asks whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable”: Mustapha v. Culligan of Canada Ltd. , 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 12, citing Allen M. Linden & Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006), at p. 360. Remoteness is assessed through the lens of reasonable foreseeability. [44] Here, there is no issue about the foreseeability of the type of harm: the loss of the trees. Mr. Mullen intentionally cut down the tree line. [45] In their oral submissions, the appellants contended, however, that even though it was foreseeable that someone might build a house on the property, it was not foreseeable that such a person would have an unusual affinity for trees or would plant trees on land that could be used for agricultural purposes. [46] This is not an issue of failing to apply the concept of foreseeability. Rather, the appellants seek to impugn the trial judge’s finding, in applying Kates , as to what a reasonable person in Ms. Murphy’s position, without monetary constraints, would pay to restore the property had the loss been caused without fault on anyone’s part. [47] In a footnote to the paragraph in The Law of Torts containing the passage that is central to the appellants’ first argument, Professor Fridman writes that quantification of damages in trespass cases involving trees “has caused courts much difficulty and has resulted in many different ways of dealing with the issue.” He lists the approach in Kates as one of these ways. [48] The appellants conceded that the approach in Kates was one of the possible methods of assessing damages, although they argued before the trial judge that a different method should be used. The trial judge chose to apply Kates . The framework in Kates takes into account the reasonableness of the plaintiff’s wish to restore the property to its former state, the actual benefit to the plaintiff of the restoration work, and the use to which the injured party has and will put the property: Kates at p. 15. [49] The trial judge assessed damages from the perspective of a reasonable person in Ms. Murphy’s position – i.e., the position of someone who wanted to build a house on the property, which the appellants conceded was foreseeable. The trial judge found that a reasonable person in Ms. Murphy’s position would wish to replace the privacy and the sound screen of the tree line along the property adjacent to the proposed building area for the home, plus an additional length. The trial judge took into account the fact that any replacement trees would occupy land that could be used for agriculture. Accordingly, she did not accept that a reasonable person would extend the trees for the entire length of the former tree line given that the north end of the property was intended to be used for farmland. Arguably, in considering what a reasonable person in the plaintiff’s position would do, the approach in Kates assesses remoteness. It is difficult to imagine that the actions of a reasonable person would not be reasonably foreseeable. [50] In these circumstances, there is no merit to the appellants’ foreseeability argument or their argument that the trial judge was required to assume that the plaintiff would use her land in the usual way it was used at the time of trespass. (2) Other arguments related to Ms. Murphy’s intention to build a house on her property and her affinity for trees [51] The appellants make three further arguments related to Ms. Murphy’s intention to build a house and her affinity for trees. For the following reasons, none of them persuade me that this court should interfere with the trial judge’s assessment of damages. [52] First, the appellants argue that, as plaintiff, Ms. Murphy had the onus of providing the court with cogent evidence on which to assess damages. Her assertion that she intended to build a house on the Murphy property was not supported by any objective evidence of her intent or evidence that she would actually follow through on that intent. In accepting Ms. Murphy’s evidence, without corroboration, and without evidence that her intent was objectively reasonable, the trial judge misapplied the burden of proof. Had the trial judge not accepted that Ms. Murphy intended to build a house, she would not have awarded the cost of replacing one third of the tree line. [53] I reject this argument. In her reasons, the trial judge recognized that Ms. Murphy bore the onus of establishing the damages arising from the appellants’ trespass. Although Ms. Murphy admitted in cross-examination that she had not applied for a building permit, hired an architect, or taken steps to obtain Canadian residency status at the time of the trespass, the trial judge was entitled to rely on Ms. Murphy’s evidence that she intended to build a house on the Murphy property. The trial judge did not reverse the onus of proof. Further, it is implicit from the trial judge’s reasons as a whole that she accepted that Ms. Murphy would probably act on her stated intention. [54] Second, the appellants submit that the trial judge erred in her application of the test in Kates . An objectively reasonable person in Ms. Murphy’s position, without monetary constraints, would not spend the money to plant trees along 200 metres of the property line. The trial judge erred by applying a subjective standard and infusing the reasonable person with Ms. Murphy’s alleged affinity for trees. [55] I reject this argument. As I have already stated, the trial judge’s conclusion that a reasonable person would replace 200 metres of the tree line was grounded in multiple factors. These included the privacy, the natural habitat, and the screen against noise and light that the trees provided. It was open to the trial judge to conclude that a reasonable person who intended to build a house would value these elements and want them restored, to a reasonable degree. [56] Finally, the appellants submit that the trial judge should have discounted the damages award to reflect the low probability that Ms. Murphy would actually build a house. I am not persuaded that the trial judge was of the view that the probability was low. As indicated above, in my view it is implicit from the trial judge’s reasons as a whole that she accepted that Ms. Murphy would probably act on her intention to build a house on the Murphy property. In any event what matters is not whether the house will ultimately be built but rather what remedial work Ms. Murphy would reasonably undertake. (3) Drainage-related arguments [57] The appellants make three drainage-related arguments. The first two are related. [58] Their first argument is that the trial judge engaged in judicial speculation when she rejected their argument that the trees would have had to have been removed in any event, given the subsequent placement of the municipal drains. They say there was no evidentiary support for her conclusion. The impugned passage is the following: If the hedge row and ditch had remained in place, [Ms. Murphy] would most likely have opposed their removal to accommodate a municipal drain. The drain could possibly have been placed in a different location, or different drainage options could have been considered and/or implemented. It is not certain at all that the trees would have had to be removed to accommodate the drain. [59] The appellants’ second, and alternative, argument was made only in their factum and not pursued in oral argument. In their factum they assert that the trial judge should at least have reduced the damages awarded to account for what they say is the high probability that the trees would, in any event, have had to have been removed. For this proposition, without elaboration, they cite a personal injury case: Schrump v. Koot (1977), 18 O.R. (2d) 337 (C.A.). [60] The respondents counter with Dykhuizen v. Saanich (District) (1989), 63 D.L.R. (4th) 211 (B.C.C.A.). In that case, Taylor J.A. relied on Carr-Harris v. Schacter and Seaton , [1956] O.R. 994 (H.C.J.), and Livingstone v. The Rawyards Coal Company (1880), 5 App. Cas. 25, per Lord Blackburn, for the proposition that a wilful trespasser “is not entitled to say that the damage he did would probably have eventually occurred in any event”: Dykhuizen , at p. 213. [61] Addressing the appellants’ second argument first, Schrump and its progeny address the approach to the calculation of damages for a future, uncertain loss. In contrast, the loss of the trees was a past, certain loss and the appellants agreed that it was open to the trial judge to apply the approach in Kates in assessing Ms. Murphy’s damages for that past, certain loss. I would not interfere because the trial judge did not apply the principle in Schrump . [62] Nor would I interfere on the basis that the trial judge engaged in improper judicial speculation. [63] The appellants called Gerardus Rood, a civil engineer, to testify about the drainage proposals he prepared under the Drainage Act . Those proposals were prepared after Mr. Mullen had removed the trees. Mr. Rood was called as a participant expert, and did not opine as to the chances that the drain could have been placed in such a way as to save some or all of the trees, had they not been cut down. All Mr. Rood could do is predict what effect his proposals would have had on the trees, had they not been cut down. If it were open to the appellants to argue that the trees would probably have been removed in any event, they were required to point to evidence which supports such a finding. The appellants called no expert evidence, and therefore one can only speculate as to what proposals might have been made and approved by the municipality if the trees had not been removed. [64] As the trial judge found, if the trees had remained in place, Ms. Murphy “would most likely have opposed their removal to accommodate a municipal drain” and “[t]he drain could possibly have been placed in a different location, or different drainage options could have been considered and/or implemented.” This was not improper judicial speculation. Rather, it simply reflected the appellants’ failure to adduce evidence to support their assertion. [65] The appellants’ third drainage-related argument is that the trial judge erred in accepting the evidence of Ms. Murphy, an absentee owner, that the Murphy property had sufficient drainage, over that of Paul Lantin, the tenant farmer who had farmed the property for many years, that the Murphy property was hard to drain, without providing any reason for doing so. This finding underpinned the award of the cost of the survey Ms. Murphy had to obtain for the purpose of the construction of a new drain by the municipality and the $24,968 cost of the new drain that had been assessed against the Murphy property as damages. [66] The trial judge’s finding is supported by the record and the path to her conclusion is apparent. Ms. Murphy’s evidence that the drainage was sufficient was supported by Mr. Mullen’s own evidence. He testified that “the water problem wasn’t so much a problem on her side, it was more or less on – on my side. I had – I had – had no drainage at all.” [67] The drainage on the Murphy property was sufficient in part because of what Mr. Lantin did. Mr. Lantin testified that the Murphy property was hard to drain and that he had to make a furrow to get the water moving. The Mullen property had no sub-surface drainage, and its drainage problem could not be ameliorated by measures such as that taken by Mr. Lantin. It was after Mr. Mullen cut down the trees on the Murphy property that it had drainage problems. [68] I turn to the appellants’ remaining arguments. (4) The appellants’ remaining arguments [69] The appellants make four further arguments. [70] First, they argue that in assessing damages, the trial judge erred by simply taking one third of Ms. Murphy’s arborist’s estimated cost for replacing the entire tree line. His estimate was based on using 480 trees – a mix of 40 to 50 mm caliper trees and poplar whips – but the trial judge accepted that there were only 300 trees in the tree line. Further, Ms. Murphy had acknowledged that probably one half of the trees removed were on the Mullen property and the trial judge accordingly erred by not discounting the damages for the half of the tree line that was on the Mullen property. [71] There is no basis to interfere with the trial judge’s calculation of the cost of replacing the trees along one third of the tree line. The expert evidence was that 480 smaller trees were required to replace the tree screen that was removed from the Murphy property. Although the number of trees the expert recommended be planted was well in excess of the number of trees removed the replacement trees were much smaller and the larger number was required to generate an equivalent screen within a reasonable period of time. [72] Second, the appellants argue the trial judge erred in preferring the evidence of Ms. Murphy’s arborist that a deer fence was necessary to protect the new trees from the local deer population, over that of the appellants’ arborist that deer do not populate the area and, even if they did, a deer fence was not necessary. [73] There was evidence supporting the trial judge’s finding. She was entitled to prefer the evidence of Ms. Murphy’s expert over that of the appellants. This is not a basis for interfering with the trial judge’s damages assessment. [74] Third, the appellants argue that the trial judge’s choice of 200 metres as the length of the fence line on which the trees should be replaced and her award of $75,000 for loss of amenities are arbitrary and unsupportable. [75] I disagree. These determinations are far from arbitrary. Ms. Murphy testified that she wanted to replace the entire tree line. The trial judge concluded that was not reasonable, and, at para. 70, explained why she chose 200 metres: A reasonable person would, in my view, wish to replace the privacy and the sound screen of the tree line along the property adjacent to the proposed building area for the home, plus an additional length. [76] Further, the trial judge explained the rationale for the $75,000 amount and how she determined it. As noted above, this amount recognized that Ms. Murphy would be waiting for at least 20 years before she had mature trees at the place where she plans to build her house and that she would most likely never have trees along the entire length of the property line as she did before. The character of the Murphy property was forever changed. As to how the trial judge determined the amount, she noted that it was impossible to determine how many of the 300 trees Ms. Murphy’s son had counted were on the Murphy property, as opposed to the Mullen property, so the trial judge took one half of that amount, namely 150 trees. While there was some precedent for an award of $1,000 per tree [7] , because Ms. Murphy did not yet have a house on the property and had not yet started to build, she reduced that sum to $500 per tree. The $75,000 is the product of $500 multiplied by 150. [77] Finally, the appellants argue that the award of $213,471 is so inequitable and wholly erroneous as to justify appellate intervention. [78] This argument is unfounded. The appellants have not identified any reviewable error in the trial judge’s assessment of damages and the assessment is not palpably incorrect or wholly erroneous. D. Disposition [79] In the result, I would dismiss the appeal, with costs to Ms. Murphy in the amount of $20,000, all inclusive. Released: December 9, 2021 “P.R.” “Alexandra Hoy J.A.” “I agree. Paul Rouleau J.A.” “I agree. Thorburn J.A.” [1] Although the statement of claim and style of cause refer to two plaintiffs, the judgment awards damages only to Ms. Murphy. Accordingly, I refer only to her throughout these reasons. [2] Although the trial judge’s reasons indicate that there has not been a house on the property since the 1970s, that appears to be a typographical error. Ms. Murphy testified that there had not been a house on the property since the 1870s. That timeline coincides with her family’s acquisition of the property. [3] In Wood Mountain , the defendants were found to be trespassers, and the court granted a permanent injunction and awarded damages for lost rent and punitive damages. On appeal, the main issue was whether the plaintiff was also entitled to damages for the past loss of funding under a federal grant program. The Court of Appeal stated that “[t]he concept of foreseeability applies to the quantification of damages for the tort of trespass” and that “[d]amages for trespass should place a plaintiff in the same position as it would have been absent the trespass”: at paras. 24-25. The court concluded that the losses under the grant program were foreseeable. “One of the direct consequences of this trespass was the loss of the [federal] funding”, and “[o]nce a court finds a loss was caused by a defendant’s wrongdoing, and the loss was foreseeable, the plaintiff is entitled to damages”: at para. 26. [4] Allan was reversed on the basis that liability was imposed on a ground not pleaded. [5] More recently, Bettel v. Yim was referred to in Shah v. LG Chem, Ltd. , 2017 ONSC 2586, 413 D.L.R. (4th) 546 (Div. Ct.), at paras. 43-46, and Shah v. LG Chem, Ltd. , 2018 ONCA 819, 142 O.R. (3d) 721, at footnote 3, leave to appeal refused, [2018] S.C.C.A. No. 520. [6] Although remoteness was not the point in issue in Scalera , Iacobucci J.’s statement about foreseeability has been adopted by this court, although not in the context of the tort of trespass to land: see, for e.g., Buchanan v. GAN Canada Insurance Co. (2000), 50 O.R. (3d) 89; Meadows v. Meloche Monnex Insurance Brokers Inc. , 2010 ONCA 394, 102 O.R. (3d) 312, at para. 23. [7] In Kates , for instance, the trial judge awarded $1,000 per tree for loss of amenities.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Imran-Khan, 2021 ONCA 874 DATE: 20211209 DOCKET: C67105 Fairburn A.C.J.O., Feldman and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Sharina Imran-Khan Appellant Chris Sewrattan and Ashley Sewrattan, for the appellant Jerry Brienza, for the respondent Heard: December 2, 2021 On appeal from the convictions entered on February 28, 2019, by Justice David L. Corbett of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant, a real estate agent, was convicted of fraud in relation to three real estate transactions. In the first, she was found to have defrauded the victim by facilitating a mortgage on his commercial property without his knowledge. In the second, she was found to have falsely claimed to consolidate two of an unrelated victim’s mortgages into a third mortgage, not canceling the two previous mortgages, and keeping the funds that were intended to pay those mortgages off. In the third, she was found to have defrauded another couple by keeping funds that were meant to refinance their mortgage. [2] On appeal, the sole issue raised is whether the trial judge impermissibly intervened during the cross-examination of the appellant and by expressing his disbelief of her evidence during her testimony. The appellant argues that the trial judge’s interventions created two impressions: first, that the trial judge placed the authority of his office on the Crown’s side; and second, that the trial judge disbelieved the appellant. She argues that these impressions, together, constituted a miscarriage of justice that warrants a new trial. Essentially, the claim is that the interventions raised a reasonable apprehension of bias on the part of the trial judge. [3] We do not agree. [4] By way of context, we agree with the trial judge’s assessment of the Crown’s case as “not a close call”. There was no doubt that frauds had taken place and the only issue was whether the appellant was a knowing participant. The Crown’s case against the appellant was formidable. [5] The trial judge’s reasons were detailed, and he carefully considered the evidence before him. In his reasons for decision, the trial judge called the defence, which was largely comprised of the appellant’s evidence, a “pack of lies” albeit “salted with some nuggets of truth”. He made explicit credibility findings with respect to the evidence of the Crown witnesses and generally accepted their evidence. He expressly applied R. v. W.(D.) , [1991] 1 S.C.R. 742, and soundly rejected the appellant’s evidence, finding that it did not raise a reasonable doubt of her guilt. [6] The appellant bases her appeal on ten allegedly improper interventions that the trial judge made in the course of the cross-examination of the appellant over a day and part of another day. She argues that, taken together, the interventions created the appearance of an unfair trial to a reasonable person present throughout the proceedings, and fell within the impermissible category of questioning an accused person “to such an extent or in a manner which conveys the impression that the trial judge has placed the authority of his or her office on the side of the prosecution and conveys the impression that the trial judge disbelieves the accused or the witness”: see R. v. Murray , 2017 ONCA 393, 138 O.R. (3d) 500, at paras. 96-97; R. v. Stucky , 2009 ONCA 151, 303 D.L.R. (4th) 1, at para. 71, citing R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 231. Ultimately, the question to be asked is: would a reasonably minded person who had been present throughout the trial consider that the accused had not had a fair trial? [7] We start with the observation that the appellant and her senior counsel did not object to the trial judge’s interventions. [8] The interventions do not, read in their entirety, paint a picture of a judge who has compromised trial fairness. It is clear from the transcripts that the appellant’s evidence was frequently confusing. The interventions are virtually all questions seeking clarification in this judge-alone trial. They demonstrate a high level of engagement on the part of the trial judge, which is ultimately reflected in his reasons: he listened carefully to the evidence and sought clarification when he needed it. [9] The only point at which the trial judge clearly expressed disbelief in the appellant’s evidence was after the cross-examination was complete, when he indicated that the appellant’s evidence did not make sense. In the unusual circumstances of this case, where the record reveals that the appellant’s explanation of the impugned transactions was lacking in any credulity, the trial judge gave the appellant the opportunity to talk to her lawyer regarding obvious problems in her evidence that might be addressed via the production of corroborating documentation in re-examination. The defence chose not to do so. [10] We do not find that this intervention, read alone or along with the others, was sufficient to raise a reasonable apprehension of bias. Put another way, we are not satisfied that a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial. Rather, the trial judge was seeking clarification of confusing evidence, and when he did express his disbelief of her evidence at the end of her cross-examination, he provided her with the opportunity to provide corroborative evidence. [11] In short, the evidence that the appellant participated in the frauds alleged was overwhelming, and, considered in context, the trial judge’s interventions did not give rise to a reasonable apprehension of bias that compromised the appellant’s right to a fair trial. [12] The appeal is therefore dismissed. “Fairburn A.C.J.O.” “K. Feldman J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ruparell v. J.H. Cochrane Investments Inc., 2021 ONCA 880 DATE: 20211210 DOCKET: C68960 Doherty, Benotto and Huscroft JJ.A. BETWEEN Deepak Ruparell Plaintiff (Respondent) and J.H. Cochrane Investments Inc., 2117105 Ontario Inc., 2122192 Ontario Inc., dba Town + Country Volkswagen and 1788289 Ontario Inc. Defendants (Appellants) James Doris and Abhishek Vaidyanathan, for the appellants Paul Fruitman and Vlad A. Calina, for the respondent Heard: November 30, 2021 On appeal from the judgment of Justice Janet Leiper of the Superior Court of Justice, dated December 7, 2020. REASONS FOR DECISION [1] The appellants were negotiating the sale of their car dealership to the respondent. Negotiations continued over several months and agreement was reached on a number of terms. The appellants then received an unsolicited offer from a third party for more money, which they accepted. The respondent sued for breach of contract, seeking specific performance. [2] The appellants argue that the trial judge erred in finding that the parties had reached an agreement and erred in her calculation of damages, which she awarded in lieu of specific performance. [3] We do not accept these arguments. The appeal is dismissed for the reasons that follow. [4] It is not unusual for contracts to be made by agreement on the essential terms, which are later incorporated into a formal written document. Whether the parties reached a binding contract depends on the circumstances of the case, and in particular on the intention of the parties. [5] The trial judge considered the history of the parties’ negotiations, noting that they had two distinct phases. The parties had been negotiating pursuant to the terms of a non-binding letter of intent that described the terms of engagement for a due diligence and financial information review, expectations on closing, purchase price, and a deposit of $1 million. The letter required share purchase agreements and contained an exclusivity clause preventing the appellants from negotiating with other parties, but that clause expired on April 15, 2020. [6] The trial judge found that the second phase of the parties’ negotiations began with the expiry of the exclusivity period, by which time the global COVID-19 pandemic was adversely affecting the appellants’ business. The respondent made a new, lower offer to the appellants on April 16, which included a vendor take-back mortgage. The parties continued negotiations from April 16 to April 24, 2020. The appellants counter-offered a higher price but this was rejected by the respondent. [7] The trial judge found that the commercial purposes of the letter of intent were spent after April 15 and that a new deal was contemplated. The essential terms of the new transaction were price, share sale, financing, security, timing of payment, asset valuation and post-closing adjustment and retaining the general manager to work for the new company. The trial judge found that the parties agreed to these terms on April 24, 2020, when Peter Hatges, a KPMG adviser engaged by the appellants and authorized to represent them, told the respondent in a voicemail message: “we have a deal”. The trial judge found, further, that the parties acted as though they had a deal. Between April 26-28, 2020, counsel for the parties revised the share purchase agreements in accordance with the April conversations and the term sheet. [8] The appellants press this court’s decision in Bawitko Investments Ltd. v. Kernels Popcorn Ltd. (1991) , 79 D.L.R. (4th) 97 (Ont. C.A.), which they submit governs the outcome in this case. But the trial judge properly distinguished Bawitko , which concerned a franchise agreement. The court found that the parties’ agreement in that case “did not encompass essential aspects of the intended formal agreement” and did not satisfy the standards of certainty the law requires. [9] In this case, the trial judge found that the parties agreed on the essential terms of their deal. This finding was open on the record before her and is entitled to deference. We do not accept the appellants’ submission that the trial judge misapprehended the evidence or otherwise made a palpable and overriding error. Nor do we accept any of the appellants’ arguments that the contract was not sufficiently certain or that the parties did not intend to be bound. These arguments were considered and rejected by the trial judge at paragraphs 63-71 of her decision. We agree with her treatment of these arguments and see no error requiring intervention. [10] The trial judge did not err in dismissing the appellants’ counterclaim that the respondent breached the terms of the letter of intent by commencing the action and seeking specific performance. Dismissal of the counterclaim follows from her finding that the commercial purposes of the letter of intent were spent by April 15 and that a new deal was contemplated, and there is no basis to interfere with that finding. [11] The trial judge declined to exercise her discretion to order specific performance and awarded the respondent $5 million in damages (exclusive of pre-judgment and post-judgment interest), reflecting their lost opportunity. This amount was the difference between the $19 million the respondent offered and the $24 million offer from the third party the appellants accepted. [12] There is no basis to interfere with the trial judge’s award of damages. The third-party offer came at essentially the same time as the respondent’s offer, and as a result established a proxy for the value of the business the respondent had agreed to purchase. The difference between what the third party was willing to pay and the amount the respondent had agreed to pay demonstrates that the respondent would have realized surplus value had the sale been completed as required, and the trial judge did not err in awarding this amount as damages. [13] The appeal is dismissed. The respondent is entitled to costs in the agreed amount of $40,000, all inclusive. “Doherty J.A.” “M.L. Benotto J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ontario (Labour) v. Miller Group Inc., 2021 ONCA 879 DATE: 20211210 DOCKET: C68878 Watt, Benotto and Trotter JJ.A. BETWEEN Her Majesty the Queen Appellant and Miller Group Inc. and Glenn Fernandes Respondents Giuseppe Ferraro, for the appellant Norm Keith and Maciej Lipinski, for the respondents Heard: September 20, 2021 by video conference On appeal from the order of Justice Chantal M. Brochu of the Ontario Court of Justice, dated June 25, 2019, dismissing an appeal from the acquittals entered by Justice of the Peace B.I. Leaman, dated September 18, 2017. Trotter J.A.: A. Introduction [1] This appeal arises from a workplace accident that injured two individuals. [2] Miller Group Inc. (hereafter “Miller”) was contracted to pave a road in Northern Ontario. Mr. Fernandes, an employee of Miller, supervised the job. A piece of heavy equipment, a rubber tire roller, was used in the paving project. The roller went out of control and it ended up in a ditch. The operator of the roller was hospitalized for 11 days; another employee, who was able to jump out of the way, suffered less serious injuries. [3] The incident was reported to the Ministry of Labour (“MOL”). [1] Investigators attended at the scene and seized the roller under the Occupational Health and Safety Act , R.S.O. 1990, c. O.1 (“ OHSA ”). Before the roller was inspected, a lawyer for Miller wrote to the MOL inspectors and alleged that the machinery had been unlawfully seized. He further directed that no inspection could be performed unless his client consented. [4] Despite the lawyer’s letter, the inspection proceeded. This involved disassembling the roller. Before releasing the roller back to Miller, the inspectors offered to re-assemble it. Miller declined the offer and gave the roller away as scrap without conducting any testing of its own. [5] Miller (as an employer) and Mr. Fernandes (as a supervisor) were charged with workplace safety offences under ss. 25(1) and 27(1)(a) of the OSHA , respectively. Miller brought a pre-trial Charter application alleging infringements of its rights under ss. 8 and 11(d) of the Charter . [6] The Justice of the Peace dismissed the s. 8 claim, but found that the conduct of the inspectors infringed s. 11(d) because: (a) they should have halted their inspection in light of the lawyer’s letter; (b) they failed to keep proper notes; (c) they did not follow internal policy manuals; and (d) their testimony was conflicting. The Justice of the Peace excluded the results of the inspection under either ss. 24(1) or (2) of the Charter , the precise basis being unclear. The Crown called no further evidence and the charges were dismissed against Miller and Mr. Fernandes. [7] The Crown’s appeal to a judge of the Ontario Court of Justice (“the appeal judge”) was dismissed. She found that the Justice of the Peace made no legal errors in excluding the evidence as a remedy for the breach of s. 11(d) of the Charter . She determined that it was unnecessary to address the submissions of Miller and Mr. Fernandes that there was also a breach s. 8 of the Charter . [8] Nordheimer J.A. granted the Crown’s application for leave to appeal under s. 131 of the Provincial Offences Act , R.S.O. 1990, c. P. 33. [9] For the reasons that follow, I would allow the Crown’s appeal and order a new trial. The Justice of the Peace erred in finding that the lawyer’s letter required the inspectors to only conduct an examination of the machine in the presence of the representative(s) of Miller. Neither Miller nor Mr. Fernandes had any right to direct the investigation into offences under the OHSA . This made inconsistencies in the evidence of the inspectors irrelevant for Charter adjudication purposes. [10] Similarly, the failure of the inspectors to observe internal policy guidelines could not amount to a violation of s. 11(d) of the Charter . Although deviations from these normative practices may impact on the value of the inspectors’ testimony on the trial proper, these documents had no force of law for constitutional purposes. [11] The Justice of the Peace also erred in finding an infringement of s. 11(d) of the Charter . He employed the wrong analytical framework in adjudicating what was essentially a lost or destroyed evidence claim. More fundamentally, neither Miller nor Mr. Fernandes established any prejudice flowing from the MOL’s handling or inspection of the roller. To the contrary, Miller gave the roller away as scrap, essentially precluding further testing. [12] The appeal judge erred in law by adopting the reasons of the Justice of the Peace and, without further analysis, simply endorsed his legal errors. B. factual background (1) The Accident [13] The accident occurred on August 18, 2015 on a roadway approximately 40 kilometers outside of Thunder Bay, Ontario. On the same day, MOL inspectors attended at the scene, which was considered to be a “workplace” within the meaning of the OHSA . Inspector Thomas Grant photographed the scene and interviewed some of the workers. He made notes and issued a Field Visit Report (“FVR”) in which he described the investigatory actions he had taken. Engineer Jeff Rivard also attended and observed a broken brake line on the roller which he thought had been broken before the incident. [14] Acting under the authority of s. 54 of the OHSA , MOL employees seized the roller and took it to an unmonitored Ministry of Transportation property. [2] On August 20, 2015, the roller was moved to a private facility where it was disassembled and inspected. (2) The Letter and the “Stand Down” Order [15] On August 21, 2015, prior to the machine being inspected, a lawyer for Miller wrote to Mr. Grant to complain that the roller had been illegally seized. The letter also purported to direct the course of the investigation: Our client intends to cooperate with the Ministry of Labour’s investigation of the above-noted incident. In the spirit of mutual cooperation, and to ensure no spoilage of the equipment or evidence to be gathered, we request that no steps be taken by a Ministry of Labour Engineer or other technical expert without our clients’ knowledge and consent. Further, any steps taken to test the equipment involved in the incident, replace parts on the equipment, or any other technical aspect of the investigation should only be done with our clients’ knowledge and consent. Further to the above, we request that copies of any Field Visit Reports or Orders related to this matter be copied to me immediately upon issue. [Emphasis added.] [16] It was not until August 24, 2015 that Mr. Grant accessed the letter on his laptop computer. Not familiar with this type of request, he forwarded the letter to his acting manager, Cary Roy. In the meantime, he claimed to have given a “stand down” order to Mr. Holder and Mr. Rivard, who were involved in testing the roller that day. The evidence of MOL personnel, however, was contradictory on this point. The Justice of the Peace found that the note-taking of Mr. Grant was lacking in certain respects. Mr. Grant admitted that he did not follow MOL guidelines with respect to notetaking, what should be included in FVR’s, and when items are seized from a work site. Mr. Roy also received similar criticism by the Justice of the Peace. [17] Mr. Roy’s credibility was a matter of considerable importance to the Justice of the Peace, especially on the “stand down” issue. Phone records did not support his version of events. The Justice of the Peace found Mr. Roy to be “nervous, defensive and evasive when being questioned by Miller’s lawyer”. But it is unnecessary to go into further detail on this issue because, as discussed below, it did not matter at this stage of the proceedings. I assume for the sake of argument on this appeal that the evidence was inconsistent and contradictory. [18] Mr. Rivard, an engineer, was questioned about a document prepared by the Professional Engineers of Ontario (“PEO”) entitled “Forensic Engineering Investigations.” Among other things, the document reads: If destructive inspection/testing is required, all interested parties should be provided an opportunity to review and comment on the inspection/testing protocol and hold points, and witness the inspection/testing. The aim should be to reach consensus as to the inspection/testing protocol. Even when all parties are present, any disassembly or inspection that changes the state of the evidence should be documented in detail for ease of future explanation. [19] Despite the letter from the lawyer, the inspection proceeded without the consent of, and in the absence of, anyone representing Miller. Photographs and notes were taken during the inspection process. (3) The Return of the Roller [20] Following the inspection, the roller was returned to Miller. As noted, the MOL offered to reassemble the machine. The offer was refused. The roller was “taken out of service” and given to Gary Steele Haulage & Grading Limited. At the time of the motion before the Justice of the Peace, the roller was still at this location; however, the engine, transmission, and wheels had been removed. There was no evidence that it was further inspected at the direction of Miller or Mr. Fernandes. C. findings in the courts below (1) The Justice of the Peace [21] The Justice of the Peace found no infringement of s. 8 of the Charter because the MOL acted within its statutory power under s. 54(1)(e) of the OHSA . [22] The basis for the Justice of the Peace’s finding that there was a breach of s. 11(d) is less clear. He expressed concern about the failure of MOL employees to follow its own procedural manual. He was critical of their failure to take proper notes of the steps they took in furtherance of the investigation. [23] The Justice of the Peace also found the inconsistencies in the evidence relating to the “stand down” order to be “troubling”. He explained: Based on the inconsistent evidence among Mr. Grant, Mr. Roy and Mr. Rivard, when added to that of Mr. Holder, this Court is left in great doubt as to the credibility and reliability of each of the MOL employees who testified on this motion. This doubt goes directly to the heart of the s. 11(d) motion made by Miller . [Emphasis added.] [24] The Justice of the Peace acknowledged that the OHSA did not require a representative of the employer to be present for the inspection of the roller. He nonetheless concluded that “fairness dictated that should have been so, especially in light of the lawyer’s letter.” He further found that Mr. Rivard’s failure to follow the PEO guidelines: contributed to the defendants being deprived of the opportunity to participate in the inspection of the seized machine to the extent that spoilation occurred. The machine, once inspected on August 24 by disassembly of some of its components, was no longer in the state it was on August 18 when it was seized. [25] The Justice of the Peace also addressed the absence of any evidence of prejudice to Miller and Mr. Fernandes: This Court acknowledges that it seems odd that Miller, through Mr. Fernandes, when given the opportunity to have the machine put back together chose not to do so, nor did they have the machine tested or examined, especially the transmission since that component was a potential problem with it according to some of Miller’s employees at the work site. However, in this Court’s view, those actions or inactions do not undermine the defendants’ rights under s. 11(d) of the Charter . [Emphasis added.] [26] On the issue of remedy, the Justice of the Peace refused to stay the proceedings. He said, “Again, the onus rests on the moving party to show on a balance of probabilities that the admission of the evidence would bring the administration of justice into disrepute, as noted in s. 24(2) of the Charter .” He relied on Ontario (Ministry of Labour) v. JR Contracting Property Services et al . , 2011 ONCJ 316, in which R. v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353 was applied. He concluded that, “[f]ollowing the Grant analysis”, the impact of the breach denied Miller and Mr. Fernandes the opportunity to make full answer and defence. He ultimately concluded that the admission of the evidence would bring the administration of justice into disrepute. (2) The appeal judge [27] The appeal judge took a different approach to the s. 11(d) claim. She placed great reliance on the Supreme Court of Canada’s decision in R. v. Harrer , [1995] 3 S.C.R. 562 and this court’s decision in R. v. Spackman , 2012 ONCA 905, 300 O.A.C. 14, which hold that a judge may exclude evidence, not because it was obtained in a manner that infringed the Charter , but because its admission into evidence would render the trial unfair. [28] After discussing this line of authority, the totality of the appeal judge’s analysis of the issue is found in paras. 64 and 65 of her reasons: The foregoing illustrates that Justice of the Peace Leaman considered the actions or inactions for which he found amounted to an infringement of the Respondents’ Charter right resulted in actual prejudice to the Respondents. A review of the Reasons certainly does not translate to a matter in which the Court found that the actions or inactions amounted to an automatic breach. This is a matter in which the credibility and reliability of each of the MOL employees was factored and played a substantial role in the Court’s decision; Justice of the Peace Leaman in his analysis and findings indicated that “this doubt goes directly to the heart of the s. 11(d) motion.” It was open to the trial judge to conclude that the MOL employees’ actions and inactions amounted to a breach and therefore there is no basis for interfering with his decision . [Emphasis added.] [29] On the issue of remedy, despite the language of the Justice of the Peace reproduced in para. 26, above, the appeal judge found that the evidence of the inspection had been excluded under s. 24(1) of the Charter , not s. 24(2). However, in view of how I would dispose of the appeal, this finding is inconsequential. D. analysis (1) Introduction [30] The Justice of the Peace erred in finding that the Charter rights of Miller and Mr. Fernandes were infringed by the manner in which the investigation was conducted. The appeal judge erred in law in upholding this decision. [31] The root of the problem stemmed from the lawyer’s letter and the effect given to it by the Justice of the Peace. This erroneous treatment of the letter spawned a cascade of further errors. For instance, testimonial inconsistencies associated with sharing the “stand down” order and the adequacy of the inspectors’ note-taking, while potentially relevant at trial, were not capable of supporting a Charter violation. Nor could a failure to follow internal protocols sustain such an infringement. [32] Most importantly, the courts below erred in granting (the Justice of the Peace) and upholding (the appeal judge) a Charter remedy in the absence of evidence that Miller or Mr. Fernandes suffered any prejudice. (2) No Right to Direct the Investigation [33] As noted above, the lawyer’s letter insisted on the rights of knowledge and consent in the investigative process. Presumably based on the evidence of Mr. Rivard’s failure to follow PEO guidelines, this assertion morphed into an insistence on the right to be present during the inspection. The lawyer’s letter never made such an extravagant claim. [34] In the criminal law context, the right to make full answer and defence in s. 11(d) of the Charter does not extend so far: R. v. Darwish , 2010 ONCA 124, 100 O.R. (3d) 579, at paras. 29-31. An accused person does not have a “constitutional right to direct the conduct of a police investigation of which she or he is the target”: Spackman , at para. 108. The police are not required to obtain the consent of the accused person before taking investigative steps. An accused person has no right to insist that further or other investigative steps be taken. Nor are the police required to permit the target of investigation to be present during the inspection or testing of physical evidence. [35] I use as an example a case of dangerous operation of a conveyance (i.e., a motor vehicle) causing bodily harm ( Criminal Code , R.S.C. 1985, c. C-46, s. 320.13(2)). The driver loses control of a vehicle and ends up in a ditch. The driver is seriously injured, but their passenger escapes with less serious injuries. Once the vehicle is lawfully seized, the police do not require the consent of the driver and/or owner of the vehicle to conduct a mechanical inspection of the vehicle. There is no entitlement to be present during the inspection of the vehicle. Instead, the obligation of the police is to preserve items so that they may be tested or examined by the accused: R. v. La , [1997] 2 S.C.R. 680, at paras. 17 and 20. It should be no different with OHSA investigations. [36] There are strong policy reasons for this conclusion. Criminal investigations carry the potential for much more significant consequences than OHSA investigations. If the former does not attract such a right, no such right should exist in the latter context. It would be unreasonable to conclude that the subjects of OHSA investigations have Charter rights above and beyond those afforded to subjects of true criminal investigations. [37] Moreover, as the Crown submits, a requirement of knowledge and consent, let alone presence, could thwart or stall timely investigations, potentially endangering the very people the OHSA is meant to protect (i.e. workers) and the public in general. [38] The reach of the OHSA is broad. Section 1 of the Act defines a “workplace” as “any land, premises, location or thing at, upon, in or near which a worker works.” Investigators must be permitted to respond to workplace incidents swiftly and efficiently. As Nordheimer J.A. said in granting leave to appeal in this case, at para. 16: “One can think, for example, of accidents involving collapsed cranes, collapsed scaffolding, elevator failures, and a host of other accidents that involved the operation of all sorts of pieces of equipment.” Serious disruption to the OHSA mandate could result if investigators were constitutionally required to accommodate the type of request made in this case. [39] Consequently, the Justice of the Peace and the appeal judge erred in finding a constitutional right to participate in the examination of the roller. It did not amount to an infringement of s. 11(d) of the Charter . [40] Relatedly, the Justice of the Peace also identified his concerns with the credibility of MOL inspectors, related to their divergent evidence on whether a “stand down” order was made, and whether it was in fact communicated to those involved in the inspection of the roller. In the criminal context, the credibility of police officers is often relevant to the adjudication of Charter claims. The “who did what and why or why not” are essential to Charter claims. In determining whether rights have been infringed, trial judges are often called upon to resolve credibility issues as between police officers, and between the police and the accused person. Failing to do so may amount to a fatal error. In R. v. McCarthy (1996), 91 O.A.C. 348 (C.A.), rev’d [1996] 2 S.C.R. 460, a new trial was ordered because the trial judge failed to resolve credibility issues on a s. 8 Charter voir dire on the issue of whether the search was conducted in a reasonable manner. [41] This is not such a case. As discussed above, the question of whether the inspectors should have bowed to the lawyer’s letter was not a legitimate Charter claim. Accordingly, the credibility of the inspectors on this issue was immaterial at this stage of proceedings. It should not have factored into the decision on whether s. 11(d) of the Charter had been infringed. [42] Similarly, the Justice of the Peace and the appeal judge were troubled by the failure of the MOL to follow its own manual or guidelines, as well as Mr. Rivard’s failure to follow PEO guidelines. Although these failings may be relevant to the credibility of these witnesses and their competence in conducting the inspection, these are issues to be considered by the trier of fact. The underlying manuals/documents that were seemingly ignored by the inspectors do not attain the status of legal authority upon which a Charter breach may be founded: see R. v. Jageshur (2002), 169 C.C.C. (3d) 225 (Ont. C.A.), at paras. 50-53; R. v. Dallas , 2002 BCSC 760, at paras. 104-5. (3) The Correct Analytical Framework [43] Both courts below erred in their methodological approach to the claim that the disassembly of the roller amounted to a breach of s. 11(d) of the Charter . Ultimately, this was a case of lost or destroyed evidence. The procedure for adjudicating these types of claims has long been established. Lost or destroyed evidence claims are governed by ss. 7 and 11(d) of the Charter , tied to an individual’s right to a fair trial and right to make full answer and defence. In this case, both courts below erred in finding a breach of s. 11(d) in the absence of a finding of prejudice. Moreover, the appeal judge further erred in relying on R. v. Harrer as a route to exclude the evidence. (a) The Appropriate Legal Principles: the Lost Evidence Regime [44] As part of its disclosure obligations under s. 7 of the Charter , the Crown has a duty to preserve relevant evidence: R. v. Egger , [1993] 2 S.C.R. 451, at p. 472; La , at para. 17. When relevant evidence is lost or destroyed, the Crown must satisfy the court that it was not lost or destroyed as a result of unacceptable negligence: La , at para. 20; R. v. Abreha , 2019 ONCA 392, at para. 11; R. v. Hersi , 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 26; R. v. Stinchcombe , 1994 ABCA 113, 88 C.C.C. (3d) 557, aff’d [1995] 1 S.C.R. 754. If the Crown satisfies this threshold, s. 7 has not been breached; conversely, a failure to establish that the destruction was not due to unacceptable negligence will amount to an infringement of s. 7. Depending on the circumstances, it may also amount to an abuse of process: La , at para. 23. [45] In order to obtain a stay of proceedings, it must be established that the loss or destruction of evidence compromises the ability of the accused to make full answer and defence, or that irreparable harm would be caused to the integrity of the justice system if the prosecution were allowed to continue: La, at para. 24; R. v. Bero (2000), 137 O.A.C. 336, 151 C.C.C. (3d) 545, at para. 42. However, “[a] stay of criminal proceedings is the appropriate remedy only in extraordinary circumstances”: Hersi , at para. 25. (b) The Timing of the Application and the Need for Actual Prejudice [46] The timing of the application is critical. Generally speaking, a motion for a stay based on lost or destroyed evidence should not be brought at the outset of the trial. It should be brought at the end of trial. This was addressed in Bero , where the police relinquished control of a vehicle that was subsequently sold to and destroyed by an auto wrecker. The trial judge entertained a motion to stay proceedings as a pre-trial motion. As Doherty J.A. said, at para. 18: The trial judge should not have ruled on the motion at the outset of the trial. This Court has repeatedly indicated that except where the appropriateness of a stay is manifest at the outset of proceedings , a trial judge should reserve on motions such as the motion brought in this case until after the evidence has been heard. The trial judge can more effectively assess issues such as the degree of prejudice caused to an accused by the destruction of evidence at the end of the trial . [Emphasis added.] See also R. v. Knox (2006), 80 O.R. (3d) 515 (C.A.), at para. 26. [47] In this case, the appropriateness of a stay was not “manifest” at the outset of the proceedings for the simple reason that there was no evidence that the right to make full answer and defence had been impaired by the conduct of the investigators. Miller and Mr. Fernandes failed establish any prejudice at all. Miller refused the offer to reassemble the roller and gave it away for scrap without further inspection. [48] Without evidence of prejudice, there can be no remedy: see Knox , at para. 32 (where one vehicle was destroyed and another repaired before they could be inspected by the defence); and R. v. Murray (1994), 75 O.A.C. 10, at p. 3 (the defence failed to make a timely request to inspect the vehicle and no prejudice was established in any event). This same approach has been applied in cases prosecuted under the OHSA . In Ontario (Ministry of Labour) v. Lee Valley Tools Ltd. , 2009 ONCA 387, 264 O.A.C. 213, Lang J.A. said, at para. 32: “Actual prejudice cannot be presumed or inferred from the mere fact of lost evidence without more.” [49] In both Bero , at para. 29 and Knox , at para. 29, this court recognized that failure to pursue disclosure with reasonable diligence may weigh against a claim that the Crown’s failure to preserve evidence resulted in a breach of s. 7 Charter rights. In this case, the lawyer’s letter, albeit misguided, was a timely attempt to exert some control over the integrity of the roller. However, this was all undone by the manner in which the roller was disposed of – something entirely of Miller’s own doing. [50] Both the Justice of the Peace and the appeal judge erred in not following this approach dictated in Bero and subsequent decisions. The motion should not have been addressed at the beginning of the trial. Moreover, even though the Justice of the Peace refused to stay the proceedings, there was no basis to grant any remedy without evidence that the right to full answer and defence had been compromised by the MOL’s handling of the roller. At best, the Justice of the Peace speculated on the issue. (c) The Reliance on Harrer was Misplaced [51] By the time the case was argued in the Ontario Court of Justice, Miller and Mr. Fernandes had recalibrated their approach. They persuaded the appeal judge to analyze their claims through the lens of R. v. Harrer . [3] But nor was this a viable route to exclusion of the evidence in this case. [52] Harrer involved an application to exclude evidence that was obtained in the United States by local police officers. Because they were not acting as agents of Canadian law enforcement officials, the actions of the foreign officers could not amount to a Charter infringement. As noted above, Harrer recognized that trial judge may exclude evidence, not because it was obtained in a manner that infringed the Charter , but because its admission would render the trial unfair. The Harrer Court was divided on whether it is necessary to resort to s. 24(1) of the Charter in these circumstances; however, it is now understood that s. 24(1) is now the preferred route to exclusion: see R. v. White , [1999] 2 S.C.R. 417, at paras. 86-89, per Iacobucci J.; Spackman , at paras. 101-2. [53] Purporting to apply this line of cases, the appeal judge noted that the Justice of the Peace found that the evidence was not obtained in an unconstitutional manner; specifically, although there were no direct breaches of Charter rights in testing the machine, “[t]he unfairness would result in allowing the evidence to be introduced at trial given the manner in which it was obtained and not affording the Respondent’s the ability to participate in the inspection.” [54] Resort to the Harrer line of cases was inappropriate in this case. It amounted to a circumvention of the principles in Darwish and Spackman . As noted above, those cases held that there is no right of an accused person to direct an investigation. Purporting to apply Harrer , the appeal judge achieved the opposite result by justifying a Charter remedy for this very reason. [55] Even if the Harrer line of cases was applicable, Miller and Mr. Fernandes run into the same problem – there was no evidence of prejudice to their right to make full answer and defence. In Spackman , Watt J.A. held that, at para. 103: “The remedy of evidentiary exclusion under s. 24(1) is not for the asking. An accused who seeks this remedy must establish a breach of his or her Charter rights: the right to a fair trial in accordance with ss. 7 and 11(d) of the Charter .” Miller and Mr. Fernandes failed to do so. Any prejudice they suffered was self-inflicted – they declined the offer to have the roller reassembled and then they got rid of it. The Justice of the Peace found that this conduct seemed “odd.” In fact, it was fatal to any claim to Charter relief. E. the appropriate remedy [56] In the event that it is successful, the Crown requests an order for a new trial, pursuant to sections 121(b)(i), 126(1), and 134 of the Provincial Offences Act . [57] Counsel for Miller and Mr. Fernandes submit that, if the Crown is successful, the case should be remitted to the appeal court so that its argument under s. 8 of the Charter may be determined. As noted in para. 7 above, the appeal judge found that it was unnecessary to address this issue. [58] In my view, it is not appropriate to remit this case back to the appeal court for further consideration. It was open to Miller and Mr. Fernandes to raise the s. 8 Charter issue before us in an effort to uphold the order made by the appeal judge. [59] A similar issue arose in R. v. Flis (2006), 205 C.C.C. (3d) 384 (Ont. C.A.). In that case, this court heard a summary conviction appeal brought by the Crown under the Criminal Code . The respondents had been convicted at trial. The summary conviction appeal court set aside the convictions, but then entered a stay of proceedings based on delays in the appeal process. The Crown sought leave to appeal to this court. [60] This court granted leave to appeal, allowed the appeal, and restored the convictions. The respondents requested that the case be remitted to the summary conviction appeal court to deal with “a host of issues” the summary conviction appeal court did not address. This request was denied. As Moldaver J.A. (as he then was) said at para. 55: It is common ground that in the context of this Crown appeal, the respondents may raise additional alleged errors by the trial judge in an effort to sustain the order of the summary conviction appeal judge. It is further acknowledged that this court may consider and decide the alleged additional errors insofar as they relate to conviction: see R. v. Devitt (1999), 139 C.C.C. (3d) 187 (Ont. C.A.). [61] The court decided that it was in as good a position to address the additional issues. Proper materials were before this court. Moreover, remitting the case to the summary conviction appeal court would have contributed to an “appalling” delay in the pace of the proceedings. [62] As already noted, Miller and Mr. Fernandes could have litigated the s. 8 Charter claim in this court. They chose not to do so. The issue was not addressed in their factum. It was only at the conclusion of his oral submissions that counsel for the respondents made this request. [63] I would decline to remit the case back to the appeal judge. Instead, I would order a new trial. Like Flis , this case has moved at a very slow pace, dating back to August of 2015, when the accident occurred. By allowing the appeal, the orders of both the Justice of the Peace and the appeal judge would be set aside in their entirety. If the Crown determines that it is still in public interest to re-prosecute this case more than six years after the fact, Miller and Mr. Fernandes may renew their s. 8 Charter claim at the new trial, if so advised. F. DISPOSITION [64] I would allow the appeal and order a new trial. Released: December 10, 2021 “D.W.” “G.T. Trotter J.A.” “I agree. David Watt J.A.” “I agree. M.L. Benotto J.A.” [1] In 2019, the Ministry of Labour became known as the Ministry of Labour, Training and Skills Development. Given that the incident in question extends back to 2015, and because the courts below made repeated references to the Ministry of Labour, it is convenient to maintain the same terminology. [2] The fact that the yard was unmonitored was a point that was emphasized by Miller and Mr. Fernandes in this litigation. It was also mentioned by the Justice of the Peace and the appeal judge. However, the significance of this feature of the evidence is unclear. There was no evidence adduced that the machine was tampered with after it was seized. [3] In their Factum, Miller and Mr. Fernandes submit that the Justice of the Peace relied upon Harrer and Spackman in reaching his decision. However, there is no reference to these authorities in his reasons.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. E.B., 2021 ONCA 875 DATE: 20211210 DOCKET: C67093 Strathy C.J.O., Hourigan and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and E.B. Appellant David Midanik, for the appellant Rebecca Schwartz, for the respondent Heard: November 24, 2021 On appeal from the conviction entered on February 26, 2019 by Justice John McInnes of the Ontario Court of Justice. By the Court: [1] The appellant appeals his conviction for sexual assault under s. 271 of the Criminal Code , R.S.C., 1985, c. C-46. There were two issues in the judge-alone trial: whether the complainant consented to the act of fellatio – the trial judge found she did not; and whether the alleged act of intercourse, which the appellant denied, had actually occurred – the trial judge found it had. [2] For the reasons that follow, we do not accept the grounds of appeal raised by the appellant and we dismiss the appeal. A. Background [3] The following brief summary will provide context for the analysis of the issues and the submissions. [4] The appellant, a 36-year-old general contractor and occasional drug dealer, sold the complainant small quantities of cocaine from time to time. The complainant was an 18-year-old university student. The appellant was charged with sexually assaulting her in the early hours of September 23, 2016. [5] According to both the appellant and complainant, the appellant had texted the complainant on the previous evening and asked whether she wanted to meet for a drink. She replied affirmatively and asked him to bring some of his “product”. Prior to that occasion, they had met a few times, solely for brief drug transactions. [6] The appellant picked her up at her house and they drove to a local bar where they had a beer and a “shot”. After about 20 or 30 minutes, they left the bar and the appellant drove to the parking lot of a school near the complainant’s house. She did a “line” of cocaine in the car. They got out of the car and smoked and chatted for a while. At this point, their stories diverged dramatically. [7] According to the complainant, after they got back into the car, the appellant grabbed her face and chin and began to kiss her aggressively. She tried to pull away and told him to stop. He told her not to worry, that they were just having fun. She continued to tell him to stop and tried to pull away. He started to undo his pants and she again asked him to stop. He placed his hand on the back of her head and pulled her down towards his penis and told her to suck it, or words to that effect. She resisted, but ultimately did what he asked. During the act, the appellant repeatedly said, “I don’t know what you’re doing but it feels good.” [8] At some point, she said, the appellant put his hand into her pants and touched her vagina. She said “no, I don’t want to” and that she was on her period. He replied that it would feel “amazing”. She continued to protest, and he told her he would be gentle. He reclined the passenger seat, put the full weight of his body on top of her and forced his penis into her vagina. She attempted to close her legs, but he continued. He stopped, without ejaculating, after several minutes. He smoked a cigarette while she put on her pants and he told her that he would take her home. [9] On the appellant’s evidence, the fellatio was consensual and there was no intercourse. After they got back into the car, they talked for a while and then began to “make out”. They stopped and discussed “where this was going and what [they] were expecting.” They agreed that they were not looking for a relationship and would just see what happened. They continued to kiss and fondle one another. She rubbed his penis and he fondled her breasts. He took his penis out and she began to stroke it while he rubbed her vagina outside her jeans. She told him that she was on her period and did not usually “give it up” on the first date. He said that she should not worry, he was not trying to have sex with her and was not trying to force anything on her. The fondling resumed and he asked her to kiss his penis. She began to fellate him, while he began to grab her breasts “harder and firmer”. After about 10 minutes, the complainant indicated she did not want to continue and stopped. He expressed his disappointment and pulled up his pants while she sat back in her seat. There was an awkward silence, and the complainant said that the second or third date would be a little different, but for now she did not want to go further. He lit a cigarette and said “okay, let’s just call it a night.” [10] Both parties agreed that the appellant then drove her home and kissed her when she got out of his car. [11] The complainant said that when she got home, she threw up in the bathroom. She did not awaken her parents because she was ashamed and did not want them to know about her drug use. She called a friend, K.M., who she knew worked night shifts, and told him she had been “raped by [her] drug dealer”. He offered to leave work and come to see her, but she told him she would call someone else. She called another friend, S.F., who she knew from university and he came to see her. They went to the school near her house and talked until early morning, consuming some cocaine and alcohol. After returning home, the complainant went to her room, removed her clothing, put it in the laundry bin, showered, slept briefly, and went to work at her morning lifeguard shift. [12] S.F. and K.M. confirmed the complainant’s disclosure of the sexual assault to them. [13] The following day, the appellant sent the complainant a text message. It stated: “Hey, how’s it going? I hope I wasn’t too rough with you last night. I apologize, but it’s just you’re too cutie.” The complainant did not reply. There was no further communication from the appellant, and he threw away his cell phone after he found out the police were investigating him. [14] Within a day or two, the complainant’s mother observed that she had been behaving oddly and spoke to her. The complainant told her mother that she had been sexually assaulted by her drug dealer but asked her not to tell anyone about it. A few days later, the complainant disclosed to her father what had happened. He urged her to report it to the police and she did so later that day. [15] There were some significant omissions, inconsistencies, and falsehoods in the complainant’s description of the material events in her reports to the police and in her testimony at the preliminary hearing. In her initial report to the police, she was asked whether the appellant had put his penis in her mouth. She responded “no”. She also failed to mention it in her second police interview the next day. It was not until the preliminary hearing that she testified that the appellant had forced her to engage in fellatio. When asked at trial why she had not disclosed it earlier, she identified several reasons: she was ashamed about it and did not want to think about it; her memory was “foggy”; and she thought she could have prevented it because she could have kept her mouth closed, but she was “just scared to.” [16] The complainant also lied to her parents, to the police and at the preliminary hearing concerning her use of cocaine. When she reported the events to the police, she did not tell them that she was using cocaine that evening and instead told them that she was buying marijuana from the appellant. It was only at trial that she admitted she had used cocaine in the appellant’s car. She also lied at the preliminary hearing when she said that she did not use drugs with her friend S.F. when they went to the school near her home in the early morning hours following the incident. B. Trial Judge’s Reasons [17] At the conclusion of the trial, the trial judge ordered a transcript of the evidence. In lengthy oral reasons delivered approximately four months later, he found the appellant guilty of sexual assault beyond a reasonable doubt. [18] He found the complainant to be a “very credible witness” and believed her evidence concerning the incidents she described. Her account “was internally consistent, clearly articulated, filled with small details that lacked the air of contrivance, inherently plausible, and quite simply it rang true.” He found her reasons for not informing the police about the fellatio to be “palpably authentic”. The complainant’s lies about her cocaine use did not “significantly impact” his assessment of her credibility. Her omission had to be understood in context: she was clearly ashamed to reveal to her parents or the police that she used cocaine. [19] In contrast, the trial judge neither believed the appellant’s testimony that the complainant consented to sexual activity nor accepted his denial that the sexual activity included intercourse. The appellant’s evidence did not raise a reasonable doubt and the evidence that he did accept served to prove him guilty beyond a reasonable doubt. [20] We will address other aspects of the evidence and of the trial judge’s reasons in the course of our analysis of the grounds of appeal. C. Grounds of appeal [21] The appellant raises some ten individual grounds of appeal. Most of these grounds take issue with the trial judge’s acceptance of the essential features of the complainant’s evidence and with his conclusion that the appellant’s evidence did not raise a reasonable doubt. [22] For ease of reference, we group the appellant’s submissions under the following headings: a. the trial judge erred in the assessment of the evidence of the complainant and the appellant; b. the trial judge erred by failing to give himself a Vetrovec warning; c. the trial judge erred by failing to address the defence of honest but mistaken belief in consent; d. the trial judge erred in his application of the principles of R. v. W.D. , 2019 ONCA 120, 372 C.C.C. (3d) 293; e. there was a reasonable apprehension of bias; and f. as a result of the foregoing, the verdict was unreasonable. D. Analysis (a) Alleged errors in the assessment of the evidence [23] The appellant’s submissions under this heading essentially urge us to re-try him in this court, assess the credibility of the witnesses and make findings of fact based on our assessment of the evidence, draw our own inferences from the evidence, re-weigh the evidence, ignore the facts found by the trial judge and come to our own conclusions, all without the appellant having identified a palpable and overriding error in the trial judge’s assessment of the evidence. [24] As has been said many times, that is not our function. [25] Moreover, as Karakatsanis J., writing for the majority, recently observed in R. v. G.F. , 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 81, a trial judge’s findings of credibility deserve particular deference. She added, at para. 82, that credibility findings must be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. What matters is not whether the judge used the words “credibility” and “reliability”, but whether the judge turned their mind to the relevant factors that go to the believability of the evidence. We are satisfied that the trial judge did so. [26] We turn to the errors asserted under this heading to explain our reasoning. (i) Misapprehension of the evidence [27] Under this ground, the appellant asks us to reject inferences the trial judge drew from the evidence or to draw our own inferences from the evidence in order to set aside the trial judge’s acceptance of the complainant’s evidence and his finding that the complainant did not consent to the act of fellatio. [28] The appellant refers, for example, to the alleged failure of the complainant to “scream or try to escape when she believed that there was a person in the car [in the school parking lot] 50 metres away while she said she was being ‘raped’.” He also cites her failure to preserve any physical evidence of the assault. [29] He also submits that the trial judge should have inferred that she was not sexually assaulted because she did not wash when she got home, did not change out of the clothes she had been wearing and, instead, returned to the place of the assault and “partied” with S.F. The inference counsel wishes us to make, it seems, is that a sexual assault victim would immediately wash and change her clothes and would not voluntarily return to the place where she was assaulted. [30] These assertions invite the court to engage in stereotypical reasoning about how sexual assault complainants act or should act and ignore the complainant’s evidence of why she acted the way she did and the trial judge’s acceptance of her evidence. [31] As regards her conduct during the assault, the trial judge noted the complainant’s evidence that she was afraid: “[M]y initial reaction was just to freeze. My initial reaction wasn’t to run, it was just to stay where I was. I was frozen and I was scared of what to do next. I wasn’t thinking straight.” The trial judge accepted this evidence, finding that it was “consistent with [his] understanding of the experience of many persons who have been sexually assaulted, experience which has come into common understanding in our legal system through acquired judicial experience.” [32] As regards the complainant’s conduct after the assault, the trial judge accepted the complainant’s evidence that she did not want to report the incident to the police. She did not want her parents to know that she had been using cocaine and associating with a drug dealer, and she was afraid of the potential criminal consequences of her own cocaine use. [33] The trial judge was entitled to accept the complainant’s evidence on these matters. Having accepted that evidence, he was not bound to draw the inferences advanced by the appellant, some of which rely on stereotypical and discredited assumptions about the behaviour of victims of sexual assault. We would dismiss this ground of appeal. (ii) Uneven scrutiny of the evidence [34] The appellant raises a number of complaints under the ground of “differential treatment” of the evidence of the appellant and the complainant. Some of these are addressed under other grounds as well. The alleged errors in the trial judge’s reasoning include: a failure to address the reliability of the complainant’s evidence; rejecting the appellant’s explanations as implausible and illogical; and using stereotypes, common sense and demeanour evidence to accept the complainant’s evidence and reject the appellant’s. [35] Our response is brief. What matters in the trial judge’s assessment of the evidence is not whether the trial judge used the word “reliability” in their reasons, but “whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns”: G.F. , at para. 82. Here, the trial judge plainly did so. [36] Trial judges are entitled to draw inferences about the credibility of a witness’s account based on the witness’s demeanour, but must not place undue reliance on demeanour or use demeanour as a substitute for a reasoned consideration of the evidence. Here, the trial judge specifically stated that he was “conscious of the potential pitfalls of over-reliance on demeanour evidence” and, while he commented that the complainant’s testimony was “palpably authentic”, he gave numerous other reasons for his acceptance of her evidence. [37] We would dismiss this ground of appeal. (iii) Omissions and falsehoods in the complainant’s evolving disclosure [38] As noted earlier, the appellant asserts that the trial judge erred in his assessment of the complainant’s evidence by failing to consider that she lied to the police by not disclosing the fellatio and by lying about her cocaine use in her statement to the police and at the preliminary hearing. [39] As to the former, the trial judge identified the reasons the complainant gave for her delayed disclosure of the fellatio as opposed to the forced intercourse: she was embarrassed and felt she could have avoided it. As to the latter, the trial judge also identified the complainant’s explanation that she did not initially disclose her purchase and use of cocaine because she was ashamed about it, did not want her parents to find out about it and was afraid about the criminal law consequences. The trial judge addressed this issue at length in his reasons, noting that the complainant had lied at the preliminary hearing. He accepted the complainant’s evidence about why she did not disclose her drug use. While the trial judge was obviously aware of the significance of lying under oath, and might have found that the falsehoods impacted her credibility and reliability, he did not do so. Instead, he found that these falsehoods were explained persuasively by the complainant and therefore did not impact the complainant’s credibility or reliability on the central issues. He was entitled to accept her evidence and her explanation. [40] We would dismiss this ground of appeal. (iv) Motive to fabricate [41] The appellant submits that the complainant had a motive to fabricate her allegations. This theory was not advanced at trial and when the trial judge raised the issue during closing submissions, defence counsel said he was not asserting a motive to fabricate. [42] The trial judge found that there was nothing in the evidence to suggest any reason why the complainant would have falsely alleged sexual assault. He considered the evidence of her disclosure of the sexual assault to her two friends on the day of the events to refute a suggestion of recent fabrication, but he did not make a finding that the complainant had no motive to lie. [43] In this context, the appellant suggests that the complainant had two motives to fabricate: first, because she was concerned that the appellant would tell her friend, S.N. (who was not called as a witness), and she did not want “word to get around” that she had engaged in sexual activity with the appellant; and second, because she was afraid that her parents would find out that she was associating with the appellant, buying drugs from him and engaging in sexual activity with him. [44] In our view, these motives are speculative and illogical. The first was not raised at trial, was not put to the complainant in cross-examination and has no evidentiary foundation. The second is inconsistent with the evidence of the complainant, which the trial judge accepted. Moreover, it is illogical that the complainant would fabricate a complaint that her drug dealer sexually assaulted her if she did not want her parents to know about her drug use. The evidence of her gradual, reluctant disclosure – first to her friends, then to her mother, then to her father and finally to the police – is consistent with judicial experience. It is inconsistent with the motive advanced by the appellant. [45] We do not accept this ground of appeal. (b) Failure to give a Vetrovec caution [46] The appellant submits that the complainant lied to police, lied at the preliminary hearing, and lied at the trial itself. She was the key Crown witness and the trial judge should have instructed himself in accordance with R. v. Vetrovec , [1982] 1 S.C.R. 811 that her evidence should be approached with extreme caution. [47] We do not accept this submission. Judges are not required to import a Vetrovec caution into their reasons for judgment – to do so would be “pure formalism”: R. v. Snyder , 2011 ONCA 445, 273 C.C.C. (3d) 211, at para. 24. Here, the trial judge was plainly aware of the omissions, inconsistencies and falsehoods in the complainant’s prior statements and testimony. As detailed above, he gave cogent reasons for accepting her evidence in spite of these shortcomings. We would dismiss this ground of appeal. (c) Failure to consider honest but mistaken belief in consent [48] The appellant submits that there was an air of reality to the defence of honest but mistaken belief in consent in relation to the sexual activities other than intercourse. He acknowledges that the defence was not raised at trial. In closing submissions, the trial judge asked defence counsel to confirm that there was “no suggestion here of reasonable steps or mistaken belief or anything like that, it’s just the defence is that she consented.” Defence counsel replied, “Yes”. The trial judge adverted to this in his reasons and noted that, in any event, the defence would not have had any air of reality on the evidence before him. [49] Although this defence would not apply to the act of intercourse, which the appellant denied having occurred, he submits that the acceptance of the defence could have impacted the credibility and reliability of the complainant’s evidence concerning the intercourse. [50] In advancing this ground, the appellant relies, among other things, on: the appreciative comments made by the appellant to the complainant during the act of fellatio; the complainant’s failure to “resist, scream, try to leave the car, during or after the incident […] even though her residence was nearby”; and the finding that the appellant kissed the complainant when he dropped her off at her home. [51] We begin with the observations in R. v. Barton , 2019 SCC 33, [2019] 2 S.C.R. 579 that "a belief that silence, passivity or ambiguous conduct constitutes consent is a mistake of law, and provides no defence” and that “it is an error of law — not fact — to assume that unless and until a woman says "no", she has implicitly given her consent to any and all sexual activity”: at para. 98, citing R. v. Ewanchuk , 1999 SCC 711, [1999] 1 S.C.R. 330, at para. 51. [52] Again, some of the appellant’s submissions rely on discredited myths about how a sexual assault victim should behave. As we have noted earlier, the complainant explained that she did not try to escape the sexual assault because she was afraid, and she froze in the moment. The trial judge accepted this evidence, noting that it was consistent with acquired judicial experience concerning the reactions of persons who have been sexually assaulted. [53] Also referred to in Barton is s. 273.2 of the Code , which places important limits on the defence of honest but mistaken belief in consent by providing that the accused’s belief that the complainant consented to the activity is not a defence where the accused did not take reasonable steps, in the circumstances known to him at the time, to ascertain that the complainant was consenting. The appellant gave no evidence that addressed this issue. Nor were questions put to the complainant on the issue. [54] Finally, there was no independent evidence to support an air of reality to honest but mistaken belief in consent. In the face of the conflicting accounts of the appellant and the complainant, this is not a case where the trial judge could “cobble together” some of the complainant’s evidence and some of the accused’s evidence to provide a sufficient basis for the defence: see R. v. Park , [1995] 2 S.C.R. 836, at para. 25. Trial counsel did not suggest this could be done and we heard no submissions from counsel for the appellant to suggest how it might be done. We see no basis for it and would dismiss this ground of appeal. (d) Error in W.D. Analysis [55] The appellant submits that the trial judge erred in failing to effectively apply the “third part” of W.D. and improperly using R. v. D. (J.J.R.) (2006), 215 C.C.C. (3d) 252 (Ont. C.A.), a sufficiency of reasons case, to bolster his conclusion. [56] We do not accept this submission. In his reasons, the trial judge accurately set out the applicable principles, including the presumption of innocence, the concept of reasonable doubt and the burden of proof. He accurately set out the “test” in W.D . In applying those principles, he stated that: (a) he did not believe the appellant’s evidence; (b) the appellant’s evidence did not leave him with a reasonable doubt; and (c) on all the evidence which he did accept, the Crown had proven the appellant’s guilt beyond a reasonable doubt. [57] We would dismiss this ground of appeal. (e) Reasonable apprehension of bias [58] The appellant submits that the trial judge displayed bias towards him by quoting directly from his evidence and by placing quotation marks around the crude descriptions of the sexual activity that the appellant provided in his testimony. He also complains that the trial judge demonstrated bias when he said that “the defendant’s evolving explanation for sending [the text message the next day] lurched from one implausible explanation to another.” Counsel for the appellant suggested that the use of the word “lurched” may have been a disparaging comment on the appellant’s stature or physique. [59] We do not accept these submissions. Quoting directly from the language of the witness is sometimes the best way of describing their evidence and the meaning conveyed by their words, instead of substituting less vulgar language. The trial judge’s use of the appellant’s own language, in this case, does not demonstrate bias. [60] We see no basis at all to the submission that the use of the word “lurched” demonstrates bias or some personal insult to the appellant. The trial judge used this expression, after quoting directly from the appellant’s evidence in chief and in cross-examination, to describe the appellant’s “evolving explanation” for saying “I hope I wasn’t too rough with you last night” in his text to the complainant the following day. In his evidence in chief, the appellant said he sent the text because he felt badly for having “used her a little bit”: “Like, she gave me a blow job and then I just kind of brushed her off and I sent her home. So I messaged her and I told her, ‘I’m sorry, I hope I wasn’t too rough with you.’” [61] In cross-examination, the appellant was asked why he felt badly for “using” the complainant when he had testified in chief that he and the complainant had discussed what they were expecting out of the encounter, agreed that they were not looking for a relationship and decided to see what happened. The appellant acknowledged that had been the discussion and that they were going to have some fun and see where it went. The following questioning ensued: Q. So in the morning you felt bad because she essentially gave you a blow job, you didn’t do anything, and you didn’t want to see her again? That’s why you felt bad? A. Well, that and grabbing her breasts really firmly and hard. I kind of felt a little bit bad about that. Q. But why? You were having fun, she was giggling. Why would you feel bad? A. Maybe I was rough with her, I don’t know. As the cross-examination continued, the appellant acknowledged that the complainant never objected that he was touching her too hard, she never complained about it afterwards and everything seemed fine. His evidence shifted from sending the text because he was sorry that he had “used” her, to being concerned that he had squeezed her breasts too hard. [62] “Lurched” refers to an awkward or unsteady movement, a stagger, or a stumble. That was an apt description of the appellant’s attempts to explain his text message. After making this observation, the trial judge said: I find that the text was sent because the defendant was aware of what he had done and was feeling out [the complainant] to gauge his jeopardy. In my view, the fact that he sent the message and the way in which it is worded is evidence that tends to confirm [the complainant’s] account and also undermines the defendant’s evidence denying that he sexually assaulted the complainant. [63] These were inferences the trial judge could reasonably have drawn from the evidence and in no way does his use of the word “lurched” demonstrate bias. [64] We do not give effect to this ground of appeal. (f) Unreasonable verdict [65] As we conclude that all the above grounds of appeal fail, the assertion that the verdict was unreasonable, which is predicated on these grounds, necessarily fails as well. E. disposition [66] For these reasons, the appeal is dismissed. Released: December 10, 2021  “G.R.S.” “G.R. Strathy C.J.O.” “C.W. Hourigan J.A.” “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 complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hird, 2021 ONCA 881 DATE: 20211210 DOCKET: C65063 Hoy, Benotto and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Dylan Hird Appellant Janani Shanmuganathan and Owen Goddard, for the appellant Jeremy D. Tatum, for the respondent Heard: November 17, 2021 On appeal from the conviction entered on September 28, 2017, and the sentence imposed on February 20, 2018, with reasons reported at 2018 ONSC 1152, by Justice Ian F. Leach of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] After an 11-day trial, the appellant, along with two other co-accused, was convicted of various offences related to the trafficking and sexual assault of a 15-year-old complainant. The appellant was sentenced to nine years in custody, along with a DNA order under ss. 487.04 and 487.051(1) of the Criminal Code , an order under s. 490.013(2.1) of the Code to comply with the Sex Offender Information Registration Act for life, restrictions on his internet use pursuant to s. 161 of the Code , as well as prohibitions against possessing weapons and contacting the complainant. [2] The complainant testified that one of the people involved in her trafficking and who assaulted and sexually assaulted her was an individual with the street name “Taffa”. The complainant eventually identified the appellant as Taffa. [3] The appellant appeals on the ground that the trial judge erred in his charge to the jury with respect to identification evidence and how he dealt with the evidence regarding the police’s failure to conduct a photo line-up. [4] For the reasons that follow, we dismiss the appeal. BACKGROUND [5] The facts of the crimes are not in dispute. [6] The appellant does not challenge that the complainant was 15 at the material time, or the jury findings about how she was deceptively recruited, exploited, and then abused for days before escaping from the hotel room where the offences occurred. [7] The appellant, in particular, does not dispute the role played by the person referred to by the complainant as “Taffa” in the ordeal. The complainant alleged that Taffa physically blocked the door when the complainant sought to leave the hotel room, threatened her, assaulted her, and sexually assaulted her on several occasions. The complainant eventually managed to escape the hotel and contact police. [8] She identified the profile picture of a person named “Stay Humble” as Taffa in a printed list of a co-accused’s Facebook friends. Eventually, with the assistance of further identification evidence from the complainant, the police linked Taffa to the appellant. [9] Almost six months after the offence, the appellant was arrested and charged with various offences relating to the complainant’s confinement, assault, sexual assault and trafficking. ANALYSIS [10] While the appellant’s Notice of Appeal raises issues with respect to both the conviction and sentence, counsel for the appellant clarified that the appellant now limits his appeal to the trial judge’s charge to the jury on identification evidence and the trial judge’s treatment of the evidence of the police’s failure to conduct a photo line-up. Did the Trial Judge’s err in his charge to the jury on the identification evidence? [11] The review of a trial judge’s charge is a functional exercise. As this court stated in R. v. Badgerow , 2019 ONCA 374, 146 O.R. (3d) 35, at para. 17: Appellate review of the adequacy of a jury instruction requires a functional assessment. The court asks whether the charge, read as a whole in the context of the specific case, properly equipped the jury to decide the case based on the application of the applicable legal principles to the evidence. [Citations omitted.] [12] In his charge, the trial judge described the threshold for identification as follows: For any particular accused to be found guilty of an offence, Crown Counsel must prove beyond a reasonable doubt that the “someone” in question – that is, the person who engaged in certain conduct said to constitute an offence charged against that particular accused – was, in fact, the particular accused who is charged with the offence. [13] The appellant argues that the trial judge erred in instructing the jury by conflating the two steps required in the identification process: first, it had to be established that Taffa was indeed the person involved in the alleged crimes, and second, that the appellant was Taffa. The appellant takes no issue with the jury’s finding with respect to the first step. However, the appellant argues that the trial judge failed to clarify for the jury what had to be proven beyond a reasonable doubt at the second step. [14] According to the Crown, the jury drew inferences that were available to it from the record, including that the appellant’s phone number was the same as Taffa’s, and that the appellant conceded that an image of Taffa, captured in a still-shot from a music video, appeared to be an image of him. [15] We do not accept the submission that the trial judge failed to instruct the jury on the importance of considering not simply the identification of Taffa as the alleged assailant but also that the appellant was Taffa. The trial judge made it clear that the identification of the appellant as Taffa had to be established beyond a reasonable doubt. [16] The jury was repeatedly cautioned about general and specific frailties related to the identification evidence. For example, the trial judge explained: You must be very cautious about relying on eyewitness testimony to find a particular accused guilty of any criminal offence charged. In the past, there have been miscarriages of justice, and innocent persons have been wrongfully convicted, because eyewitnesses have made honest mistakes in identifying the person or persons whom they saw committing a crime or crimes. Eyewitness identification may seem more reliable than it actually is because it is given by a credible and convincing witness who honestly, but perhaps mistakenly, believes that the accused is the person whom he or she saw committing an offence in question. [17] In his charge, the trial judge reviewed the identification evidence in relation to all the accused, but focused on the appellant. He stated, “[c]learly, I think, the most significant identity issues in this case relate to whether the perpetrator known and described principally as ‘Taffa’ was, in fact, the accused Mr. Hird.” [18] This identification evidence consisted primarily of the complainant’s testimony. In his charge, the trial judge reviewed her testimony in detail, including her inconsistencies and memory lapses. He also reviewed the frailties with her evidence raised by the appellant at trial, namely that the complainant consumed drugs, including methamphetamine, during the period of the alleged crimes. [19] The complainant’s identification evidence was corroborated by other evidence. For example, the appellant’s phone number and the image of him in the music video. [20] Additionally, the draft jury charge was shared with defence counsel. Defence counsel did not object to the charge in relation to the identification evidence, aside from the issue of the police line-up, addressed below. While not determinative, the failure of the defence to object to the charge when they had an opportunity is relevant in assessing the adequacy of the jury charge: R. v. Bailey , 2016 ONCA 516, 339 C.C.C. (3d) 643, at para. 56. [21] Finally, the appellant argues that the trial judge should have raised the difficulties of cross-racial identification in his charge to the jury. There was no suggestion in this case that the complainant had any difficulty identifying the appellant as a result of race. Further, there is nothing in the record on the demographic make-up of the jury that would raise this as an issue. Absent specific evidence of cross-racial identification concerns, there is no basis as a general matter to conclude the jury would need to be instructed on the issue of cross-racial identification. [22] We find no error with respect to the trial judge’s charge on identification. Did the trial judge err in how he dealt with the evidence regarding the police’s failure to conduct a photo line-up? [23] Defence counsel wished to cross examine a police witness on the police’s failure to conduct a photo line-up containing a known image of the appellant. [24] The police witness stated that a photo line-up was not used because the police had no doubt that the appellant was the individual identified by the complainant as Taffa. [25] The basis for the police witness’ confidence in the identification of the appellant was a statement made to the police by the appellant after his arrest. This statement was subsequently ruled inadmissible by the trial judge after a voir dire on voluntariness. [26] As the Crown could not rely on the appellant’s statement, the trial judge accepted the Crown’s submission that it would be unfair to permit defence counsel to cross-examine the police witness on this point. Allowing the line of questioning could have undermined the integrity of the investigation even though police had grounds to conclude the investigation at that time. [27] There was significant discussion of this point between counsel and the trial judge. In the end, the trial judge permitted defence counsel to cross-examine the police witness on why the police had not conducted a photo line-up prior to the appellant’s arrest, but not with respect to the period after the statement by the appellant. [28] The trial judge provided a mid-trial jury instruction on this issue. He instructed the jury: [T]o proceed on the basis that the police had reasons at the time for not employing the police photo lineup procedure, but you are not permitted to hear those reasons, speculate as to what those reasons were, or in turn, speculate as to whether those unknown reasons for not using that procedure after Mr. Hird’s arrest were sufficient or not. [29] In the end, defence counsel did not continue to cross-examine the police witness on this point. [30] In our view, the trial judge committed no error in relation to the photo line-up. He addressed this issue with fairness to the Crown and the defence in mind. DISPOSITION [31] There was no error by the trial judge in his charge to the jury with respect to the identification evidence or in how he dealt with the evidence regarding the photo line-up. Accordingly, the appeal is dismissed. “ Alexandra Hoy J.A. ” “ M.L. Benotto J.A.” “L. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Stericycle ULC v. HealthPRO Procurement Services Inc., 2021 ONCA 878 DATE: 20211210 DOCKET: C69008 Strathy C.J.O., Zarnett J.A. and Wilton-Siegel J. ( ad hoc ) BETWEEN Stericycle ULC Applicant (Appellant) and HealthPRO Procurement Services Inc., Provincial Health Services Authority and Daniels Sharpsmart Canada Limited Respondents (Respondents) J. Thomas Curry, Monique J. Jilesen and Zachary Rosen, for the appellant, Stericycle ULC D. Barry Prentice, for the respondent, HealthPRO Procurement Services Inc. Julie Parla, Katherine Booth and Andrew Butler, for the respondent, Provincial Health Services Authority Randy Sutton and Justine Smith, for the respondent, Daniels Sharpsmart Canada Limited Heard: October 19, 2021 by videoconference On appeal from the order of Justice Cory A. Gilmore of the Superior Court of Justice, dated November 25, 2020, with reasons reported at 2020 ONSC 7253. Wilton-Siegel J. ( Ad Hoc ): [1] The appellant Stericycle ULC (“Stericycle”) appeals an order dated November 25, 2020 of Gilmore J. that dismissed Stericycle’s application for a declaration that it, rather than the respondent Daniels Sharpsmart Canada Limited (“Daniels”), is the “primary supplier” for the respondent Provincial Health Services Authority (“PHSA”) in British Columbia pursuant to a public tendering process conducted in 2020 by the respondent, HealthPRO Procurement Services Inc. (“HealthPRO”). [2] This case involves a public multiple-supplier tendering process under which the public authority would select one of two successful bids to be the primary supplier. Stericycle’s appeal raises issues of contract interpretation, bid repair and the operation of the duty of good faith in respect of the selection process of Daniels as the primary supplier. For the reasons below I would dismiss the appeal. Factual Background [3] HealthPRO is a group contracting organization that manages procurement and contracts on behalf of its member hospitals and health authorities across Canada, including PHSA. [4] PHSA is one of several health authorities responsible for administering health care services in British Columbia. PHSA co-ordinates programs and services, including supply chain services, for over 1,000 medical facilities under its umbrella, including hospitals and other public health facilities. [5] Stericycle is in the business of providing biomedical waste management services to medical facilities across Canada. Daniels is a competitor of Stericycle in Canada. [6] In 2013, HealthPRO awarded Stericycle a contract for biomedical waste management services under which Stericycle provided such services to HealthPRO members, including PHSA medical facilities. As extended, the 2013 Contract had an expiry date of May 31, 2020 and contained the following provision referred to as the “Six Month Provision”: AWARDED SUPPLIER: Agrees to hold the then current contract pricing firm for committed members up to a period of six (6) months beyond the expiry date (or any option years exercised) to allow, if required, for the implementation of a new contract to a different supplier. [7] In 2019, HealthPRO issued a request for qualification (an “RFQ”) for a new national contract for biological waste management services. The purpose of the RFQ was to qualify potential suppliers for the forthcoming public tendering process (the “RFP”). Both Stericycle and Daniels responded to the RFQ and qualified to bid when HealthPRO issued the RFP regarding the new contract. Each of Stericycle and Daniels responded to the RFP. [8] Daniels did not have established waste management facilities in British Columbia when it participated in the RFQ and the RFP. In its RFQ, Daniels included the following statements: Daniels Health will be fully committed and able to meet and exceed the service capabilities required for the HealthPRO membership by the 2020 start date of this contract. Daniels Health is in the process of commissioning a fully functional Biomedical Waste facility in British Columbia. This facility, complete with permits, will be operational by the summer of 2020. In its RFP, Daniels added the following statement: Daniels will have national coverage (adding British Columbia) before June 2020. [9] The RFP included a statement that HealthPRO would employ a multi-supplier award strategy to allow its members to individually determine their best contract commitment scenario and to benefit from the collective buying power of a national initiative. To this end, unlike the 2013 Contract which contemplated a single supplier, the RFP contemplated the award of 2020 Contracts to multiple eligible suppliers from which a HealthPRO member would select a “primary supplier” and could also designate a “secondary supplier” if more than one 2020 Contract was awarded by HealthPRO. A primary supplier would receive a committed volume of at least 80% of the business of the selecting HealthPRO member; a secondary supplier would be obligated to provide up to 20% of the business but had no guarantee of any volume of business. [10] Each of Stericycle and Daniels was awarded a 2020 Contract by notice dated January 31, 2020. The 2020 Contracts contemplated a contractual “start date” of June 1, 2020 with a term ending November 30, 2024. The contract resulting from HealthPRO’s acceptance of Stericycle’s RFP is referred to as the “Stericycle 2020 Contract ”; the contract resulting from HealthPRO’s acceptance of Daniel’s RFP is referred to as the “Daniels 2020 Contract”. [11] On February 26, 2020, Daniels advised PHSA that “Daniels would be in a position to start servicing PHSA and its member sites by the end of this calendar year.” On March 19, 2020, Daniels contacted HealthPRO to confirm that PHSA would be able to request a six-month extension of the 2013 Contract pursuant to the Six Month Provision. PHSA also requested information from HealthPRO regarding the Six Month Provision. On April 7, 2020, HealthPRO advised PHSA that the Six Month Provision allowed for the extension of Stericycle’s contract pricing for up to 6 months beyond the 2013 Contract expiry date to implement a new contract to a different supplier. [12] On June 2, 2020, HealthPRO advised Daniels that PHSA had selected it as PHSA’s primary supplier and advised Stericycle that it had not been selected as PHSA’s primary supplier. Stericycle learned the identity of the primary supplier on the same day. In a further document, Stericycle was advised that PHSA had not selected Stericycle as its primary supplier, that PHSA was now authorized to receive Stericycle’s secondary pricing as per the commitment effective date, that PHSA was not required to select a secondary supplier, and that PHSA may or may not utilize secondary pricing. Accordingly, HealthPRO did not expressly advise Stericycle that it had been selected as the secondary supplier. However, Stericycle would effectively become the secondary supplier, to the extent that PHSA chose to avail itself of a secondary supplier, as it was the only other supplier awarded a 2020 Contract covering British Columbia. [13] In view of the fact that Daniels would not have a commissioned waste facility operating in British Columbia on June 1, 2020, PHSA insisted that Stericycle provide all of the waste management services required by its members pursuant to the terms of the Six Month Provision under the 2013 Contract after that date. [14] In order to assist Daniels to obtain the necessary licence to operate a waste management facility in British Columbia, PHSA wrote a letter dated June 18, 2020 to the Ministry of Environment and Climate Change Strategy of British Columbia supporting Daniels’ request for an expedited authorization of its licence. [15] Daniels commenced providing services on December 1, 2020 immediately following expiration of the period covered by the Six-Month Provision. The Decision of the Application Judge [16] Before the application judge, Stericycle submitted that HealthPRO and PHSA acted in bad faith and in breach of contract in awarding the primary supplier designation to Daniels. In dismissing the application, the application judge addressed three principal issues raised by Stericycle. [17] First, the application judge dismissed Stericycle’s argument that HealthPRO and PHSA effectively rewrote the Daniels 2020 Contract by permitting Daniels to commence the provision of services later than June 1, 2020. [18] Second, the application judge rejected Stericycle’s submission that certain communications between Daniels and PHSA initiated by PHSA after January 31, 2020 amounted to bid repair. She held that the communications were operational in nature and did not go to the substantial terms of the Daniels 2020 Contract, that the prohibition against communications in the RFP related to suppliers only, and that, in any event, the most significant communication (being PHSA’s letter of June 18, 2020) occurred after the primary supplier designation had been made. [19] Lastly, the application judge rejected Stericycle’s argument that, by having Stericycle provide 100% of services after June 1, 2020, PHSA had irrevocably elected Stericycle as its primary supplier through its conduct. The application judge also dismissed Stericycle’s argument that the 2013 Contract terminated on the award of the 2020 Contract to Stericycle, or on the start date of the 2020 Contracts , as Stericycle could not have been subject to two contracts at one time. [20] The decision of the application judge was based on four significant findings. Stericycle’s grounds of appeal are based on its view that the application judge erred in respect of each of these findings. [21] First, the application judge held that the 2013 Contract was not spent on the award of the 2020 Contract, or on the start date of the 2020 Contracts, and that PHSA was entitled to insist that Stericycle continue to provide services for six months after June 1, 2020 under the 2013 Contract without such conduct amounting to selection of Stericycle as its primary supplier. [22] Second, the application judge held that the Daniels 2020 Contract did not require Daniels to commence the provision of services as of June 1, 2020. The application judge found to the contrary that neither the RFP nor the RFQ contained any provision imposing a mandatory implementation date for services or any requirement that a supplier have established operations in a province in which it proposed to offer services as of the 2020 Contract start date. The application judge concluded that, while the 2020 Contract start date was June 1, 2020, the implementation date of the 2020 Contract for any given HealthPRO member was whatever date the member chose. In the case of PHSA, therefore, it was December 1, 2020. [23] Third, the application judge found that the Daniels bid included a promise to have a facility available for waste disposal but this commitment did not extend to compliance on the start date of the 2020 Contract. This finding addressed Stericycle’s suggestion that Daniels misrepresented its ability to commence operations as of the start date of the 2020 Contract and chose not to reveal the correct information until the 2020 Contract was awarded. This issue is not relevant to the conclusions in these reasons. However, in reaching this conclusion, the application judge referred to the decisions in Tantramar Sanitation & Trucking Ltd. v. Sackville (Town) , 2006 NBQB 13, 298 N.B.R. (2d) 365 and Aquatech v. Alberta (Minister of Environment and Parks) , 2019 ABQB 62, 86 B.L.R. (5th) 207 regarding respectively the purposes of public sector procurement and the importance of allowing competitors to participate meaningfully in a public tender process to achieve those purposes. The principles articulated in these decisions informed the findings of the application judge more generally. [24] Lastly, the application judge concluded that neither PHSA nor HealthPRO owed any duty of good faith to Stericycle in conducting the selection process or otherwise. She held that, in accordance with the analysis of contracts arising in respect of public tendering bids articulated in Double N Earthmovers Ltd. v. Edmonton (City) , 2007 SCC 3, [2007] 1 S.C.R. 116, any duty owed by HealthPRO to Stericycle during the tendering process was extinguished on the award of the 2020 Contracts. She also held that PHSA’s delegated agency from HealthPRO to make its supplier selection did not establish privity between PHSA and Stericycle with respect to the Stericycle 2020 Contract and therefore did not give rise to a duty of fairness owed by PHSA to Stericycle in respect of the selection of a primary supplier. Analysis of the Grounds of Appeal [25] Before this court, Stericycle broadly raised five grounds of appeal which I will address in turn. (1) The Interpretation of the Six Month Provision [26] For the purposes of this appeal, Stericycle’s most significant submission is that the application judge erred in holding that Stericycle was obligated to provide services under the Six Month Provision without engaging in a formal exercise of contractual interpretation in reaching that conclusion. [27] Stericycle argues that it was not obligated to maintain 2013 pricing in the present circumstances on the plain language of the Six Month Provision. It suggests that it was a supplier under both the 2013 Contract and the 2020 Contract with the result that there was no “new contract to a different supplier” but rather implementation of a new contract to multiple suppliers, one of which was Stericycle. The appellant says that the application judge failed to consider the best evidence of the intention of the parties, which it suggests was the equivalent provision in the 2020 Contract. That provision reads as follows: HealthPRO requires Awarded supplier(s) to hold all contract pricing and terms (including rebate) firm for up to six (6) months beyond contract expiry (including following any Option Term) in the event that the new contract is awarded to a different supplier or awarded to multiple suppliers. Stericycle also argues that, in reaching her interpretation, the application judge erred by allowing her view of commercial efficacy to overwhelm the plain language of the agreement. [28] I pause to consider the applicable standard of review of the findings of the application judge that involved a contractual interpretation of provisions of the 2013 Contract and the 2020 Contracts. Stericycle has suggested that the standard of review should be correctness. It bases this assertion on the statement of Wagner J. in Ledcor Construction Ltd. v. Northridge Indemnity Insurance Co ., 2016 SCC 37, [2016] 2 S.C.R. 23 that the interpretation of a standard form contract should in certain circumstances be classified as a question of law and subject to a correctness standard: at paras. 24, 33. However, the factors enumerated by Wagner J. in Ledcor that would inform such a conclusion – the interpretation is of precedential value and there is no meaningful factual matrix – are not present in this case. Rather, the circumstances fit squarely within the circumstances contemplated in Sattva Capital Corp. v. Creston Moly Corp ., 2014 SCC 53, [2014] 2 S.C.R. 633 as giving rise to a question of mixed fact and law – that “[t]he legal obligations arising from a contract are … limited to the interest of the particular parties”: at para. 52. Further, unlike Ledcor , there is a factual matrix that is specific to the parties and that is meaningful for the interpretation of the 2013 Contract and the 2020 Contracts. Lastly, the concept of a standard form contract is only partially applicable in respect of the Daniels 2020 Contract given the fact that the clauses in that Contract to be interpreted are not limited to terms imposed on the bidders but must necessarily include Daniels’ responses in its RFP. Accordingly, I conclude that the standard of review of the contractual interpretation of the relevant provisions of the 2013 Contract and the 2020 Contracts is the palpable and overriding error standard. [29] The well-established principles of contractual interpretation are set out in Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust , 2007 ONCA 205, 85 O.R. (3d) 254, at para. 24 and need not be repeated here. The application judge properly applied those principles in respect of the two matters raised by Stericycle that involve contractual interpretation – the Six Month Provision and the start date under the 2020 Contracts – and her conclusions regarding these matters do not reflect any palpable and overriding error in either case. [30] Dealing with the Six Month Provision, the finding of the application judge that Stericycle was obligated to supply services under this Provision is entirely reasonable for the following reasons. On its plain language, this provision applies in the case of “implementation of a new contract to a different supplier.” In this case, PHSA implemented a new contract, the Daniels 2020 Contract, and selected a new supplier, Daniels. As the primary supplier, Daniels was obligated to supply at least 80% of the volume of business and could, at PHSA’s option, be required to supply 100% of that volume. Conversely, Stericycle was not formally designated the secondary supplier and, as mentioned, in the Secondary Pricing Authorization, HealthPRO advised that its members “are not required to select a secondary supplier and may or may not utilize secondary pricing.” Stericycle therefore had no guarantee that it would be requested to supply any volume at all and is more properly characterized for this purpose as a potential supplier. [31] Stericycle suggests that paragraph 2(s) of the terms and conditions included in the 2013 Contract, rather than the Six Month Provision, governed transition arrangements. That provision reserved a right in favour of HealthPRO to enter into a new contract with a different supplier with such contract to become effective at any time during the final month of the 2013 Contract. However, there is nothing in this provision that suggests that it was intended to be the exclusive provision regulating transition arrangements at the end of the 2013 Contract. Moreover, this provision appears directed toward different situations altogether – Stericycle ceasing to supply in advance of the termination of the 2013 Contract or more beneficial pricing being available from the new supplier. I also note that the terms and conditions included in the 2020 Contract contained a similar provision together with the revised version of the Six Month Provision set out above, suggesting that the two provisions are intended to provide optional transition rights to HealthPRO members. [32] I also see no error in the absence of any consideration by the application judge of the equivalent provision in the 2020 Contract. The 2013 Contract contemplated a single supplier. In that context, the language of the Six Month Provision gives a clear indication of the intention of the parties. The language in the 2020 Contract, while perhaps giving greater flexibility in the event of multi-supplier contracts which could be structured in various ways in the future, does not add anything of interpretative value in respect of the 2013 Contract. [33] Stericycle’s further argument that the Six Month Provision is on its face solely a pricing provision interprets this provision too narrowly in a manner that cannot have been intended by the parties. Stericycle’s interpretation renders the provision redundant for the reason that a pricing provision that is not accompanied by an obligation to supply has no practical utility. [34] The interpretation of the application judge is also supported by the factual matrix. Her finding that it would be neither “efficient nor realistic” to require a new supplier to begin supplying services on the start date of the 2020 Contracts is amply supported by the factual background in which the tendering process was conducted. The evidence before the application judge was that the introduction of a new supplier for the over 1,000 public medical facilities under PHSA would require a considerable transition period. In addition, as the application judge observed, a mandate to commence services on the start date would grant an incumbent with operating facilities in a province a significant advantage over all other bidders in the next bidding cycle and could be expected to negatively affect the competitive bidding necessary to achieve beneficial pricing in that cycle. All of these circumstances were part of the factual matrix in which the 2013 Contract was awarded. They are compelling evidence that the parties understood and intended that the Six Month Provision would survive the maturity date of the 2013 Contract. The application judge did not allow her view of commercial efficacy to overwhelm her interpretation of the Six Month Provision. (2) The Allegation of Concurrent Contracts [35] Stericycle’s second and third grounds of appeal are effectively determined by the first conclusion above regarding the operation of the Six Month Provision. Stericycle’s position on each issue is predicated on acceptance of its interpretation of the Six Month Provision. [36] Stericycle argues that the application judge failed to consider the legal significance of two concurrent contracts for the same services. Stericycle submits that, in the circumstances of two agreements dealing with the same subject matter, there is an inference that the later was intended to displace the earlier in the absence of language expressly addressing the issue in the later contract. [37] I do not agree that there is any such “common sense inference” of general application. It is trite law that each case must be examined on its own facts. Moreover, it is not uncommon for two supply contracts having different terms as to volume and pricing to co-exist for a period of time. In the present circumstances, the concept of the Six Month Provision necessarily entails the possibility of concurrent contracts for the duration of the Six Month Provision. Stericycle had concurrent obligations to provide services under the Six Month Provision, on 2013 pricing terms, and under the Stericycle 2020 Contract, on 2020 secondary supplier pricing terms, as requested by PHSA. The PHSA therefore had a correlative right or option to require services under both the Six Month Provision and the 2020 Contract for a limited period of time. It exercised its right or option to receive services under the Six Month Provision as the more favourable arrangement. (3) The Doctrine of Election [38] Similarly, the existence of such an option in favour of PHSA is a complete answer to Stericycle’s argument that the application judge erred in failing to consider that PHSA irrevocably elected Stericycle as PHSA’s primary supplier through its conduct. [39] The doctrine of election was described in the following terms in Charter Building Company v. 1540957 Ontario Inc. (Mademoiselle Women’s Fitness & Day Spa) , 2011 ONCA 487, 107 O.R. (3d) 133, at para. 19: Election at common law takes place where a party is faced with a choice between two inconsistent courses of action that affect another party's rights or obligations, and knowing that the two courses of action are inconsistent and that he or she has the right to choose between them, makes an unequivocal choice and communicates that choice to the other party. The doctrine provides that the party making the election is afterwards precluded from resorting to the course of action that he has rejected. The election is effective at the point of communication on the basis that the parties to an ongoing relationship are entitled to know where they stand. [Citation omitted.] [40] To be clear, Stericycle does not argue that PHSA manifested an intention to change its designation of the primary supplier under the 2020 Contracts merely by requiring Stericycle to continue to provide services after June 1, 2020 at 2013 prices. Rather, it suggests that this was the result of PHSA’s actions in the face of “two inconsistent courses of action” that affected Stericycle’s rights or obligations. It says that, given Daniels’ inability to commence the provision of services on June 1, 2020, PHSA had only two courses of action under the Stericycle 2020 Contract: it could designate Stericycle as the primary supplier or as the secondary supplier. [41] However, given the operation of the Six Month Provision, PHSA had a third option under the 2013 Contract as discussed – an entitlement to designate another supplier as the primary supplier and require the provision of services by Stericycle during the six-month transition period following June 1, 2020. Accordingly, any issue of inconsistent actions under the Stericycle 2020 Contract which might have justified application of the doctrine of election did not arise. (4) Allegations of a Breach of the Duty of Good Faith [42] The remaining grounds of appeal involve Stericycle’s position that the application judge erred in failing to properly apply the principles pertaining to the duty of good faith to the circumstances of this case. As mentioned, the application judge held that neither HealthPRO nor PHSA owed a duty of good faith to Stericycle. While Stericycle suggests that HealthPRO or PHSA owed a duty of good faith to Stericycle in the performance of the Daniels 2020 Contract, Stericycle’s principal arguments of a breach of the duty of good faith are grounded in the existence of the Stericycle 2020 Contract. Stericycle submits that the award of the Stericycle 2020 Contract distinguishes this case from the circumstances in Double N Earthmovers . Stericycle argues that the application judge erred in failing to recognize that performance of the Stericycle 2020 Contract and, in particular, PHSA’s exercise of its discretion in selecting the primary supplier, was subject to the organizing principle of good faith. [43] The organizing principle of good faith in contractual dealings was addressed in Bhasin v. Hrynew , 2014 SCC 71, [2014] 3 S.C.R. 494 and expanded upon in C.M. Callow Inc. v. Zollinger , 2020 SCC 45, 452 D.L.R. (4th) 44 and Wastech Services Ltd. v. Greater Vancouver Sewage and Drainage District , 2021 SCC 7, 454 D.L.R. (4th) 1. In these decisions, the Supreme Court recognized two existing doctrines as manifestations of the principle of good faith – the duty to exercise a contractual discretion in good faith and the duty of honest performance of a contract. [44] The duty to exercise a contractual discretion in good faith will be breached where the exercise of discretion is unreasonable, in the sense that it is unconnected to the purposes for which the discretion was granted: Wastech , at para. 88. The duty of honesty in contractual performance was explained by Cromwell J. in Bhasin as meaning “simply that parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract”: at para. 73. [45] I will address in turn the arguments of Stericycle that each such manifestation of the duty of good faith was breached. Stericycle also suggests that this organizing principle encompasses the implied duty to act fairly towards all bidders in a public tendering process referred to in Bhasin , at para. 56, incorporating the statement in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways) , 2010 SCC 4, [2010] 1 S.C.R. 69, at paras. 58-59. However, Stericycle’s allegation of a breach of a duty of fairness in the public tendering process is based on the same factual circumstances as the allegation of a failure of HealthPRO and PHSA to exercise their contractual discretion to select the primary supplier reasonably. For that reason and the reason that the duty of good faith does not require a party to forego advantages flowing from a contract, in my view the duty of fairness in the present circumstances is equivalent to, and entails the same standard as, the duty of PHSA to exercise its contractual discretion reasonably, rather than a separate and more onerous duty: Bhasin , at paras. 65, 73. (a) Allegations of a Breach in the Exercise of Discretion in the Supplier Selection Process [46] Stericycle identified a number of alleged breaches of the obligation to exercise the contractual discretion to select a primary supplier reasonably. It says the application judge failed to consider these alleged breaches because of her determination that PHSA was not subject to such an obligation in respect of Stericycle. These alleged breaches can be summarized in three different formulations of the content of the duty of good faith that Stericycle says HealthPRO and/or PHSA owed in the present circumstances: 1. a duty to hold suppliers to the commitments made in their RFQ and RFP responses, the breach of which Stericycle describes as allowing Daniels to “re-write” the start date and as permitting impermissible bid repair by Daniels; 2. a duty not to select a supplier known to be unable to commence the provision of services on the start date of the 2020 Contracts; and 3. a duty not to conscript Stericycle into helping Daniels buy time to allow Daniels to cure fundamental misrepresentations in the RFQ and RFP responses by which it won the Daniels 2020 Contract. [47] The essence of Stericycle’s ground of appeal on this issue, which underlies all three of these formulations, is that the application judge erred in failing to find that, in excusing Daniels from its obligation to commence providing services under the Daniels 2020 Contract on June 1, 2020, HealthPRO and PHSA breached a duty of good faith owed to Stericycle. [48] It is not necessary for present purposes to determine whether HealthPRO or PHSA owed a duty of good faith to Stericycle to exercise a contractual discretion reasonably in the selection of the primary supplier under the Stericycle 2020 Contract. Even if it is assumed that HealthPRO and/or PHSA owed such a duty, neither HealthPRO nor PHSA breached such duty of good faith to Stericycle. Two considerations inform this conclusion. [49] First, Stericycle cannot assert a breach of a duty of good faith in respect of the selection of Daniels as the principal supplier for two alternative reasons. [50] Stericycle was not a party to the Daniels 2020 Contract. Accordingly, Stericycle cannot assert a breach of a duty of good faith in the performance of that contract insofar as HealthPRO and PHSA may be found to have waived any breach of Daniels’ obligations in the Daniels 2020 Contract regarding the date of commencement of operations: Double N Earthmovers , at paras. 71-72. [51] In addition, and alternatively, even if Stericycle has standing to assert a breach of the Daniels 2020 Contract, the application judge’s determination that the start date in the 2020 Contracts did not relate to the provision of services, and that Daniels was only required under the Daniels 2020 Contract to begin providing services to a HealthPRO member upon the date selected by that member, excludes a finding of any such breach. Stericycle submits that the application judge erred in reaching this interpretation. In my view, however, this contractual interpretation of the application judge is also free of reversible error for the following reasons. [52] Stericycle relies principally on the HealthPRO letters awarding the 2020 Contracts to Daniels and Stericycle, which stated that the term of the 2020 Contracts would run from June 1, 2020, and on HealthPRO’s supplier selection notification to Daniels, which stated that the contract start date was June 1, 2020. The application judge acknowledged that the 2020 Contracts ran for a period that commenced on that date. However, she found that it was understood in the industry, and therefore by the parties, that there was a difference between the date on which the term of the 2020 Contracts began, being the start date, and the implementation date for the provision of services to individual HealthPRO members. [53] In this regard, she noted that there was no provision in either the RFQ or the RFP that imposed a mandatory date for the implementation of services. She also observed that HealthPRO members could, and did, choose later dates as the implementation date for the provision of services to them. Elsewhere in the Reasons, the application judge also referred to the complexity and resulting time to transition the provision of services from Stericycle to a new supplier. She also observed that it would be commercially unreasonable to require a prospective new supplier to make the significant financial investment required to provide services in a province without a guarantee of being selected as a service provider. This reality reinforces the need for a transition period after the start date of a contract. In this regard, there is no evidence that the one month contemplated by paragraph 2(s) in the 2013 Contract would have been sufficient to transition the approximately 1,000 medical facilities of PHSA to a new supplier. There was therefore ample evidence in the factual background to the negotiation and execution of the 2020 Contracts to support the interpretation of the application judge. I would add that the existence of the Six Month Provision, and its counterpart in the 2020 Contracts, adds further support for the interpretation of the application judge. [54] The second consideration that informs the conclusion of an absence of a breach of this element of the duty of good faith is the legal position of PHSA given the existence of the Six Month Provision. As mentioned, Stericycle mischaracterizes this position in arguing that PHSA had only two choices in making its supplier selection – a primary supplier and a secondary supplier. However, the Six Month Provision provided PHSA with a third option which PHSA adopted – to select a primary supplier and to rely upon the benefit of the Six Month Provision until the primary supplier was able to commence the provision of services. [55] In summary, by virtue of the first consideration, PHSA did not breach any obligation to Stericycle in refraining from requiring Daniels to begin providing service on June 1, 2020. Put positively, PHSA was entitled to select December 1, 2020 as the date of commencement of such services. By virtue of the second consideration, PHSA did not breach any obligation to Stericycle in requiring it to continue to supply under the Six Month Provision until December 1, 2020. [56] Given this framework, there is no basis for a finding that HealthPRO or PHSA acted unreasonably in the selection of Daniels as the primary supplier under the Daniels 2020 Contract. As the application judge noted, the purpose of HealthPRO’s RFQ and RFP process, and therefore the purpose of the 2020 Contracts, was to permit HealthPRO’s members to gain the greatest benefit from collective buying power, that is to secure competitive contracts and offer choice to the members. The third option allowed PHSA to achieve its selection of its preferred primary supplier in reliance on a contractual obligation to which Stericycle had agreed in the 2013 Contract. PHSA therefore exercised its contractual discretion to select the primary supplier in a manner that was entirely consistent with the purposes of the 2020 Contracts. [57] Further, to the extent that Stericycle’s expectations are relevant, PHSA’s decision did not fall outside of the range of behaviours contemplated, or that should reasonably have been contemplated, by Stericycle. [58] Given that Stericycle agreed to provide services for a period of six months following the termination of the 2013 Contract pursuant to the Six Month Provision, Stericycle could not reasonably expect that PHSA would require Daniels to commence the provision of services immediately upon termination of the 2013 Contract if a deferral of the implementation date best met the needs of PHSA’s facilities. For the same reason, any expectation of Stericycle that it would be paid in accordance with pricing under the 2020 Contract rather than pursuant to the 2013 Contract was unreasonable if the 2013 pricing was more favourable to PHSA members and time was required to transition to the new supplier. Similarly, the selection of Daniels as the primary supplier did not involve unfairly conscripting Stericycle to allow Daniels the time to cure any misrepresentation in its RFQ and RFP, whether or not it might also have relieved Daniels of the consequences of any misrepresentation. (b) Allegations of a Breach of the Duty of Honest Performance [59] Stericycle’s final ground of appeal is that the application judge erred in failing to find that HealthPRO and PHSA breached the duty of honest performance of the Stericycle 2020 Contract. [60] Stericycle relies on a number of separate allegations in support of this position. In particular, Stericycle alleges that HealthPRO acted dishonestly in providing information regarding the Six Month Provision to Daniels, in relying on the Six Month Provision to allow Daniels to delay its start date, and in relying on the fact that Daniels would be able to obtain expedited authorization with PHSA’s assistance in making its selection of Daniels as the primary supplier. Stericycle also alleges that PHSA acted dishonestly in not informing Stericycle much earlier than June 2, 2020 of its intended reliance on the Six Month Provision in its selection of Daniels as the primary supplier. [61] The application judge was alert to these matters and concluded that they did not amount to bid repair although she did not address them in the context of an alleged breach of a duty of good faith. In my view none of the impugned actions satisfy the test set out in C.M. Callow for demonstration of dishonest performance of the Stericycle 2020 Contract. [62] None of these allegations involve lying or actively misleading Stericycle about a matter directly linked to performance of the Stericycle 2020 Contract or to the exercise of rights set forth therein. In particular, nothing in the RFP prevented PHSA from obtaining the information that it required regarding proposed implementation of the 2020 Contracts by Daniels and Stericycle in order to make an informed selection of its primary supplier. Further, HealthPRO was entitled to advise PHSA, as its member, of its rights under the 2013 Contract and, as discussed, PHSA was entitled to rely upon such rights. Moreover, the evidence before the application judge does not establish that PHSA’s decision to select Daniels was the direct result of HealthPRO’s communication with Daniels regarding PHSA’s rights under the Six Month Provision. The evidence also fails to establish bad faith in the communication of PHSA’s position to Stericycle. PHSA’s decision (or more properly the decisions of each of PHSA’s members) was finalized only shortly before June 2, 2020, having been delayed by the pandemic, and Stericycle was advised of PHSA’s intention to rely on the Six Month Provision shortly thereafter. [63] This ground of appeal is therefore also denied. Conclusion [64] For the reasons set out above, the appeal is dismissed. [65] If the parties are unable to agree on costs within 15 days of the release of these reasons, they may submit written costs submissions, which are not to exceed 5 double-spaced pages in length, exclusive of costs outlines. The respondents shall serve and file their submissions within 15 days after the release of these reasons, and Stericycle shall have 15 days to respond. Released: December 10, 2021 “GRS” “Wilton-Siegel J.” “I agree G.R. Strathy C.J.O.” “I agree B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Karas, 2021 ONCA 889 DATE: 20211213 DOCKET: C69654 MacPherson, Coroza and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Michael Karas Appellant Michael Karas, acting in person Chris Rudnicki, appearing as duty counsel Philippe Cowle, for the respondent Heard: December 8, 2021 On appeal from the sentence imposed on December 29, 2020 by Justice Todd Ducharme of the Superior Court of Justice, sitting without a jury, with reasons reported at 2020 ONSC 8183. REASONS FOR DECISION [1] The appellant was charged on a 24-count indictment for offences relating to four bank robberies committed using an imitation firearm. The appellant pleaded guilty to two counts of robbery, two counts of using an imitation firearm while committing the offence of robbery, and one count of forcible confinement. On consent, the facts were read in for all four robberies and the appellant accepted that the facts read in were true. [2] The offences were extremely serious and carefully planned. The appellant used an imitation firearm and a mask. The offences had a significant impact on the victims. The sentencing judge noted that the appellant was a career criminal because he had amassed a lengthy criminal record that included convictions for nine prior bank robberies and a conviction for murder in Thailand. [3] After reviewing the aggravating and mitigating factors, the sentencing judge imposed a global sentence of 21 years less enhanced credit for pre-trial custody. The net global sentence imposed by the sentencing judge was 15 years, 6 months and 10 days. [4] The appellant argues that the sentence imposed by the sentencing judge is disproportionate because he only pleaded guilty to two bank robberies; the sentence is a significant increase from his last sentence on his criminal record; and the trial judge erred because he did not consider relevant mitigating factors. He submits that his sentence should be reduced. [5] Duty counsel, on behalf of the appellant, argues that the trial judge erred in principle by finding that the appellant’s guilty plea was not a significant demonstration of remorse given the strength of the Crown’s case. Duty counsel submits that by pleading guilty the appellant spared the victims from testifying and saved the system a lengthy trial. [6] We see no error in the sentencing judge’s reasons for sentence. The sentencing judge considered each of the appellant’s arguments at the sentencing hearing. [7] We are also not persuaded by duty counsel’s submission. It was the sentencing judge’s call as to what weight he would give the guilty plea. In our view, the sentencing judge recognized that the appellant’s guilty plea avoided the need for a trial which would have been difficult for some of the victims, but he did not view the plea as a significant expression of remorse. We see no error in his conclusion. We note that the appellant’s pattern of committing armed bank robberies over several years undercuts any assertion of remorse. Protection of the public was the overriding sentencing goal in this case, and the global sentence imposed reflects that principle. [8] For these reasons, the appeal is dismissed. “J.C. MacPherson J.A.” “S. Coroza J.A.” “Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: McTavish v. Reed, 2021 ONCA 885 DATE: 20211214 DOCKET: C68992 Fairburn A.C.J.O, Roberts J.A. and Van Melle J. ( ad hoc ) BETWEEN Crystal McTavish, Tracy Ardis and Janice Ardis, as Trustees for the Estate of Walter Ardis Applicants (Respondents) and Susan Reed, as Trustee for the Estate of Margaret Ardis Respondent (Appellant) David M. Sundin, for the appellant Douglas A. Sulman, for the respondent Heard: November 9, 2021 by video conference On appeal from the order of Justice Maria V. Carroccia of the Superior Court of Justice dated December 15, 2020, with reasons at 2020 ONSC 7795. REASONS FOR DECISION Overview [1] The appellant appeals the order that insurance proceeds in the amount of $314,237.50 be paid out of court to the respondents as Estate Trustees for Walter Ardis. She submits that the application judge erred in two ways: (1) in failing to adjourn the respondents’ application to be heard at the same time as the appellant’s application contesting the validity of a subsequent will of Walter Ardis, and (2) in her determination of insurable interest under an insurance contract. Factual Background [2] Walter and Margaret Ardis were married for 27 years. They owned a house together as joint tenants. They were close to his son, Trevor Ardis, and her daughter, Susan Reed, who were beneficiaries under Mrs. Ardis’s will and purportedly under Mr. Ardis’s mirror will made in 2012. Toward the end of his life, Mr. Ardis suffered from severe dementia, paranoia, and hallucinations, which resulted in him killing his wife and setting fire to their house on March 24, 2016. On July 31, 2017, Mr. Ardis was found not criminally responsible on account of mental disorder (“NCRMD”) in the death of his wife. Pursuant to s. 672.54(c) of the Criminal Code , R.S.C., 1985, c. C-46, the Ontario Review Board (“ORB”) ordered Mr. Ardis to be detained in custody in a psychiatric hospital. He remained there until his death on March 19, 2018. [3] While detained in the psychiatric hospital, Mr. Ardis purportedly made a new will in which it is said that he removed the appellant in her personal capacity as a beneficiary and named as Estate Trustees three of Mr. Ardis’s children from whom he had been estranged for many years until after his NCRMD designation. We say “purportedly” because that will does not form part of the record in this case. While the appellant has made repeated requests to see the will purportedly made while Mr. Ardis was detained in the psychiatric hospital, the respondents have not provided a copy to her. [4] On March 1, 2018, one of the respondents, Crystal McTavish, as power of attorney for Mr. Ardis, submitted to the insurer a proof of loss claim arising out of the fire damage to the house and its contents. While there exists a public policy rule that a person who kills another should not profit from that crime, there are some exceptions to the rule, including where the killing arises out of a mental disorder: Dhingra v. Dhingra , 2012 ONCA 261, 109 O.R. (3d) 641, at para. 22. Therefore, the appellant does not dispute that a person found NCRMD is not prevented from taking under an insurance policy or by right of survivorship. The question on appeal is whether the Estate of Mrs. Ardis was also entitled to take under the policy. The Litigation [5] On March 9, 2018, an action was commenced in Mr. Ardis’s name, without a litigation guardian, against the insurer for payment of the insurance proceeds for the fire damage caused to the house and its contents. Following Mr. Ardis’s death, an order to continue the action in the names of the respondents was obtained. On June 7, 2019, in settlement of the action, the insurer agreed to pay the amount of $314,237.50 into court. The settlement funds were broken down as follows: $186,400 for the building; $114,900 for contents; and $12,937.50 for demolition costs. The appellant was named as a respondent on Verbeem J.’s order, dated August 13, 2019, that the funds be paid into court. On February 3, 2020, the respondents commenced an application to have the funds paid to them out of court. [6] On March 16, 2020, just as the province of Ontario was locking down because of the pandemic, the appellant commenced an application in Windsor, Ontario as Estate Trustee of Margaret Ardis for directions on whether Mr. Ardis was without the requisite capacity to make his subsequent will (the “will application”). If the appellant succeeds on the will application, the 2012 will shall remain the last will and testament of Mr. Ardis, which would leave the appellant in her personal capacity as a beneficiary under both Mrs. and Mr. Ardis’s wills. [7] Due to complications caused by the physical closing of the court offices during the pandemic, the appellant asserts she was not able to serve the application or transfer it to Chatham, Ontario in time to be heard with the respondents’ application, which was heard on August 18, 2020. Therefore, the appellant requested an adjournment of the respondents’ application requesting the release of the insurance funds to the Estate of Walter Ardis. Included in the appellant’s responding application record was a copy of the will application that had not yet been successfully transferred to Chatham. The appellant argued that both applications should be heard together. [8] The application judge dismissed the appellant’s request that the respondents’ application be adjourned to be heard with the will application on the basis that the will application had not yet been served. The application judge also noted that there was no formal application filed to join the applications, nor had the appellant taken any other steps to bring such an application before the court. Therefore, the application judge dismissed the appellant’s adjournment request and went on to decide the application brought by the respondents for the release of the insurance funds held in court to them. [9] The application judge rejected the appellant’s submission that the Estate of Mrs. Ardis was entitled to a 50 percent share of the insurance proceeds held in court because any interest that Mrs. Ardis may have had in the parties’ home passed on her death to the joint tenant, Mr. Ardis. She allowed the respondents’ application and ordered that the funds held in court be paid to the Estate of Mr. Ardis. Analysis [10] We agree that the application judge erred in refusing the requested adjournment and in ordering that the insurance proceeds be paid out of court to the respondents. [11] First, by refusing the adjournment and determining the respondents’ application for the release of the insurance funds to them as the Estate Trustees, the application judge decided the respondents’ application under a will that remained in dispute. In our view, the application judge erred in doing so. [12] The appellant’s request for an adjournment of the respondents’ application so that it could be heard together with the appellant’s will application was not only reasonable, but to proceed otherwise was unreasonable in these circumstances. Normally, decisions regarding adjournment requests attract a high degree of deference. In this case, though, the application judge’s approach to resolving the adjournment request was overly technical and not in keeping with the general principles set out in r. 1.04 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. Those principles call for “the just, most expeditious and least expensive determination” of applications, “proportionate to the importance and complexity of the issues, and to the amount involved” in the proceedings: see also Finlay v. Paassen , 2010 ONCA 204, 101 O.R. (3d) 390, at para. 14; Wood v. Farr Ford Ltd. , 2008 CanLII 53848 (Ont. S.C.), at para. 23. [13] The will application raises very serious issues regarding Mr. Ardis’s capacity to make a new will in light of the fact that, at that time, he had been found NCRMD and was the subject of an ORB detention order. If the appellant’s will application were to be successful, it would render the respondents’ application to receive the insurance proceeds entirely moot because the appellant in her personal capacity and Trevor Ardis, who are the beneficiaries under Mrs. Ardis’s will, would be the beneficiaries under Mr. Ardis’s first will. In these circumstances, the application judge should have granted the adjournment request so that the applications could be heard together. [14] Second, even if the will application fails one day and the respondents in their personal capacities are the rightful beneficiaries of the Estate of Mr. Ardis, the application judge erred in how she approached the issue involving who should receive the insurance proceeds currently held in court. Specifically, the application judge erred when arriving at the conclusion that, following Mrs. Ardis’s death, only Mr. Ardis had an interest in the insurance proceeds because he had sole legal ownership of the house insured under the policy by right of survivorship. [15] The right of survivorship applies only to interests in property held in a joint tenancy: Hansen Estate v. Hansen , 2012 ONCA 112, 109 O.R. (3d) 241, at paras. 30-31. Section 2(1) of the Estate Administration Act , R.S.O. 1990, c. E. 22, provides that real or personal property, vested in a person without a right in any other person to take by survivorship, devolves to the person’s personal representative on his/her death to be administered as part of the estate. [16] Here, the application judge failed to consider whether Mrs. Ardis (and following her death, her Estate), had an interest in the insurance proceeds in issue, as opposed to an interest in the house itself that was held in a joint tenancy and subject to a right of survivorship on Mrs. Ardis’s death. As a result, she failed to determine two material issues that had to be resolved before the insurance proceeds held in court could be disbursed. First, she failed to resolve the timing of Mrs. Ardis’s death relative to the fire, which may give rise to an interest in the insurance proceeds. Second, she failed to appreciate that, even if the Estate of Mrs. Ardis did not have an interest in the insurance proceeds related to the home, the Estate may nevertheless have an interest in the insurance proceeds related to its contents. [17] First, regarding the timing issue, the application judge erred in failing to determine when Mrs. Ardis died. The determination of this issue may affect whether Mrs. Ardis or her Estate has an interest in the insurance proceeds related to the house that was destroyed in the fire. If Mrs. Ardis is found to have died after the partial or complete destruction of the home, there is a triable issue as to whether she had an interest in the insurance proceeds that arose before her death. [18] Second, the application judge erred by focusing solely on the competing interests in the parties’ house and related insurance proceeds. As a result, she failed to consider the house’s contents to which the right of survivorship may not have attached. There is a triable issue, which the application judge did not address, as to whether the Estate of Mrs. Ardis has an interest in the house’s contents and therefore an interest in the $114,900 of insurance proceeds that were designated and paid in the settlement for the contents. [19] It was incumbent on the application judge to address the triable issues that we have just reviewed before releasing the insurance funds from court. She erred in failing to do so. The respondents’ application is remitted for hearing with the will application. Disposition [20] The appeal is allowed, and the order is set aside. [21] While nothing precludes the parties from settling this matter, should it proceed to litigation, the will application and the respondents’ application shall be heard together. Before releasing the insurance proceeds to anyone, the court must first resolve which will is operative, the answer to which shall inform who are the rightful beneficiaries. [22] The insurance proceeds shall remain in court pending the disposition of the applications or further order. [23] As agreed, the appellant is entitled to costs of the appeal in the amount of $7,500, inclusive of disbursements and applicable taxes. The disposition of the costs below is reserved to the judge disposing of the applications. “Fairburn A.C.J.O.” “L.B. Roberts J.A.” “Van Melle, J. (ad hoc)”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hulme, 2021 ONCA 887 DATE: 20211214 DOCKET: M52801 (C66831) Lauwers, Paciocco and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Daniel Scott Hulme Applicant/Appellant C. Stephen White and Kristianne C. Anor, for the appellant Tanit Gilliam, for the respondent Heard: December 9, 2021 REASONS FOR DECISION [1] On March 26, 2016, Daniel Scott Hulme was arrested while smoking cocaine in a parked motor vehicle that he had been operating erratically. A baggie containing hydromorphone pills and 120 tablets, that appeared to be oxycodone tablets, was found inside the coat Mr. Hulme was wearing. Two of those 120 tablets were subsequently analysed to confirm the chemical contents of the tablets. One tablet was found to contain fentanyl and the other acetylfentanyl, a fentanyl analog that, like fentanyl, is a Schedule I drug. [2] In a large bag secreted under the rear seat, 11 fentanyl patches were located along with additional hydromorphone pills, as well as 665 tablets that were never analysed but which were identical in size, shape and colour to the fentanyl and acetylfentanyl tablets that were found in Mr. Hulme’s coat. [3] At his trial, Mr. Hulme pleaded guilty to operating a motor vehicle while impaired by drugs, and possession of cocaine, but not guilty to additional charges. On January 25, 2018, he was convicted of the two offences to which he pleaded guilty, as well as three counts of possession for the purpose of trafficking, one count relating to hydromorphone, another to fentanyl, and another to acetylfentanyl. He was also convicted of one count of possession of the proceeds of crime under $5,000. In the course of her decision, the trial judge inferred that the 665 tablets found in the large bag contained fentanyl and acetylfentanyl. [4] On March 29, 2018, Mr. Hulme was sentenced to a global sentence of 7 years’ imprisonment. He promptly appealed. His sole ground of appeal, in relation to his conviction appeal, was that the trial judge erred in relying on circumstantial evidence to conclude that the 665 pills contained fentanyl. As part of this appeal he also sought leave to appeal his sentence as harsh and excessive. [5] Mr. Hulme’s appeal was scheduled to be heard on February 26, 2020. On February 25, 2020, he failed to surrender into custody as required by his bail release order pending appeal. That release order provided that “failure to surrender into custody in accordance with the terms of this release order will be deemed to constitute an abandonment of the appeal”. As a result, his appeal was dismissed as abandoned: R. v. Hulme , 2020 ONCA 156. [6] Mr. Hulme now applies to reopen his appeal. This court has “extraordinary jurisdiction” arising from its inherent power, to reopen a dismissed appeal in the interests of justice, so long as the appeal has not been dismissed on its merits: R. v. Larocque , 2011 ONCA 814; R. v. Rhingo (1997), 115 C.C.C. (3d) 89 (Ont. C.A.), at pp. 95-96, leave to appeal refused, [1997] S.C.C.A. No. 256; R. v. Riad , 2012 ONCA 300, at para. 4; R. v. Smithen-Davis , 2020 ONCA 759, 68 C.R. (7th) 75, at paras. 56-57. We are not persuaded that it is in the interests of justice to reopen Mr. Hulme’s appeal. [7] First, the explanation Mr. Hulme has provided for failing to surrender into custody is problematic. Although Mr. Hulme links his decision not to surrender to the paranoia that resulted from his unmedicated mental illness, and his fear of catching COVID-19 in the penitentiary, there is no suggestion that Mr. Hulme was incapable of appreciating his obligation and the risk it entailed. In addition to a lack of evidence that his mental illness was intense enough to warrant sympathetic consideration, Mr. Hulme has not provided an explanation for why he was “unable” to obtain the required medication, leading to his decision to self-medicate, which is an additional breach of the bail pending appeal order. In the circumstances, Mr. Hulme quite rightly admits that he does not have a lawful excuse for failing to surrender. He is responsible for the choice he made not to surrender and to breach his release order, knowing that by not attending he would be deemed to be abandoning his appeal. The choice Mr. Hulme made has caused tremendous inconvenience and expense to the administration of justice. [8] Second, on their face, Mr. Hulme’s grounds of appeal do not suggest that a miscarriage of justice has occurred. They are anything but strong. [9] Even if it was wrong of the trial judge to infer that the 665 tablets contained fentanyl, which is unlikely given the circumstantial foundation available to the trial judge for drawing that inference, this ground of appeal cannot realistically result in any of the convictions being set aside. Mr. Hulme does not challenge the fact that other tablets in his possession were confirmed by analysis to contain fentanyl, or that he possessed these other fentanyl tablets in circumstances that drive the conclusion that they were possessed for the purpose of trafficking. [10] It is not even clear that the elimination of the 665 tablets from consideration would be likely to render Mr. Hulme’s sentence harsh and excessive. He has a prior related record, and the range of Schedule I narcotics in his possession for the purpose of trafficking likely warranted the sentence imposed. [11] Third, even if we were to accept Mr. Hulme’s explanations for the delay in bringing his application to set aside the dismissal of his appeal, the Crown reasonably relied upon the dismissal of the appeal and the ensuing forfeiture order to dispose of the evidence that had been seized, including the narcotics. The Crown would therefore be prejudiced should a retrial be ordered because the pills could not be analyzed. [12] Finally, the principle of finality is a material consideration in determining whether the interests of justice warrant reopening a dismissed appeal. It is now over five years since the offence was committed, and more than one year since the appeal was dismissed. [13] In all of these circumstances the application to reopen is therefore denied. “P. Lauwers J.A.” “David M. Paciocco J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Urmila Holding, Inc. v. Anand Holdings Inc., 2021 ONCA 886 DATE: 20211214 DOCKET: C69458 Gillese, Trotter and Nordheimer JJ.A. BETWEEN Urmila Holding, Inc. Applicant (Respondent) and Anand Holdings Inc., Harpaul J. Anand Dentistry Professional Corporation and Harpaul Jimmy Anand Respondents (Appellants) Mark H. Arnold, for the appellants Allan Sternberg and Emily Hives, for the respondent Heard: November 17, 2021 On appeal from the judgment of Justice Edward P. Belobaba of the Superior Court of Justice, dated April 19, 2021, with reasons reported at 2021 ONSC 2707. Trotter J.A.: A. Introduction [1] Urmila Holding, Inc. (“Urmila”) purchased a unit in a commercial condominium plaza. It paid a premium for a unit that was designated for its exclusive use as a dental clinic; no other unit in the plaza could be used for this purpose. [2] When the plaza was marketed by the developer, Dr. Anand, [1] a dentist, attempted to purchase a unit designated for exclusive use as a dental clinic. But he was too late – Dr. Anand was advised that Urmila had already secured such a unit. Dr. Anand then approached Urmila and arranged to lease its unit for a period of ten years, with an option to renew for five years. As the term neared its end, Dr. Anand sought a ten-year extension of the lease. Urmila was only prepared to extend the lease for five years. [3] Unbeknownst to Urmila, Dr. Anand purchased the unit next door. He moved his dental practice into that unit and purported to assign the exclusive use benefit purchased by Urmila to himself. [4] Urmila applied under s. 134 of the Condominium Act, 1998 , S.O. 1998, c. 19 (the “Act”) for a determination of its rights under the exclusive use provisions of the condominium’s Declaration. The application judge held that Dr. Anand, as tenant, could convey the exclusive use benefit to himself, but only for the duration of the unexpired term of the extended lease. Dr. Anand appeals this ruling. [5] The following reasons explain why I would uphold the application judge’s conclusion. B. the facts (1) The Purchase and the Lease [6] It is difficult to improve on the application judge’s rendition of the factual context of this case. I borrow heavily from his reasons. [7] The plaza is located in the City of Brampton. When the plaza was being marketed, a representative on behalf of Urmila reserved an exclusive use unit for a dental clinic, by Reservation Form dated December 28, 2005. It entered into an Agreement of Purchase and Sale (“APS”) on October 23, 2006 and paid a premium for this type of unit. It did so with the expectation that the unit would appreciate in value and would attract higher rent. The APS provided that, if the unit was not used in accordance with its exclusive use within 12 months of the occupancy date, Urmila would “forfeit such exclusivity of Use”. [8] Urmila leased its unit, Unit 20, to Dr. Anand on August 8, 2007 for a period of ten years, ending on July 31, 2017. During the negotiation of the lease, Dr. Anand wanted confirmation that his would be the only dental clinic in the plaza. Urmila showed him the Reservation Form. Moreover, the lease incorporated the Declaration (even though it was not registered on title until April 11, 2008) and contained a covenant whereby Urmila warranted that, should its sole principal (or her husband) purchase another unit in the plaza, it “shall not be leased to any person to operate therein a dental practice.” [9] Near the end of the initial lease term, Dr. Anand offered to buy Unit 20 for approximately $1 million, which was well above market value. Urmila was not interested in selling. Dr. Anand tried to negotiate a ten-year extension of the lease. Urmila was only prepared to extend the lease for five years. A Lease Amending and Extending Agreement was entered into on March 14, 2017, extending the lease until July 31, 2022. Unbeknownst to Urmila, Dr. Anand had other ideas for his dental practice. As the application judge explained: Realizing that his lease would end sooner than he would have preferred, Dr. Anand took the following steps to maintain his Plaza location. He discreetly purchased the adjacent Unit 21 while still a tenant in Unit 20. Sometime in 2020 (about 13 years into his 15-year lease) and unbeknownst to Urmila, Dr. Anand moved his dental clinic into Unit 21 and purported to transfer Unit 20’s exclusive dental clinic use to Unit 21. Although Unit 20 sat empty, Dr. Anand continued to pay the monthly rent. Urmila first noticed that that the respondent had vacated Unit 20 and was using Unit 21 as a dental clinic in July 2020. Upon further investigation and a title search, Urmila discovered that Anand Holdings had purchased Unit 21 three years earlier on May 8, 2017 — about two months before the end of the 10-year lease — for a purchase price of $715,000. In a letter to the Plaza’s property manager dated July 3, 2020, Dr. Anand outlined what he had done — as the tenant operating a dental clinic in Unit 20, he consented in writing to allow himself (the owner of Unit 21) to operate a dental clinic in Unit 21. He then asserted a usage exclusivity in Unit 21 that would forever bar Urmila or any other unit-owner in the Plaza from leasing their unit to another dentist . [Emphasis added.] [10] Upon discovering this state of affairs, and after the exchange of lawyers’ letters, Urmila made its application under s. 134 of the Act. (2) The Declaration [11] The Declaration lists ten prohibited uses (i.e. tattoo parlour, pawn shop, etc.), as well as 32 exclusive uses, one of which is a dental clinic. The following sections are relevant to the dispute between the parties: 4.5     Restrictions of Use Owners and the tenants, occupants, licensees or any other person utilizing such Owner’s Unit(s) shall not engage, within or from such Unit(s) in any of the following business operations (unless two contiguous Units are owned by the same Owner and are operated together as one of the following business operations), if such business operations are already being carried on in another Unit as at the date that such Owner, tenant, occupants, licensees or any other person utilizing such Owner’s Unit intends to engage in such existing business operations (the “Existing Business”): (iv) dental clinic (includes: general dentistry, dental hygiene, endodontics, periodontics, orthodontics, oral surgery, denture therapy, paedodontics); unless any Owner, tenant, occupant or licensee already carrying on an Existing Business within or from their Unit, consents in writing to allow any other Owner, tenant, occupant or licensee to carry on such Existing Business , which consent may be arbitrarily withheld by any such existing Owner, tenant, occupant or licensee conducting, operating or carrying on such Existing Business. [Emphasis added.] 4.6     Leasing of Units (d) No Owner shall be entitled to lease a Unit to a third party for a proposed use that is then enjoyed by or operated in another Unit in the Corporation. C. the application judge’s reasons [12] The application judge was called upon to interpret the relevant sections of the Declaration, particularly the underscored words in section 4.5, reproduced above. He observed that, in general, the exclusive use provisions focus on exclusive use for designated units . He said, “And yet, if one reads section 4.5 literally, such exclusive usage can be transferred by a tenant without the knowledge or consent of the initial unit-owner even where, as here, the initial unit-owner paid a premium for the exclusive usage designation.” Thus, the question was whether section 4.5 was to be read literally, or whether a more purposive approach was required. [13] On the application, the parties were in agreement that the principles in Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633 applied to the interpretation of the Declaration. As discussed below, the appellants have changed their position on appeal and now insist on a literal interpretation, devoid of any context. [14] The application judge relied on the following passages from Sattva , in which Rothstein J. said, at paras. 47 and 58: Regarding the first development, the interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine "the intent of the parties and the scope of their understanding" ( Jesuit Fathers of Upper Canada v. Guardian Insurance Co. of Canada , 2006 SCC 21, [2006] 1 S.C.R. 744, at para. 27 per LeBel J.; see also Tercon Contractors Ltd. v. British Columbia (Transportation and Highways) , 2010 SCC 4, [2010] 1 S.C.R. 69, at paras. 64-65, per Cromwell J.). To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. The nature of the evidence that can be relied upon under the rubric of "surrounding circumstances" will necessarily vary from case to case. It does, however, have its limits. It should consist only of objective evidence of the background facts at the time of the execution of the contract, that is, knowledge that was or reasonably ought to have been within the knowledge of both parties at or before the date of contracting. [Citation omitted.] [15] The application judge also relied on the principle that a commercial contract should be interpreted, “in a fashion that accords with sound commercial principles and good business sense and that avoids a commercial absurdity”: All-Terrain Track Sales and Services Limited v. 798839 Ontario Limited , 2020 ONCA 129, at para. 27, applying Richcraft Homes Ltd. v. Urbandale Corporation , 2016 ONCA 622, 406 D.L.R. (4th) 507, at para. 58. [16] Applying these principles, the application judge considered the Declaration as a whole, and ascribed meaning to its words consistent with the surrounding circumstances known to the parties when they entered into the lease. He searched for factors that were known, or ought reasonably to have been known, to the parties at or before the date on which they entered the initial ten-year lease and subsequent renewal. [17] He found that: (a) Dr. Anand knew that Unit 20 had been assigned the exclusivity for use as a dental clinic; and (b) Dr. Anand knew or should have known that an exclusive usage designation carried a premium over non-exclusive usages. As noted above, the application judge considered the fact that Dr. Anand attempted to buy a unit in the plaza with exclusive use as a dental clinic, but that Urmila had already secured that right. He also took note of the fact that, in 2017, before negotiating the extension of the lease with Urmila, Dr. Anand offered to purchase Unit 20 at a price above market value. [18] Bringing these principles to bear on the facts as he found them, the application judge reached the following conclusions: In my view, Mr. Sternberg, counsel for Urmila, provided the court with the most reasonable interpretation of the provisions in question. Dr. Anand, as tenant, can only consent to what he has and what he has is the time remaining on his lease. In other words, tracking the well-known nemo dat principle, Dr. Anand can consent to Unit 21 carrying on a dental clinic but this consent expires on July 31, 2022 when his five-year renewal on Unit 20 comes to an end. In the present case, the operator carrying on the exclusive business in the existing unit is a tenant. As such the tenant has the contractual right to carry on the exclusive business within the existing unit for the term of the lease. If such tenant gives its consent to another operator to carry on the exclusive business in a new unit, such consent cannot be for a period of time longer than the balance of the lease term — because one cannot convey what one does not have. In my view, this is a reasonable interpretation of the provisions in question because it protects Urmila’s capital investment (its tenant will continue to pay the elevated rent on Unit 20 to lease-end) and gives a commercially reasonable meaning to the concluding paragraph in section 4.5 of the Declaration. [19] The application judge held that, if his approach to interpreting the Declaration was wrong, and a literal interpretation of section 4.5 were required, he would still find in Urmila’s favour. He concluded that section 4.5 did not permit Dr. Anand to consent/transfer the exclusive usage right to himself; the section only permits transfer to “any other owner [or] tenant” (emphasis in original). D. the positions of the parties [20] Dr. Anand submits that the application judge was correct to find that, as a tenant, he was permitted to assign the exclusive usage to himself. However, he erred in holding that the assignment was time-limited and would expire at the end of the extended lease. He submits that the error arose from the application judge’s erroneous interpretation of the Declaration. Being akin to a constitutional document, Sattva principles had no application; a literal interpretation of the Declaration authorized what Dr. Anand purported to do in this case. [21] Urmila’s position on appeal is more complicated. It submits that the application judge was correct in applying Sattva and the nemo dat principle. However, he erred in finding that Dr. Anand could assign the exclusive usage benefit at all – whether to himself or another, time-limited or otherwise. Only Urmila, as owner, could do that. The complication arises because Urmila has not cross-appealed on these issues. At the hearing of the appeal, we were advised that Urmila is content to “live with” the outcome of the application for two reasons: (1) Dr. Anand continues to pay rent on Unit 20; and (2) it would not be sensible for Dr. Anand to move his dental practice back to Unit 20, only to move out again by July 31, 2022. E. analysis [22] The equities of this case unequivocally favour Urmila. Dr. Anand tried to appropriate a valuable benefit acquired by Urmila when it purchased Unit 20. This was done behind Urmila’s back. Dr. Anand knew Urmila paid a premium for the unit because he attempted to purchase what Urmila had already bought – a unit with an exclusive usage designation as a dental clinic. Dr. Anand was also aware of the increased rent associated with exclusive use units given that he paid a premium rent to Urmila during the course of his tenancy. [23] It is nothing short of remarkable that, after buying Unit 21 and purporting to transfer the exclusive use benefit to himself (through Anand Holdings Inc.), Dr. Anand wrote to the property manager to declare that, “the Tenant does not consent to any other unit, including any owner, tenant, occupier, or licensee of the Existing Unit [i.e., Urmila’s unit], conducting, operating or owning a dental clinic”. [24] And just like that, Dr. Anand, a tenant, believed he had divested Urmila of its exclusive usage right in Unit 20 in perpetuity. In my view, an interpretation of the Declaration, insofar as it impacts on the contractual arrangements between these parties, that allowed this result to stand would amount to a commercial absurdity. [25] I am troubled by Dr. Anand’s change of position on appeal, repudiating the acknowledgment of his counsel on the application (not Mr. Arnold) that Sattva principles governed the interpretation of the Declaration in the context of this case. Nonetheless, I agree with the submission made by counsel for Urmila that the application judge did not err in allowing the contractual interpretation principles in Sattva to guide his approach to interpreting the Declaration; after all, the Declaration was incorporated into and formed part of a contract – the lease. [26] Dr. Anand relies on Metropolitan Toronto Condominium Corporation No. 590 v. The Registered Owners and Mortgagees of Metropolitan Condominium Corp. No. 590 , 2020 ONCA 471, 21 R.P.R. (6th) 189, as authority for the proposition that the principles of contractual interpretation mandated in Sattva do not apply to condominium declarations. He relies on a passage in which Nordheimer J.A. acknowledged the caution in Sattva against courts too readily finding extricable questions of law when engaged in contractual interpretation. As he said, at para. 15: Here, though, while a declaration under the Condominium Act could be characterized as a contract, [it] is not the type of contract negotiated between two parties, to which the comments in Sattva were directed. A declaration is a special form of contract, the structure of which is prescribed by statute. It must adhere to certain statutory requirements. Indeed, the Condominium Act provides, in s. 7(5), that, if there is any conflict between the statute and the declaration, the statute prevails. [27] I agree with counsel for Urmila that this decision did not purport to oust the application of Sattva principles in this context; the passage reproduced is concerned with the standard of review on appeal. See Seto v. Peel Condominium Corporation No. 492 , 2016 ONCA 548, at para. 10, in which this court applied Sattva to the interpretation of a Declaration. Here, in contrast, we are dealing with the proper interpretation of the contractual arrangements between these two parties. [28] The application judge properly identified the background factors that were known or ought to have been known by the parties when they entered into the lease agreement and the subsequent extension. Importantly, the Declaration was incorporated into the lease between Dr. Anand and Urmila. [29] Another factor to consider is that Urmila, as owner of the exclusive use unit, was not obliged to carry on the exclusive use business itself. It only covenanted to ensure that the unit would be used for the designated purpose; otherwise, it would lose its exclusive use designation. In order to preserve this exclusive use benefit, Urmila leased the unit to Dr. Anand. It would make no commercial sense if, in fulfilling this contractual obligation in the way that it did, Urmila risked losing a valuable property right to its tenant. [30] Consequently, the parties could not have reasonably intended that Dr. Anand, as tenant, could arrogate to himself the exclusivity benefit in Unit 20, forever divesting Urmila of something it had purchased. [31] Moreover, as the application judge observed, the bulk of the language in the exclusive use provisions of the Declaration signal that the use attaches to the unit itself. This is also reflected in the language of the Reservation Form (which Dr. Anand inspected) and in the APS. Moreover, Urmila covenanted in the lease that, if its sole principal (or her husband) acquired another unit in the plaza, they would not permit the operation of a dental clinic therein, further supporting the interpretation that the exclusive usage right attached to the unit. It belonged to the owner/landlord, Urmila, not Dr. Anand. [32] The application judge bolstered his conclusion through his reliance on the nemo dat principle . In Green v. Green , 2015 ONCA 541, 387 D.L.R. (4th) 512, in the family law context, this court said, at para. 53: “at common law, an assignor may not assign more than it has, or put differently, nemo dat quod non habet , no one gives who does not possess.” Applying this principle, the application judge held that, although the exclusive usage right belonged to Urmila as the owner of Unit 20, as a tenant, Dr. Anand had a limited right to assign the exclusive usage for as long as he was entitled to the benefit of the exclusive use under the lease. [33] As noted above, because Urmila is content with the current arrangements, it did not seek to improve its position by cross-appealing this aspect of the application judge’s order. Similarly, Urmila did not attempt to achieve the same result by urging upon us the application judge’s alternative mode of analysis (i.e., that Dr. Anand could not assign or convey exclusive usage to himself). In the circumstances, it is neither appropriate nor necessary to resolve these issues. However, nothing in these reasons should be taken as endorsing these aspects of the application judge’s decision. The resolution of both issues is best left for another day when they are squarely before us. F. conclusion [34] I would dismiss the appeal. I award costs to Urmila in the amount of $30,000, inclusive of HST and disbursements. Released: December 14, 2021 “E.E.G.” “Gary Trotter J.A.” “I agree. E.E. Gillese J.A.” “I agree. I.V.B. Nordheimer J.A.” [1] Dr. Anand operated his dental practice through Harpul J. Anand Dentistry Professional Corporation. His holding company, Anand Holdings Inc., later became involved in what happened. For simplicity’s sake, it is convenient to keep Dr. Anand at the forefront of the narrative, unless otherwise specified.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Mansaray, 2021 ONCA 894 DATE: 20211213 DOCKET: C69464 MacPherson, Coroza and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Kelleh Junior Mansaray Appellant Kelleh Junior Mansaray, acting in person Erin Dann, appearing as duty counsel Erin Carley, for the respondent Heard: December 9, 2021 On appeal from the conviction entered by Justice David L. Edwards of the Superior Court of Justice on February 22, 2019, and from the sentence imposed on February 17, 2021, with reasons for sentence at 2021 ONSC 1188. REASONS FOR DECISION [1] The appellant was convicted of possession of cocaine for the purpose of trafficking; possession of proceeds of crime not exceeding $5,000; and breach of a probation order. He was sentenced to a custodial sentence of two years less one day, followed by 24 months of probation. The trial judge also made several ancillary orders. The appellant has abandoned his appeal from conviction but pursues his sentence appeal. [2] On behalf of the appellant, duty counsel raises three grounds of appeal. [3] First, the trial judge found as an aggravating factor that the appellant had lied during the trial. Duty counsel submits that it is well established that the manner in which an accused person presents his or her defence is not to be treated as an aggravating factor: see R. v. Kozy (1990), 58 C.C.C. (3d) 500 (Ont. C.A.). [4] Second, the trial judge failed to account for potential collateral immigration consequences. [5] Third, in rejecting a conditional sentence, the trial judge erred in his assessment of the potential risk to the community by failing to take into account a relevant factor – namely that the appellant had been on bail for a significant period of time without any further offence. [6] The appellant has a sympathetic background. The trial judge accepted that when the appellant was approximately ten years old, the appellant was abducted and held hostage as a child soldier in the Revolutionary United Front in Sierra Leone. As a child soldier he was required to kill and torture. Discipline was imposed on him through beatings. Eventually the appellant escaped and immigrated to Canada where he lived with his father. [7] At the request of the defence, the trial judge ordered a report pursuant to s. 21(1) of the Mental Health Act, R.S.O. 1990, c. M.7 . Dr. Chaimowitz provided a report and found that the appellant continues to experience symptoms of posttraumatic stress. Dr. Chaimowitz concluded that the appellant was a moderate to high risk to reoffend generally and a high risk to reoffend violently and that the appellant would likely benefit from an intensive, comprehensive treatment program for substance abuse, characterological vulnerabilities, and difficulty with anger and aggression. [8] After summarizing Dr. Chaimowitz’s report in his reasons, the trial judge noted that it was “impossible to imagine the horrors that [the appellant] experienced as a child. The mental health assessment confirms that the experience continues to impact upon him today.” [9] On appeal, the appellant has tendered two letters as fresh evidence.  The first letter is confirmation from The Salvation Army that the appellant has been accepted into the Ottawa Booth Centre Addiction Services Programs. The program is a residential treatment program that is staffed twenty-four hours a day and includes counselling for anger management and emotional health. The second letter is from a social worker with the Ministry of the Solicitor General. The letter outlines the steps that the appellant has taken and progress made while at the Niagara Detention Centre, by participating in programming and counselling. According to the social worker the appellant has been participating in ongoing counselling and has demonstrated significant insight into his challenges. The social worker notes that the appellant appears to be highly dedicated in his efforts to address his mental health, substance abuse and criminal behaviour. [10] The respondent very fairly concedes the first ground of appeal. However, the respondent submits that the error is inconsequential because the sentence imposed by the trial judge was fit. [11] We are persuaded that the trial judge erred in principle in relying on the conduct of the appellant’s defence as an aggravating factor. We are also persuaded that the trial judge erred by not considering the potential collateral effect a sentence of custody would have on the appellant’s immigration status. The trial judge concluded that he would not consider that issue because any collateral consequences regarding the appellant’s immigration status were raised only in passing. In fairness to the trial judge, defence counsel in his sentencing submissions did not provide meaningful submissions on this issue. In contrast, we have had the advantage of hearing comprehensive submissions made by duty counsel on this issue. [12] In our view, these errors had an impact on the sentence imposed. Therefore, it falls on this court to consider a fit sentence: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089. [13] Given the appellant’s background, his mental health issues as outlined in Dr. Chaimowitz’s report, the fresh evidence and the potential immigration issues that could arise because of the custodial sentence, we cannot say that a conditional sentence of imprisonment is unfit. [14] Accordingly, we allow the sentence appeal and impose a conditional sentence of 2 years less one day on the following agreed upon conditions: · Keep the peace and be of good behaviour; · Appear before the court as directed; · Report to a supervisor within 1 week after this court’s decision is released and thereafter as directed by the supervisor; · Remain in Ontario, unless written permission to leave Ontario is first obtained from the court or the supervisor; · 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; · Reside at the Salvation Army Addictions Services Program (the Anchorage Residential Treatment Program) in Ottawa, or another residential treatment program approved by the supervisor; and after discharge from the residential treatment facility, reside at an address approved in advance by the supervisor; · Follow all rules and requirements of any residential treatment program where you are residing; · Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by the supervisor and complete them to the supervisor’s satisfaction; · Sign release forms as required to enable the supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs; · Abstain from the consumption of drugs or alcohol except in accordance with a medical prescription; and · Abstain from owning, possessing or carrying a weapon. [15] For these reasons, we admit the fresh evidence. We dismiss the conviction appeal as abandoned. We allow the sentence appeal, set aside the custodial sentence imposed by the trial judge, and impose a conditional sentence of imprisonment on the terms agreed upon by the parties and effective as of the date when sentence was imposed by the trial judge. The probation order and ancillary orders as imposed by the trial judge stand. “J.C. MacPherson J.A.” “S. Coroza J.A.” “Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Mihoren v. Quesnel, 2021 ONCA 898 DATE: 20211216 DOCKET: C68997 Brown, Roberts and Zarnett JJ.A. BETWEEN Cherie Anne Marie Mihoren Applicant (Appellant) and Alan Quesnel Respondent (Respondent) Michael Zalev and Kristy Warren, for the appellant Samuel Mossman, for the respondent Heard: June 30, 2021 by video conference On appeal from the order of Justice Pamela L. Hebner of the Superior Court of Justice, dated December 11, 2020, with reasons at 2020 ONSC 7724 . Zarnett J.A.: OVERVIEW [1] The appellant’s application for payment of support by the respondent was administratively dismissed under r. 41(6) of the Family Law Rules , O. Reg. 114/99. The appellant missed a deadline, that her lawyer [1] had neglected to diarize, by which certain steps had to be taken. [2] The motion judge refused to set aside the dismissal order and re-instate the application so that it could be determined on its merits. [3] For the reasons that follow, I would allow the appeal and set aside the dismissal order. [4] A decision whether to set aside an administrative dismissal involves an exercise of discretion guided by certain principles. Relevant factors include whether there is an explanation for the delay, whether the dismissal arose due to inadvertence, whether the motion to re-instate the proceeding was brought promptly, and whether there is prejudice. These factors are not, however, to be viewed as a series of rigid hurdles for the moving party to meet. Rather, a contextual approach is to be taken. The overall question is whether it is just to uphold the dismissal in all of the circumstances, weighing two competing policy objectives: the objective that proceedings should be determined on their merits, and the objective that proceedings should be resolved in a timely and efficient manner to maintain public confidence in the administration of justice. [5] In my view, the motion judge made errors in principle which, in this case, justify appellate interference with her exercise of discretion. [6] The motion judge properly found that there had been a delay in moving the application forward for which no adequate explanation was offered; however, she in essence treated that factor as a rigid unmet hurdle. Although she noted that the dismissal arose due to inadvertence of the appellant’s lawyer, and that the appellant’s motion to set aside the dismissal order was brought promptly, she failed to ascribe any significance to those factors, and erred in her analysis of prejudice. She failed to take the proper contextual approach and to consider the policy favouring the resolution of this proceeding on its merits. Moreover, after recognizing that the absence of a limitation period for support claims meant that the appellant could start a new proceeding, she failed to consider how upholding the dismissal would actually advance the goal of timely and efficient resolution. [7] On a proper consideration of all the circumstances, the dismissal should have been set aside. PROCEDURAL HISTORY (1) Steps in 2017-2018 [8] On October 23, 2017, the appellant commenced an application for spousal support against the respondent. She alleged that, although she and the respondent were not married, they had cohabited continuously between 2005 to 2016 and were therefore spouses with support entitlements and obligations under Part III of the Family Law Act , R.S.O. 1990, c. F.3 . [9] The respondent filed an answer in December 2017. He disputed the appellant’s characterization of their relationship and that they had cohabited continuously for over three years (the relevant time period to trigger spousal status under Part III of the Family Law Act : s. 29). Therefore, he denied that she had any entitlement to support from him, as she lacked the status of a spouse. [10] There was activity in the litigation in 2018. The parties attended a case conference in March 2018. The lawyer for the appellant arranged for questioning and cross-examination on financial statements to take place. The respondent’s questioning was, at his counsel’s request, scheduled to accommodate his travels outside of Canada, and was completed on October 29, 2018. The appellant’s questioning was completed on November 1, 2018. [11] In early November 2018, the lawyers for the parties exchanged correspondence. The appellant’s lawyer provided certain documents and indicated that the appellant was in the process of collecting other information and documents relating to undertakings given on her questioning. He also demanded certain productions from the respondent; when they were not forthcoming, he indicated he would bring a motion. (2) The Deadline for Dismissal [12] As the appellant’s case was not in the Family Court of the Superior Court of Justice, r. 41 of the Family Law Rules applied. [13] On October 26, 2018, a clerk of the Superior Court sent a notice of approaching dismissal under r. 41(5) of the Family Law Rules , as the case had not been settled, withdrawn, or scheduled for trial within 365 days of its commencement. The notice provided that the clerk would dismiss the case unless, within 60 days (that is, by December 27, 2018), one of the steps specified in r. 41(6) of the Family Law Rules was taken. Those steps are: obtaining an order lengthening time, filing an agreement for a final order disposing of all issues and a notice of motion to carry out the agreement, serving a notice of withdrawal discontinuing the case, scheduling the case for trial, or arranging a case conference or settlement conference for the first available date. [14] One of those steps — obtaining an order lengthening time — was taken. The court made an order on December 6, 2018, on the consent of the parties, extending the “time for dismissal” that had been specified in the notice to October 25, 2019. In other words, October 25, 2019 became the new deadline by which one of the steps in r. 41(6) had to be taken to avoid dismissal of the application by the clerk. [15] Notwithstanding the importance of this deadline, the appellant’s lawyer did not diarize it, due to what the motion judge accepted was inadvertence. (3) 2019 and the Administrative Dismissal [16] The appellant gave evidence that she met with her lawyer in February 2019. He told her to prepare a list of witnesses who would have to meet with him and provide signed statements. She prepared such a list and was directed by her lawyer to contact witnesses and arrange appointments for them to meet with him. Some witnesses provided statements over the next several months, while others were unwilling to get involved. The appellant acknowledged that the compilation of a final witness list for a settlement conference was delayed. [17] However, the only communication between counsel in 2019, prior to the new dismissal date, was a letter dated July 6, 2019, in which counsel for the respondent wrote to the appellant’s lawyer, listing the undertakings given on the appellant’s questioning, and requesting answers by the end of the month. [18] That letter was not answered, and prior to October 25, 2019, none of the steps specified in r. 41(6) to prevent dismissal of the action were taken. [19] Accordingly, on October 26, 2019, the court issued an order under r. 41(6) of the Family Law Rules , dismissing the appellant’s application. (4) The Motion to Set Aside [20] The appellant’s lawyer received the dismissal order in November 2019; shortly afterwards, there was a fire at his office building, delaying his access to files and equipment. [21] The appellant brought a motion to set aside the dismissal order under r. 41(9) on February 27, 2020, returnable March 20, 2020. As a result of the pandemic, the motion could not be heard until August 14, 2020. [22] The motion was supported by an affidavit of the appellant which outlined the history described above, and stated that she had maintained her desire to proceed with her claim for support throughout, wished to proceed with it, and was “prepared to do what is necessary to expedite the hearing of a Settlement Conference and thereafter expedite the Trial in this matter.” Her lawyer’s assistant swore an affidavit that she had inadvertently failed to diarize the date for dismissal of October 25, 2019, that her office had continued to “process the Application … to October 25 th , 2019”, and that at no time was she given any indication by the appellant or her lawyer that the appellant’s “claims were not being pursued”. [23] The respondent also swore an affidavit. Among other things, he swore that he was told by his lawyer of the dismissal order on November 4, 2019 and that the appellant had to move expeditiously to set it aside “if it came about inadvertently and she wished to continue with her Application.” He also stated that “[a]s time passed, [he] came to believe that the matter was finished”, that the “Application has been a source of stress and aggravation for [him]”, and that he was “pleased and relieved when in late 2019 [he] came to believe that it was over”. (5) The Motion Judge’s Decision [24] The motion judge referred to the onus on family law litigants to move cases forward in a timely manner, with the expectation set by rr. 41(5) and (6) that they will be resolved or scheduled for trial within a year. She noted that the timelines exist for a purpose, related to the invasive nature of family law litigation and the burden it often places on parties, and that the court should not rubber-stamp requests to set aside administrative dismissals. She referred to case law from this court, including H.B. Fuller Company v. Rogers (Rogers Law Office) , 2015 ONCA 173, 386 D.L.R. (4th) 262, that set out the principles to be considered when deciding whether to set aside an administrative dismissal in civil cases under r. 48 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. She accepted that the civil approach should inform the approach to an administrative dismissal under the Family Law Rules , within the context of the primary objective of those rules, dealing with cases justly: r. 2(2). [25] The motion judge then proceeded to consider what was referred to in the case law as the four Reid [2] factors, as they applied to the facts. The Reid factors are: whether there was an explanation for the delay that led to the dismissal order, whether the deadline set out in the notice was missed due to inadvertence, whether the motion to set aside the dismissal was prompt, and whether there has been prejudice to the responding party. [26] On the first Reid factor, she found that the appellant had not provided an adequate explanation of the litigation delay that followed the extension, in late 2018, of the deadline for dismissal. On the second, she accepted the evidence of the appellant’s lawyer’s legal assistant that she had inadvertently failed to diarize the dismissal date of October 26, 2019, and that the appellant had been in touch with her lawyer’s office up to that date and never indicated an intention to discontinue her proceeding. The motion judge considered that to be an explanation as to why the lawyer’s office did not deal with the case when the dismissal date was approaching, but not an explanation as to why no real steps were taken in the 12 months prior to the dismissal date. [27] On the third Reid factor — whether the motion to set aside the dismissal order was brought promptly — she noted that respondent’s counsel “fairly concedes that this factor has been met.” [28] Turning to the fourth Reid factor, the issue of prejudice, she stated that no limitation period had expired (there being none for a support claim [3] ) and a new claim could be brought. She considered the only prejudice to be that arising from the passage of time. Although she noted that there was no indication that evidence had been lost by the passage of time, she said “it can be presumed that a witness’s recollections will be somewhat dimmed.” [29] The motion judge returned to the issue of the appellant’s delay after the 2018 order extending time, stating that thereafter, “[s]he displayed … inertia, at best, or a complete lack of interest, at worst”, and noting the lack of an adequate explanation for that delay. She concluded: Under all of the circumstances of this case, even though the only identifiable prejudice to the respondent is the passage of time, I am not prepared to set aside the dismissal order. I recognize that, without the passage of a limitation period, the [appellant], should she choose to, can issue a new claim. Even though that is true, I find I cannot countenance her delay in the case currently before the court by setting aside the dismissal order. LEGAL FRAMEWORK (1) The Relevant Rules [30] Rules 2(2)-(4) of the Family Law Rules provide that: (2) The primary objective of these rules is to enable the court to deal with cases justly. (3) Dealing with a case justly includes, (a) ensuring that the procedure is fair to all parties; (b) saving expense and time; (c) dealing with the case in ways that are appropriate to its importance and complexity; and (d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. (4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. [31] Rule 41 provides in relevant part as follows: (5) The clerk shall serve a notice of approaching dismissal (Form 39) for a case on the parties by mail, fax or email if the case has not been settled, withdrawn or scheduled or adjourned for trial before the 365th day after the date the case was started…. (6) A case for which a notice of approaching dismissal has been served shall be dismissed without further notice, unless one of the parties, within 60 days after the notice is served, (a) obtains an order under subrule (3) to lengthen that time; (b) files an agreement signed by all parties and their lawyers, if any, for a final order disposing of all issues in the case, and a notice of motion for an order carrying out the agreement; (c) serves on all parties and files a notice of withdrawal (Form 12) that discontinues all outstanding claims in the case; (d) schedules or adjourns the case for trial; or (e) arranges a case conference or settlement conference for the first available date. (6.1) If a case conference or settlement conference is arranged for a date as described in clause (6) (e), but the hearing does not take place on that date and is not adjourned by a judge, the case shall be dismissed without further notice. (6.2) The clerk shall dismiss a case under subrule (6) or (6.1) by preparing and signing an order dismissing the case, with no costs payable by any party. (9) A judge may, on motion, set aside an order of the clerk under subrule (6). (2) The Standard of Review [32] The standard of review on an appeal from an order refusing to set aside an administrative dismissal of an action under the Rules of Civil Procedure is well-established. That standard recognizes that such an order is discretionary and entitled to deference on appeal. Appellate interference is justified only if the motion judge “proceeded on an erroneous legal principle or made a palpable and overriding error with respect to the facts … [or] where the lower court gives no or insufficient weight to relevant considerations”: Fuller , at para. 19. [33] The appellant submits, and the respondent did not contest, that the same standard of review should apply to the review of a refusal to set aside an administrative dismissal under the Family Law Rules . I agree. DISCUSSION (1) The Fuller Principles Apply to Family Law Administrative Dismissals [34] I agree with the motion judge that the principles derived in the context of civil cases, such as Fuller , are appropriate to inform the approach to motions under r. 41(9) of the Family Law Rules . Although the motion judge went on to state that those principles must be considered in the context of the primary objective of the Family Law Rules , as described in rr. 2(2)-(4), I do not read the motion judge to have been suggesting that this justified a departure from the approach in Fuller . In any event, in my view, there is nothing inconsistent between the Fuller principles and the fulfillment of the primary objective of the Family Law Rules , dealing with cases justly . [35] Fuller holds, at para. 20, that on a motion to set aside an administrative dismissal, the court should consider the Reid factors: the length of the delay and whether there is an explanation for it, whether the failure to meet mandated time limits was due to inadvertence, whether the motion to set aside the dismissal order was brought promptly, and whether delay has prejudiced the responding party. [36] But Fuller makes it clear that these factors are not to be treated as a rigid set of hurdles the moving party must meet. Instead, an overall contextual approach is required that takes into account those factors and all of the relevant circumstances, including the conduct of both parties. The goal is to reach a just result, bearing in mind two underlying principles that can be in tension: (i) that actions should be decided on their merits, and (ii) that actions should be resolved in a timely and efficient manner to maintain public confidence in the administration of justice: Fuller , at paras. 21-25. [37] Fuller also explains that, in general, the court’s preference will be to decide matters on their merits. This preference will be “more pronounced” where delay results from an error of counsel, so as not to penalize a client for inadvertence of their lawyer. The rights of all parties must be considered, including whether the defendant has suffered non-compensable prejudice as a result of the delay, whether a fair trial is still possible, and whether the defendant placed justifiable reliance on the termination of the proceeding: Fuller , at paras. 25-28. [38] Giving effect to these principles is consistent with the primary objective of the Family Law Rules : that the court deal with cases justly. An administrative dismissal order is a result contemplated by the Family Law Rules and recognizes the policy that family law cases should be resolved in a timely and efficient manner to maintain public confidence in the administration of justice. But the Family Law Rules also empower a judge to make an order setting aside an administrative dismissal, recognizing the policy that cases should be decided on their merits. Whether the primary objective is better served in a particular case by setting aside the dismissal order and allowing the case to be determined on its merits, or by leaving the dismissal order in effect because procedural rules were violated, is appropriately guided by the Fuller principles, which address exactly that question — whether upholding or setting aside the dismissal is just in all of the circumstances. (2) The Motion Judge Erred in Applying the Fuller Principles [39] In my view, the motion judge’s approach involved three interrelated errors in principle. First, she failed to contextually evaluate the Reid factors as Fuller requires, essentially treating one as a rigid hurdle and giving no effect to two others. Second, she gave erroneous treatment to the factor of prejudice. Third, she failed to properly consider whether upholding the dismissal order constituted a just result in all of the circumstances, by misapplying the policy favouring timely resolution of family law proceedings and not properly considering the policy that favours proceedings being determined on their merits. (i) The Motion Judge Ignored Two Factors Rather than Treating the Factors Contextually [40] The motion judge was entitled to find that there was no adequate explanation for the lack of activity in moving the case forward after 2018. She was right to note that, prior to the administrative dismissal, answers to undertakings given at the appellant’s questioning were not provided, no response was made to the letter of respondent’s counsel seeking answers, and no motion was brought for production from the respondent as her lawyer had, in 2018, indicated. However, Fuller is clear that the factor of delay without an adequate explanation is not to be approached as a rigid obstacle the appellant must meet, but rather a factor, among others, to be considered contextually. [41] One of the important contextual factors is whether a dismissal was the result of inadvertence. Proper consideration of this factor may require separating the issue of overall delay from the precise reason a dismissal occurred. [42] The motion judge accepted the evidence of the appellant’s lawyer’s assistant that she had inadvertently neglected to diarize the October 2019 dismissal date, and that this explained why the appellant’s lawyer did not deal with the case as the dismissal date was approaching. The appellant points out, and the respondent does not dispute, that the appellant’s lawyer could have dealt with the matter and prevented the dismissal from occurring at any time before the dismissal deadline simply by taking the step of arranging a case conference or settlement conference for the first available date, as contemplated by r. 41(6)(e). Family law conferences are intended to significantly move cases forward and are an essential part of the family law procedural regime aimed at attaining a just result. At a conference, a judge may make orders about disclosure, expert evidence, and time-tabling, as well as direct the parties towards out-of-court settlement of some or all issues: Family Law Rules , r. 17(8). [43] In other words, although there was a litigation delay, the effect of it could have been avoided at any time up to October 2019, but was not, due to lawyer’s inadvertence. This was significant, for two related reasons. [44] First, both the existence of a procedural step that could get an action back on track and avoid dismissal resulting from delay, and the reason why it was not taken, are relevant to whether it is just in the circumstances to uphold a dismissal, especially where such a procedural step is a codified option under the Family Law Rules . In Fuller , the plaintiffs’ action was not expeditiously pursued. A status notice warning the plaintiffs of impending dismissal was sent by the court to the wrong address. The action was administratively dismissed. The motion judge refused to set aside the dismissal, remarking that the plaintiffs, even if they had received the status notice and arranged a status hearing, would not have been able to meet the test at the status hearing of showing that the action should not be dismissed. This court held that the motion judge had erred in failing to consider that, because of the non-receipt of the status notice, the plaintiffs had lost an opportunity to prevent the action from being dismissed. This loss of opportunity had to be considered in assessing whether it was just to set aside the dismissal order: Fuller , at paras. 33-36. [45] Second, the preference of the court for deciding matters on their merits, as opposed to terminating actions on procedural grounds, is “all the more pronounced” where an error of inadvertence of counsel is involved: Fuller , at paras. 26-27 and 32. [46] The motion judge did not consider either of these points. After accepting that lawyer’s inadvertence was the explanation for why no step was taken to deal with the approaching dismissal, she did not refer to the loss of the opportunity the appellant had to avoid dismissal and get the application back on track by requesting a case or settlement conference. Nor did she refer to the significance of the lawyer’s inadvertence having made the court’s preference for the determination of the matter on its merits “more pronounced”. Instead, she immediately returned to the factor of litigation delay, concluding the lawyer’s explanation for why no step was taken to deal with the approaching dismissal deadline did not explain the delay that had occurred in the litigation during the prior year. In effect, she ignored the significance of the fact that the deadline was missed due to lawyer inadvertence and treated the prior delay as the only relevant factor. [47] Similarly, on the factor of whether a motion was brought promptly to set aside the dismissal order, the motion judge noted that the respondent “fairly concedes that this factor has been met.” [4] But the motion judge did not further discuss what that signified or give it any weight. She did not consider this factor as one which bore on the justice of setting aside the dismissal order because, unlike the delay that preceded the dismissal, it was not behaviour which showed either inertia or a lack of interest in having the matter resolved on its merits. Nor did she consider its effect on the issue of prejudice, discussed below. (ii) The Motion Judge Erred in Her Analysis of Prejudice [48] The issue of prejudice to the respondent is an important one in deciding whether a dismissal order should be set aside or remain in place. It is “a key, if not the key consideration”: Chrisjohn v. Riley , 2015 ONCA 713, 391 D.L.R. (4th) 695, at para. 36 (emphasis in original). The court should consider whether there is prejudice to the defendant’s ability to defend — that is, whether a fair trial is still possible — because of events or steps that occurred following the dismissal or that would result from restoring the action. The court will also consider whether delay in moving to set aside the dismissal was so great that the principle of finality and the defendant’s reliance on the dismissal should prevail: Fuller , at paras. 37-45. [49] Here, there was no evidence of actual prejudice affecting fair trial rights. The respondent led no evidence of any witness or document that had become unavailable. The motion judge stated that there “is no indication that evidence has been lost by the passage of time”. [50] In a proper case, prejudice may be presumed, for example, because of the expiry of a limitation period or the death of a witness: Fuller , at para. 38. Neither circumstance was present here. The motion judge identified the only prejudice to be the passage of time. She appears to have considered this to support a presumption of prejudice because “it can be presumed that a witness’s recollections will be somewhat dimmed” by the passage of time, and because the existence of a family law case may mean that the parties are unable to move forward with their lives until it is completed. [51] In my view, the motion judge erred in both respects. While in certain circumstances, the passage of significant time could result in prejudice, the motion judge did not relate her finding about the effect of the passage of time on witnesses’ memories to the period of approximately four months between the dismissal order and the filing of the motion to set it aside. She did not explain how witnesses’ memories would diminish during that period. In other words, she did not explain how the respondent would be worse off, from the standpoint of witnesses’ ability to recall, than he was before the dismissal. Nor did she make any finding that fair trial rights were affected. Accordingly, this finding of prejudice is tainted by legal error and cannot stand. [52] The finding of prejudice due to the nature of family law proceedings is also tainted by error. The motion judge’s comment to the effect that in some cases, the mere existence of a family law proceeding prevents parties from moving forward with their lives could not be applied to this case without evidence that the respondent had been so affected. Although he gave evidence that the proceeding was stressful and he was relieved that it was over, he gave no evidence that he was unable to move on with his life if it continued. Indeed, during the litigation, his counsel had taken the position that his net worth, as disclosed on his Financial Statement, was so significant that he could afford any amount of support that would be ordered, and the only issue was entitlement. [53] Moreover, the motion judge noted that the factor that the motion be brought promptly was met. She made no finding that the respondent was entitled to rely on the security of the dismissal order under the principle of finality, by reason of the appellant’s delay in moving to set aside the dismissal. Accordingly, the “oppressive” nature of family law proceedings (to use the motion judge’s term) is not a prejudice caused by the dismissal and subsequent restoration of the proceeding. [54] Additionally, the motion judge stated that since no limitation period had expired, the appellant could, if she chose, start another proceeding. But she failed to address the significance of that: if a new proceeding could be brought, upholding the dismissal order would not remedy either fading memories or lack of closure for the parties, the impacts the motion judge referred to as arising from the passage of time. [55] As the court noted in Williams v. Williams , 2010 ONSC 2636, 82 R.F.L. (6th) 448, at para. 19, “there must be compelling reasons not to grant the order [setting aside the dismissal] if there is no prejudice to the defendant” (see also, MDM Plastics Limited v. Vincor International Inc. , 2015 ONCA 28, 124 O.R. (3d) 420, at para. 24). Here, there was no prejudice to the respondent. (iii) The Motion Judge Failed to Consider Whether Setting Aside the Dismissal Was Just in All the Circumstances [56] The motion judge referred to passages from Fuller , including the statement that “all of the circumstances of the case must be considered in order to arrive at a just result.” Although she expressed her conclusion including the term “the circumstances”, she did not appropriately consider the circumstances as noted above. Nor did she expressly advert, in reaching her conclusions, to the policy that actions should be decided on their merits: Fuller , at paras. 23-26. Instead, she stressed that the timelines in the Family Law Rules “are in place for a reason”, and that even though the only prejudice was the passage of time, the appellant’s delay could not be countenanced. [57] The motion judge was entitled to consider that the Family Law Rules are in place for a reason, and that there was unexplained delay. But she was also obligated to consider that the Family Law Rules contemplate the setting aside of dismissal orders where it is just to do so, and that the factors and policies implicated in such a decision go beyond these considerations. She failed, as described above, to take into account the appropriate factors contextually, and then failed to consider whether the preferred policy of allowing actions to be determined on their merits should in this particular case bow to considerations of timely administration of justice in accordance with the Family Law Rules . Furthermore, she did not explain how upholding the administrative dismissal given the ability to start a new proceeding was consistent with the goal of saving time and expense in accordance with the primary objective of the Family Law Rules : r. 2(3)(b). (iv) Re-Weighing [58] Due to these errors, it is necessary to re-weigh the factors and consider whether it is just to uphold the dismissal order. In my view, the just result is to set aside the dismissal order. [59] Although the litigation delay between late 2018 and the dismissal order was not adequately explained, the appellant had the opportunity to get the application back on track in a manner contemplated by the Family Law Rules , by arranging a case conference or settlement conference. She lost that opportunity due to her lawyer’s inadvertence. It would not be just to visit that loss of opportunity on her. She moved promptly enough to set aside the dismissal order that her right to proceed with her claim ought not, in the circumstances, yield to what under other circumstances might be the respondent’s right to rely on the finality of the dismissal. There is no prejudice to the respondent and no basis to conclude that his fair trial rights have been compromised. [5] Moving this proceeding to a family law conference is more consistent with both the goals of deciding the case on its merits and achieving a timely and efficient resolution than the alternative of upholding the dismissal and allowing the appellant to start a new proceeding. CONCLUSION [60] In her factum, the appellant undertakes that if her appeal is allowed, she “will immediately schedule the first available date for a Settlement Conference … and ask the Settlement Conference judge to schedule the case for trial as quickly as possible.” For the reasons above and in light of that undertaking, I would allow the appeal, set aside the order of the motion judge, and replace it with an order setting aside the dismissal order and directing that within 30 days of the release of these reasons, the appellant shall take the step set out in r. 41(6)(e). If she does not do so, her application shall be dismissed. [6] [61] In accordance with the agreement between the parties, I would award costs of this appeal to the appellant in the sum of $5,000, inclusive of disbursements and applicable taxes. In light of the disposition of the appeal, the motion judge’s costs order in favour of the respondent will also be varied, on consent, to provide that the respondent pay the appellant $2,500 in costs for the motion, all-inclusive. “B. Zarnett J.A.” “I agree. L.B. Roberts J.A.” Brown J.A. (dissenting): [62] I strongly disagree with the disposition of this appeal proposed by my colleagues. In my view, there is no basis to interfere with the motion judge’s dismissal of Ms. Mihoren’s motion to set aside the October 26, 2019 administrative dismissal order (the “Dismissal Order”) of her application for spousal support. [63] In R. v. G.F. , 2021 SCC 20, 71 C.R. (7th) 1, the majority of the Supreme Court recalled, for the benefit of intermediate appellate courts, the importance of a functional and contextual reading of a lower court’s reasons and directed appellate courts to resist the temptation to finely parse a judge’s reasons in search of error: at para. 69. In my respectful view, my colleagues have run afoul of that direction. [64] As my colleagues note, the motion judge’s order was discretionary and entitled to deference on appeal. My colleagues acknowledge that the motion judge accurately stated the applicable principles of law as set out in H.B. Fuller Company v. Rogers (Rogers Law Office) , 2015 ONCA 173, 386 D.L.R. (4th) 262, and Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (Ont. S.C.), rev’d on other grounds (2002), 48 C.P.C. (5th) 93 (Ont. Div. Ct.). Nevertheless, they justify interfering with her order on the basis that the motion judge erred in applying those principles and failed to give the same weight to certain considerations as my colleagues would. (1) The motion judge recognized and applied the overarching “big picture” principles [65] Two of the alleged errors in principle identified by my colleagues are that the motion judge failed to contextually evaluate the Reid factors and failed to properly consider whether upholding the Dismissal Order would constitute a just result in all the circumstances. Since both alleged errors concern the “big picture” framework within which the motion judge was required to perform her analysis, I will consider them together. [66] I see no such errors. [67] To my eye, my colleagues’ disagreement with the motion judge essentially stems from their different view of the significance of the litigation obligation the appellant failed to meet in this case, which resulted in the dismissal of her application. My colleagues open their reasons by stating: “The appellant missed a deadline, that her lawyer had neglected to diarize, by which certain steps had to be taken.” [68] With respect, much more was involved than missing a mere deadline “by which certain steps had to be taken.” On this point, I regard the motion judge’s reasons as more realistically assessing the significance of the appellant’s litigation failure. [69] The Family Law Rules, O. Reg. 114/99, take a more aggressive approach to “in and out of court” times for cases than do the somewhat somnambulant Rules of Civil Procedure under which an administrative dismissal of a civil action is not triggered until the fifth anniversary of its commencement: Rules of Civil Procedure , R.R.O. 1990, Reg. 194, r. 48.14(1). By contrast, r. 41(5) of the Family Law Rules directs the issuance of a notice of approaching dismissal if a family law case “has not been settled, withdrawn or scheduled or adjourned for trial before the 365th day after the date the case was started”. [70] The motion judge was alive to the policy of quicker “in and out of court” times chosen by the Family Law Rules . As she noted, at para. 17: Rule 41(5) and (6) [of the Family Law Rules ] puts an onus on family law litigants to move their cases forward in a timely manner. The expectation is that the case will be resolved or scheduled for trial within one year. If the litigants do not move their cases forward, and do not obtain a court order extending the timeline, the case will be administratively dismissed. [Emphasis added.] [71] The Family Law Rules’ aggressive “in and out of court” timeline policy informed the motion judge’s understanding of the context and the “justice of the case” in which to consider the appellant’s request to revive her dismissed application. As the motion judge stated, at para. 15: Family law cases are, by their very nature, time sensitive. They frequently involve children and issues respecting child support and residency. They often deal with families in crisis. Family law litigation is invasive and outstanding family law litigation is a heavy burden on the litigants, both financially and emotionally. I suspect that was the reason for the timelines set out in the Family Law Rules , O. Reg. 114/99. [72] In this case, the appellant failed to meet the Family Law Rules’ fundamental expectation about the amount of time a family law case may tarry in the court system. She did not meet the expectation established by r. 41(5) that a case must be settled or scheduled for trial within one year of its commencement. The appellant then used r. 41(6)’s mechanism to avoid the dismissal of her application by consenting to the December 6, 2018 order that granted her leave to extend the time for dismissal of her case to October 25, 2019 (the “Consent Extension Order”). Her consent to that order was tantamount to an undertaking to settle, withdraw or set down her application for trial by October 25, 2019. [73] The appellant did not fulfill her undertaking. Instead, the evidence showed that the appellant and her counsel essentially ignored the Consent Extension Order, without explanation. The administrative dismissal of her application followed. [74] In my view, the motion judge properly recognized that the appellant’s litigation failure was not missing a mere deadline “by which certain steps had to be taken.” Instead, the appellant failed to complete her application within the time stipulated by the Family Law Rules , as extended by her undertaking in the Consent Extension Order. [75] Accordingly, the motion judge did not fail to “contextually evaluate the Reid factors”. She did not lose sight of rendering “a just result in all of the circumstances”. The motion judge was alive to the “big picture” context in which to apply the analytical elements identified in Fuller and Reid to a family law proceeding that has been dismissed for delay. [76] My colleagues’ reasons essentially downplay the significance of the obligation that rr. 41(5) and (6) impose on family law litigants. “In and out of court” timelines, their reasons suggest, are quite secondary to deciding a case on the merits. In support, they point to comments that originated in this court’s decision in Hamilton (City) v. Svedas Koyanagi Architects Inc. , 2010 ONCA 887, 104 O.R. (3d) 689, where, at para. 20, this court quoted with approval the lower court’s comment that “[a] court’s bias is in favour of deciding matters on their merits rather than terminating rights on procedural grounds.” [77] Much water has flowed under the access-to-justice-bridge since 2010. Chronic delays and disproportionate legal costs are now seen as barriers to a just civil and family court system in Ontario. The decisions in Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87 and R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631 have forced Ontario courts to rethink their traditional laissez-faire attitude toward the time it takes to move cases from their start to a final disposition on the merits. [78] In Jordan , the Supreme Court decried the “culture of complacency towards delay” that had emerged in the criminal justice system: at para. 40. An equally virulent culture of complacency towards delay is deeply embedded in Ontario’s civil and family justice systems. The presumptive “in and out of court in one year” baseline for family law cases created by r. 41(5) of the Family Law Rules , coupled with the limited exceptions to that baseline enumerated in r. 41(6), represents an effort to root out that culture of complacency in the family law system. That presumptive one-year “in and out of court” timeline provides the overarching context in which any motion judge must consider an applicant’s request to revive an administratively dismissed family law proceeding and determine what order would be just in all the circumstances. [79] The motion judge’s reasons disclose that she identified and applied that overarching “big picture” context when considering the appellant’s motion to revive her dismissed application. The starting point of her analysis was faithful to the legislative scheme for family law proceedings. She did not make the errors in principle attributed to her by my colleagues. (2) The motion judge was entitled to emphasize the appellant’s unexplained delay [80] My colleagues contend that the motion judge failed to properly consider the appellant’s explanation for her failure to fulfill the Consent Extension Order. Instead, “[i]n effect, she ignored the significance of the fact that the deadline was missed due to lawyer inadvertence and treated the prior delay as the only relevant factor”: at para. 46. [81] While my colleagues focus their analysis on the consequences (if any) of the failure of the appellant’s lawyer to diarize the completion date set by the Consent Extension Order, the motion judge’s reasons disclose that she undertook a much broader review of the record. That broader review led her to conclude that the appellant had not provided an acceptable explanation for her delay. Specifically, the motion judge took into account that: i. The appellant failed to comply with her undertakings in anything resembling a timely manner. The appellant was provided with a list of her undertakings on November 2, 2018, yet “[s]he took no steps to comply with those undertakings until July or August of 2020.” The motion judge noted that the undertakings were straightforward and should have been answered relatively easily within 60 days of the completed examinations, but “[t]hey were not, and there is no explanation for the delay”; ii. The appellant never brought the motion for better income disclosure that her counsel advised the respondent in November 2018 they intended to bring; iii. After her counsel’s letter of November 2018, the appellant took “no steps” to advance the litigation “until after the administrative dismissal order dated October 26, 2019. The applicant had already been granted an extension, yet did nothing in the ten months following”; iv. The appellant’s evidence that she met with her counsel in February 2019 to discuss the case left the motion judge with more questions than answers as it did not explain why certain litigation tasks the appellant referred to were never completed; and v. Respondent’s counsel wrote to appellant’s counsel on July 6, 2019 repeating his request for answers to undertakings, but his letter was ignored by the appellant and her counsel. As the motion judge stated: “There is no explanation for the failure to respond to [respondent’s counsel’s] correspondence of July 6, 2019”. [82] Those numerous failures led the motion judge to conclude that the appellant “has not provided an adequate explanation of the litigation delay that led to the dismissal order.” [83] Only then did the motion judge assess the effect of the failure by the appellant’s lawyer’s assistant to diarize the ultimate dismissal date of October 25, 2019 set by the Consent Extension Order. While she accepted the assistant’s explanation of “inadvertence”, the motion judge quite properly pointed out that there was more to consider because “[t]he assistant does not provide an explanation as to why no real steps were taken in the almost 12 months prior to the dismissal date” (emphasis added). [84] Accordingly, the motion judge’s reasons disclose that the appellant’s failure involved more than a legal assistant neglecting to diarize one date, the conduct upon which my colleagues focus their attention. There was a much larger history of litigation delay by the appellant herself, as well as by her counsel and, most significantly, an absence of explanation from either for that larger delay. [85] That larger delay led the motion judge to make a telling finding of fact: “I conclude that the applicant simply did not move forward with her claim after the first order was made extending the timelines. She displayed … inertia, at best, or a complete lack of interest, at worst.” My colleagues do not take issue with that finding. Indeed, they cannot; it is firmly anchored in the evidence. This finding of fact played a large role in the motion judge’s overall analysis. The reason why it did can be found at para. 33 of her reasons: Under the Family Law Rules , once a case has already been extended by court order to a specific date, a new notice of approaching dismissal is not provided to the parties. In other words, they get one notice – the first time their case is on the brink of being dismissed. If an order is made extending the timelines, they do not get a second notice. The parties, or their counsel, are required to ensure that they deal with the case prior to its dismissal on the date set out in the order . [Emphasis added.] [86] By giving that finding of fact significant weight in her analysis, the motion judge did not fall into reversible error. On the contrary, she was entitled to place more weight on that finding because, in so doing, she advanced the policy goals of the Family Law Rules and their aggressive approach to the “in and out of court” times for family law cases. (3) The motion judge did not err in her treatment of prejudice [87] Finally, my colleagues conclude that the motion judge gave erroneous treatment to the factor of prejudice. [88] Although the motion judge acknowledged there was no indication that evidence had been lost during the period of the appellant’s unexplained delay, she did presume that the passage of time would “somewhat” dim the recollection of witnesses. That strikes me as a common-sense presumption. My colleagues think otherwise, in large part because they measure the relevant delay to be only four months: from the time of the Dismissal Order to the time the appellant filed her motion to set aside. With respect, I think the more appropriate calculation of delay is over two years – from the start of the application to the date the motion was filed. [89] As well, my colleagues do not think that the respondent’s evidence about the impact of the litigation on him, which was accepted by the motion judge, should play any role in the analysis because the respondent “gave no evidence that he was unable to move on with his life”: at para. 52. [90] I regard those differences between the motion judge and my colleagues as mere quibbles that do not rise to the level of reversible error. [91] From her reasons, it is apparent the motion judge thought that the appellant’s lengthy delay and display of “inertia, at best, or a complete lack of interest, at worst” outweighed other factors. It was open to the motion judge to weigh the factors in that way; it was her discretionary call to make. That my colleagues might have exercised their discretion to call a strike a ball is not a basis for appellate reversal. [92] As well, I take issue with my colleagues’ suggestion that usually the mere passage of time cannot constitute prejudice that weighs against reviving a dismissed proceeding. On the contrary, it can. Indeed, if we make any pretence to a family and civil court system that offers the Ontario public timely justice, it must. [93] The issue of whether the passage of time per se constitutes prejudice recently arose in the context of motions to strike out civil jury notices. As I observed in a Chambers decision in Louis v. Poitras , 2020 ONCA 815, 8 C.C.L.I. (6th) 163, at para. 33: Delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice. This should not be a surprising proposition. Part of the “service guarantee” to the public made in r. 1.04(1) is that courts will work to provide the “most expeditious … determination of every civil proceeding on its merits” (emphasis added). Delay in providing trial dates undermines that service guarantee. The late Willard Z. Estey, a former justice of the Supreme Court of Canada, captured the point well when he stated that “delay in the settlement or disposal of conflicting claims is … a primary enemy of justice and peace in the community”. [94] The recognition of delay per se as causing prejudice was accepted in the subsequent panel decision in Louis v. Poitras , 2021 ONCA 49, 456 D.L.R. (4th) 164, where Hourigan J.A. wrote, at para. 22: [T]he motion judge found that “the real and substantial prejudice arises simply by reason of delay”: at para. 46. I agree with the statement of Brown J.A. in his decision on the stay motion that this was a legally permissible finding and that “delay in obtaining a date for a civil jury trial can, by itself, constitute prejudice and justify striking out a jury notice.” As Brown J.A. notes, the whole raison d’être of the civil justice system, as captured in r. 1.04(1), is that courts will work to provide the “most expeditious…determination of every civil proceeding on its merits”: Louis v. Poitras , 2020 ONCA 815, at para. 33. [95] The prejudice caused by the mere passage of time is more pronounced where the issue arises in the context of a litigant’s failure to meet her Rules -imposed obligation to move her case “in and out of court” within a stipulated period of time. Under the Family Law Rules , “saving expense and time” is a component of the primary objective of dealing with a case justly: r. 2(3). The ability of the Rules -imposed “in and out of court” time obligations to promote that objective turns on the willingness of courts to enforce them. If courts do not treat the passage of time as a legitimate factor to take into account when deciding whether to revive an action dismissed for the failure to comply with “in and out of court” timelines, then one might as well tear up rr. 41(5) and (6). To remove the passage of time from the table of legitimate considerations would have the effect of eviscerating the Rules -imposed timeline obligations, feed the “culture of complacency towards delay” decried by Jordan , and reward negligent lawyers by freeing them from the risk of a claim on their professional liability insurance. [96] The motion judge’s consideration of the passage of time as prejudice was not a reversible error; it was a proper step in trying to defeat the culture of complacency towards delay in the family law system. CONCLUSION [97] The motion judge gave reasons that correctly identified the applicable principles of law and explained why she weighed the different factors in the way that she did. Her reasons disclose she never lost sight of the “big picture” principles that provide the necessary framework for her analysis. Removed as we are at Osgoode Hall from the reality of managing the volume of cases in the family law trenches, we might be tempted to weigh some factors differently. But that is not our job. The task of weighing factors falls to the motion judge. In this case, she performed that task well, within the governing legal framework. [98] Her decision merits the support of this court, not its reversal. [99] I would dismiss the appeal. Released: December 16, 2021 “D.B.” “David Brown J.A.” [1] Not Mr. Zalev or Ms. Warren. [2] Reid v. Dow Corning Corp. (2001) , 11 C.P.C. (5th) 80 (Ont. S.C.), rev’d on other grounds (2002), 48 C.P.C. (5th) 93 (Ont. Div. Ct.). [3] Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B, s. 16(1)(c): “There is no limitation period in respect of … a proceeding to obtain support under the Family Law Act or to enforce a provision for support or maintenance contained in a contract or agreement that could be filed under section 35 of that Act”. [4] The respondent argued in this court that he did not concede that the motion was prompt, just that in the circumstances, any delay in bringing it was not a consideration. In my view, that distinction is not significant. [5] The appellant argued that there would be prejudice to her if the dismissal order was upheld which the motion judge overlooked, because the motion judge assumed the appellant could start another proceeding. The appellant suggested that a new proceeding could be met with an argument that a change in circumstances was required, or that it was an abuse of process. The respondent eschewed any reliance on a change in circumstances requirement for a new proceeding. At the same time, he reserved the right to argue that a new proceeding would be an abuse of process. Here, however, the motion judge expressly premised her decision on the recognition that “without the passage of a limitation period, the [appellant], should she choose to, can issue a new claim.” This given, I have difficulty seeing how the respondent could take advantage of the dismissal order, but then proceed to argue that a new proceeding is barred by the dismissal. [6] In my view, were the application to be dismissed on this basis, a new proceeding seeking the same relief would properly be viewed as an abuse of process.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ribble, 2021 ONCA 897 DATE: 20211216 DOCKET: C67465 MacPherson, Coroza and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Joseph Ribble Appellant Joseph Ribble, acting in person Janani Shanmuganathan, appearing as duty counsel Erin Carley, for the respondent Heard: December 9, 2021 On appeal from the conviction entered on August 8, 2019, and the sentence imposed on September 9, 2019, with reasons at 2019 ONCJ 640, by Justice P.H. Marjoh Agro of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of various drug and firearm related offences. He was sentenced to a nine-year global sentence. [2] The only issue at trial was the appellant’s application contesting the validity of the search of his home under s. 8 of the Charter of Rights and Freedoms . The appellant challenged whether the Information to Obtain (ITO) provided the necessary reasonable and probable grounds to justify a search warrant for his residence. The trial judge found that the ITO, together with the record, justified the search warrant and dismissed the s. 8 Charter application: R v. Brennan & Ribble , (July 30, 2019), Hamilton, 18-3864 & 18-3871 (Ont. C.J.). Conviction Appeal [3] With respect to the conviction appeal, on behalf of the appellant, duty counsel argues that there were no reasonable and probable grounds to believe there would be relevant evidence at his residence when the warrant was granted. [4] The information sources relied on by the police in the ITO said that the appellant and his co-accused used his co-accused’s workplace, a salon, to traffic drugs. There was no specific information that the appellant used his own residence to traffic drugs. [5] There were prior charges against the appellant involving drugs and firearms found in the appellant’s car, his former residence and the salon, but these charges were dropped, stayed or resulted in acquittals. The charges which did result in convictions had no connection to the appellant’s residence. [6] The appellant argues that the ITO should not have included the underlying facts of the prior charges that were withdrawn, stayed or resulted in acquittals. In referring to his “criminal history,” the appellant submits that the trial judge failed to distinguish between charges on which the appellant was convicted and charges which were withdrawn, stayed or resulted in acquittals: see paras. 28, 58. [7] According to the appellant, this rendered the resulting search warrant invalid. [8] We do not agree. [9] The facts underlying charges which do not result in convictions, in some circumstances, may be validly considered as a basis for search warrants, though in other cases will be “irrelevant and improper”: R. v. Vivar , 2009 ONCA 433, at para. 1. In R. v. James , 2019 ONCA 288 , 373 C.C.C. (3d) 364, at para. 59, Nordheimer J.A., in dissenting reasons, held that it was not inappropriate to rely on facts underlying stayed charges to justify search warrants. Nordheimer J.A.’s dissent formed the basis of the Supreme Court of Canada’s decision allowing the appeal in that case: R. v. James , 2019 SCC 52, 383 C.C.C. (3d) 70. [10] In this case, unlike James , there was no attempt to conceal the fact that certain prior charges against the appellant had been withdrawn, stayed or resulted in acquittals. Further, the underlying facts of these charges, to the extent that it formed part of the ITO, were corroborative of other evidence arising from police operations and observations relied upon by the trial judge in reaching her finding: see e.g. paras. 74-80 of the trial judge’s reasons on the Charter ruling. [11] For example, in April 2018, a police operation observed a car being loaded with furniture and other items from the salon. The car was later seen at the appellant’s residence. [12] The trial judge also drew inferences from other evidence in the record. For example, with respect to the evidence of the co-accused’s eviction from the salon where drugs were known to be stored and sold, the trial judge inferred that a new location from which to store and sell drugs needed to be found. [13] The trial judge concluded that the warrant was justified based on the totality of the evidence. While it would have been preferable for the trial judge not to conflate prior charges against the appellant leading to convictions with those resulting in charges withdrawn, stayed or leading to acquittals in her reference to the appellant’s “criminal history” at para. 58, we see no error in the trial judge’s ultimate finding on the s. 8 Charter application. [14] In light of the conclusion above, we do not reach the s. 24(2) Charter issue. Sentencing [15] The appellant was sentenced to a nine-year global sentence. He was credited with 589 days for 393 days of pre-sentence custody. The trial judge also imposed ancillary orders for DNA, s. 109 for life and prohibiting contact with his girlfriend, the co-accused. [16] The appellant argues that the sentence was excessive. [17] The trial judge reviewed the aggravating and mitigating factors relevant to sentencing the appellant in some detail, in addition to the case law on sentencing in relation to similar offences. She concluded: [ 81 ] An appropriate sentence must reflect the circumstances of these offences and those of the offender, send a clear communication of denunciation and deterrence to Ribble and other like minded individuals, and protect society from drug dealers and their toxic wares. [ 82 ] Traffickers who combine that activity with firearms must especially get an unequivocal message of denunciation from the court. [ 83 ] The position taken by the defence for a six year sentence minimizes the serious nature of these charges and the aggravating circumstances, putting too much emphasis on the mitigating circumstances. [ 84 ] Reflecting on the purposes and principles of sentencing, and the presenting aggravating circumstances, the sentences sought by the [Public Prosecution Service of Canada] are not excessive that is: an aggregate of 7 to 8 years. Nor is the position taken by the provincial Crown for an aggregate sentence of 5 years with a 1 year consecutive sentence for the weapon prohibition breaches. [ 85 ] Imposed consecutively, the aggregate sentence would be 13 to 14 years. [ 86 ] Ribble has never served a penitentiary sentence nor has he ever before served a reformatory sentence. His adult sentences have been comprised of time served dispositions followed by brief custodial terms never exceeding 30 days. He has never been subject to a probation order. [ 87 ] As recognized by all three counsel, those sentences, imposed consecutively, may not appropriately reflect the principle of totality. Nor would it in my view reflect the mitigating circumstances that suggest that Ribble does have some prospect of rehabilitation. [ 88 ] Mindful of the aggravating and mitigating circumstances, the fact that Ribble has never served a lengthy term of imprisonment, and recognizing that these offences are linked for the purpose of the single endeavour of drug dealing, I prefer to apply the principle of proportionality to a concurrent sentence over the principle of totality for consecutive sentences. [ 89 ] In that way the deterrent and denunciatory effects of a fit sentence are not artificially diluted by the imposition of lower sentences on one or more counts in obeisance to the principle of totality. [ 90 ] I am of the view that a fit sentence would require 9 years imprisonment inclusive of a 1 year consecutive term for prohibition breaches. [Emphasis in original.] [18] The appellant argues that the fact that he is an addict should have been considered as more of a mitigating factor than it was. [19] We disagree that this is a basis to interfere with the trial judge’s sentencing discretion. In all the circumstances, we find that the sentence was reasonable. [20] Accordingly, the appeal is dismissed. “J.C. MacPherson J.A.” “S. Coroza J.A.” “Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Carignan, 2021 ONCA 899 DATE: 20211217 DOCKET: M52602 Doherty, Trotter and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Patrick Carignan Applicant Patrick Carignan, acting in person Philippe Cowle, for the respondent Heard: December 9, 2021 REASONS FOR DECISION [1] The appellant was convicted of second-degree murder in 2017 and sentenced to life imprisonment without parole eligibility for 16 years. After full argument by counsel, the appellant’s appeal to this court was dismissed on the merits in June 2021: R. v. Carignan , 2021 ONCA 496. The appellant’s sentence appeal had been abandoned by a solicitor’s Notice of Abandonment in 2020. [2] The appellant purported to file a new Notice of Appeal from conviction and sentence after his appeal had been dismissed by this court, but before the court’s reasons were released. We have treated this “Notice of Appeal” as a motion to re-open the conviction appeal and a motion to set aside the appellant’s abandonment of his appeal from sentence. [3] No order has been issued formally dismissing either the conviction or sentence appeal. This court has jurisdiction to permit an appellant to re-open an appeal on the merits. That power is however exercised sparingly. The moving party must demonstrate “a real concern” that a miscarriage of justice will occur unless the appeal is re-opened: R. v. Smithen-Davis , 2020 ONCA 759. [4] The appellant appeared on the motion to re-open his appeal in person. He made three main arguments: · the trial judge erred in finding that his statements were voluntary; · there were errors in this court’s reasons dismissing the appeal and this court had not taken the time needed to properly consider the appeal; · the appellant’s trial counsel and his appeal counsel provided ineffective assistance. [5] None of these arguments warrant an order allowing the appellant to re-open his conviction appeal. The voluntariness issue was fully argued and considered on the initial appeal: Carignan , at para. 23-32. Nothing said by the appellant in his submissions gives this court cause for concern about its analysis of the voluntariness issue. [6] With respect to the alleged errors in the reasons of this court and its alleged failure to take the time to properly address the appeal, those arguments should be addressed to the Supreme Court of Canada by way of an application for leave to appeal. A motion to re-open an appeal cannot be treated as a de facto second appeal from a decision of this court. [7] The allegations of ineffective assistance of counsel contained in the “Notice of Appeal” are unsupported by any affidavit or other material evidence. It is noteworthy that the appellant’s in-person Notice of Appeal filed in December 2017 made allegations of ineffective assistance of trial counsel. That ground of appeal was not pursued by counsel who argued the appeal before this court. Although the appellant has had four years to produce material relevant to that allegation, none has been produced. Nor is there any basis to support his assertion that he received ineffective assistance from his appeal counsel. This court cannot re-open an appeal based only on an appellant’s bald assertion that he received ineffective assistance. [8] There is no reason for this court to exercise its jurisdiction in favour of re-opening the conviction appeal. [9] Turning to the motion to set aside the abandonment of the sentence appeal, the appellant has basically argued the merits of the proposed sentence appeal. He spent little time on the preliminary question of whether he should be allowed to proceed with that appeal in the face of his earlier abandonment of the appeal. We are prepared to follow the approach taken by the appellant. [10] This court may set aside a notice of abandonment to avoid a potential miscarriage of justice. In deciding whether there is a risk of a miscarriage of justice it is appropriate to have regard to the potential merits of the sentence appeal. [11] The Crown has addressed those merits in its written argument. We agree with the Crown that a review of the facts of this case and a consideration of the sentences imposed in comparable cases leads to the conclusion that a period of parole ineligibility of 16 years is not unfit. The proposed sentence appeal has no prospect of success. The interests of justice do not warrant the setting aside of the appellant’s abandonment of his sentence appeal. [12] The motion to re-open the conviction appeal is dismissed. The motion to set aside the abandonment of the sentence appeal is dismissed. “Doherty J.A.” “Gary Trotter J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Froom v. LaFontaine, 2021 ONCA 917 DATE: 20211220 DOCKET: M52554 (C69446) van Rensburg and Roberts JJ.A. and Tzimas J. ( ad hoc ) BETWEEN Arthur Froom Applicant (Appellant/Responding Party) and Sonia LaFontaine Respondent (Respondent in appeal/Moving Party) H. Keith Juriansz, for the moving party Arthur Froom, acting in person Heard and released orally: November 22, 2021 REASONS FOR DECISION [1] This is a motion to quash an appeal on the basis that the order under appeal (the order of Shore J. dated March 24, 2021) is interlocutory, and therefore can only be appealed to the Divisional Court with leave pursuant to s. 19(1)(b) of the Courts of Justice Act . [2] The parties have been involved in litigation for many years, including the family law proceedings in which the subject order was made. The order under appeal arises out of a motion brought by Ms. LaFontaine, for an order that the net proceeds of sale of a disputed property be paid into court and for other relief. The appellant, Mr. Froom, sought an adjournment of the motion, asserting that he was having cataract surgery on April 1st and that until then he was legally blind and could not read or prepare for court attendances, and that he wanted to cross‑examine Ms. LaFontaine on her affidavit material and to introduce viva voce evidence at the motion. [3] The motion judge decided to adjourn Ms. LaFontaine’s motion, but not for the reasons offered by Mr. Froom. She adjourned the motion to the trial of the proceedings, and she imposed a number of terms. The terms included the requirement that the appellant deposit US$475,000 with the accountant of the Superior Court, in trust, pending the outcome of the trial or consent between the parties. The motion judge also vacated a motion by Mr. Froom that was scheduled for March 30th (to strike Ms. LaFontaine’s pleadings on account of her alleged breaches of court orders). She concluded that the case needed to proceed to trial, and that findings of credibility were going to be crucial to the outcome of any orders made by the court, which is best done at trial with viva voce evidence. She directed that, if Mr. Froom wanted to take the position at the commencement of the trial that Ms. LaFontaine should not have standing to proceed, then he should bring his motion at the commencement of trial before the trial judge. [4] We agree with Ms. LaFontaine that the order under appeal is interlocutory. It is a “temporary” order and it does not dispose of any substantive issues between the parties on a final basis or deprive Mr. Froom of any possible defence: see Mantella v. Mantella , 2009 CarswellOnt 1060, 2009 ONCA 194, at para. 21. [5] Mr. Froom makes a number of arguments about the merits of his appeal. Whether an order is final or interlocutory does not depend on the apparent strength of the appeal. As for Mr. Froom’s argument that the motion judge erred in concluding that there was a non-dissipation order in place, and that she made other errors of fact, whether or not that is the case, it is the order and not the reasons that determine whether an order is final or interlocutory: see Ashak v. Ontario (Director, Family Responsibility Office) , 2013 ONCA 375, at para. 13. [6] The motion judge’s order is an adjournment on terms. Invoking her authority under rule 1(7.1) and (7.2) of the Family Law Rules , she gave procedural directions with respect to the litigation, which were imposed as terms to the order adjourning Ms. LaFontaine’s motion. None of the procedural directions, including the requirement to pay money into court pending the outcome of trial or consent and the provision vacating Mr. Froom’s motion scheduled for March 30th, disposes of his substantive rights in the litigation on a final basis. They were adjourned to be determined by the trial judge. As such, the order is interlocutory and any appeal lies to the Divisional Court with leave. [7] Accordingly, the appeal is quashed. The court denies Mr. Froom’s request to transfer the appeal to the Divisional Court. Costs to Ms. LaFontaine fixed at $8,695.62, all inclusive. “K. van Rensburg J.A.” “L.B. Roberts J.A.” “E. Ria Tzimas, J. (ad hoc)”

COURT OF APPEAL FOR ONTARIO CITATION: Hemlow Estate v. Co-operators General Insurance Company, 2021 ONCA 908 DATE: 20211220 DOCKET: C69114 MacPherson, Simmons and Nordheimer JJ.A. BETWEEN The Estate of John Hemlow, Deceased Applicant (Respondent) and Co-operators General Insurance Company Respondent (Appellant) Robert Dowhan, for the appellant Curtis C. Zizzo and Branko J. Kurpis, for the respondent Heard: November 5, 2021 by video conference On appeal from the judgment of Justice James R. Turnbull of the Superior Court of Justice, dated January 29, 2021, with reasons reported at 2021 ONSC 664. MacPherson and Nordheimer JJ.A.: A. introduction [1] Sadly, John Hemlow, an independent mechanical contractor, was killed in a workplace accident that also caused extensive property damage at the location where he was working. The company that suffered the property damage commenced a lawsuit against Mr. Hemlow’s Estate and the company that retained him to do the work. [2] Mr. Hemlow had an insurance policy with Co-operators General Insurance Company (“Co-operators”) that excluded coverage for damage caused by “pollutants”. Co-operators took the position that this provision applied to the workplace accident and, accordingly, informed Mr. Hemlow’s Estate that it would not defend the claim on behalf of the Hemlow Estate. [3] The Hemlow Estate brought an application seeking a declaration that Co‑operators had a duty to defend the action against the Estate. The application judge granted the application. Co-operators appeals from that decision. B. facts (1) The parties and events [4] The late John Hemlow was a sole proprietor who carried on business as a mechanical contractor. When he took over his brother’s business in 2011, he applied for and received a Commercial General Liability (“CGL”) policy with Co‑operators. One of the exclusions in the policy was a Total Pollution Exclusion which reads, in part: This insurance does not apply to: 1) Pollution Liability a) “Bodily Injury” or “property damage” or “personal injury” arising out of the actual, alleged, potential or threatened spill discharge, emission, dispersal, seepage, leakage, migration, release or escape of “pollutants”. [5] In a different part of the policy – i.e., not connected to the Total Pollution Exclusion – the word “Pollutants” is defined: “Pollutants” means any solid, liquid, gaseous or thermal irritant or contaminant including smoke, odours, vapour, soot, fumes, acids, alkalis, chemicals and waste. [6] In 2015, Rich Products of Canada Limited retained Wear-Check, a company that specializes in equipment oil and filter analysis, to sample and analyze the mechanical and refrigeration systems at its processing facility. Wear-Check subcontracted with Mr. Hemlow to carry out the sampling and analysis work. [7] During the course of his work, Mr. Hemlow opened a valve to a pipe containing pressurized ammonia. The resulting ammonia exposure killed Mr. Hemlow and caused significant damage to the Rich Products property. [8] Rich Products brought an action in negligence, nuisance and breach of contract against Wear-Check and the Estate of John Hemlow. Co-operators advised the Estate that it would not defend the claim against the Estate. The Estate brought an application seeking a declaration that Co-operators has a duty to defend the action. (2) The application judge’s decision [9] The application judge granted the Estate’s application. He concluded: “I am satisfied that Co-operators must defend this action on the merits on behalf of its insured, the late John Hemlow.” [10] The application judge found that Co-operators was to defend the action because the word “Pollution” was ambiguous. He found that it was ambiguous because it was left undefined in the policy and could be interpreted as including only environmental pollution. [11] The core of the application judge’s reasons in support of this conclusion is found in these passages from his judgment, at paras. 62 and 65: In my view, the pollution exclusion clause is worded to protect the insurer from liability for environmental pollution and the improper disposal or contamination of hazardous waste. It would have taken very little for a clause to be added in the Total Pollution Exclusion document signed by Mr. Hemlow to state that the exclusion is not limited to environmental claims, but also includes all claims arising from any emission of any of the enumerated substances. The insurance industry has been gradually rewording these pollution clauses and exclusions over the years, as evidenced by the cases provided to this court. However, Co-operators has failed to make its intentions clear and easily understandable in this Policy. The definition used by Co-operators of “Total Pollution Exclusion” was misleading in that it not only included an exclusion of events which an average person would associate with pollution, but any accidental occurrence that caused any damage to the customer’s property and which did not lead to environmental pollution as commonly understood. C. issue [12] The appellant says that there is a single issue on this appeal, which it frames in its factum as: Did the Application Judge err in concluding that the Total Pollution Exclusion clause contained in the CGL Policy does not apply to exclude Co‑operators’ duty to defend the Estate in the Rich Products of Canada Limited Action? D. analysis (1) Standard of review [13] The law on the standard of review for contract interpretation is well-established. Questions of mixed fact and law are entitled to deference unless the trial judge made a palpable and overriding error. Extricable questions of law are subject to a correctness standard of review: Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, at para. 53. Sattva , at para. 54, specifies that courts should be cautious in identifying questions of law in disputes involving contractual interpretation. [14] For a particular category of contract – namely, standard form contracts – the standard of review is correctness: Ledcor Construction Ltd. v. Northbridge Indemnity Insurance Co. , 2016 SCC 37. This is because there is no meaningful factual matrix specific to the particular parties to assist in the interpretation process: see Ledcor , at para. 4. [15] In our view, the Total Pollution Exclusion is not a standard form contract. We say this for two reasons. [16] First, the appellant does not seriously contend that a correctness standard should apply based on Ledcor . Rather, the appellant’s position is that there are extricable questions of law that the application judge got wrong under the Sattva standard. [17] Second, the Total Pollution Exclusion cannot fairly be characterized as a standard form contract. Standard form contracts are typically standard printed forms that will often be offered on a “take it or leave it” basis; the potential insured person either agrees to take the terms as they are or declines to enter the transaction altogether: see Ledcor , at para. 25. [18] This description does not apply to the Total Pollution Exclusion signed by Mr. Hemlow. Initially, Mr. Hemlow and Co-operators were discussing a policy with a standard pollution exclusion. He was then asked to sign a separate Total Pollution Exclusion. Thus various options were in play; it was not a “take it or leave it” situation. Accordingly, the Sattva standard of review applies. Unless the appellant can identify an extricable question of law, the palpable and overriding error standard applies. (2) The merits [19] At the outset, it is important to remember that an insurer’s duty to defend arises from the claims as pleaded. McLachlin J. made this point in Nichols v. American Home Assurance Co. , [1990] 1 S.C.R. 801, where she said, at p. 810: However, general principles relating to the construction of insurance contracts support the conclusion that the duty to defend arises only where the pleadings raise claims which would be payable under the agreement to indemnify in the insurance contract. [20] The problem in this case is that the parties have fixed on their dispute over the interpretation of the pollution exception without giving proper consideration to the nature of the claims advanced against the Estate. Those claims are founded in negligence, nuisance, and breach of contract. There is nothing in the statement of claim that involves, or asserts, a claim arising out of “pollution” as that term is commonly understood. Rather, the claim advanced by Rich Products is a straightforward claim for damage to its property. [21] If the damages to the property of Rich Products had resulted from an explosion or a fire caused by Mr. Hemlow, there would be no debate over whether he would be entitled to coverage under his CGL policy with the appellant. He would be. That result does not change because the mechanism causing the damage happens to be a substance that can be labelled as a pollutant. [22] Mr. Hemlow sought coverage under his CGL policy in case he did something in the course of his work that gave rise to a claim against him. Put another way, Mr. Hemlow sought coverage from his insurer should he happen to be negligent in his work and a claim was brought against him. It is of importance to this issue to recognize that Mr. Hemlow was not engaged in work that generally involved risks from pollution. That is one factor that distinguishes this case from ING Insurance Co. of Canada v. Miracle , 2011 ONCA 321 (“ ING ”), which we will discuss in greater detail below. [23] In this case, it is alleged that Mr. Hemlow acted in a negligent manner when he opened a valve and allowed the ammonia to escape. His alleged negligence caused damage to the property of Rich Products. It is his alleged negligence that is at the core of the claim pleaded by Rich Products. A claim arising from negligence is precisely the type of claim for which parties obtain CGL policies. It is the type of risk that Mr. Hemlow sought coverage for. The fact that the damage causing substance was a pollutant does not change the nature of the claim. It also must not be allowed to distract from the proper interpretation of the CGL policy nor obscure or distort the conclusion as to whether a duty to defend arises. [24] We repeat what we said at the outset of our analysis. The existence of the duty to defend depends on the nature of the claim made: Prudential Life Insurance Co. v. Manitoba Public Insurance Corp. (1976), 67 D.L.R. (3d) 521 (Man. C.A.), at p. 524, cited with approval in Nichols . Here the claim made falls within the terms of the CGL policy because it is a claim for breach of contract and negligence. The duty to defend therefore arises. [25] Given that conclusion, it is unnecessary to delve deeply into the debate over the application of the two leading cases dealing with pollution exclusion clauses for CGL policies, upon which counsel expended most of their efforts. Nevertheless, we will touch on them briefly because the results of these two cases tend to prove the point that we have just made. [26] The first is Zurich Insurance Co. v. 686234 Ontario Ltd. (2002), 62 O.R. (3d) 447 (C.A.) (“Z urich ”). In our view, that case is similar to the case here, both on its facts and on the particular provisions in the insurance policy. In that case, the numbered company insured (“686”) was the owner of an apartment building. 686 was the defendant in two proposed class actions in which it was alleged that the plaintiffs suffered injuries from carbon monoxide that leaked from the building’s furnace. The plaintiffs pleaded that 686 had been negligent in maintaining, repairing and keeping the furnace in good condition. [27] Zurich is substantially similar to this case on its facts. In Zurich , a faulty furnace resulted in a leak of carbon monoxide. In this case, there was an accidental leak of ammonia from a refrigerator. While both of those substances would be considered pollutants, in neither case was the thrust of the allegedly negligent conduct the handling, or potential discharge, of a pollutant. [28] Second, the definition, coverage and exclusion clauses in the insurance policies in the two cases are very similar in their scope. The only significant difference appears to be that in the Co-operators policy the word “odours” has been added to the list of Pollutants. This does not affect the analysis. [29] In fairness, the appellant does not deny or attempt to qualify the close factual and legal identity between Zurich and this case. Instead, the appellant contends that two subsequent decisions by this court narrow the reasoning and potential application of Zurich and lead to a different result in this case. [30] We have already mentioned one of those cases, namely, ING . T he issue in that case was, as in this appeal, an Exclusion under a CGL policy. The application judge dismissed ING’s application for a declaration that it had no duty to defend or indemnify Miracle. Relying on Zurich , the application judge found that there was nothing in Miracle’s regular business activity, which was operating a gas station, that placed it in the category of an active industrial polluter of the natural environment. The application judge concluded that since a reasonable insured would expect the exclusion to apply to industrial pollution and not to a gas leak, the plaintiff’s claim did not come within the pollution exclusion. [31] The distinction between ING and this case, however, arises from the nature of the claim advanced. Indeed, the decision in ING reinforces the point we made at the outset about the importance of the claim as pleaded. In rejecting the application judge’s reasoning and conclusion, Sharpe J.A. said, at para. 22: Unlike Zurich , in this case, the insured was engaged in an activity that carries an obvious and well-known risk of pollution and environmental damage: running a gas station. Indeed, the statement of claim is framed as a claim for damage to the natural environment caused by a form of pollution Such a claim fits entirely within the historical purpose of the pollution exclusion, which was “to preclude coverage for the cost of government-mandated environmental cleanup under existing and emerging legislation making polluters responsible for damage to the natural environment”: See Zurich , at para. 13. [Emphasis added.] [32] As will be apparent, the facts in the present case are very different from those in ING and thus properly lead to a different result. [33] The damages sought in the Statement of Claim in ING were to cover the loss in value of the plaintiff’s adjacent property, the costs of conducting an environmental assessment, and the costs of remediating the property – all because of the gas that leaked onto the plaintiff’s property. Accordingly, the claims fit comfortably within the historical purpose of the pollution exclusion. [34] The situation is very different in this appeal. In this case, what is sought by Rich Products is damages for “out of pocket expenses, business losses and property damage” (reasons at para. 21). In other words, the facts in this case, unlike ING , do not fit within the historical purpose of the pollution exclusion, which is to mitigate coverage for the cost of government-mandated environmental cleanup: see Zurich , at para. 13 and ING , at para. 22. In this case, there is no suggestion that any government-mandated cleanup is in play. [35] The second case the appellant relies on to suggest that Zurich should not govern this appeal is O’Byrne v. Farmers’ Mutual Insurance Company (Lindsay) , 2014 ONCA 543. We can deal with this case briefly. In that case, in an obiter statement in the penultimate paragraph of her judgment, van Rensburg J.A. said, at para. 53: I do not necessarily agree with some of the trial judge’s other conclusions regarding the policy that are premised on the Zurich case. For example, he found that the pollution exclusion should be read as applying only to “traditional environmental contamination” and that the exclusion would not operate because the oil spill was contained within the building and had not spread to the natural environment outside the building. [36] The appellant latches onto this passage to suggest that the language of Zurich is too broad and needs to be narrowed to provide coverage to insureds only if their conduct led to direct damage to the environment. [37] We do not accept this submission. The policy in O’Byrne was an “all risks” property insurance policy. The present appeal involves the interpretation of an exclusion clause in a CGL policy. This difference is “material”: see O’Byrne , at para. 52. [38] In the end, it is important to recognize, as the application judge did at para. 50, that on a motion to determine if the insurer has a duty to defend the applicant will succeed if there is a “mere possibility” that a claim falls within the coverage under the policy: see Progressive Homes Ltd. v. Lombard General Insurance Co. of Canada , 2010 SCC 33, at para. 19. [39] Recalling that Sattva cautions against too quickly or easily identifying questions of law in disputes involving contractual interpretation, we conclude that there is no palpable and overriding error in the application judge’s conclusion relating to the coverage and exclusion issue in this case. E. Disposition [40] We would dismiss the appeal. We would award the respondent its costs of the appeal fixed at $15,000 inclusive of disbursements and HST. Released: December 20, 2021 “J.C.M.” “J.C. MacPherson J.A.” “I.V.B. Nordheimer J.A.” “I agree. Janet Simmons J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Letlow, 2021 ONCA 915 DATE: 20211220 DOCKET: C67012 Gillese, Brown and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Trevor Letlow Appellant Jessica Zita and Gina Igbokwe, for the appellant Rebecca Schwartz, for the respondent Heard: December 13, 2021 On appeal from the conviction entered on October 7, 2016, and the sentence imposed on April 4, 2018, by Justice Bonnie L. Croll of the Superior Court of Justice, with reasons for sentence at 2018 ONSC 1522. REASONS FOR DECISION Overview [1] The appellant was found guilty of aggravated sexual assault, assault with a weapon, assault causing bodily harm, sexual assault with a weapon, and unlawful confinement on October 7, 2016. He was designated a dangerous offender and sentenced to concurrent indeterminate terms on each offence on April 4, 2018. The appellant appeals against his sexual assault-related convictions and the trial judge’s decision to impose an indeterminate sentence. [2] At the conclusion of the appellant’s submissions, we advised that it was not necessary to hear from the respondent and dismissed the appeals with reasons to follow. We now provide our reasons. Facts [3] The complainant testified that, on January 30, 2015, she and the appellant were smoking crack cocaine in the appellant’s apartment in Toronto. The appellant offered the complainant crack cocaine in exchange for oral sex, to which she agreed. However, the complainant testified that the appellant, after taking more drugs, began to assault her. [4] The appellant hit the complainant’s ankles with an aluminum bar. He also cut the outside top of her left leg with a cooking knife. When she tried to run out of the door, the appellant grabbed her and pulled her back. [5] The complainant testified that during the beating, the appellant cut her back, and later, the inside of her feet, shoulders, and arms. The appellant hit her on the head with a clothing iron. During the assault, the complainant continued to perform oral sex in an attempt to get the appellant to stop attacking her. The appellant also attempted to penetrate the complainant’s vagina with his penis, but was unable. The appellant tried to cut her vagina, but he instead cut her buttock. [6] At one point, a visitor arrived – someone known to the complainant – and suggested that the appellant allow the complainant to go collect her ODSP cheque. [7] In line at the office, the appellant and another woman argued. The appellant was then told to leave the building by a police officer. The complainant stayed in line. Once she was alone in the private ODSP office, the complainant told the person there that she had been stabbed, and then fainted. She was taken to the hospital by ambulance. The police officer who was on scene observed that the complainant had multiple stab and slash wounds from her feet to just below her neck. Discussion A. Conviction Appeal [8] The appellant argues that there was a lack of corroborating evidence supporting the sexual assault conviction and that the trial judge failed to recognize the weaknesses with respect to this allegation. According to the appellant, the trial judge was required to address each offence individually to assess whether the elements of the offence had been proven. [9] We do not accept this submission. [10] In her reasons for convicting the appellant, the trial judge recognized that the complainant’s evidence must be approached with caution because of the complainant’s lengthy criminal record and significant drug use. However, the trial judge placed significant weight on corroborating evidence such as the complainant’s visible injuries, as well as the blood and knives found in the appellant’s apartment, when she assessed her evidence.  In the end, the trial judge concluded that the complainant’s account of what occurred in the apartment was credible and reliable. [11] The fact that each allegation of sexual assault made was not confirmed or corroborated by independent evidence was not an error. A trial judge is entitled to accept a complainant’s evidence whether it is independently confirmed or not. The sexual assault was intertwined with the other assaults. The complainant testified that during the beating and attacks with the knife, the appellant did not ejaculate during oral sex and attempted to penetrate her with his penis but was unsuccessful. Therefore, the absence of independent physical evidence of a sexual assault is hardly surprising. Indeed, in her reasons for judgment, the trial judge referred to the evidence of the Centre of Forensic Sciences witness who testified that if there was no ejaculation, there was a limited availability to develop a DNA sample for comparison. [12] The trial judge could accept all, some, or none of the complainant’s evidence. The complainant testified that she was sexually assaulted during the incident and the trial judge accepted her testimony as credible and reliable. The trial judge’s reasons do not reflect any reversible error, and we see no merit in this ground of appeal. B. Sentence Appeal [13] The appellant argues that the trial judge committed an error in imposing an indeterminate sentence because there was evidence before her that the appellant’s behaviour could be adequately managed outside of an indeterminate sentence. The appellant relies on the evidence of Dr. Klassen, who testified at the dangerous offender proceeding that the appellant’s risk would eventually be manageable because he would expect that the appellant’s risk for serious violence would be attenuated with age. The appellant submits that the trial judge erred by rejecting that opinion. [14] In our view, there is no basis to interfere with the sentence imposed by the trial judge. [15] The trial judge, in very careful and thorough reasons, tracked the language of s. 753(4) of the Criminal Code , R.S.C., 1985, c. C-46 and the Supreme Court of Canada decision in R. v. Boutilier , 2017 SCC 64, [2017] 2 S.C.R. 936, at para. 60. [16] The trial judge grappled with Dr. Klassen’s evidence about age attenuation. However, the trial judge conducted a thorough inquiry as to whether the appellant could be controlled in the community, by considering all the evidence. We adopt the following conclusion, provided by the trial judge, which was firmly rooted in the evidence: [89] … As discussed, Mr. Letlow’s crimes of violence have become more serious over time. He has had extensive treatment while in custody and has proven incapable of implementing that treatment. He has consistently failed to comply with orders of supervision, and then attempts to minimize his non-compliance and his criminal conduct overall. It would be speculative and unduly hopeful to conclude that Mr. Letlow will meaningfully engage in the anti-relapse element of treatment, or submit to supervision, given his lengthy and consistent pattern of failing to implement his treatment and breaching supervisory conditions. [17] The trial judge was not required to accept Dr. Klassen’s evidence and, in our view, provided cogent reasons for placing limited weight on the evidence. Accordingly, we see no basis to interfere with trial judge’s conclusion that there was no reasonable expectation that a lesser measure than an indeterminate sentence could adequately protect the public. This ground of appeal fails. Disposition [18] For these reasons, the appeals are dismissed. “E.E. Gillese J.A.” “David Brown 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 complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Sanclemente, 2021 ONCA 906 DATE: 20211220 DOCKET: C66228 Watt, Roberts and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Juan Solorzano Sanclemente Appellant Zaire Puil , for the appellant Lisa Fineberg , for the respondent Heard: April 22, 2021 by video conference On appeal from the conviction entered on June 1, 2018 and the sentence imposed on January 28, 2019 by Justice Mario D. Faieta of the Superior Court of Justice, sitting with a jury. Watt J.A.: [1] A plan and its execution do not always align. Even simple plans, uncomplicated in their execution. Like drug deals. A buyer with money. A seller with drugs. Cash for cocaine. Cocaine for cash. [2] Sometimes, the problem is the buyer. A rip-off. Drugs for free. Other times, the snag is the seller. Take the money and run. [3] M.C. wanted to buy some cocaine. Enough for an evening’s use at an event she planned to attend. The appellant had cocaine to sell, at his place. M.C. agreed to meet him there to conclude their deal. [4] In the end, the drug transaction was completed. M.C., the buyer, got her cocaine. And the appellant, the seller, got his money. But before the deal was done, something happened. Something that M.C. and the appellant did not agree on. Sexual activity. [5] The appellant was charged with sexual assault as a result of M.C.’s claim that she did not consent to the sexual activity that admittedly took place. The jury at the appellant’s trial agreed with M.C.’s characterization of what occurred. The jury rejected the appellant’s assertion that the activity was consensual, M.C. an enthusiastic participant. [6] The appellant appeals his conviction and the blended sentence of a term of imprisonment followed by a period of probationary supervision imposed upon him. These reasons explain why I have concluded that, like the defence he advanced at trial, this appeal fails and should be dismissed. The Background Facts [7] The events upon which the prosecution was grounded took place over a few hours of the same day, in the same place, and involved the same people, M.C. and the appellant. Both testified at trial. No one else did. [8] The narratives provided by M.C. and the appellant had much in common about what occurred in the appellant’s apartment on that day. However, their recollections differed about how some of the events unfolded, about who said what to whom, and their respective states of mind at different times. [9] An overview of the relevant events will suffice to furnish the background necessary for an evaluation of the merits of the claims of error advanced. Where necessary, further detail will be added to assay the merits of individual grounds. The Principals and Their Relationship [10] M.C. was a university student. The appellant was a club promoter and drug dealer who lived with his girlfriend. M.C. was introduced to the appellant the previous summer by a friend. The introduction was at a dance club where the appellant worked. The appellant and M.C. met briefly on two other occasions. The Text Message [11] At about 4:00 p.m. on February 27, 2016, M.C. sent the appellant a text. She referred to him as “Papi” and herself by a diminutive of her name. She mentioned her relationship with her friend who had previously bought cocaine from him. M.C. denied that she considered “Papi” a term of endearment. [12] In guarded language, M.C. told the appellant that she wanted to buy some cocaine. She offered to meet the appellant to complete the purchase. The appellant suggested that M.C. come to his apartment and provided his address. About two hours later, M.C. arrived at the appellant’s apartment building. The appellant opened the front door remotely from his unit and told her his apartment number. The Entry [13] When M.C. arrived at the door to the appellant’s apartment, he greeted her with a hug and invited her into his apartment. The appellant told M.C. to take off her shoes. The appellant took M.C.’s coat and hung it up in a closet. He offered to make some tea. M.C. declined, but the appellant said he would make some anyway. [14] As the tea was brewing, M.C. told the appellant about her plans for the evening. She planned to attend a fetish event that evening – Subspace – where people dress up in bondage and latex then go out to drink and dance. She denied inviting the appellant to join her at Subspace. The Balcony [15] The appellant invited M.C. onto the balcony of his apartment to admire the view of the city from there. There, they talked. The appellant claimed, but M.C. denied, that they shared a kiss on the balcony. The Return to the Apartment [16] M.C. and the appellant returned to the apartment. They sat on the living room couch. The appellant asked for a backrub. M.C. said no. She explained that a backrub would feel as if she were stabbing him. The appellant repeated his request several times. M.C. eventually agreed and gave the appellant the massage he had repeatedly requested. She went along with it because she didn’t know what would happen if she continued to refuse. The Activities on the Couch [17] As M.C. and the appellant continued to sit on the couch, they smoked a marijuana joint and talked about Subspace. M.C. recalled that the appellant draped his arm around her neck and blew smoke in her face. She tried to pull away, then giggled, protested and said “no”. She tried to tell the appellant that she didn’t want his arm around her and that she had some place else to be. The smoke in her face bothered her. The appellant then leaned in and kissed her. She kissed him back. The initial kiss was gentle, but then the appellant’s kissing became more aggressive. Although she was not assertive in her reactions and comments, M.C. meant “no”. [18] The appellant could not recall exactly what was said prior to the kissing although they continued talking about Subspace. There was no verbal communication from the moment they began “making out” until the sexual activity ended. The Touching [19] M.C. testified that the appellant had an erection. In a “sexual and breathy” tone of voice, he asked her to squeeze his genitals. She said “no”, not forcefully or in a serious tone, but she meant what she said. She tried to sound convincing about having some place else to go. But she realized that it may not have come out in precisely that way. [20] M.C. recalled that the appellant then took her hand from outside his sweatpants and put it on his bare, erect penis under his pants. He repeatedly told her to squeeze it. She said “no” in the same tone of voice in which she had said the same thing to no avail previously. She did not pull her hand out of the appellant’s sweatpants or stand up. [21] M.C. squeezed the appellant’s penis as he repeatedly told her to do. She was afraid to do otherwise. She was alone in his apartment, a place to which she had never previously been. He was a drug dealer. She did not know whether he may have had weapons around for his protection in his drug dealing business. The appellant did not appear to be catching on to her discomfort and paying any attention to “no”. She continued to laugh and giggle. The Next Phase of Sexual Activity [22] The parties differed about the circumstances in which fellatio occurred, but not that it did take place. [23] M.C. gave evidence that the appellant stood up, exposed himself, and repeatedly told her to perform fellatio on him. She said “no”, giggled and moved away. He repeated his request in a harsher tone of voice, “barking” at her aggressively. Initially M.C. said that the appellant grabbed her head and forced his penis into her mouth for about 60 or 90 seconds. Later, she acknowledged that she leaned in and opened her mouth to perform fellatio without the appellant touching her head for the first 30 seconds of their 90 second encounter. [24] The appellant testified that when he stood up, M.C. pulled his pants down, got on her knees, and began performing fellatio on him. He moaned. M.C. denied that she edged forward and got on her knees because she was actively engaged in performing fellatio on the appellant. Neither M.C. nor the appellant said anything. The Sexual Activity Continues [25] When M.C. stopped performing fellatio , she stood up and, along with the appellant, moved to the side of the couch. The appellant removed M.C.’s pants, then began to penetrate her digitally. She arched her back to facilitate the penetration. She moaned and made sexual sounds in an attempt to bring the appellant to climax and end the activity. She did not ask the appellant to stop or physically resist. She communicated as if she wanted to participate. She was trying to make noise and make the appellant ejaculate. She acted in this way because the appellant had not listened to any of her prior protests. The Concluding Sexual Activity [26] About a minute or so later, the appellant brought M.C. to the arm of the couch. She did not resist. She said nothing. The appellant bent M.C. over the arm of the couch and pulled her underwear down. The appellant penetrated her vaginally from behind. She said nothing. Each of them moaned. Sexual intercourse ended when the appellant said that he was ready to climax. M.C. got down on her knees and, once again, began to perform fellatio . She swallowed the ejaculate. M.C. acknowledged that the appellant did not ask her to perform this act of fellatio . She assumed that this was what he wanted to do so she complied. The Drug Transaction [27] After the sexual activity ceased, M.C. and the appellant completed their drug transaction. They then watched a short video and sampled the cocaine. The appellant said that they didn’t talk much, but both were smiling. There was little subsequent contact. Three days later, M.C. went to the police and complained that she had been sexually assaulted. The Grounds of Appeal [28] The appellant challenges not only his conviction, but also the sentence imposed upon him. [29] On the appeal from conviction, the appellant says that the trial judge erred in: i. dismissing his application to introduce evidence of extrinsic and contemporaneous sexual activity of the complainant under s. 276 of the Criminal Code , R.S.C., 1985, c. C-46 ; ii. failing to instruct the jury on the defence of mistaken belief in communicated consent; iii. failing to exclude the video recorded interview of the appellant for a breach of s. 10(b) of the Charter ; and iv. delivering a charge to the jury that was unbalanced. [30] The appellant also contends that the trial judge erred in imposing a sentence that offended the principle of parity expressed in s. 718.2(b) of the Criminal Code . The Appeal from Conviction Ground #1: The Section 276 Application [31] This ground of appeal alleges that the trial judge wrongly excluded evidence the appellant sought to adduce about M.C.’s sexual activity with him other than the sexual activity that formed the subject matter of the charge. The application, which was argued prior to jury selection, was governed by the statutory scheme then in force, not the current provisions in ss. 278.93 and 278.94. [32] The application was based on the affidavit and testimony of the appellant who gave evidence as the only witness on the application. [33] A brief reference to the evidence tendered for reception and the trial judge’s reasons for dismissing the application will provide the background necessary to evaluate the allegation of error. The Application at Trial [34] The circumstances alleged to constitute sexual assault took place at the appellant’s apartment on February 27, 2016. The appellant denied liability on the basis that sexual activity was consensual or that he honestly believed that the complainant, by her words and actions, had consented to what took place. [35] The evidence of the complainant’s extrinsic sexual activity the appellant sought to elicit occurred at two different times, in two different places, and in dissimilar circumstances. [36] The first incident occurred at a nightclub about six months before the offence alleged. The appellant was a promoter at the club. He could facilitate the entry of the patrons by by-passing the lineup and provide them with free bottle service at one of his booths. M.C. and one of her friends gained entry to the club in this way. M.C. was very flirtatious with the appellant. She complimented his clothing, danced with him in a sexually provocative way, and engaged in a brief “make out” session of kissing with him that lasted less than a minute. [37] The second incident occurred at the appellant’s apartment on the day of the alleged offence. The subject-matter of the proposed evidence was a conversation the appellant had with M.C. about their individual sexual experiences, including a threesome, and their preferences. [38] The appellant contended that the proposed evidence had significant probative value on several controverted issues at trial. Whether M.C. consented or the appellant honestly believed that M.C. consented to the sexual activity that occurred. The appellant’s subjective belief and state of mind at the relevant time. The credibility of M.C. And the narrative of relevant events. The Ruling of the Trial Judge [39] The trial judge dismissed the application at the conclusion of argument. [40] In his written reasons released within days of the argument on the application, the trial judge found that the evidence about M.C.’s conduct with the appellant at the nightclub was evidence of prior sexual activity, its admissibility governed by s. 276 of the Criminal Code . However, the evidence had no probative value on the issue of consent and little or no probative value on the issue of honest but mistaken belief in communicated consent. Thus, the evidence lacked the “significant probative value” required to justify admission when balanced against the danger of prejudice to the proper administration of justice. Further, when considered on the issue of consent, the proposed evidence invoked the twin myth reasoning prohibited by s. 276(1)(a) of the Criminal Code . [41] The evidence of the contemporaneous discussion of sexual preferences and prior sexual experiences was not evidence of specific instances of sexual activity of M.C. as required by s. 276(2)(c). Rather, it related to M.C.’s general sexual behaviour. Thus, it could not be admitted under the inclusionary exception to the exclusionary rule. Like the nightclub evidence, this evidence lacked significant probative value on whether the appellant honestly but mistakenly believed the complainant communicated her consent to the sexual activity with which the appellant was charged. And finally, there was no basis upon which to cross‑examine M.C. on her sexual preferences or prior sexual activities to attack her credibility. The Arguments on Appeal [42] The appellant says that, among the considerations of which a trial judge is to take account when evidence is tendered for admission under s. 276(2), are the right of the accused to make full answer and defence and whether there is a reasonable prospect the proposed evidence will assist in reaching a just determination of the case. The evidence must relate to a specific instance of sexual activity and be relevant to an issue at trial. When these requirements have been met, it is for the trial judge to say whether the proposed evidence not only has significant probative value, but also that its probative value is not substantially outweighed by its prejudicial effect on the proper administration of justice. [43] In this case, the appellant continues, exclusion of this evidence of extrinsic sexual activity of M.C. deprived him of the opportunity to cross-examine M.C. on the specific issue of credibility in relation to her statement about the extent of her relationship with the appellant. [44] The contemporaneous discussion about sexual experience, practices, and preferences was admissible on several discrete, but related bases. To provide context for the allegations. It was relevant to M.C.’s credibility because she had denied any prior sexual activity with the appellant. The proposed evidence showed her willingness to lie about the nature of their relationship. Further, the proposed evidence was also an essential part of the narrative and provided context for an evaluation of the appellant’s claim that he honestly believed that M.C. consented to the sexual activity that occurred. [45] The respondent asserts the contrary. No error has been established. All that occurred was that the trial judge reasonably exercised his discretion to exclude evidence that fell short of what s. 276(2) requires to permit reception. This is essentially a relitigation of the findings of fact the trial judge made at first instance with no basis to do so. [46] Section 276, the respondent submits, enacts a rule of presumptive inadmissibility for evidence of a complainant’s sexual activity extrinsic to that which is the subject-matter of the offence charged. The requirements for exceptional admission include that the proposed evidence be of specific instances of sexual activity that is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. The use an applicant proposes to make of the proffered evidence must not invoke twin myth reasoning. Nor are claims that the evidence will provide context, assist in the completion of narrative, or help the trier of fact determine credibility sufficient to overcome the presumptive inadmissibility of this evidence. [47] The respondent says that the trial judge was right to conclude that the proposed evidence about the interaction of the appellant and M.C. at the nightclub was inadmissible. Evidence of kissing and sexually provocative dancing six months earlier had no probative value on either defence advanced at trial – consent or honest but mistaken belief in communicated consent. And, as the authorities makes clear, unparticularized assertions that the evidence is relevant to complete the narrative, provide context or assist in determining M.C.’s credibility are inadequate to reverse the rule of presumptive inadmissibility. Further, there is no defence of implied or broad advance consent, only activity-specific contemporaneous consent to which the proposed evidence is not relevant. [48] As for the evidence about contemporaneous discussions of sexual preferences and prior experiences, the respondent continues, this is not evidence of “specific instances of sexual activity” as s. 276 requires. In addition, the proposed evidence impermissibly tread on M.C.’s general sexual behaviour and engaged a prohibited chain of reasoning from prior conduct to the likelihood of consent. It provided no evidentiary support for a defence of honest but mistaken belief in communicated consent because it relied on the same prohibited chain of reasoning. The trial judge was right to exclude this evidence although, as the respondent points out, some of it trickled in during the appellant’s cross-examination. The Governing Principles [49] The application of s. 276 of the Criminal Code is governed by recent and well-settled precedent. An exegesis is not required. A brief discussion will suffice. [50] First, s. 276 enacts a regime governing the reception of evidence of extrinsic sexual activity by the complainant in proceedings in respect of listed offences. The regime has two components. Rules of admissibility. And procedural requirements to be met when evidence of the complainant’s extrinsic sexual activity is offered for admission: R. v. Barton , 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 64; R. v. R.V. , 2019 SCC 41, 378 C.C.C. (3d) 193, at paras. 2, 36, 44. The procedural requirements included by reference in s. 276(2) have been amended since the appellant’s trial. These reasons refer to and apply the provisions in force at trial, as do the precedents on which reliance is placed. [51] The evidentiary rule enacted by s. 276(1) is exclusionary in nature. The rule is one of inadmissibility engaged when its three components coalesce: i. proceedings in respect of a listed offence; ii. a species of evidence, evidence of extrinsic sexual activity by the complainant; and iii. a specific purpose for which the evidence is tendered for admission. The rule is unremitting in its exclusionary effect: Barton , at paras. 60, 80; R.V. , at paras. 2, 44; R. v. Goldfinch , 2019 SCC 38, 380 C.C.C. (3d) 1, at paras. 40, 43, 90. [52] Section 276(2) is primarily, but not exclusively exclusionary. It does permit the admission of evidence of the complainant’s extrinsic sexual activity provided the evidence proposed for admission satisfies the conditions precedent imposed by the subsection: Barton , at para. 61; R.V. , at paras. 2, 45; Goldfinch , at para. 40. To engage the inclusionary exception, the evidence must be of specific instances of sexual activity relevant to an issue at trial. It must not be adduced to support an inference prohibited by the exclusionary rule of s. 276(1) and have significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. In determining whether the evidence will be received, the trial judge must consider the factors in s. 276(3): Barton , at para. 63; Goldfinch , at para. 50. [53] Second, the language “the complainant has engaged in sexual activity”, which appears in both ss. 276(1) and (2), designates the nature of the evidence which may be exceptionally admitted. But, as s. 276(2)(c) clarifies, it must be evidence “of specific instances of sexual activity”. Neither the term “specific instances” nor the term “sexual activity” are defined in or for the purposes of s. 276. However, when read purposively and contextually “specific instances” refers to discrete acts of sexual activity not general reputation. The degree of specificity required depends upon a variety of factors. The circumstances of the case. The nature of the activity. And the use proposed for the evidence: R.V. , at paras. 48‑49; Goldfinch , at para. 53. The section enjoins broad exploratory questioning: R.V. , at para. 47. [54] Third, the requirement of relevance to an issue at trial in s. 276(2)(b). [55] Evidence is relevant if it has some tendency, as a matter of logic and human experience, to make the proposition of fact for which it is advanced slightly more likely than that proposition would be without that evidence. The standard is not demanding: R. v. Calnen , 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 108. [56] Bare assertions that evidence of a complainant’s extrinsic sexual activity is relevant to provide context for other evidence, to amplify the narrative or to impugn the complainant’s credibility, fall short of the standard required by s. 276(2)(b): Goldfinch , at paras. 5, 40, 51, 95-96, 120, 124. [57] Evidence of a complainant’s extrinsic sexual activity may be relevant to rebut evidence adduced by the Crown: R.V. , at paras. 56, 66; Goldfinch , at paras. 57, 113. Or to a defence of honest but mistaken belief in communicated consent. However, that belief cannot simply rest upon evidence that the complainant consented at some time in the past. For that would implicate twin myth reasoning: Goldfinch , at para. 62. No proposed use of the evidence may invoke twin myth reasoning which is subject to the exclusionary rule of s. 276(1): Goldfinch , at paras. 51, 56, 58, 120. [58] Fourth, an applicant who wishes to introduce evidence of a complainant’s extrinsic sexual activity will not succeed simply by showing that the proposed evidence is sufficiently specific and relevant to an issue at trial. The evidence must also have significant probative value that is not substantially outweighed by the danger of prejudice to the administration of justice considering the factors enumerated in s. 276(3): R.V. , at para. 60. [59] A final point has to do with the reviewability of an order made on an application to admit evidence by exception under s. 276(2). Like other orders relating to the conduct of a trial, including those having to do with the admissibility of evidence, orders made under s. 276(2) may be varied or revoked should there be a material change in circumstances as the trial unfolds: Barton , at para. 65; R.V. , at para. 74. The Principles Applied [60] A combination of factors persuades me that this ground of appeal cannot prevail. [61] In assessing the validity of claims of error in rulings on the receivability of evidence, the context in which the claim arises is of critical importance. It is especially so where a deficit alleged in the evidence in issue is its relevance. After all, relevance is not an inherent characteristic of any item of evidence. Relevance does not exist in the air, rather as a relationship between the item of evidence in issue and the proposition of fact the proponent of the evidence seeks to establish by its admission. [62] In this case, the items of evidence in issue have to do with extrinsic sexual activity of the complainant. Kissing and sexually provocative dancing with the appellant at a nightclub six months before the alleged offence. And discussions about prior sexual experiences and preferences prior to the beginning of the sexual activity that forms the subject matter of the charge. The evidence tendered in support of defences of consent and honest but mistaken belief in communicated consent. [63] The nightclub evidence was not relevant to the defence of consent because, in addition to its temporal remoteness, no defence of advance or implied consent exists. Consent exists, if at all, in the here and now. Contemporaneous voluntary agreement to the specific touching at issue, its sexual nature, and the identity of the complainant’s sexual partner. On this issue, the events at the nightclub had nothing to say. Equally so, on the claim of honest but mistaken belief in communicated consent, where its only claim to relevance follows a path of prohibited twin myth reasoning. [64] The failure of this evidence to satisfy the modest threshold required for relevance renders it inadmissible under s. 276(2) because it lacks significant probative value that is not substantially outweighed by the danger of prejudice (through twin myth reasoning) to the proper administration of justice. [65] The evidence of the contemporaneous conversation about sexual experiences and preferences may not qualify as evidence of “specific instances of sexual activity” as s. 276(2)(c) requires. However, its relevance to the issue of consent and honest but mistaken belief in communicated consent could only be established by invoking a prohibited chain of twin myth reasoning. It also comes uncomfortably close to reputation evidence, the admissibility of which is barred by s. 277 when offered to challenge the credibility of the complainant. [66] The trial judge correctly rejected this evidence when it was tendered for reception on a pre-trial application. Nothing that occurred during the trial warranted a re-evaluation of its admissibility, much less a contrary conclusion. Ground #2: Honest but Mistaken Belief in Communicated Consent [67] The second ground of appeal alleges judicial error in failing to instruct the jury on the defence of honest but mistaken belief in communicated consent. The parties and trial judge frequently discussed the availability of this defence at trial. In the end, the trial judge concluded that the evidence adduced was not up to the task set for it by the air of reality standard. He declined to instruct the jury on the defence. [68] The evidentiary background has been canvassed earlier and requires no repetition here. A brief reference to the basis upon which the appellant relied to press the defence into service is sufficient for our purposes. The Essential Background [69] In support of his submission that the defence should be left to the jury, the appellant relied upon a mélange of his own and M.C.’s testimony about the applicable roles. The respondent does not gainsay the availability of this means of satisfying the evidentiary threshold, only the conclusion that should follow. [70] The appellant described M.C. as a willing participant in the several incidents of sexual activity that occurred. She did not say “no”, indeed initiated some of the activity herself, including the acts of fellatio , then positioned herself in such a way as to facilitate digital penetration and vaginal intercourse. This signalled to the appellant that M.C. was a consenting partner, or at the very least, led him to honestly believe that by her conduct that M.C. was consenting to what was taking place. [71] M.C. said “no” when the appellant asked for a kiss. Although she meant “no”, she did not speak in a serious tone. She laughed, giggled and smiled, her usual conduct when flirting with someone. She meant “no” even though she kissed the appellant back. She reacted the same way when he asked her for fellatio . When he repeated his requests in a “barking” tone, she complied. [72] As the sexual activities continued, progressing to digital penetration, vaginal intercourse, and further fellatio , M.C. said that she played along, moaned, and pretended that she enjoyed and wanted what was happening. She “put on a show”, hoping that this would prompt the appellant to ejaculate so that she could get her drugs and leave. The Arguments on Appeal [73] The appellant submits that the trial judge erred in failing to leave the defence of honest but mistaken belief in communicated consent to the jury. There was evidence that satisfied the air of reality standard. And both parties, albeit for different reasons, agreed on the availability of the defence. [74] The trier of fact, the appellant says, can accept or reject some, none, or all of any witness’s testimony. A defence may be cobbled together in this way by taking bits and pieces of evidence from different sources and assessing their combined force against the air of reality standard. Although the trial judge was aware of this means of satisfying the standard, he erred in its application to the evidence adduced at trial. [75] In this case, the appellant urges, the trial judge failed to consider several relevant aspects of M.C.’s evidence. That her “no” was not “no” spoken in a serious tone, although she meant what she said. Her body language was consistent with flirting and communicated a willingness to participate in sexual activity. She was “acting” throughout, moaning and making sexual sounds whose purpose was to make the appellant reach a sexual climax earlier. [76] The appellant adds that the trial judge’s failure to instruct the jury on the defence that he honestly but mistakenly believed that M.C. communicated her consent as to the sexual activity was exacerbated when the jury asked and the trial judge answered a question during deliberations. The question clearly indicated that the jury was struggling with this very issue even though they had never been instructed about it. The appellant sought a mistrial. The Crown agreed. But the trial judge continued with the trial, erring further and causing a miscarriage of justice. [77] The respondent supports the trial judge’s conclusion not to leave the defence to the jury. M.C. said “no” to the various forms of sexual activity. The appellant’s attempts to invoke honest but mistaken belief in communicated consent are foreclosed for several reasons. He took no reasonable steps to find out whether M.C. consented. He was reckless or wilfully blind to the absence of consent. [78] In this case, the central issue involved the credibility of the authors of two competing versions about sexual conduct that was largely uncontroversial. M.C. said she did not consent to the activity. If believed with the necessary degree of certainty, her evidence was dispositive of the issue of consent as an element of the actus reus . The appellant’s perception of M.C.’s state of mind was of no consequence on this issue. [79] The Crown also had to prove the fault element in sexual assault. This required evidence to establish that the appellant intended to touch M.C. and at that time knew, was reckless, or was wilfully blind that M.C. did not consent to the touching. It was to this element that the claim of honest but mistaken belief in consent related. If the appellant honestly believed that M.C., by her words or conduct or some combination of both, communicated her consent to engage in each specific sexual activity alleged, he was entitled to be acquitted. [80] The respondent says that, like any defence, whether honest but mistaken belief in communicated consent can be considered by the trier of fact depends on whether the evidence adduced at trial provides an air of reality for the defence. And that requires that there be evidence on the basis of which the trier of fact, acting reasonably, could find that the appellant took reasonable steps to ascertain M.C.’s consent and honestly believed M.C. communicated her consent to the relevant activity. And the belief must not originate in a state of self-induced intoxication, recklessness, or wilful blindness. [81] In this case, according to the respondent, the defence was unavailable. There was no evidence that the appellant took any reasonable steps to determine whether M.C. consented to the sexual activity. She said “no”. He asked no questions. He simply did not listen to, instead ignored, her opposition. Nor does M.C.’s evidence support any reasonable steps on the appellant’s part. [82] The respondent accepts that the jury’s question related to the appellant’s state of mind. After all, the Crown must prove as an essential element of the offence that the appellant knew that M.C. did not consent to the sexual touching in issue, or was reckless or wilfully blind as to whether she consented. This is a different question that required and received a correct response. That it was asked does not mean that the trial judge should have instructed the jury on the defence asserted. The availability of defences depends on an air of reality, not jury questions. The Governing Principles [83] The principles that inform our assessment of this ground of appeal derive from two sources. The first describes the standard required to satisfy the air of reality requirement to put a defence in play at trial. And the second defines the scope of the specific defence in issue – honest but mistaken belief in communicated consent. [84] The air of reality standard requires a trial judge to consider all of the evidence adduced at trial and to assume the evidence an accused relies upon in support of a defence in issue to be true: R. v. Cinous , 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 53. The test is whether there is evidence upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true: Cinous , at paras. 49, 82; R. v. Gauthier , 2013 SCC 32, [2013] 2 S.C.R. 403, at para. 23; R. v. Mayuran , 2012 SCC 31, [2012] 2 S.C.R. 162, at para. 21. [85] A trial judge’s threshold determination about an air of reality does not target the substantive merits of the defence, justification, or excuse in issue. The reason is simple: that issue falls within the exclusive province of the jury. And so it is that the trial judge does not: i. make determinations about the credibility of witnesses; ii. weigh the evidence; iii. make findings of fact; or iv. draw determinate factual inferences. Whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day is beside the point for the trial judge: Cinous , at para. 54. [86] Where the defence, justification, or excuse upon which an accused relies depends upon circumstantial evidence, or contains an objective (reasonableness) component, the trial judge’s task is to examine the field of factual inferences that can reasonably be drawn from the evidence. This field of factual inferences must extend to those necessary for the defence to succeed: Mayuran , at para. 21, citing Cinous , at para. 91. [87] The fault element in sexual assault consists of the intention to touch the complainant knowing that, or being reckless or being wilfully blind to, a lack of consent on the part of the complainant: Barton , at para. 87, citing R. v. Ewanchuk , [1999] 1 S.C.R. 330, at para. 42. [88] For the purposes of the defence of honest but mistaken belief in communicated consent, “consent” means that the complainant, by words, conduct, or a combination of both, affirmatively communicated her agreement to engage in the sexual activity alleged with the accused. In other words, the question to be answered is whether the accused honestly believed the complainant effectively said “yes” through her words and/or conduct: Barton , at para. 90, citing Ewanchuk , at para. 49. [89] The requirement for the defence that an accused have an honest but mistaken belief that the complainant actually communicated consent by words, conduct, or both means that the principal considerations in determining its availability are: i. the complainant’s actual communicative behaviour; and ii. the totality of the relevant and admissible evidence explaining how the accused perceived the complainant’s behaviour to communicate consent. See, Barton , at para. 91, citing R. v. Park , [1995] 2 S.C.R 836, at para. 44. [90] The availability of the defence of honest but mistaken belief in communicated consent is circumscribed by the provisions of s. 273.2. Those limitations include restrictions on the source or origins of the appellant’s belief and the requirement in s. 273.2(b) that the accused take reasonable steps, in the circumstances of which the accused was aware at the time, to ascertain that the complainant was consenting to the sexual activity in which they were engaged. No reasonable steps, no defence: Barton , at para. 104. [91] The reasonable steps requirement in s. 273.2(b) includes both objective and subjective elements. The steps of the accused must be objectively reasonable. The reasonableness of those steps must be assessed in the circumstances as they were then known to the accused: Barton , at paras. 101, 104. [92] Some things are not reasonable steps. For example, any steps grounded in rape myths or stereotypical assumptions about women and consent cannot constitute reasonable steps. Reliance on a complainant’s silence, passivity, or ambiguous conduct cannot constitute a reasonable step: Barton , at paras. 107, 109. [93] In some cases, the reasonable steps requirement will be elevated. Such as the invasive nature of the sexual activity in issue. Or the enhanced risk posed to health and safety of those involved. Or the lack of familiarity between the participants: Barton , at para. 108. [94] Where an accused seeks to rely on the defence of honest but mistaken belief in communicated consent, he must establish first that there is an air of reality to the defence. In concrete terms, this means that the trial judge must first consider and decide whether there is any evidence on the basis of which a reasonable trier of fact acting judicially could find that the accused: i. took reasonable steps to ascertain the complainant’s consent; and ii. honestly believed the complainant communicated consent. See, Barton , at para. 121. The Principles Applied [95] I would not give effect to this ground of appeal. In my respectful view the trial judge properly concluded that the evidence adduced at trial, taken as a whole, fell short of the air of reality threshold required to put this defence in play. [96] Honest but mistaken belief in communicated consent is a mistake of fact defence. A mistake of fact defence operates where an accused mistakenly perceives facts that negate or raise a reasonable doubt about the fault element in an offence. It is a defence that is rarely invoked. It does not arise by necessary implication in every case in which a complainant says sexual assault and an accused says consent. The evidence, taken as a whole, must satisfy the air of reality standard to put the defence in play in light of the statutory limitations imposed on its availability. [97] To satisfy the air of reality threshold and require submission of the honest but mistaken belief in communicated consent defence to the jury, the trial judge must be satisfied, on the basis of the evidence taken as a whole, that there is evidence on the basis of which a reasonable trier of fact, acting judicially, could find that the appellant: i. took reasonable steps to ascertain that M.C. voluntarily agreed to each physical act, its sexual nature, and that it occurred with the appellant as her sexual partner; and ii. honestly believed M.C. communicated her consent. [98] In this case, there was no evidence to satisfy the air of reality standard in relation to the reasonable steps requirement. M.C. testified that she said “no” to the appellant’s sexual demands. But he proceeded nonetheless, repeating his demands in a “barking” tone. The appellant claimed that M.C. was an active participant who initiated much, if not most, of the sexual activity. Nothing was said as the activity progressed through its various stages. [99] In addition, the appellant’s claim of honest but mistaken belief in communicated consent is flawed because it appears grounded, in some respects at least, on impermissible mistakes of law, not permissible mistakes of fact. An assumption of implied consent based on the appellant’s evidence that M.C. never said “no”, thus impliedly consented to any and all sexual activity. A failure to consider that M.C.’s consent had to be contemporaneous and activity-specific, not an agreement to all activity of an undefined scope. [100] This is also a case in which the threshold for satisfying the reasonable steps requirement was elevated. The sexual activity was invasive in nature. There was an enhanced risk to M.C.’s health because of unprotected sexual intercourse. The parties were not all that familiar with each other, never having been alone on any previous occasion. The risk of miscommunication, misunderstanding and mistake was palpable. [101] The jury’s question does not mandate a different answer to whether the trial judge erred in failing to instruct the jury on the defence of honest but mistaken belief in communicated consent. What triggers the obligation to instruct the jury on a defence, justification, or excuse is the capacity of the evidence adduced at trial to satisfy the air of reality standard for each and every element of that defence, justification, or excuse. A question posed by a deliberating jury has nothing to say about the adequacy of the evidentiary record to meet the standard required. [102] The jury’s question related to the fault element the Crown was required to prove to establish the appellant’s guilt of sexual assault. It was answered correctly and is of no consequence to this ground of appeal. Ground #3: The Section 10 Charter Infringement [103] This ground of appeal challenges the correctness of the ruling made on a pre-trial application to exclude evidence of a video recorded post-arrest interview of the appellant. The ruling was made at the conclusion of a blended voir dire in which the Crown sought to have it declared voluntary so that the appellant could be cross-examined on it if he testified. Defence counsel sought its exclusion for all purposes because of various Charter infringements, among them ss. 10(a) and (b). [104] In written reasons released about eight months after argument on the application, the trial judge was satisfied beyond a reasonable doubt that the interview was voluntary. He was not persuaded that the interview was the product of any Charter infringement. This ground of appeal contests the correctness of the ruling in relation to the infringement of s. 10 of the Charter . The Essential Background [105] The sexual assault of M.C. took place on February 27, 2016. She reported it to police within a few days. Her report included reference to the appellant’s supply and her purchase of cocaine. Within a matter of weeks, the police began an investigation of the appellant’s involvement in drug trafficking. The Undercover Drug Buy [106] On April 12, 2016, about three days after the drug investigation began, the appellant sold 3.5 grams of cocaine. The transaction occurred in a motor vehicle in the parking lot of an apartment building. The motor vehicle belonged to the police service conducting the investigation. The purchaser was an undercover police officer. The Arrest [107] After the drug transaction had been completed, two men approached the vehicle. They were police officers dressed in plainclothes. They identified themselves as police officers and told the appellant he was under arrest. The appellant, who said he was concerned that the men may have been robbers, resisted. He was taken to the ground, a single elbow strike delivered to his forehead to distract him from resistance. The blow was not intended to hurt him. The Charter Advice [108] The appellant was handcuffed and taken to a police van. There, an officer explained to him that he had been arrested on two counts of trafficking and two counts of possession of the proceeds of crime. The officer also read the appellant his right to counsel, including his right to free legal advice from duty counsel, in relation to the drug charges. The officer understood that the appellant would be investigated further by officers from the Sex Crimes Unit while he was in custody, but he did not mention any potential charges when he read the appellant his s. 10 Charter advice. [109] The appellant told the police that he wanted to speak to duty counsel. The Transport to 51 Division [110] On the way to 51 Division, the appellant cried. He said he was scared. His mother would be devastated when she learned of his arrest. He complained of pain because the handcuffs were too tight. During the 45-minute trip to 51 Division, the officers did not try to elicit any information from the appellant. The Booking Procedure [111] At the booking desk at 51 Division, the appellant was again advised of the reasons for his arrest – charges of trafficking and possession of the proceeds of crime – and his rights under s. 10(b) of the Charter . He accepted the police offer to speak with duty counsel. He was also told that, since he had been arrested for drug trafficking, he would be required to undergo a strip search. When asked about any injuries, his only complaint had to do with the tightness of the handcuffs and the anxiety from which he suffered. [112] When the strip search had been completed, officers brought the appellant back to the booking area where he could be put in contact with Duty Counsel. The Discussion with Duty Counsel [113] DC Peck, an officer with the Sex Crimes Unit, called Duty Counsel at 9:17 p.m. She left a message explaining that the appellant was at 51 Division after his arrest on two counts of each of sexual assault, trafficking, and proceeds of crime. When Duty Counsel called back at 9:23 p.m., he and the appellant spoke for about four minutes. Duty Counsel, the parties agreed, did not tell the appellant about the charges on which he had been arrested. The Police Interview [114] DC Peck escorted the appellant from the holding cells to the interview room. As they walked along, she told the appellant that M.C. and another woman had alleged that he had sexually assaulted them. The only sexual offence with which the appellant was charged was the sexual assault on M.C. [115] The police interview of the appellant began about 20 minutes after the appellant had spoken to Duty Counsel. The appellant confirmed that he had spoken to Duty Counsel and had been advised to say nothing to the police. However, and despite this advice, he agreed to speak to DC Chin who said that he was from the Sex Crimes Unit and was not there to talk about the drug charges. The appellant did not deny that he had been advised of the two charges of sexual assault and told the names of the complainants. He knew one of them (not M.C.) but could not recall the name of the other (M.C.). [116] DC Chin explained the meaning of sexual assault to the appellant. They canvassed the allegations of the second complainant. The appellant repudiated sexual activity with her. They also discussed M.C.’s allegations. The appellant denied that M.C. had visited him at his apartment. He also denied that M.C. rubbed his back and his penis and that she performed fellatio on him, or that they had sexual intercourse. [117] At no time during the police interview did DC Chin advise the appellant of his right to counsel or read either the primary or secondary police caution to him on the sexual assault charge. The appellant denied any police threats. At the end of the interview, the appellant asked DC Chin for a hug. The officer obliged. He also facilitated a telephone call between the appellant and his girlfriend. The Ruling of the Trial Judge [118] The trial judge concluded that the Crown had proven the voluntariness of the appellant’s interview beyond a reasonable doubt. This, he decided, entitled the Crown to cross-examine the appellant on any statements made during the interview that were inconsistent with his testimony at trial should he give evidence in his own defence. [119] Turning to the allegation of Charter infringement, the trial judge was satisfied that the appellant had been advised of the reasons for his arrest as required by s. 10(a). DC Peck had told him about the two charges of sexual assault, including the names of the complainants, before the interview with DC Chin began. This occurred shortly after completion of the booking on the drug related charges. The judge rejected the appellant’s evidence that he had not been advised of his right to counsel until after he had spoken to duty counsel. The appellant had failed to establish, on a balance of probabilities, a breach of s. 10(b) of the Charter . The Arguments on Appeal [120] In support of this claim of error, the appellant asks that we keep in mind that ss. 10(a) and (b) of the Charter work together. Section 10(a) requires that a detainee be advised promptly of the reasons for their detention. Section 10(b) requires prompt advice about the right to counsel and demands that police facilitate access to counsel when the detainee requests it. And hold off eliciting evidence from the detainee until legal advice has been provided. The combination ensures that the detainee is aware of the extent or nature of their jeopardy and thus is in a position, with the benefit of legal advice, to make a meaningful and informed decision about whether to cooperate or decline to participate in subsequent investigative requests. [121] Where a detainee’s jeopardy changes, as it did here when the investigation turned to allegations of sexual assault, police have a duty to readvise the detainee of the reasons for their detention and of their right to retain and instruct counsel. In each case, the duty is to be discharged promptly. Here, neither duty was discharged as it should have been. The advice about the reasons for detention was not provided in a timely way, rather casually at best after the appellant had spoken to duty counsel about the drug charges. And the record is barren of any evidence that the appellant was advised of his right to the advice of counsel on the sexual assault charge. [122] The appellant says that the trial judge erred in concluding that there had been no breach of either ss. 10(a) or (b) of the Charter . Serious breaches of both occurred. These breaches had a significant impact on the appellant’s Charter protected interests. In combination, these factors warranted exclusion of the video recorded interview as evidence, no matter the manner in which the Crown used it to advance its case. [123] The respondent contends that the critical findings of fact made by the trial judge were reasonably available to him on the evidence adduced on the pre-trial application. These findings are entitled to deference in this court. The appellant has failed to demonstrate any error in the application of the governing legal principles to those factual findings. As a result, this ground of appeal should be rejected. [124] In this case, the respondent says, the trial judge was entitled to find that the appellant was not a credible witness and that his evidence on the relevant issues was unreliable. Equally available on the evidence was a finding that the appellant had been properly informed about the reasons for his arrest, in particular, the allegations of sexual assault, before he spoke with duty counsel and was advised to say nothing to the police. Likewise, findings that the appellant understood the nature and extent of his jeopardy and whether he should speak to investigators or decline to participate in any questioning. [125] In the alternative, the respondent submits that any s. 10 breach that may have occurred was minor and had a minimal impact on the appellant’s Charter -protected interests. These two factors, as well as society’s interest in the adjudication of the case on its merits, would result in reception of the evidence under s. 24(2) of the Charter . The Governing Principles [126] In this court, the appellant restricts his complaint about the ruling admitting the video recorded interview as evidence to complaints about infringements of ss. 10(a) and (b) of the Charter . [127] Among other things, s. 10(a) of the Charter is an adjunct to the right to counsel for which s. 10(b) provides. This is so because an arrested or detained person can only exercise their rights under s. 10(b) in a meaningful way if the person knows the nature and extent of their jeopardy: R. v. Evans , [1991] 1 S.C.R. 869, at p. 887. [128] In determining whether there has been a breach of s. 10(a), what controls is the substance of what the detainee can reasonably be supposed to have understood from what they were told, not the formalism of the precise words used in the advice. The question is whether what the detainee was told, viewed reasonably in all the circumstances of the case, was enough to permit them to make a reasonable decision to undermine the right to counsel: Evans , at p. 888. [129] Breaches of s. 10(a) can occur in either or both of two ways. A temporal breach of s. 10(a) occurs when the detainee is not promptly advised of the reasons for their detention. An informational breach takes place if the reasons for their detention are not communicated in a way that permits the detainees adequate understanding: R. v. Roberts , 2018 ONCA 411, 360 C.C.C. (3d) 444, at para. 63. When the reason for a person’s detention has changed, police are required to re-perform their s. 10 duties including those of s. 10(a): Roberts , at para. 71. [130] The purpose of the right to counsel in s. 10(b) of the Charter is to allow a detainee, apprised of the reasons for their detention under s. 10(a), not only to be informed of their rights and obligations under the law, but also, equally if not more important, to obtain advice about how to exercise those rights: R. v. Sinclair , 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 26. [131] Section 10(b) fulfills its purpose in two ways. The first is by requiring that the detainee be informed of their right to counsel. This is the informational component. The second is by requiring that the detainee be given a reasonable opportunity to exercise their right to consult counsel. This is the implementational component: Sinclair , at para. 27; R. v. Willier , 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 29-30. The implementational duty also includes a requirement that police hold off in their questioning or other conduct designed to elicit evidence from the detainee until the detainee has had a reasonable opportunity to exercise their right to counsel: Willier , at paras. 32-33. [132] The emphasis in the right to counsel is on assuring that any decision by the detainee to cooperate in the investigation, or to decline to do so, is at once voluntary and informed by legal advice. Section 10(b) does not guarantee a wise decision by the detainee or a decision free of the influence of subjective factors, only an opportunity to access legal advice to inform that decision: Sinclair , at para. 26. [133] A one-time only consultation rule is inadequate to fulfill the purpose of s. 10(b). And so it is that a detainee is entitled to speak to a lawyer again, and be advised of the right to do so, when a change in circumstances, such as a change in the nature and extent of jeopardy faced by the detainee, occurs: Sinclair , at paras. 48, 51; R. v. McCrimmon , 2010 SCC 36, [2010] 2 S.C.R. 402, at para. 21. The Principles Applied [134] I would not give effect to this ground of appeal. It largely recycles arguments advanced to and rejected by the trial judge and invites us to substitute findings of fact for those made at first instance. [135] It is beyond controversy that the appellant’s arrest and initial advice in compliance with ss. 10(a) and (b) of the Charter related to drug transactions in which he had engaged with an undercover police officer. The drug sale was opportunistic. It entitled the police, aware of a concurrent investigation into allegations of sexual assault, to arrest the appellant, take him into custody, and make him available for questioning by officers from the Sex Crimes Unit should he choose to do so. [136] At the booking desk, the reasons for the appellant’s arrest were reconfirmed. Likewise, that he had been advised and had chosen to exercise his right to counsel on those charges. A strip search followed in light of his arrest and detention on trafficking charges. [137] The trial judge concluded that DC Peck had advised the appellant of the sexual assault allegations shortly after the booking and strip search procedure had been completed on the drug and proceeds charges. She also advised duty counsel in the message she left that the appellant was detained on two counts of each of sexual assault, trafficking, and possession of the proceeds of crime. Thus, duty counsel was aware of the sexual assault allegations when he and the appellant spoke and he advised the appellant to say nothing to the police. The appellant’s awareness of the charges was confirmed at the outset of the interview with DC Chin when he offered no demur to the officer’s mention of what he wanted to talk to the appellant about. [138] Despite the absence of any evidence from DC Peck about the details of any advice she gave the appellant about the sexual assault charges, the appellant admitted that she had told him about the allegations. This informal admission afforded a sufficient basis to find the required notice. It was the appellant’s burden to establish an infringement of the components of s. 10(b). The trial judge, for understandable reasons, rejected the appellant’s denial that he had received the requisite advice. In other words, the appellant failed to establish an infringement on a balance of probabilities. [139] This ground of appeal fails. Ground #4: The Unbalanced Charge to the Jury [140] The final ground of appeal from conviction challenges the objectivity of the charge to the jury. The claim is grounded on an alleged disparity in the frequency of direct references to the evidence of the principals and a failure to balance a reference to the admitted lies of the appellant in his police interview with mention of what is said to be M.C.’s perjury at trial. Assessment of this ground of appeal requires brief reference to two aspects of the evidence adduced at trial and a portion of the charge to the jury. The Essential Background [141] In recounting her memory of the act of fellatio which she said lasted 60 to 90 seconds, M.C. initially testified that the appellant forced her mouth onto his penis by putting his hands on her head and shoving her head down to begin the act. When cross-examined on her testimony about the same events at the preliminary inquiry, M.C. accepted that the appellant had not touched her for the first 30 seconds although he did so for the balance of that sexual activity. The appellant characterizes this discrepancy as “perjury”. [142] On four occasions, the trial judge referred to the fact that the appellant admitted having lied to the police during the video recorded interview. He was not under oath. Nor had he been warned about the obligation to tell the truth or the consequences of lying. [143] The second inclusion alleged to have disrupted the balance necessary in the charge was a reference to some evidence elicited inadvertently in the trial Crown’s cross-examination of the appellant. [144] The response revealed that another complainant had alleged that the appellant sexually assaulted her. When the evidence was adduced, defence counsel asked the trial judge, in the absence of the jury, to declare a mistrial. The trial judge refused. [145] In the charge to the jury, a written copy of which was provided to the jury, the trial judge included a summary of this evidence under the heading “Irrelevant Evidence”. He explained that jurors were to completely disregard the fact of a second complaint of sexual assault against the appellant and assign it no weight in determining whether the appellant was guilty of the offence charged. The appellant says this reference, which recalled evidence likely long forgotten by the jury, contributed to an imbalanced charge. The Arguments on Appeal [146] The appellant accepts that an accused is entitled to a proper, but not a perfect charge. An essential component of a proper charge is a fair and balanced recital of the evidence that is relevant to the controverted issues at trial, in this case, consent. But the jury did not receive their entitlement. Instead, the jury was provided with numerous direct references to the testimony of M.C. and sparse mention of the appellant’s version of events. This imbalance could only have signalled that M.C.’s testimony was entitled to greater weight in deciding what verdict to render than that of the appellant. [147] The trial judge repeatedly told the jury that the appellant lied and admitted that he lied to the police. He was not under oath nor warned about the consequences of lying at the outset of the interview. This would suggest to the jury that his evidence could not be believed. After all, he was an admitted liar. But M.C. had also lied. And her lies were under oath. She committed perjury in testifying about the early stages of fellatio . The trial judge should have counterposed his reference to the appellant’s lies with a citation of M.C.’s perjury. His failure to do so contributed to an imbalance in the charge. [148] The trial judge’s reference to the sexual assault allegations of another complainant also contributed to an imbalance in the charge. This evidence, inadvertently disclosed by the appellant in cross-examination, was irrelevant, immaterial, and offended the admissibility rule relating to extrinsic misconduct. It invited propensity reasoning. Nothing should have been said about it in the charge. Instead, the trial judge reminded the jury of its substance before telling them not to use it in their deliberations. The recitation of the conduct nullified the prohibited use aspect of the instruction. [149] The appellant accepts that a trial judge is entitled to comment on the evidence of witnesses and factual controversies at trial. But the comments must amount to advice, not direction, and not leave the impression that the jury should make certain findings of fact. The references here fell foul of that distinction. [150] The respondent rejects any suggestion of imbalance in the charge to the jury. The charge was proper as is the appellant’s entitlement. That it may not have been perfectly congruent with the appellant’s perception of his due is of no moment. Perfection is the right of neither party. [151] In assessing the adequacy of final instructions to the jury, an appellate court applies a functional approach to determine whether those instructions achieve their purpose. And that purpose is to ensure that the jury understands the factual issues they are required to resolve; the legal principles to be applied to determine those issues; the positions of the parties; and the evidence relevant to the positions of the parties on those issues. There is no requirement of equal time in the review of the positions of the parties, nor any obligation to review all the evidence. Trial judges are entrusted with a discretion that permits them to decide the nature and content of the final instructions best suited to the needs of the case. [152] In this case, the respondent says, a functional approach to an assessment of the adequacy of the charge demonstrates that it conveyed the defence position fairly and adequately. The trial judge explained that it was the jury’s duty to make their own findings of fact. These findings were to be made on the basis of the evidence as a whole, not just on those portions of the evidence the judge reviewed in his charge. Further, the jury was free to ignore any comments the judge made or opinions he expressed about issues of fact. [153] The trial judge’s approach to the evidence, the respondent urges, was fair and balanced. The issue for the jury to decide was whether the Crown had proven the allegations contained in the count beyond a reasonable doubt. The evidence on which the Crown relied was the testimony of M.C. The critical issue – consent – had to do with M.C.’s state of mind. Thus, the need to review her evidence at some length. The same could be said about the importance of consent in connection with the fault element in sexual assault. Where appropriate, the trial judge summarized the contrary evidence of the appellant and fully and fairly recited the position of the defence in language of defence counsel’s own choosing. [154] The respondent dismisses the appellant’s claim of imbalance based on the trial judge’s failure to counterbalance his references to the appellant’s lies to the police with a mention of M.C.’s “perjury”. M.C. was cross-examined on her evidence at the preliminary inquiry about the early stages of the fellatio in which she engaged with the appellant. She adopted a portion of that evidence as true. This was simply cross-examination on a prior inconsistent statement, a commonplace in criminal trials. The trial judge instructed the jury in terms to which no objection is or could be taken about the evidentiary value of the prior statements, including the effect of their adoption by a non-accused witness. Adoption of a prior inconsistent statement by a witness, without more, is not perjury. It follows that the trial judge did not err in failing to characterize it as such or to juxtapose it to the appellant’s admitted lies. [155] No imbalance was created, the respondent submits, by the instruction recalling the inadmissible evidence about the second allegation of sexual assault with which the appellant was not charged. Not only did this reference cause the appellant no prejudice, its mention, which included a prohibition against evidentiary use, was essential to ensure clarity and stifle any tendency, if left untutored, to propensity reasoning. The Governing Principles [156] Our approach to allegations of error in final instructions to the jury is functional. We test the instructions against the purpose for which they are given. Those purposes include ensuring that the jury understands what is and what is not evidence. And that the jury appreciates the value and effect of the evidence on the positions put forward at trial, especially, but not only, the position of the defence. Instructions do not warrant appellate intervention simply because more could have been said. Or because what was said could have been phrased differently or more felicitously: R. v. Evans , 2019 ONCA 715, 147 O.R. (3d) 577, at para. 233. [157] A jury charge must leave the jury with a clear understanding of: i. the factual issues to be decided; ii. the legal principles governing the factual issues and the evidence received at trial; iii. the positions of the parties; and iv. the evidence relevant to the positions of the parties. See, Evans , at para. 227. [158] The charge to the jury is a critical feature of every jury trial. Its strength is its objectivity. It is not the place for the taking of sides. Jury education. Not jury indoctrination. A charge must be fair and balanced so as not to compromise the actual or apparent fairness of the trial. It ought not promote unduly the case for the Crown. Nor should it effectively ignore and denigrate the defence case: Evans , at para. 229. [159] A trial judge is under no obligation to review every piece of evidence received at trial. Non-direction on an item of evidence amounts to reversable error only where the single item of evidence omitted from the charge is the foundation of a defence advanced at trial: R. v. Daley , 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 55, citing R. v. Demeter (1975), 25 C.C.C. (2d) 417 (Ont. C.A.), at p. 436, aff’d on other grounds, [1978] 1 S.C.R. 538. [160] The extent to which a trial judge must review the evidence in their final instructions to the jury will depend on the circumstances of each case. The test is one of fairness. An accused is entitled to a fair trial at which they can make full answer and defence. They are not entitled to a perfect trial or the fairest trial possible. Provided the salient parts of the evidence are put to the jury so that the jury is able to fully appreciate its value and effect and the defence put forward, the charge is adequate: Daley , at para. 57. The Principles Applied [161] In my respectful view, this ground of appeal lacks substance. I reach this conclusion for several reasons. [162] First, claims of imbalance in a jury charge cannot be sustained on the basis of a microscopic scrutiny of isolated portions of the charge. Imbalance can only be established, if at all, on a review of the charge as a whole and in the context of other trial events, such as the positions put forward and the addresses of counsel. [163] Imbalance in a jury charge is not determined as if it were an accounting exercise undertaken to produce a balance sheet. Debits on the one side of the ledger. Credits on the other. Precedent establishes no fixed number or ratio of evidentiary references among witnesses whose evidence is divergent. Fairness or balance is about assessing the whole to determine whether, in substance or effect, the instruction unduly promoted the case for the Crown and denigrated the defence case to such an extent that it was not fully presented to the jury. [164] In this case, the appellant relies upon three aspects of the charge to fund his claim of a lack of balance: i. the discrepancy in the number of times the trial judge referred to M.C.’s evidence, as compared to the evidence of the appellant; ii. the failure to point out M.C.’s “perjury” but repeated reference to the appellant’s lies to the police; and iii. the repetition of the substance of the inadmissible evidence about the other sexual assault allegation. [165] Whether they are considered singly or in combination, I am satisfied that these alleged deficiencies fall well short of what is required to establish the ground of appeal advanced. [166] This was a two witness case. The onus was on the Crown to prove the essential elements of the offence alleged beyond a reasonable doubt. Whether the Crown met or fell short of the standard of proof required depended on the jury’s acceptance of the testimony of M.C. That more frequent reference would be made to M.C.’s testimony in these circumstances is unremarkable. Without more, the mere fact that there were fewer mentions of the appellant’s testimony does not render the charge, considered as a whole in the context of this trial, unbalanced. This is all the more so when we consider the scope of the trial judge’s obligation to review the evidence and the standard applicable when we review a charge alleged to be deficient for failure to refer to items of evidence. [167] The charge also included repeated instructions that the jury was to consider the evidence as a whole in coming to their conclusion, not simply those portions of the evidence the trial judge rehearsed for them in his charge. In addition, they were told that it was their exclusive responsibility to find the facts from the evidence received at trial. And in this exercise they were required to ignore any views expressed directly or indirectly by the trial judge. [168] It is uncontroversial that the appellant’s evidence about a second allegation of sexual assault made against him was inadmissible. Trial counsel considered it sufficiently likely to induce propensity reasoning if left on its own that they sought a curative instruction or, failing which, a mistrial. The trial judge declined to provide a mid-trial corrective instruction or to declare a mistrial. In the trial judge’s view, a curative direction in the charge would be a sufficient prophylactic to prevent improper jury use of the evidence. [169] A commonplace occurrence in criminal jury trials is the inadvertent disclosure of inadmissible evidence. Depending upon its nature and extent and the other circumstances of individual cases, a trial judge, confronted with the unexpected, will often scan the jury and counsel to assess their reaction. Sometimes, the best course is to say and do nothing. On other occasions, some direction is required. But when? Immediately? After a short discussion with counsel, but still shortly after the evidence has been adduced? Or in the charge? Or both? [170] Whether to say anything, what to say, and when to say it are all issues for the trial judge to decide. They are the eye and ear witnesses to the proceedings, well versed in the trial environment. Their decisions on these issues are entitled to deference from those of us at one remove from the trial. And that is as it should be. [171] When intervention is left to await the charge, any instruction given will begin with a recital of the substance of the inadmissible evidence. Depending on the time that has elapsed between the two events, the substance of the evidence may have disappeared from the memories of the jurors. Thus, the instruction repeats the inadmissible evidence, only to direct the jury not to consider it in deciding the case. In other words, repeat the prejudice before removing it. But timing and repetition alone are not dispositive of whether the instruction caused any or irremediable prejudice. [172] In this case, the instruction headed “Irrelevant Evidence”, was brief as was the evidence to which it related. The prohibition against use was pointed and direct. It left no doubt that this evidence had no role to play in the jury’s decision. It caused the appellant no prejudice and did not cause the charge to be unbalanced. [173] This ground of appeal fails, likewise the appeal from conviction. The Appeal from Sentence [174] The trial judge imposed a blended sentence of a term of imprisonment of 20.5 months (26 months less 5.5 months credit for pre-trial custody and stringent release conditions) to be followed by a period of probation for three years. The appellant asks that we reduce the sentence to a term of imprisonment of 15 months. [175] The appellant identifies a single error in principle as the basis upon which we should intervene, set aside the sentence imposed at trial, and substitute the term of imprisonment he suggests. The principle is that of parity in s. 718.2(b) of the Criminal Code . It holds that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [176] The trial judge made specific reference to the principle of parity in his reasons for sentence. It was for the trial judge to weigh that principle among others and impose a sentence that was proportionate to the gravity of the offence and the degree of responsibility of the appellant as the person who committed it. That another judge or this court might have assayed the influence of parity differently than the trial judge affords no basis for our intervention: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 49. [177] This sentence sits comfortably within the range of sentence imposed upon first offenders convicted of similar offences committed in similar circumstances. It gives proper effect to the fundamental principle that the sentence be proportionate to the gravity of the offence, which here included non-consensual unprotected sexual intercourse, and the degree of responsibility of the appellant as the principal offender. [178] I would grant leave to appeal, but dismiss the appeal from sentence. Disposition [179] For these reasons, I would dismiss the appeal in its entirety. Released: December 20, 2021 “D.W.” “David Watt J.A.” “I agree. L.B. Roberts J.A.” “I agree. 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 complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Shilling, 2021 ONCA 916 DATE: 20211220 DOCKET: C68825 Gillese, Brown and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Hubert Nathanial Shilling Appellant Lynda Morgan and Laura Metcalfe, for the appellant Michael Dunn, for the respondent Heard: December 16, 2021 On appeal from the convictions entered by Justice Vanessa V. Christie of the Superior Court of Justice on August 28, 2019, with reasons at 2019 ONSC 5038, and from the sentence imposed on January 31, 2020, with reasons at 2020 ONSC 1193. REASONS FOR DECISION I. INTRODUCTION [1] The trial in this judge-alone proceeding was not complex. It took less than a full day of court time and turned on whether the trial judge accepted the complainant’s evidence. The trial judge delivered her reasons the day after trial. After finding the complainant both credible and reliable, the trial judge convicted the appellant of two counts of sexual interference. He was sentenced to four and a half years in prison. He appeals from conviction and seeks leave to appeal sentence. He also brings a fresh evidence motion in support of his sentence appeal. [2] At the conclusion of the oral hearing of the appeal, we advised the parties that the motion and the appeals were dismissed, with reasons to follow. These are the promised reasons. II. BACKGROUND IN BRIEF [3] The appellant and the complainant’s mother were in a romantic relationship. The complainant moved in with the appellant in April or May 2015; her mother and two siblings moved into the appellant’s residence in June 2015. The family moved out in October 2016, at the appellant’s request, in part because of the complainant’s behaviour and her disobedience in following the appellant’s house rules, including doing chores. [4] Around December 2016, the complainant’s mother and the appellant became friends again. The family began visiting at the appellant’s house and, at times, the children were left with the appellant when the complainant’s mother went to work. [5] The complainant said that two incidents of sexual assault occurred while she, her mother, and her siblings lived with the appellant. The first incident happened under the blankets on a bed in the appellant’s bedroom while her siblings were sitting on the floor watching a movie in the same room. The second occurred on the couch while her mother was at work and her siblings were at the park. The complainant disclosed the incidents to her mother in the summer of 2017. [6] At trial, the only issue was whether the events actually occurred, a matter which turned on the credibility and reliability of the complainant’s testimony. The trial judge found that, despite some minor inconsistencies in the complainant’s testimony and recollection: she was an honest witness; her testimony was detailed in many respects; she considered her answers when she was unsure of them; she admitted when she did not remember something; and, she was not shaken in cross-examination in any significant way. After noting that corroboration is not required, the trial judge found that parts of the complainant’s testimony were corroborated by her mother’s evidence. [7] There are two aspects of the defence position at trial that are relevant to this appeal. The first was the defence suggestion that the complainant had a motive to fabricate the incidents – she did not want to return to the rules and chores of the appellant’s household and was concerned that the family was slipping back into that routine. The second was that the complainant’s account of the assaults was inherently implausible. [8] The trial judge rejected the suggestion that the complainant was motivated to lie because she was concerned about having to move back with the appellant and she did not like the house rules. When the complainant disclosed the incidents to her mother, there was no suggestion that she would have to live with the appellant again because the relationship between her mother and the appellant at that time was “simply a friendship”. [9] The trial judge also rejected the defence suggestion that the incidents were improbable or impossible. The evidence about the couch and those involved made that incident neither improbable nor impossible. In terms of the bedroom incident, the trial judge found that the appellant could hold the complainant down with his arm and pull down both her pants and his. She also found that he tried to cover up the activities by placing a blanket over them. She further found that the other children in the room, who were only seven or eight years of age, were on the floor looking in the other direction while watching a movie, and there was no significant noise that would have attracted their attention. III. THE CONVICTION APPEAL [10] The appellant submits that the trial judge erred in: i. failing to properly consider the complainant’s motive to lie; ii. assuming the appellant’s guilt and relying on unsupported assumptions when assessing how the risk of detection impacted the complainant’s credibility (the “circular reasoning argument”); and iii. finding the mother’s evidence corroborated the complainant’s testimony. [11] In our view, the trial judge committed none of the alleged errors. IV. ANALYSIS Proper Consideration of the Complainant’s Motive to Lie [12] The appellant contends that the trial judge used a purely “objective” analysis to decide whether the complainant had a motive to lie. We see nothing in this contention. [13] The trial judge did not use words associated with an “objective” analysis, such as the “reasonable person”. Her reasons are grounded in her findings of fact about what was happening in the complainant’s life at the time that she disclosed the incidents to her mother. We also note that the suggestion that the complainant lied because she did not want to return to the appellant’s home because of his rules was never put to the complainant. And, in any event, as the trial judge found, at the time of disclosure there was no suggestion that the complainant would have to live with the appellant again. No Circular Reasoning [14] The appellant submits that the trial judge “assumed his guilt” in rejecting the defence argument that it would not make sense that the appellant would assault the complainant while her siblings were in the same room. [15] Again, we see nothing in this submission. The trial judge did not assume the appellant’s guilt. Rather, she explained why she accepted the complainant’s description of the assault in the bedroom, a summary of which can be found above. There is nothing circular in her reasoning; it is solidly grounded in the evidence. No Error in the Use of the Mother’s Evidence [16] The appellant submits that the trial judge fell into error when she said that the evidence of the complainant’s mother “corroborated” that of the complainant. We see nothing in this submission. [17] As already noted, the trial judge began by observing that corroboration was not necessary. And, the trial judge did not use the mother’s evidence to bolster the complainant’s credibility. The trial judge summarized those parts of the mother’s evidence that confirmed the complainant’s evidence on matters such as the complainant’s behaviours that led to her moving to the appellant’s home, the complainant’s dislike of the rules at the appellant’s home, that they all watched movies together, and the setup of the appellant’s home. V. THE FRESH EVIDENCE MOTION [18] The appellant moves to have fresh evidence admitted in support of his sentence appeal. Based on the fresh evidence, he asks this court to reduce his sentence from four and a half years to three years. [19] The fresh evidence relates to two matters that occurred while the appellant has been serving his custodial sentence. First, the appellant contracted COVID-19 in December 2020. His symptoms lasted for approximately four days and he spent that time in isolation in a cell. He says he experienced “heightened anxiety” as a result of the COVID-19 diagnosis and isolation. Later that month, he had a major anxiety attack. Second, in February 2021, a psychodiagnostics assessment report (the “Report”) said the appellant had post-traumatic stress disorder (“PTSD”). [20] The fresh evidence consists of a short affidavit from a lawyer who works in the law firm that represents the appellant. The affidavit is based on the following documents, which were appended to the affidavit: media articles; a document from Correctional Services Canada dated May 25, 2021 regarding the status of COVID-19 in penitentiaries; four inmate communiques from December 2020 and January 2021 related to Joyceville Institution’s response to COVID-19; a letter advising the appellant he had contracted COVID-19; and, the Report. [21] In our view, the proposed fresh evidence could not be expected to affect the sentence. Moreover, some of it – such as the media articles – is inadmissible because it constitutes untestable hearsay. The Report should not be admitted because it is not “fresh” – it simply confirms evidence already before the trial judge. An example of this is the information on the appellant’s difficult childhood. To the extent that the PTSD diagnosis is “fresh”, that diagnosis could have been provided prior to sentencing. The evidence on the appellant’s experience with COVID-19 could not be expected to change the sentence which must remain proportionate to the gravity of the offence and the moral blameworthiness of the appellant: R. v. Morgan , 2020 ONCA 279, at paras. 10-11. [22] While COVID-19 was a collateral consequence for the appellant, it cannot be used to reduce the sentence to a point where it is no longer fit: Morgan , at paras. 9-11. For the reasons given on the sentence appeal, below, a change in sentence would render the sentence no longer fit. [23] The appellant’s specific evidence of contracting COVID-19 and any health-related problems that may arise from his incarceration are matters best dealt with by the Parole Board of Canada through the powers provided to it under the Corrections and Conditional Release Act , S.C. 1992, c. 20, s. 121(1): R. v. Premji , 2021 ONCA 721, at para. 10. VI. THE SENTENCE APPEAL [24] The appellant submits that the trial judge erred by failing to take into account the totality principle and his sentence is “manifestly unfit”. [25] We disagree. [26] In her reasons, the trial judge stated she was required to take totality into account when imposing sentence and it is evident on a reading of her reasons that she did so. [27] As for the fitness of sentence, we note the following. The appellant was in a position of trust in relation to the complainant, having taken on the role of a step-parent. He committed two separate, serious acts of sexual interference on the complainant when she was a child of between 11 and 14 years of age. And, he has a related criminal record, having a prior conviction for sexual assault. Mid-single digit penitentiary terms for sexual offences against children are normal: see R v. Friesen , 2020 SCC 9, 444 D.L.R. (4th) 1, at paras. 5, 114. The sentence imposed here falls within that range. VII. DISPOSITION [28] Accordingly, the motion to admit fresh evidence and the conviction appeal are dismissed. While leave to appeal sentence is granted, that appeal is also dismissed. “E.E. Gillese J.A.” “David Brown J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Sicotte v. 2399153 Ontario Ltd., 2021 ONCA 912 DATE: 20211221 DOCKET: C68978 MacPherson, Simmons and Nordheimer JJ.A. BETWEEN Joanne Sicotte Plaintiff (Appellant) and 2399153 Ontario Ltd., Josée Virgo, Philippe Grandmaitre and Denis Marchand Defendants (Respondents) Martin Black, for the appellant Alden Christian, for the respondents 2399153 Ontario Ltd., Josée Virgo and Philippe Grandmaitre Nadia Authier, for the respondent Denis Marchand Heard: November 3, 2021 by video conference On appeal from the judgment of Justice Robyn M. Ryan Bell of the Superior Court of Justice, dated December 9, 2020, with reasons reported at 2020 ONSC 7581. Nordheimer J.A.: A. Introduction [1] The appellant, Joanne Sicotte, brought a motion for summary judgment on a guarantee of a commercial mortgage signed by the respondents, Josée Virgo, Philippe Grandmaitre, and Denis Marchand. The motion judge dismissed the appellant’s motion but granted summary judgment to the respondents dismissing the appellant’s action against them. [2] The result of the motion judge’s decision is that the appellant is prevented from enforcing the guarantee until another mortgage that the corporate respondent 2399153 Ontario Ltd. (the “Borrower”) made with the Business Development Bank of Canada (“BDC”) is paid out. By the terms of the BDC mortgage, the payout may not occur until 2043, or even later if BDC grants an extension. [3] The appellant submits that the motion judge erred in rendering a decision that has such a drastic and unfair result for her. I agree with the appellant. For the following reasons, I would grant her appeal, set aside the order below, and grant summary judgment in favour of the appellant. B. facts (1) The parties and events [4] The appellant loaned $800,000 to the Borrower in 2014 in exchange for a mortgage over the Borrower’s property pursuant to the terms of a loan agreement (the “Sicotte Loan”). The three individual respondents — Ms. Virgo, Mr. Grandmaitre, and Mr. Marchand — are officers, directors and shareholders in the Borrower and guarantors of this mortgage. Pursuant to a separate guarantee agreement, they agreed to guarantee the Borrower’s debts and liabilities “at any time owing” by the Borrower to the appellant. A fourth officer, director and shareholder of the Borrower is Marc Robert, the appellant’s spouse. [5] The appellant says that the Borrower is obligated to make monthly mortgage payments, has failed to do so, and is, therefore, in default under the loan agreement. She looks to enforce the guarantee against Ms. Virgo, Mr. Grandmaitre and Mr. Marchand (the “guarantors”). [6] The complicating factor is that, in 2018, BDC loaned an additional $3.9 million to the Borrower in exchange for a mortgage over the same property as the one described in the Sicotte loan. As part of the BDC loan agreement, the appellant, the Borrower and BDC signed a Postponement of Debt Agreement (the “Postponement Agreement”) which provided in part: [T]he Creditor [the appellant] agrees with the Bank [BDC] that any claim of the Bank in respect of the Loan [the BDC loan] shall take precedence over and be fully paid in priority to the Debt [the Sicotte Loan], and repayment of the Debt is hereby expressly postponed in favour of the Bank and the Creditor will not, so long as the Borrower is indebted to the Bank in respect of the Loan, demand payment, either in whole or in part, of the Debt [Emphasis added.] [7] Concurrent with the BDC loan, the original Sicotte mortgage was amended in significant respects by: i. deleting the principal amount of $800,000 and inserting a principal amount of $1,522,757; ii. deleting the interest rate of 5.0% and inserting an interest rate of 6.0%; iii. extending the term for one year; and iv. deleting the monthly payment amounts of $3,333.33 and inserting monthly payment amounts of $7,613.79 (acknowledged to be payments of interest only). [8] The Borrower made the monthly interest payments to the appellant in July, August and September 2018. The payments then ceased. No payments have been made since. Further, the mortgage matured and became due and payable in full on July 10, 2019. [9] In reliance upon the Postponement Agreement, BDC advised the appellant that she could not demand payment from the Borrower, or enforce her mortgage against the property, until such time as BDC is paid in full, the ultimate due date being in August 2043 or, possibly by extension, even later. [10] The appellant appears to have accepted BDC’s warning about the mortgage. Instead, she commenced this action on the guarantee and brought a motion for summary judgment against the guarantors. All parties agreed that the motion for summary judgment was an appropriate method for resolving the dispute and that there were two possible outcomes – summary judgment could be granted in favour of the appellant or an order could be made dismissing her action, notwithstanding the absence of a cross-motion for such relief: see Meridian Credit Union Limited v. Baig , 2016 ONCA 150, 346 O.A.C. 57, at para. 17, leave to appeal to S.C.C. refused, 36974 (March 2, 2017). (2) The motion judge’s decision [11] The motion judge dismissed the appellant’s motion. In its place, she granted an order dismissing the appellant’s entire action. The core of her reasoning was as follows: Are 239 Ontario’s liabilities to Ms. Sicotte under the Mortgage presently “owing”? In my view, the answer to this question is “no”, based on a plain reading of the Postponement executed by Ms. Sicotte. Giving the words used in the Postponement their ordinary and grammatical meaning, Ms. Sicotte agreed: (i) the repayment of the BDC loan takes precedence over and shall be fully paid in priority to the Sicotte Loan; (ii) repayment of the Sicotte Loan is postponed in favour of the BDC; (iii) Ms. Sicotte’s right, title, and interest in any security in respect of the Sicotte Loan is postponed in favour of the BDC; and (iv) while 239 Ontario is indebted to BDC, Ms. Sicotte is not entitled to demand payment of the Sicotte Loan. As the Postponement expressly states, BDC made its loan to 239 Ontario conditional on the Sicotte Loan being postponed. The wording of the Postponement is clear and unequivocal. I find that the intention of the parties to the Postponement — BDC, Ms. Sicotte, and 239 Ontario — was that no payments (interest or otherwise) could or would be made on the Sicotte Loan until such time as the BDC loan is repaid in full. The BDC loan has not been repaid in full; it matures in August 2043. I find that 239 Ontario remains indebted to Ms. Sicotte but, by operation of the Postponement, no amounts are presently “owing” by 239 Ontario under the Sicotte Loan and Ms. Sicotte has no right to insist on payment. I reject Ms. Sicotte’s contention that the Postponement is irrelevant and her argument that the guarantors are not entitled to rely on an agreement to which they are not parties. To the contrary, Ms. Sicotte must be held to the clear terms of the agreement she and 239 Ontario made with BDC. Because of that bargain, there are no amounts presently owing by 239 Ontario to Ms. Sicotte under the Mortgage. Therefore, the Mortgage is not in default and the guarantors’ obligations are not triggered. C. issues [12] The appellant advances three issues on the appeal: 1. Did the motion judge err by failing to distinguish between a debt being “owed” and a debt being subordinated and temporarily unenforceable against the borrower? 2. Did the motion judge err by failing to distinguish between the obligations of the primary debtor/borrower to the appellant as a lender and those of the guarantors? 3. Did the motion judge err by applying a lease-up pre-condition to the repayment of the subject loan after such pre-condition had ceased to apply on the pay-out of the previous construction financing? [13] For the following reasons, I conclude that the motion judge made each of these three errors. D. analysis (1) Standard of review [14] I begin by noting that the motion judge was required to interpret several types of documents – loan, mortgage, guarantee, and postponement of debt. All these documents were commercial and contractual and, taken together, they involved several commercial and individual parties. [15] In Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50 and 52, the Supreme Court of Canada held that “[c]ontractual interpretation involves issues of mixed fact and law” and that, therefore, deference is owed “to first instance decision-makers on points of contractual interpretation”. Accordingly, the “palpable and overriding error” standard applies to these issues, which are issues of contractual interpretation with no extricable question of law: see Heritage Capital Corp. v. Equitable Trust Co. , 2016 SCC 19, [2016] 1 S.C.R. 306, at paras. 21-24. The appellant, fairly, acknowledges in her factum that this is the appropriate standard of review on each of the three issues she raises on this appeal. (2) Issues 1 and 2: Failure to distinguish between the primary debt and the guarantee, and between “owing” and “enforceable” debt obligations [16] The first two issues greatly overlap and can be dealt with together. In my view, the motion judge’s central error is that she confused the appellant’s rights as they relate to the underlying debt with her rights as they relate to the guarantee. The two are separate and distinct contractual obligations, and that distinction must be respected. The result arrived at by the motion judge improperly conflates the two. In the circumstances, this amounts to an error of law, or at the very least a palpable and overriding error of mixed fact and law, as those concepts relate to the standard of review. [17] The Postponement Agreement, upon which both the guarantors and the motion judge placed exclusive reliance, was made between the appellant, the Borrower, and the BDC. The guarantors were not parties to the Postponement Agreement. Nothing in the Postponement Agreement purports to, or does, involve, much less alter, the relationship between the appellant and the guarantors. Simply put, there is nothing in the Postponement Agreement that purports to address or affect the appellant’s rights vis-à-vis the guarantors. [18] On that latter point, I do not accept that the reference in the Postponement Agreement that “the [appellant] at the request of the [BDC] shall postpone in favour of the [BDC], all its or his right, title and interest in any security in respect of the Debt postponed by these presents” refers to the guarantee. First, the guarantee is not a security “postponed by these presents”. Second, if the BDC had intended to impact on the rights and obligations of the guarantors, it presumably would have sought their concurrence to that impact, either by making them parties to the Postponement Agreement or through the execution of a separate agreement. [19] The motion judge also erred in concluding that the indebtedness of the Borrower to the appellant was not “owing” to the appellant. The motion judge recited this conclusion at para. 30, and again at para. 41, of her reasons. That conclusion reflects both a factual and a legal error. The mortgage, which secured the debt due by the Borrower to the appellant, has matured in accordance with its terms. It is an error to conclude that a matured mortgage does not represent monies that are due and owing. [20] If those facts were not, on their own, sufficient to address this point, I would also note that the guarantee refers to debts “owing by the Borrower to the Lender or remaining unpaid by the Borrower to the Lender” (emphasis added). It should be self-evident that the debt remains unpaid by the Borrower. Neither the principal amount of the mortgage has been paid nor have the monthly interest payments been made. The motion judge does not make reference to this language in her analysis. Nevertheless, the motion judge does note that section 2.02 of the guarantee entitles the appellant to demand payment or performance from the guarantors, even if she has not exhausted her remedies as against the Borrower. Yet the motion judge gives no effect to this section. [21] What the motion judge confused, with the active support of the guarantors, is the question of whether a debt is due and owing and whether a lender can enforce payment of a debt that is due and owing. The former addresses liability and the latter addresses enforcement. As this case demonstrates, just because a debt is due and owing does not necessarily mean that a lender can take steps to enforce payment of the debt. In this case, the appellant disentitled herself to enforce payment of the debt by the Borrower because of the contractual arrangements she entered into with the BDC, so as to permit the BDC to advance other monies to the Borrower. Understandably, the BDC insisted on being first in priority in terms of any enforcement rights against the Borrower (and its assets). The appellant contractually agreed to give the BDC that priority by postponing her enforcement rights as against the Borrower. [22] What the appellant did not do, and which is central to the issues in this case, is postpone or otherwise alter her rights of enforcement against the guarantors. Contrary to the finding of the motion judge, the Postponement Agreement did not do so. The first clue to that conclusion, as I alluded to above, ought to have arisen from the salient fact that the guarantors were not parties to the Postponement Agreement. [23] The motion judge’s conclusion about the Postponement Agreement is also inconsistent with the terms of the guarantee. The guarantee makes it clear that the obligations of the guarantors are independent of the obligations of the Borrower. By way of example, section 1.02 of the guarantee states: The liability of the Guarantor in this Guarantee will be absolute and unconditional and will not be affected by: (a)     any lack of validity or enforceability of any agreement between the Borrower and the [appellant] [24] To a similar effect is section 2.01 of the guarantee, which states: The liability of the Guarantor in this Guarantee will not be released, discharged, limited or in any way affected by anything done, suffered or permitted by the [appellant] in connection with any duties or liabilities of the Borrower to the [appellant] or any security therefor including any loss of or in respect of any security received by the [appellant] from the Borrower or others. [25] With respect, these provisions in the guarantee could not be clearer or more broadly worded. While the motion judge made reference to these provisions, she failed to give them any effect. [26] Consistent with the interpretative principles set out in Sattva , the surrounding circumstances are relevant to a proper interpretation of the contractual document. Rothstein J. said, at para. 47: [T]he interpretation of contracts has evolved towards a practical, common-sense approach not dominated by technical rules of construction. The overriding concern is to determine “the intent of the parties and the scope of their understanding”. To do so, a decision-maker must read the contract as a whole, giving the words used their ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract. [Citations omitted.] [27] The surrounding circumstances known to the parties here was that the Borrower needed to obtain construction financing to ensure that the vacant land that it held as its only asset could be developed so as to generate revenues to pay the Borrower’s obligations. The appellant, recognizing that reality, agreed to postpone her rights as against the Borrower to enable that financing to take place. Indeed, she did so twice: once for the Borrower to obtain construction financing, and then again when the Borrower negotiated the loan with the BDC that, among other things, paid out the construction financing. [28] However, there was never any agreement that the appellant’s rights against the guarantors were to be similarly postponed. That conclusion flows inevitably from the factual record. In particular, there was an express agreement, at the time of the BDC financing, to amend the mortgage in four specific respects, as I set out above. [29] The respondents expressly agreed to these changes. [1] If the appellant’s rights were to be, in all respects, entirely subsumed and postponed to the BDC financing, as now urged by the guarantors, and as found by the motion judge, then there was no need for a one-year extension of the mortgage since, on the motion judge’s findings, the appellant was not able to enforce the mortgage, or the guarantee, until the BDC financing became due in 2043. Nor does it appear that there was much practical purpose for providing that interest-only payments were to be made since, as the respondents would have it, there is no remedy for any failure to make those payments. Indeed, those interest-only payments, that the respondents expressly agreed were to be made, stopped only three months after they began and yet, in the result, the appellant is precluded from obtaining any relief arising from the failure to make those payments. [30] I would add, on this point, that there is evidence in the record that at least one of the purposes of the one-year extension was to allow time for the parties to pay out the Borrower’s debt to the appellant. This intent is set out in an email from the appellant’s lawyer to the guarantors dated July 3, 2018, the same email that confirmed the guarantors’ acceptance of the terms, and the understanding upon which the appellant was postponing her rights against the Borrower to those of the BDC. If, as found by the motion judge, the appellant had waived her rights to payment of the debt, not only from the Borrower but also from the guarantors, there was no practical purpose to paying the appellant out, since the appellant had no rights of collection for the next twenty-five years. The motion judge did not address this evidence. (3) Issue 3: The lease-up of the property [31] The third issue arises from an alternative argument advanced by the guarantors. The guarantors contend that the construction financing contained a term that the loan amount did not have to be repaid until all of the units to be constructed in the buildings were leased. That has never happened. The guarantors submit that this is another reason that no amounts are owing by the Borrower, or by them, to the appellant. [32] That contention not only suffers from the same flaw of ignoring the distinction between the obligations under the principal debt and the obligations under the guarantee, but it also ignores the salient fact that the construction financing was paid out by the BDC financing. There is no basis in the record for concluding that the terms attached to the construction financing survived that payout and remained in force. (4) Potential new issue: Section 3.01 of the guarantee [33] Finally, the respondent Mr. Marchand raises what appears to be a new issue, and that is the effect of section 3.01 of the guarantee. Section 3.01 reads: At any time that the [appellant] is entitled to enforce its security in accordance with the provisions of the Mortgage, the [appellant] shall be entitled to make demand upon any one or all persons comprising the Guarantor for payment and performance of all Obligations. [34] Mr. Marchand contends that because the appellant was not in a position to enforce her rights against the Borrower, she was not entitled to make a demand for payment under the guarantee. It is not clear if this issue was raised before the motion judge. Certainly, it is not referred to in her reasons. In any event, it does not assist the guarantors. [35] The appellant was entitled to enforce her security “in accordance with the provisions of the Mortgage”. Default had been made in the payments required and the mortgage had matured. The argument that there was no right to enforce because of the Postponement Agreement ignores the fact that section 3.01 of the guarantee refers expressly to the provisions of the mortgage, not any other document. The argument also ignores the specific provisions of the guarantee in sections 1.02 and 2.01 that I have referred to above, and it ignores section 4.02 which provides that the guarantee “constitutes the entire agreement between the Guarantor and the [appellant]”. Mr. Marchand acknowledges that the interpretation of the guarantee requires that all of its terms are to be read and considered as a whole. E. CONCLUSION [36] In the end result, as I have already observed, the conclusion of the motion judge has the effect of precluding the appellant, not only from being repaid the monies that were borrowed from her for the next twenty-two years, but also from receiving any interest payments to her on those same funds. Indeed, the time for repayment could go beyond that point since the BDC has the right to extend its financing. It means that the appellant must wait more than two decades, not only to be repaid the monies that she lent, but even to receive any return on those monies. That is a result that drives the interpretation of the security arrangements between the appellant and the guarantors to an absurd result. As noted by Cromwell J. in Bhasin v. Hrynew , 2014 SCC 71, [2014] 3 S.C.R. 494, at para. 45: Further, as Lord Reid observed in Schuler A.G. v. Wickman Machine Tool Sales Ltd. , [1974] A.C. 235 (H.L.), at p. 251, “[t]he more unreasonable the result the more unlikely it is that the parties can have intended it”. [37] I would allow the appeal, set aside the order of the motion judge, and grant summary judgment against the guarantors, each as to one-third of the outstanding debt, in accordance with the terms of the guarantee. I would award the appellant her costs of the appeal fixed in the amount of $15,000, inclusive of disbursements and HST. I would also award the appellant the costs of the action and the summary judgment motion fixed in the amount of $20,000, inclusive of disbursements and HST. Released: December 21, 2021 “J.C.M.” “I.V.B. Nordheimer J.A.” “I agree. J.C. MacPherson J.A.” “I agree. Janet Simmons J.A.” [1] I note that, arguably, the guarantors would have been bound by these changes in any event since section 2.01 of the guarantee provides that the appellant could deal with the Borrower “ without obtaining the consent of or giving notice to the Guarantor”.

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Barreau, 2021 ONCA 918 DATE: 20211221 DOCKET: M52943 (C69723) Gillese, Brown and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Kevin Barreau Respondent and J.R. Appellant and Toronto Police Service Appellant David Butt, for the appellant/moving party J.R. Noah Schachter, for the appellant/moving party Toronto Police Service Nicolas de Montigny, for the respondent Attorney General of Ontario Chris Rudnicki and Theresa Donkor, for the respondent Kevin Barreau Heard: December 17, 2021 by video conference On appeal from the judgment of Justice Jill M. Copeland of the Superior Court of Justice, dated July 27, 2021, dismissing an application for certiorari from the order of Justice Russell S. Silverstein of the Ontario Court of Justice, dated May 27, 2021. REASONS FOR DECISION [1] As an issue on this appeal concerns whether the third-party records regime in ss. 278.1-278.9 of the Criminal Code , R.S.C., 1985, c. C-46, applies, by order of the panel on the motion this appeal was heard in camera . [2] The arguments below focused on the applicability of the third-party records regime to the evidence it was anticipated the former officer (J.R.) would provide. The application judge concluded that the trial judge had not made an error of jurisdiction or an error of law on the face of the record in issuing a subpoena requiring J.R. to testify at Mr. Barreau’s trial. We see no error in her analysis or her conclusions. [3] As both the trial judge and application judge held, clearly the third-party records regime would not apply to the oral statements allegedly made by J.R. to her former colleague (“A”), who provided two affidavits on the application before the trial judge. [4] As to the draft statement of claim, which in one paragraph repeated the alleged oral statement, both judges below correctly stated the applicable legal principles. In particular, they recognized that the principles in R. v. Shearing , 2002 SCC 58, [2002] 3 S.C.R. 33, applied to the issue of the lawfulness of how the defence acquired the draft statement of claim. We see no reversible error in their conclusions that settlement and mediation privilege did not apply and, therefore, in the particular circumstances, the third-party records regime did not apply. [5] In any event, the trial judge held that if the third-party records regime applied, upon applying the statutory criteria he concluded that production of the draft statement of claim to the defence on its Charter application was necessary in the interests of justice. We see no reversible error in that conclusion. [6] The appeal is dismissed. [7] The interim stay dated August 9, 2021 granted by Harvison Young J.A. is set aside. Accordingly, the unsealing and set aside orders made by Copeland J. at paras. 29(ii) and (iii) of her endorsement dated July 27, 2021 are now in force. “E.E. Gillese J.A.” “David Brown J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Marzouk, 2021 ONCA 921 DATE: 20211221 DOCKET: C68089 Rouleau, Huscroft and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Ahmed Marzouk Appellant Faisal Mirza and Kelly Gates, for the appellant Jeffrey Wyngaarden , for the respondent Heard: October 29, 2021, by video conference On appeal from the conviction entered on January 9, 2020 with reasons reported at 2020 ONSC 168, and the sentence imposed on March 3, 2020 by Justice Dunphy of the Superior Court of Justice. ADDENDUM [1] In reasons dated December 1, 2021, the court allowed the sentence appeal, varied the sentence to one of two years less a day followed by a one-year probation. The court sought submissions from counsel as to appropriate terms for that probation. [2] Having reviewed those submissions the court orders that the terms be those agreed to by counsel plus the requirement that the appellant complete 60 hours of community service. “Paul Rouleau J.A.” “Grant Huscroft J.A.” “J.A. Thorburn J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Priestap, 2021 ONCA 920 DATE: 20211221 DOCKET: C68369 Gillese, Brown and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Bradley Gary Priestap Appellant Bruce Engel, for the appellant Michael Fawcett, for the respondent Heard: December 13, 2021 On appeal from the convictions entered on August 27, 2013, and the sentence imposed on October 16, 2015, by Justice Thomas J. Carey of the Superior Court of Justice. REASONS FOR DECISION Overview [1] The appellant, Bradley Priestap, appeals his convictions on multiple counts of voyeurism, break and enter to commit voyeurism, possession of instruments for break and enter, and prowling on property at night. The events that gave rise to the charges occurred during several nights in August and September 2012 in a student housing neighbourhood near the campus of Western University. At sentencing the appellant was declared a long-term offender. [2] The appellant was sentenced to serve nine years in custody followed by a ten- year supervision order. Although his notice of appeal seeks leave to appeal from his sentence, before us the appellant abandoned his sentence appeal. [3] The appellant advances three main grounds of appeal in respect of his convictions: (i) the trial judge failed to provide adequate reasons that were supported by the evidence; (ii) the trial judge erred by summarily dismissing “any notion that an alternate suspect could have been responsible for the crime [ s ] ”; and (iii) ineffective assistance of counsel. [4] At the conclusion of the appellant’s submissions, we advised that it was not necessary to hear from the respondent and dismissed the appeal, with reasons to follow. These are those reasons. Adequacy of reasons [5] The appellant’s challenge to the adequacy of the trial judge’s reasons combines (a) disagreement with some specific findings of fact, such as the similarity of the type of duct tape on the appellant’s camera with that found in his car – together with a bag containing a black toque, flashlight, and screw driver – with (b) a complaint that the trial judge did not provide detailed reasons for why he rejected the appellant’s explanation about his presence in the student housing as it “bordered on laughable. ” [6] As stated in R. v. Vuradin , 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 15, “The core question in determining whether the trial judge’s reasons are sufficient is the following: Do the reasons, read in context, show why the judge decided as he did on the counts relating to the complainant?” When reasons are alleged to be insufficient, an appellate court must perform a functional and contextual reading of a trial judge’s reasons to assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review: R. v. G.F. , 2021 SCC 20, 71 C.R. (7th) 1, at para. 69. [7] In the present case, the trial judge’s reasons explain what he decided and why. The reasons reveal that the trial judge relied on an accumulation of evidence to convict the appellant: the pattern of travel of the appellant’s vehicle recorded by a warrant-approved tracking device attached to the car; the observations of the officers who conducted surveillance of the appellant in the student housing area on the night of September 28, 2012; the arrest of the appellant that evening in that area; the photographs of partially clad female students found in the appellant’s camera; the duct tape that covered the flash on the appellant’s camera; the contents of the black bag seized from the appellant’s car pursuant to a warrant; and the description given by a female student of the person who had entered into her room when she was asleep. [8] As well, the trial judge spent considerable time in his reasons describing and assessing the appellant’s explanation for moving amongst various houses in the student area at night: namely, that he was looking for a friend named Rob or Rocco who previously had used his camera and must have been the person who took the photographs of the female students. In his reasons, the trial explained why he found “many parts of Mr. Priestap’s story” to be “ridiculous and an affront to common sense and intelligence” and, therefore, rejected it. [9] It was for the trial judge to assess the appellant’s credibility and we see nothing unreasonable in the conclusion he reached. Nor are we persuaded that the trial judge’s factual findings were tainted by palpable and overriding error. [10] Accordingly, we reject this ground of appeal. Alternate suspect [11] The appellant submits that the trial judge failed to provide trial counsel with an opportunity to present the evidence of a third -party , or alternate, suspect. [12] The record does not support this ground of appeal. [13] Evidence of the possible involvement of a third party in the commission of an offence is admissible if there is a significant connection between the third party and the crime: R. v. Grandinetti , 2005 SCC 5, [2005] 1 S.C.R. 27, at paras. 46 -47. [14] As the respondent Crown accurately notes, the trial judge did allow the appellant to call evidence with respect to two proposed third-party suspects but did not permit such evidence in respect of a third individual. The conduct of the third individual was described in an April 27, 2013 newspaper article that trial counsel put to one of the investigating officers, P.C. Lipskey, during cross-examination . The article described the activity of a young man who drove a car on to the Western University campus, would stop and ask for directions from a female student, invite the student into his car to show him how to reach his destination, and then proposition the student for sexual favours. [15] Officer Lipskey testified he was not familiar with the investigation into the activities described in the article, which was published about half a year after the appellant’s arrest. When trial counsel continued her questioning, the trial judge interjected and the following exchange took place: THE COURT: I’ll let you ask him about the other ones, but this is – are you suggesting anything that involves anything possibly sexual and University students is relevant, any investigation is relevant to this investigation? You’re talking about somebody propositioning people in cars. This is an investigation into break and enters and also, trespass and prowling by night and voyeurism while people are sleeping. Am I supposed to think that, first of all, the fact that offences are happening while an accused person is in custody, is not remarkable? There’s going to be all sorts of things happening, maybe this kind of thing happening, but secondly this second set of circumstances doesn’t seem to have any relation to whatsoever the charge that we’re being, that we’re dealing with here. MS. CONRON: Well Your Honour, it would be my submission that it is tangently related because it is of a sexual nature. It is on the Western University region. It’s while Mr. Priestap is in custody. I expect he’ll provide evidence and this may tie into that. THE COURT: Well the Officer has said he doesn’t know any – he doesn’t agree with you that it’s related. I, I don’t think you’re, I think what you’re, frankly you’re wasting our time with it. MS. CONRON: Well I’ll move on. THE COURT: Okay. [16] Given the lack of connection between the conduct of the driver of a car on the Western University campus and the night-time prowling and break and enter activity for which the appellant was charged, we see no error in the trial judge suggesting to counsel that it would be a waste of time to pursue further questioning about the investigation into the car driver. Ineffective assistance of counsel [17] Although the appellant filed a lengthy affidavit alleging numerous deficiencies in the legal assistance provided to him by trial counsel, in his factum he relies on two allegations of ineffective assistance: (i) his counsel did not properly prepare him for trial, specifically by failing to ask the appellant that he was aware of the police presence in the student area at all times and was in the area at other times; and (ii) his counsel failed to bring a Charter application to exclude any and all police observations of the appellant. [18] We accept the Crown’s submission that the appellant has failed to demonstrate that trial counsel’s alleged competence prejudiced the appellant’s right to a fair trial: R. v. Garofoli (1988), 41 C.C.C. (3d) 97 (Ont. C.A.), at p . 15 2, rev’d on other grounds, [1990] 2 S.C.R. 1421 . [19] In respect of counsel’s alleged failure to ask the two questions, the appellant has not demonstrated how any answers he might have given would have impacted the result. We agree with the Crown that the trial judge’s strong finding against the appellant’s credibility casts a pall over his attempt before us, in effect, to reconstruct an innocent explanation for his presence in the student residence area on the nights in question. [20] In respect of a Charter application that was never brought, we accept the Crown’s submission that the appellant has not presented a proper record on this appeal to enable this court to evaluate his Charter claims nor has he demonstrated that the result would have been different had such an application been litigated. [21] We see no merit in this ground of appeal. Disposition [22] For the reasons set out above, the appeal from convictions is dismissed. “E.E. Gillese J.A.” “David Brown J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Simmons, 2021 ONCA 919 DATE: 20211221 DOCKET: C69285 Gillese, Brown and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Isaiah Norlyn Simmons Appellant Jessica Zita, for the appellant Erica Whitford, for the respondent Heard: December 14, 2021 On appeal from the sentence imposed on February 1, 2021 by Justice John A. Desotti of the Superior Court of Justice, with reasons for sentence reported at 2021 ONSC 674. REASONS FOR DECISION Overview [1] The appellant pleaded guilty to possession for the purpose of trafficking cocaine, possession of a loaded prohibited firearm, and possession of a loaded firearm while prohibited from doing so. The appellant received a global sentence of six years’ imprisonment. [2] The appellant contends that the global sentence of six years is excessive and should be reduced to a sentence in the range of five to five and a half years. In support of this submission, the appellant makes two arguments [1] : 1. The sentencing judge erred in treating the timing of the appellant’s guilty plea (after the preliminary hearing) as an aggravating factor. 2. The sentencing judge failed to consider the appellant’s rehabilitative potential. [3] At the conclusion of the hearing, we granted leave to appeal sentence but dismissed the appeal for reasons to follow. We now provide our reasons. Facts [4] The appellant was arrested following a high-risk police takedown of a car. The appellant was in the front passenger seat. During the takedown, the appellant removed a fully loaded handgun from his waistband to drop it on the floor of the car. He was also found with a firearm magazine containing ten bullets in his jacket pocket. A vacuum sealed plastic bag containing 250 grams of cocaine and crack-cocaine – valued at $25,000 – was also found in the car, along with a digital scale. [5] At the time of his arrest, the appellant was subject to a ten-year firearms prohibition order. That order had been imposed by a court in 2017 after the appellant’s convictions for possession of a loaded prohibited/restricted firearm and carrying a concealed weapon. [6] The sentencing judge sentenced the appellant to four years on the possession of a loaded prohibited firearm offence; one-year consecutive for the weapons prohibition breach, and one-year consecutive for the drug offence for a global sentence of six years. From this six-year sentence, the appellant received Summers credit of 660 days and Duncan credit for 107 days for a total deduction of 767 days from the global sentence: R. v. Summers , 2014 SCC 26, [2014] 1 S.C.R. 575; R. v. Duncan , 2016 ONCA 754. Discussion A. The Timing of the Guilty Plea [7] The appellant argues that the sentencing judge erred in principle when he noted that it was an aggravating factor that “there was a preliminary hearing before the [appellant] eventually entered into guilty pleas”. The appellant submits that this error deprived the appellant of substantial credit for pleading guilty in the sentencing process. [8] We agree with the appellant that the sentencing judge erred in considering the timing of the guilty plea to be an aggravating factor: see R. v. Kozy , (1990), 74 O.R. (2d) 545 (Ont. C.A.), at p. 550; R. v. F. (J.) , 2011 ONCA 220, 105 O.R. (3d) 161, at para. 84, aff’d on other grounds, 2013 SCC 12, [2013] 1 S.C.R. 565. The fact that a preliminary hearing had been held before the appellant pleaded guilty should not have been treated as an aggravating factor. [9] That said, an error in principle, the failure to consider a relevant factor, or the erroneous consideration of an aggravating factor will only justify appellate intervention if it appears from the sentencing judge’s decision that such an error had an impact on the sentence: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. [10] In our view, appellate intervention is not justified in this case. The timing of the guilty plea was not central in the sentencing judge’s assessment on sentence. It was only one of several aggravating factors noted by the sentencing judge. The sentencing judge focused on the fact that the appellant had received a serious previous sentence in 2017 for possession of a restricted weapon with a prohibition from the possession of firearms and the appellant was “oblivious to the peril that he would face if again apprehended for similar offences.” The sentencing judge quite properly concluded that “[p]ossessing a firearm while selling drugs is a recipe for death or injury to the [appellant], unsuspecting buyers of drugs, criminals that are intent on depriving the [appellant] of money or drugs, or the public who may unwittingly be present when the potential mayhem begins.” [11] In light of the seriousness of the offence involving a firearm; the appellant’s previous record; the possession of a significant amount drugs for trafficking; and the possession of a firearm in breach of the outstanding weapons prohibition, we cannot say that the trial judge’s error impacted the sentence he ultimately imposed. We would not give effect to this ground of appeal. B. The Appellant’s Rehabilitative Potential [12] The appellant argues that the sentencing judge did not address the appellant’s rehabilitative potential, which was addressed in materials filed during the hearing. We disagree. The sentencing judge referenced the pre-sentence report and a letter from the appellant’s father that addressed the appellant’s potential to rehabilitate himself. In his reasons, the sentencing judge also listed several mitigating factors. However, he noted that “[e]ach gun case turns frankly on its own offence specific and offender specific facts,” but that the paramount consideration was deterrence and denunciation. We see no basis to interfere with his assessment and balancing of the relevant principles. This ground of appeal must fail. Disposition [13] For these reasons, leave to appeal sentence is granted but the appeal is dismissed. “E.E. Gillese J.A.” “David Brown J.A.” “S. Coroza J.A.” [1] The appellant’s counsel advised during oral argument that the appellant was abandoning the other two grounds of appeal raised in the factum, as well as the fresh evidence application.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Doering, 2021 ONCA 924 DATE: 20211222 DOCKET: M53009 & M53015 (C67952) Fairburn A.C.J.O. (Motions Judge) BETWEEN Her Majesty the Queen Respondent and Nicholas Doering Appellant Alan D. Gold, for the appellant Jamie Klukach and Samuel Greene, for the respondent Joseph Markson and Kate Robertson, for the proposed intervener, the Police Association of Ontario Michael Lacy and Philip Wright, for the proposed interveners, Canadian Police Association and Toronto Police Association Heard: December 16, 2021 by video conference ENDORSEMENT [1] These reasons pertain to two applications brought pursuant to r. 30 of the Criminal Appeal Rules , Court of Appeal for Ontario, for leave to intervene in an appeal from conviction: R. v. Doering , C67592, reasons for judgment reported at 2019 ONSC 6360. The appeal is scheduled to be heard February 9, 2022. [2] The appellant is a police officer who was tried in a judge-alone trial in the Superior Court of Justice. He was convicted of two offences, both of which were said to have occurred in the course of his duties: (1) criminal negligence causing death, contrary to s. 220(b) of the Criminal Code , R.S.C., 1985, c. C-46; and (2) failing to provide the necessaries of life, contrary to s. 215(2)(b) of the Criminal Code . [3] In response to multiple 9-1-1 calls, the appellant was dispatched to a location where a woman, Ms. Debra Chrisjohn, had been seen behaving erratically. It is not in dispute that Ms. Chrisjohn had ingested a great deal of methamphetamine. Nor is it in dispute that the degree of toxicity in her body was such that she ultimately succumbed to a heart attack. [4] When he arrived on scene, the appellant placed Ms. Chrisjohn in the back of his police vehicle. He eventually drove Ms. Chrisjohn to another location and placed her into the custody of a different police service that had an outstanding warrant for her arrest. Ms. Chrisjohn died while in the custody of the other police service. [5] The defence conceded at trial that Ms. Chrisjohn needed medical assistance while she was in the appellant’s custody and that the failure to get her that assistance endangered her life. Despite that concession, the defence argued, and the trial judge accepted, that the appellant did not know or subjectively appreciate that Ms. Chrisjohn needed that assistance. [6] Therefore, one of the primary issues in dispute at trial was whether the appellant’s conduct amounted to a marked departure (or a marked and substantial departure for purposes of the criminal negligence count) from the standard of care of a reasonably prudent police officer in the circumstances. Of course, those circumstances engage a commonplace occurrence in the world of policing: the interaction between police officers and individuals in various states of impairment. The trial judge concluded that the appellant’s failure to obtain medical attention for Ms. Chrisjohn constituted a sufficient departure from the standard of care of a reasonably prudent police officer and that convictions should be entered on both counts. [7] The appellant contends that the trial judge made numerous factual and legal errors when arriving at the conclusion that he was guilty of both failing to provide the necessaries of life and criminal negligence causing death. [8] There are two applications for intervention before the court: (1) Canadian Police Association & Toronto Police Association (“CPA/TPA”); and (2) Police Association of Ontario (“PAO”). Collectively, I will refer to the CPA/TPA and PAO as the “Associations”. The appellant consents to and the respondent opposes both applications. [9] Multiple criteria inform whether to grant leave to intervene in an appeal as a friend of the court, including the general nature of the case to be heard, the issues that arise in the case, and the contribution that the intervener can make to those issues without doing an injustice to the parties: Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), at p. 167; R. v. M.C. , 2018 ONCA 634, at para. 9. [10] While it is rare to permit an intervention in a criminal case unless a constitutional issue is raised, there is no rule against such interventions. It remains a question of whether the proposed intervener will make a useful contribution beyond that offered by the parties without causing an injustice to the parties: R. v. McCullough (1995), 24 O.R. (3d) 239 (C.A.), at p. 243. [11] The respondent acknowledges the experience and expertise of the Associations. This is beyond question. [12] The CPA represents approximately 60,000 police service personnel in Canada and about 160 police services. The TPA has about 8,000 members. The PAO represents more than 28,000 uniformed police officers and civilian employees of municipal police services. All three associations have developed significant expertise in issues relating to policing, and the CPA and PAO have previously offered their expertise through interventions in cases involving issues of import to the practice and regulation of policing. A few examples suffice: Hill v. Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41, [2007] 3 S.C.R. 129; Ontario (Attorney General) v. Fraser , 2011 SCC 20, [2011] 2 S.C.R. 3; Wood v. Schaeffer , 2013 SCC 71, [2013] 3 S.C.R. 1053; Peel (Police) v. Ontario (Special Investigations Unit) , 2012 ONCA 292, 110 O.R. (3d) 536; R. v. McNeil , 2009 SCC 3, [2009] 1 S.C.R. 66. [13] In my view, the Associations have a real, substantial, and identifiable interest in the subject matter of this appeal. [14] At a granular level, I agree with the respondent that this is a fact-intensive case. The appellant challenges some of the trial judge’s important factual conclusions. Even so, the appellant also directs his submissions at the legal approach taken by the trial judge, including on the following issues: (1) the legal approach to what a reasonably prudent police officer would have appreciated in the circumstances; (2) the determination of the applicable standard of care in the absence of expert evidence as to the professional standards applicable to police officers; and (3) the failure to consider the relevance of a mistake of fact in relation to offences of objective liability. [15] While I accept that it is possible that this appeal may ultimately turn on certain factual conclusions reached by the trial judge, specifically as they relate to the interactions between the appellant and the deceased and other police officers and medical personnel, at this stage, it is simply too early to know. All that is known with certainty now is that, given the subject-matter underpinning the convictions in this case, a police officer’s criminal liability arising from a failure to obtain medical attention for an intoxicated individual could have implications for policing in general. [16] The CPA/TPA wishes to advance a number of arguments that can be collapsed into two overarching submissions: (1) a police officer’s on-the-job experience with intoxicated persons should be taken into account when assessing what a reasonably prudent officer would do in any given circumstance; and (2) there are important policy, operational, and resource implications arising from the potential for criminal liability if a police officer falls below the legal standard of care. [17] The PAO wishes to advance submissions on the following three points: (1) the importance of considering mistakes of fact by a police officer when determining that officer’s liability for criminal negligence; (2) the need to avoid placing undue emphasis on police policy when conducting a proper reasonable standard of care analysis; and (3) the need for expert evidence when determining the content of the standard of care exercised in a professional setting. [18] The respondent opposes the interventions on several bases. [19] First, the respondent argues that the applicants’ proposed arguments reveal a clear partisanship on the facts and the outcome of the appeal. [20] The respondent’s position is not without merit. The CPA/TPA’s written argument in particular is riddled with references to the evidence in this case and, at points, appears to weigh in on the merits. I agree with the respondent that the CPA/TPA position, as it currently stands, does not properly confine itself to the legal issues it purports to advance and that this is problematic. [21] The reality is that interveners’ arguments will typically support one side or the other. As noted in Jones v. Tsige (2011), 106 O.R. (3d) 721 (C.A.), at para. 28: “It should scarcely surprise, indeed it would seem almost the very essence of intervention, that the position to be advanced by a proposed intervenor would tend to support that of one of the original litigants and oppose that of the other.” Accordingly, the simple fact that interveners support one side or the other is not in and of itself inappropriate. The difficulty arises where interveners, as friends of the court, weigh in on the actual merits of the appeal. No party should have to face the addition of what are tantamount to other parties opposite. That is the problem with the CPA/TPA position as it is currently cast. Even so, it is a problem that can be easily overcome. [22] Despite their written argument on this application crossing the line into the actual merits of the appeal, the Associations are advancing legal issues that are properly the subject of intervention. In my view, they can make a useful contribution on those issues while staying entirely away from the merits of the appeal. I am satisfied that with a properly crafted order, the interveners will confine themselves to the legal issues to be addressed, stay out of the facts of this case, and not take a position on the merit of the appellant’s position or the actual outcome of the appeal. Should they fail to comply with that order, as with all interventions, it will be open to the panel hearing the appeal to disregard the intervention as unhelpful. [23] The respondent also opposes the applications on the basis that the interveners are proposing to both: (1) expand the issues on appeal; and (2) repeat what the appellant has already said. [24] I do not perceive the interveners to be expanding the issues on appeal. Rather, they are providing fresh perspectives on the issues already before the court. This is the sine qua non of an intervention. There are no new legal issues being advanced; only new ideas about how to approach those issues. [25] To the extent that the objection centres on duplicative submissions, I have reviewed the appellant’s factum. While there is some duplication, such as on the point involving the relevance of a mistake of fact to the mens rea of criminal negligence, the submissions are duplicative only at the most basic level. While the appellant raises the issues, the Associations expand on them and offer fresh perspectives on how to approach them. [26] The respondent also resists the CPA/TPA intervention on the basis that the arguments pertaining to strategic policy and operational demands are not useful and, in any event, impermissibly augment the record. This submission cannot succeed. [27] It is a matter of common sense that there may be policy and resource implications arising from questions involving the standard of care associated to situations where police officers are dealing with impaired individuals. This is not something upon which evidence is required. As with all cases, the court will not be deciding this case in a vacuum. Interveners with expert insight into the professional environment at issue may provide a helpful context within which the appeal will be decided. [28] Finally, the respondent argues that the interveners – all police associations – will create an imbalanced perspective on appeal owing to the lack of input from other public interest groups who can raise countervailing policy-based considerations. The fact is that no other public interest groups sought to intervene on this appeal. Had they done so, those applications would have been heard at the same time as these ones. [29] The interveners have a real, substantial, and identifiable interest in the subject matter of this appeal. Properly developed and constrained, their submissions will be relevant and useful to the court. In my view, no prejudice will be caused to the parties by granting the leave to intervene applications. [30] Accordingly, the interveners are granted intervener status as friends of the court on the following terms: I. The interveners may each file a factum of up to ten (10) pages in length. II. The interveners’ factums shall be filed not later than January 7, 2022. III. To account for any new arguments that may need responding to, the respondent’s factum may be up to an additional 10 pages in length. IV. The interveners shall not raise new issues or adduce any new evidence. V. The interveners shall not supplement the record or make any submissions on the merits of the appeal. VI. The time allowed for oral argument, if any, shall not be decided until the interveners’ factums have been filed and considered. VII. There shall be no costs awarded for or against the interveners on this application or on the appeal proper. [31] Applications granted. “Fairburn A.C.J.O.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.T., 2021 ONCA 922 DATE: 20211222 DOCKET: C67335 Strathy C.J.O., Hourigan and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and J.T. Appellant Chris Sewrattan, for the appellant Molly Flanagan, for the respondent Heard: November 24, 2021 On appeal from the conviction entered on June 10, 2019 by Justice Susan Chapman of the Ontario Court of Justice. REASONS FOR DECISION [1] After receiving an alert that on May 28, 2017 child pornography had been transmitted from an identified Internet Protocol address (“IP address”) using a Skype file sharing program, Toronto Police obtained a search warrant for the residential address associated with that IP address. The residence was owned by JT’s parents. When the search warrant was executed on November 16, 2017, JT was discovered holding a computer tablet that belonged to him. A commercial movie was playing in full screen. A separate application containing child pornography was also opened on the computer tablet. Although the child pornography was not immediately visible on the screen, it could readily and easily be accessed because it was already opened. [2] Det. Cst. Kidd of the Sex Crimes Unit, who was present at the time of the search, determined that the IP address at the residence had changed since the May 28, 2017 transmission. [3] In the days that followed, a forensic examination of the computer tablet was conducted with the aid of forensic software that categorizes and analyzes images and videos. The images of child pornography that had been transmitted on May 28, 2017 were found on the device. Additional images of child pornography were located in the downloaded document files. The downloaded document files also contained documents that could be linked circumstantially to JT, and his user account and his email address were linked to the computer. [4] JT was charged with several child pornography offences on a four count information. He was tried and convicted of possessing child pornography and making child pornography available. He appeals those convictions on two grounds, arguing: (1) that the trial judge erred by admitting expert evidence from Det. Cst. Kidd relating to the downloading of files without qualifying Det. Cst. Kidd as an expert (the “qualification error”); and (2) that the trial judge committed a Sekhon error, contrary to R. v. Sekhon , 2014 SCC 15, [2014] 1 S.C.R. 272, by admitting and relying on anecdotal evidence from Det. Cst. Kidd (the “ Sekhon error”). [5] At the end of the oral hearing, we dismissed JT’s appeal for reasons to follow. These are our reasons. [6] The alleged “qualification error” relates to the admission of testimony by Det. Cst. Kidd, who was not qualified as an expert witness, that an IP address will change if the computer is disconnected from and then reconnected to the computer network. We are not persuaded that this testimony required expertise. This was mundane factual evidence about the operation of internet services that did not require specialized knowledge to observe or understand. Moreover, the parties agreed that no issue was taken with Det. Cst. Kidd’s “ability to speak to the contents of the computer and the forensic analysis of the computer, as it pertains to the activities on their computer … as it relates to the child pornography”, and no objection was taken to the evidence. We therefore dismiss this ground of appeal. [7] The alleged Sekhon error relates to the admission and use by the trial judge of testimony from Det. Cst. Kidd that in his experience he had never seen child pornography end up on a computer in an automatic fashion, without having been placed there by user action. The trial judge relied on this evidence in rejecting JT’s suggestion that some of the documents could have been placed automatically into the downloads folder on the tablet. [8] We are not persuaded that a Sekhon error occurred. Det. Cst. Kidd was not offering unnecessary and irrelevant anecdotal testimony about the guilt of other similarly situated offenders to support a finding that JT was also guilty of possessing or making available child pornography. When his impugned testimony is read in context, it is clear that Det. Cst. Kidd was simply relying on his experience to explain the technical operation of computers, specifically, that documents are not automatically downloaded by computers, but by human action. [9] Nor did this evidence reverse the burden of proof by requiring JT to show that his state of mind or conduct was different than the state of mind or conduct of other alleged offenders. As indicated, Det. Cst. Kidd’s evidence related to the technical operation of computers and did not purport to speak directly to the elements of the offence, as was the case in Sekhon . [10] Nor do we agree with the submission made on JT’s behalf that there would be no realistic way to counter this evidence other than by searching for and calling competing anecdotal evidence from an investigator who had experienced the automatic downloading of documents onto a computer. If it is true that Det. Cst. Kidd was incorrect and there are indeed ways that documents can automatically be downloaded onto a computer, any admissible technical evidence relating to the operation of computers could have been called to challenge his testimony. [11] The appeal is therefore dismissed. “G.R. Strathy C.J.O.” “C.W. Hourigan J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: SS & C Technologies Canada Corp. v. The Bank of New York Mellon Corporation, 2021 ONCA 913 DATE: 20211222 DOCKET: M52803 (C69439) Simmons, Pepall and Roberts JJ.A. BETWEEN SS & C Technologies Canada Corp. Applicant (Respondent/Responding Party) and The Bank of New York Mellon Corporation and CIBC Mellon Global Securities Services Company Respondents (Appellants/Moving Parties) J. Thomas Curry, Christopher Yung, Eli Mogil and Erin S. Chesney, for the appellants/moving parties Ren Bucholz and Catherine Fan, for the respondent/responding party Heard: December 8, 2021 REASONS FOR DECISION [1] This is a motion to review the September 3, 2021 order of a single motion judge of this court. The motion judge dismissed the moving parties’ motion for directions concerning their appeal. Specifically, the motion judge dismissed the moving parties’ request that their appeal be expedited and that they be relieved from the filing of a copy of the application judge’s order on liability. [2] On April 14, 2021, the application judge determined liability issues in favour of the responding party (“the liability order”). He directed that there be a trial on the issue of damages, which is now scheduled for May 18 to 27 and June 21 to 24, 2022 (“the damages trial”), and he suspended any appeal periods until he released his reasons on damages. Subsequently, he dismissed a motion by the moving parties to adjourn the damages trial until after the appeal from the liability order and refused to sign the draft order until the disposition of the damages trial. The moving parties have appealed the liability order and have not sought leave to appeal the other orders. [3] The motion judge declined to expedite the appeal to be heard before the damages trial. She also concluded that it was not necessary to consider the moving parties’ request that they be relieved from the filing of a copy of the application judge’s liability order. [4] The moving parties submit that the motion judge erred by effectively ordering a stay of their appeal when there was no motion for this relief before her. They argue that as their appeal could dispose of most if not all of the issues to be determined on the damages trial, the motion judge’s decision was unreasonable because the justice of the case requires that their appeal be heard before the damages trial. [5] We do not accept these submissions. We see no factual or legal error that would warrant intervention with the motion judge’s decision not to expedite the appeal. [6] It is well established that a panel review of a motion judge’s decision is not a de novo determination: Machado v. Ontario Hockey Association , 2019 ONCA 210, at para. 9. The reviewing panel asks whether the motion judge erred in principle in disposing of the motion: see Yaiguaje v. Chevron Corporation , 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21. Discretionary decisions of a single judge are, absent legal error or misapprehension of evidence, entitled to deference: Machado , at para. 9; Yaiguaje , at para. 20. [7] The motion judge’s refusal to expedite the appeal was squarely within her discretion. The motion judge considered and applied the overarching principle of whether it was in the interests of justice to expedite the appeal. She correctly balanced all the relevant factors. [8] Effectively, the moving parties are asking this court to reweigh the factors considered by the motion judge and to redo her analysis afresh. Absent error, which is not present here, that is not our task. [9] As is clear from the motion judge’s order, she did not stay the hearing of the appeal from the liability order nor did she make any order respecting the filing of the formal liability order. Apart from the absence of a signed order, there is no impediment to the moving parties perfecting and continuing with their appeal. The parties agree that the liability order was a final order. As a result, we would vary the motion judge’s order to relieve the moving parties from the obligation of filing a copy of the formal liability order in order to perfect their appeal. [10] That said, it would be most desirable if a copy of the formal liability order were filed prior to the hearing of the appeal. To that end, we encourage the parties to agree on the form of the liability order prior to the hearing of the appeal. [11] It will be up to the moving parties to perfect their appeal and apply for an appeal date through the scheduling office in the ordinary course. However, nothing in our order alters the application judge’s order dismissing the moving parties’ motion to adjourn the damages trial nor the present scheduling of the damages trial. [12] The motion is otherwise dismissed. [13] As the results of this motion are mixed, we fix costs in the agreed upon amount of $5,000, inclusive of disbursements and all applicable taxes, and order that they be awarded to the successful party on the appeal. “Janet Simmons J.A.” “S.E. Pepall J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: W.S. v. P.I.A., 2021 ONCA 923 DATE: 20211222 DOCKET: C69835 Hourigan, Trotter, and Zarnett J.A. BETWEEN W.S. Applicant (Respondent) and P.I.A. Respondent (Appellant) Gary S. Joseph and Alice Parama, for the appellant Gary Gottlieb and Mira Pilch, for the respondent Heard: December 17, 2021 On appeal from the order of Justice Heather A. McGee of the Superior Court of Justice, dated September 9, 2021, with reasons reported at 2021 ONSC 5976. REASONS FOR DECISION [1] The appellant mother appeals the trial judge’s order that transferred primary care of the parties’ two children to the respondent father. The order imposed an initial period of no contact by the mother, other than by Zoom or under supervision of a child and family therapist, and provided for increased parenting time to the mother in stages, with the goal of equal parenting time after six months. Prior to the order, the children’s primary caregiver was the mother. [2] At the conclusion of oral argument, we dismissed the appeal with reasons to follow. These are those reasons. [3] Parenting orders are inherently exercises of discretion: Van de Perre v. Edwards , 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13. A trial judge’s exercise of discretion and factual findings in connection with it are entitled to deference on appeal: A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, at para. 4. The caution an appellate court must show before interfering with a parenting order by a trial judge is all the more pronounced where, as here, the decision has already been implemented and we are asked to interfere with the trial judge’s step by step process mid-course, but without current information. [4] The trial judge made the order after an assiduous review of the evidence given at a 39-day trial. She found that the children were unable to spend as much time with each parent as was consistent with their best interests while they were in the primary care of the mother. She found that a transfer of primary care and a staged process toward equal parenting time was the only viable option in the children’s best interests given the conduct of the mother. She described that conduct as the mother having intentionally sought to undermine agreed, court-ordered parenting schedules and sabotage reunification counselling with false allegations of sexual abuse, in order to terminate the children’s relationship with the father. Despite the mother’s statements to the contrary, the trial judge found the mother did not actually want the children to have any relationship with the father. [5] The mother raises a number of grounds of appeal that are, in essence, attacks on the trial judge’s factual findings. She argues, among other things, that the trial judge allowed the father’s counsel to lead witnesses, that she gave inconsistent treatment to what use could be made of prior judicial endorsements in cross-examination, and that she relied on evidence the father had “scripted” or that was based on his self-reporting. She argues that the trial judge did not refer to certain evidence that the mother says was helpful to her case. We see no merit in those grounds of appeal. The trial judge appropriately controlled the admission of evidence, was alive to how it was generated, and made justifiable rulings. The weight she gave, and her assessment of that evidence, was within her discretion. She was not obliged to refer to every piece of evidence. Her reasons show that she grappled with the essential issues. It is not the job of this court to retry the case. [6] The mother also submits that the trial judge permitted a non-expert to give opinion evidence favourable to the father yet prohibited such opinions from the mother’s witnesses. We disagree. The trial judge imposed appropriate parameters for the scope of witness testimony, based on the individual circumstances of each witness and what they were being asked to give evidence about. [7] The mother also argues that the trial judge erred when she ruled certain evidence to be inadmissible, including recordings made surreptitiously by the mother. We see no such error. The trial judge’s rulings were made on proper considerations, including that she found the recordings to be unreliable. [8] We also see no error in the trial judge having herself raised the suggestion that an updated report from a custody assessor should be obtained, but then deciding to continue the trial without any update from that custody assessor. Given the breadth of the evidence that was available to her, and the need to bring a timely resolution to this high-conflict litigation, her decision was within her discretion. Nor was there an error in her refusal to draw certain adverse inferences as the mother suggests she should have. [9] Finally, the mother argues that the trial judge failed to properly take into account the provisions of the Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.) that require consideration of family violence and its impact in prescribing the parenting arrangements that she did, and therefore failed to properly consider the best interests of the children. We disagree. The trial judge found that the mother’s allegations of physical, financial, and sexual abuse were not established, and that any other past conduct of the father that may have been abusive had no impact on his present ability to be a primary caregiver and decision-maker. She found the father “is the only parent able to foster and protect the boys’ emotional wellbeing, and moreover, that he is the only parent willing to support the children's relationship with the other parent.” [10] The trial judge reached a reasoned conclusion about the parenting arrangements that were in the best interests of the children based on her assessment of the evidence and her consideration of the correct legal factors. [11] For these reasons, we dismissed the appeal. [12] Costs of the appeal are awarded to the father in the sum of $25,000, inclusive of disbursements and applicable taxes. “C.W. Hourigan J.A.” “Gary Trotter J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: York Region Standard Condominium Corporation No. 972 v. Lee, 2021 ONCA 914 DATE: 20211222 DOCKET: C69608 Lauwers, Paciocco and Thorburn JJ.A. BETWEEN York Region Standard Condominium Corporation No. 972 Applicant (Respondent) and Peter Tak Ming Lee and Mun Chung Leung Respondents (Appellants) Peter Tak Ming Lee and Mun Chung Leung, acting in person Tony Bui, for the respondent Heard: December 8, 2021 On appeal from the judgment of Justice Carole J. Brown of the Superior Court of Justice, dated May 28, 2021, with reasons reported at 2021 ONSC 3877. REASONS FOR DECISION [1] The appellants are the owners and residents of a condominium unit in Richmond Hill. They appeal a compliance order made against them under ss. 117 and 134 of the Condominium Act, 1998 , S.O. 1998, c. 19. The order directed the appellants to permit the respondent, York Region Standard Condominium Corporation No. 972, or its agents to enter and inspect their unit and, if necessary, undertake maintenance or repairs under s. 93(3) of the Act and Article VII of the Corporation’s Declaration in relation to the removal of Kitec plumbing. In addition, the court ordered the Corporation’s expenses to be added to the common expense payments due for the appellants’ unit and collected in the same manner as under s. 92(4) of the Act and Article VII of the Declaration. The court awarded costs on a full indemnity basis in the amount of $4,541.95, also to be added to the unit’s common expenses. [2] The appellants have now completed the repairs to their unit to the satisfaction of the Town of Richmond Hill and the Corporation, which was permitted to inspect the unit sometime after the judgment under appeal was rendered. The appeal is not moot, however, because the appellants wish to argue on the merits in order to avoid the expense and cost consequences of the judgment below. [3] The basic facts are not in dispute. A couple of instances of leaks in Kitec plumbing in the building alerted the Corporation to the fact that Kitec plumbing was present in the units in the building. That form of plumbing had been recalled as faulty by its manufacturer in 2005. To prevent any future plumbing failures, on August 27, 2018, the Corporation issued a notice requiring unit owners to remove Kitec plumbing from their units. [4] The Corporation’s notice to unit owners gave them two options. The first was to use the contractors recommended by the Corporation to undertake the work at a set fee to be paid by the unit owner. The second option was to use a qualified contractor of their choosing and pay directly, but an owner taking this option would still be obliged to pay $750 plus HST to the Corporation so that its engineer could inspect and certify that the work was done. The deadline for choosing the option was extended once. The appellants elected the second option but neglected to send a cheque to cover the inspection fee. [5] The appellants took out a building permit from the Town of Richmond Hill in December 2018, but because of Mr. Lee’s ill health, were unable to proceed. On November 25, 2019, Mr. Lee advised the Corporation that the Kitec plumbing had been removed but refused access for inspection purposes. The Corporation later learned that the Town of Richmond Hill had not closed the permit, indicating that there had been no engineer’s inspection. [6] In January 2020, the appellants again refused access to the Corporation’s agents. In July 2020, the Corporation brought the compliance application that resulted in the judgment now under appeal. The decision was released on May 28, 2021. [7] In an effort to close the building permit with the Town of Richmond Hill, the appellants engaged their own consultant to inspect the unit on June 14, 2021. The Town of Richmond Hill signed off on the building permit indicating that the repairs had been completed properly on June 22, 2021. Later, the appellants allowed the Corporation’s agents access to inspect. The purpose of the compliance order has therefore been met. [8] Against that factual background, the appellants make several arguments. First, they argue that Kitec plumbing did not pose a significant risk to the building. We do not accept this argument. As noted above, there was evidence before the application judge that on two occasions leaky plumbing had been discovered in the building and that Kitec plumbing had been recalled because it was prone to leak. Not surprisingly, on two occasions Kitec plumbing has been recognised as a dangerous condition by the Superior Court: Hawkins v. TSCC 1696 , 2019 ONSC 2560, at para. 39; TSCC 1724 v. Evdassin , 2020 ONSC 1520, 18 R.P.R. (6th) 136, at para. 7. [9] Second, the appellants dispute the truth of the affidavit of the Corporation’s employee, in which she deposed that “the Corporation experienced two significant water damage incidents as a result of faulty Kitec plumbing.” Mr. Lee asserts, without evidence, that the failures were not significant, but were only “pinhole leaks”. He asks us to infer that the witness gave false evidence and that her affidavit should therefore be entirely rejected by the court. We do not accept this argument. In the context of a large, multi-unit residential building, pinhole leaks could well result in significant water damage. They certainly portend future more serious failures. The evidence substantiates, as the application judge found, the need for the Corporation to take the steps that it did in light of the Corporation’s responsibility for the building. [10] Third, the appellants argue that the Corporation could not use s. 117 of the Act to require owners to remediate their units because that section is aimed at bad conduct on the part of unit owners. Section 117 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. We do not accept this argument. This section is aimed at curbing harmful activities, as the appellants argue, but the language also covers “a condition”. We agree with the respondent that a condition of faulty plumbing in danger of failure is “likely to damage the property” and amply justifies a remedial order. [11] Next, we note that the application judge stated in her reasons that the appellants “have not provided responding materials.” The triage order made by Diamond J. required the appellants to file their responding record by March 17, 2021, which would have permitted time for the service of reply evidence by the Corporation. The appellants provided counsel for the Corporation with an unsworn, undated affidavit from Mr. Lee and “Statement of Defense” on April 29, 2021, more than a month late. The appellants filed their material with the court on May 7, 2021, the last business day before the application was scheduled to be heard in writing. [12] There is no explanation as to why the materials served and filed by the appellants did not appear to reach the application judge. We have reviewed the material that they filed. The substance of the appellants’ submissions has been discussed above. In our view, even assuming that Mr. Lee’s affidavit was admissible despite being unsworn, it added no new information that would have changed the outcome. [13] As to the matter of legal costs, under s. 134(3)(b) of the Act, the court may order an owner to pay the damages incurred by the applicant as a result of non-compliance and the costs incurred by the applicant in obtaining the order. An award of damages or costs, along with any additional actual costs to the corporation in obtaining the order, shall be added to the common expenses of the unit under s. 134(5). [14] The application judge followed a long line of precedent in ordering costs against the appellants on a full indemnity basis “because the balance of the unit owners are blameless and should not have to bear the legal costs of securing the compliance of one of the unit owners”. In applying this law, she noted: Due to the recalcitrance of the [appellants], the matter could not be settled without the intervention of the court. When the [appellants] continued to fail to comply, they were warned that the Corporation would seek full enforcement costs if they continued to fail to comply with the Act , Declaration and Rules of the Corporation. [15] We see no error in her approach to costs. [16] We dismiss the appeal on the merits, with costs, and while we grant leave to appeal costs, we also dismiss the costs appeal. [17] In this court, the Corporation seeks costs of about $9,000. It is unusual for this court to award costs for an appeal that exceed the costs of the proceeding leading to the judgment under appeal. We see no reason to exceed the application judge’s award of costs, and therefore fix costs before this court in the amount of $4,500, all-inclusive, and order that this amount be added to the common expenses attributable to the owners’ unit. “P. Lauwers J.A.” “David M. Paciocco J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: McLean v. Wolfson, 2021 ONCA 928 DATE: 20211223 DOCKET: C68103 Hourigan, Trotter and Zarnett JJ.A. BETWEEN Maxine Donna McLean Plaintiff (Appellant) and Dr. Nikolaj Wolfson Defendant (Respondent) Maxine Donna McLean, acting in person Eli Mogil and Pippa Leslie, for the respondent Heard and released orally: December 17, 2021 On appeal from the order of Justice David L. Edwards of the Superior Court of Justice, dated January 30, 2020. REASONS FOR DECISION [1] Dr. McLean appeals from the dismissal of her action against Dr. Wolfson. [2] Dr. McLean commenced the action on April 30th, 2018. She alleged that Dr. Wolfson was negligent in performing surgery on her leg in 1995. Her Statement of Claim included the following averment in para. 5: “ a recent X ray revealed that the appellant’s hips are not aligned and it was recently diagnosed that the defendant removed the fibula bone when he could have cut it to create a new bone in order to lengthen the right leg”. [3] On November 8, 2018 counsel for Dr. Wolfson served a Request to Inspect Documents, pursuant to r. 30.04(2) of the Rules of Civil Procedure (R.R.O. 1990, Reg. 194). [4] Specifically, Dr. Wolfson requested copies of the “recent X ray” and any medical records relating to what had been “recently diagnosed”. Dr. Wolfson required this information in order to prepare a responsive statement of defence. [5] Although some X ray’s and medical records were provided to Dr. Wolfson, they dated back to 1995 and they were not the records apparently referred to in para. 5 of the Statement of Claim. [6] After further failed attempts to obtain these records Dr. Wolfson brought a motion for production. [7] On October 3rd, 2019, on consent, an order was made requiring production of these records within 30 days by the same motion judge. Dr. McLean failed to comply with this order. [8] Dr. Wolfson then brought a motion under rr. 30.08 and 60.12 to dismiss Dr. McLean’s action, based on her failure to properly respond to the request to inspect documents (r. 30.08) and failing to comply with the consent order (r. 60.12). [9] On the first return date, January 23, 2020, Dr. McLean sought an adjournment. Justice Lococo adjourned the motion for a week, until January 30, 2020. He gave Dr. McLean one “last chance” to comply with the consent order. [10] When the matter returned to court on January 30, 2020 Dr. McLean sought a further adjournment which was denied. The motion was heard on its merits and the action was dismissed. [11] Dr. McLean submits that the motion judge erred in dismissing her action. Her main point is that the motion judge should have considered a “lesser remedy”, rather than dismissing her claim. [12] We do not agree. [13] In exercising his broad discretion under the applicable rules, the motion judge properly considered that Dr. McLean had ample time to produce the materials or records referenced in her Statement of Claim and that she had failed to provide a reasonable explanation for failing to do so. These circumstances supported the dismissal of the claim. [14] Dr. Mclean applies to adduce fresh evidence on the appeal. We decline to admit the evidence. [15] First, it fails to correct the deficiencies that resulted in the dismissal of the action. Second, Dr. McLean has failed to explain why these records could not have been produced in a timely fashion. It has been over three and a half years since Dr. McLean issued her Statement of Claim in which she referred to important medical records that were not produced as ordered. It would not be in the interests of justice to admit the proposed fresh evidence respecting a claim that dates back to 1995. [16] Accordingly, the appeal is dismissed. [17] We make no order as to costs. “C.W. Hourigan J.A.” “Gary Trotter 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 complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. G.J.R., 2021 ONCA 926 DATE: 20211222 DOCKET: M53007 (C69044) Zarnett J.A. (Motion Judge) BETWEEN Her Majesty the Queen Respondent and G.J.R. Applicant/Appellant Chris Rudnicki, for the applicant Justin Reid, for the respondent Heard: December 10, 2021 by video conference ENDORSEMENT INTRODUCTION [1] The applicant’s bail pending appeal was revoked, on consent, when he was charged with various offences while on house arrest bail. He now applies to be released again on bail pending the hearing of his appeal under a stricter plan of release and with a different surety. [2] For the reasons that follow, the application is dismissed. BACKGROUND [3] In May 2018, the applicant was charged with sexual assault, contrary to s. 271(1) of the Criminal Code , R.S.C. 1985, c. C-46. At the time of the alleged offence, he was on probation following a youth robbery conviction. He was released pending trial on house arrest bail (later varied to a midnight curfew) with his father as surety. [4] His bail pending trial was not without incident. In September 2020, he was arrested in Thunder Bay for being unlawfully in a dwelling-house, drug trafficking, obstructing a peace officer, resisting a peace officer, and failing to comply with his release order. Following the September 2020 charges, he was again released on bail, under stricter house arrest conditions and with his mother as surety. [5] On December 10, 2020, the applicant was convicted of the sexual assault charge which is the subject of this appeal. On February 11, 2021, he was sentenced to two years less a day in custody, followed by two years’ probation. [6] The applicant appealed his conviction to this court. [7] On February 11, 2021, the applicant was released on bail pending appeal on consent, on house arrest terms with exceptions for medical emergencies, while in the presence of one of his sureties, and for work, with his mother and his sister as sureties. At that time, he raised two grounds of appeal. [8] On March 3, 2021, the applicant pleaded guilty to the September 2020 charges (except that his plea was to the lesser offence of drug possession instead of trafficking). He was given a 7-month conditional sentence order followed by 12 months’ probation. These orders included the following term: “Do not attend the District of Thunder Bay”. [9] On October 13, 2021, the applicant was arrested in Thunder Bay and charged with resisting a peace officer, uttering a forged document, failing to comply with his release order, and failing to comply with his probation order. [10] On October 21, 2021, the applicant’s bail pending appeal was revoked as a result of the new charges. [11] On November 24, 2021, the applicant was granted bail on the October 2021 charges by a Justice of the Peace on terms whereby the applicant is to reside with his stepfather, who is to be his surety, with a financial commitment of $20,000, on house arrest terms. [12] The applicant now applies for bail pending appeal on terms that mirror those put in place by the Justice of the Peace, but with a fivefold larger financial commitment ($100,000) by his surety, and a requirement that he wear an ankle bracelet so that he is subject, at his own expense, to GPS monitoring on a 24-hour basis. [13] The Crown opposes the order, on the basis that the applicant has failed to establish that the appeal is not frivolous and that his detention is not necessary in the public interest, having regard to both public safety and public confidence. ANALYSIS [14] To obtain bail pending appeal, the applicant must establish that: (1) the appeal is not frivolous; (2) he will surrender himself into custody in accordance with the terms of the release order; and (3) his detention is not necessary in the public interest: Code , s. 679(3)(a), (b) and (c). [15] In my view, the applicant has not established that the appeal passes the merits hurdle. [16] The applicant puts forward one ground of appeal as viable, having abandoned his other ground of appeal following the Supreme Court’s decision in R. v. G.F. , 2021 SCC 20, 71 C.R. (7th) 1. He argues that the trial judge erred in the manner in which he addressed the defence of honest but mistaken belief in communicated consent. Specifically, he argues that the trial judge approached the issue as a question of whether the defence had an air of reality, but applied the wrong test when he determined that it had no air of reality and was thus not a defence he would have left with a jury if he had been sitting with one. [17] The applicant argues that in doing so, the trial judge confused the questions of threshold and ultimate reliability. The air of reality test does not ask whether there is credible evidence to support a defence. It asks whether there is any evidence which, if believed, could give rise to a reasonable inference that the accused took reasonable steps to ascertain the complainant’s consent. Only if there is no evidence concerning a defence can it be kept from the jury or rejected without further consideration. The applicant argues that his own evidence provided an ample evidentiary foundation which, if believed, could give rise to a reasonable doubt about whether he knew the complainant was not consenting. [18] There are two problems with this argument. [19] First, the trial judge concluded that the defence did not apply for two independent reasons, only one of which was expressed in terms of an air of reality. His comments on the air of reality were expressed in the alternative to his primary conclusion. [20] The trial judge first held that the defence did not apply because he found as a fact that the only communication the applicant received from the complainant was of non-consent. Section 273.2(c) of the Code precludes belief in consent being a defence where “ there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct.” In coming to his conclusion that there was no evidence of communicated consent (and in fact, only the opposite), the trial judge did not refer to the air of reality test. Accordingly, the suggested misapplication of that test does not affect this independent reason for rejecting the defence. [21] Second, this was a judge-alone trial. The trial judge was the arbiter of threshold and ultimate reliability. The trial judge applied the test in R. v. W.(D.) , [1991] 1 S.C.R. 741 and found that he did not believe the applicant; the applicant’s evidence did not give rise to a reasonable doubt; and that on the evidence he did accept, the Crown had proven its case beyond a reasonable doubt. [22] It is in that context that one must consider the applicant’s remaining argument. The trial judge as a second, alternative reason for rejecting the defence, held that the reasonable steps precondition to its application, found in s. 273.2(b) of the Code , was not met. He found that the applicant “ did not take any steps, let alone reasonable ones, to determine whether [the complainant] was consenting to the sexual activity in question.” He observed that the applicant, on his own evidence, had taken no such steps. It was in respect of this basis for rejecting the defence that the trial judge stated that the defence had no air of reality and that he would not have left it with a jury if he were sitting with one. [23] But assuming for the sake of argument that the trial judge did not respect the distinction between threshold reliability and ultimate reliability in stating whether the defence had an air of reality, the arbiter of ultimate reliability in this case was the trial judge. Even if as a threshold matter there was evidence of the applicant which, if believed, could show reasonable steps were taken, as an ultimate matter, there was no such evidence, as the trial judge made a clear finding that he did not believe the applicant’s evidence, and that it did not raise a reasonable doubt. [24] In G.F. , the majority of the Supreme Court stressed the importance of a functional and contextual reading of a lower court’s reasons and directed appellate courts to resist the temptation to finely parse a judge’s reasons in search of error: at para. 69. In my view, a functional and contextual reading of these reasons can only lead to the conclusion that notwithstanding the use of the air of reality terminology, the reasonable steps precondition to the availability of the defence was rejected on the evidence that it was the trial judge’s job to ultimately assess. [25] The applicant also argued that the trial judge had the wrong focus when considering the defence. The trial judge found that the actus reus had been made out because the complainant lacked capacity to consent. Therefore, the trial judge should have looked at whether the applicant had an honest but mistaken belief as to the complainant’s capacity to consent. [26] Capacity is a precondition to consent: G.F. , at para. 43. The defence is an honest but mistaken belief in communicated consent, not just a belief that the precondition to consent existed. Accordingly, the basis on which the trial judge found the actus reus was met did not restrict what had to be present for the defence to apply. The trial judge’s findings negated the defence. [27] Whether an appeal meets the standard of “not frivolous” is a low bar: R. v. Oland , 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 20. However, in my respectful view, the applicant’s ground of appeal does not meet it. CONCLUSION [28] In light of my conclusion on the merits of the appeal, it is unnecessary to consider whether the applicant has satisfied the other aspects of his onus. The application is dismissed. “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Fontaine v. Canada (Attorney General), 2021 ONCA 931 DATE: 20211231 DOCKET: M52780 (C69253) van Rensburg and Roberts JJ.A. and Tzimas J. ( ad hoc ) BETWEEN Larry Philip Fontaine, et al. Plaintiffs and The Attorney General of Canada , et al. Defendants ( Responding Party ) Proceedings under the Class Proceedings Act , 1992 , S.O. 1992, c. 6 Fay K. Brunning and Michael Swinwood, for the moving parties Dr. Edmund Metatawabin and IAP Claimants T-00185, S-20774 and S-16753 Brent Thompson, for the responding party the Attorney General of Canada Heard: November 22, 2021, with supplementary written submissions REASONS FOR DECISION [1] The moving parties brought this motion pursuant to s. 7(5) of the Courts of Justice Act , R.S.O. 1990, c. C.43, to review an order of Strathy C.J.O. dated August 19, 2021, dismissing their motion to extend time to perfect their appeal in Court File C69253. The motion is opposed by the respondent, the Attorney General of Canada (“Canada”). [2] The moving parties are survivors of the St. Anne’s Indian Residential School (“IRS”) in Fort Albany, Ontario. Their proposed appeal arises in the context of the Indian Residential Schools Settlement Agreement (the “IRSSA”), a court‑supervised class action settlement agreement entered into between Canada, church defendants and plaintiff representatives in 2006. The IRSSA was approved by the orders of nine superior courts across Canada (the “supervising courts”), including an order of the Ontario Superior Court of Justice on March 8, 2007 (the “Implementation Order”). A component of the IRSSA was the independent assessment process (the “IAP”) for the adjudication of abuse claims, which has been supervised by the courts. With the completion of all IAP claims across the country, the IAP was concluded on March 31, 2021. [3] The order under appeal is dated April 20, 2021 (the “Independent Review Order”). [1] The order was made by Perell J. as Ontario Supervising Judge under the IRSSA in the context of a Request for Directions (“RFD”) by Canada. [2] Canada’s RFD sought an order appointing an independent special advisor (“ISA”) to conduct an independent review of certain IAP claims of the St. Anne’s IRS claimants that were settled before Canada provided additional disclosure pursuant to certain disclosure orders made by the Ontario Supervising Judge on January 14, 2014 and June 23, 2015 (the “2014 and 2015 disclosure orders”). The proposed independent review was for the stated purpose of responding to public concern and confusion about the IAP claims involving St. Anne’s IRS, and in particular about the fairness of adjudications undertaken before Canada had provided the revised disclosure. [4] The moving parties and others opposed Canada’s RFD on a number of grounds, including that the review process would be a duplication of an RFD proceeding underway before Glustein J. (the “Metatawabin RFD #2”) [3] and that the St. Anne’s IAP claimants would not be permitted to participate in the review process. The moving parties also objected to the Supervising Judge determining Canada’s RFD, on the basis of his earlier recusal from hearing Metatawabin RFD #2. [4] [5] The Independent Review Order directed an independent review of certain concluded claims of former St. Anne’s IRS students. The order appointed the Honourable Ian Pitfield, who had previously been appointed by the supervising courts for other purposes under the IRSSA, as ISA to conduct the review. The order required the ISA to make a report that contains his findings, conclusions and recommendations, and for the report to be provided to the court as a sealed document, and to Canada. [6] The moving parties filed a notice of appeal seeking to appeal the Independent Review Order to this court. They raised a number of grounds of appeal, including that the Supervising Judge ought to have recused himself from hearing Canada’s RFD, in view of his recusal in respect of certain matters involving St. Anne’s IRS at an earlier stage; that the order for a review by the ISA does not comply with the IRSSA and the Court Administration Protocol, and amounts to an amendment to the IRSSA; and that the independent review of certain IAP claims of the St. Anne’s IRS claimants, undermines the proceedings that are already underway before Glustein J. in the Metatawabin RFD #2. Pursuant to the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, the appeal was to have been perfected by May 22, 2021. [7] In August 2021, the moving parties brought a motion seeking an extension of time to perfect their appeal. The motion judge dismissed the motion to extend time. He referred to the fact that the matter had been before this court previously when, in declining to grant a stay of the Independent Review Order, Paciocco J.A. had characterized the order as “probably interlocutory”. [5] The motion judge also referred to the fact that the moving parties’ motion for leave to appeal the order to the Divisional Court had been dismissed. In refusing an extension of time to appeal to this court, the motion judge observed that the justice of the case (which is the overarching consideration on a motion for an extension of time) did not require an appeal to this court where the moving parties’ statutory appeal rights had been pursued and their appeal had been dismissed. [8] While it was appropriate for Paciocco J.A. and the motion judge to have considered whether the order was final or interlocutory in determining the stay and extension of time motions, only a panel of the court can determine the question of jurisdiction on a final basis and quash an appeal: see Courts of Justice Act , s. 7(3). As such, the central issue before us when the review motion was argued was whether the Independent Review Order is final or interlocutory, and if final, whether the justice of the case warranted an extension of time. [9] The moving parties asserted that the Independent Review Order is a final order, while Canada, endorsing the preliminary conclusions on jurisdiction of Paciocco J.A. and the motion judge, argued that the order is interlocutory, and that the moving parties, having sought and been refused leave to appeal to the Divisional Court, had exhausted their appeal rights. [10] As a result of developments after the hearing of the review motion, it is now unnecessary to determine whether the motion judge erred in concluding that the Independent Review Order is an interlocutory order. [11] While this motion was under reserve, the court was advised by a letter from counsel for the moving parties that the ISA had issued his report on the independent review on November 30, 2021 and that on December 9, 2021, the Supervising Judge had made an order approving the report and discharging the ISA. Copies of the redacted report and the order were enclosed. In view of these circumstances, the panel invited written submissions on whether the appeal was moot, and if so whether the motion should be dismissed on that basis. [12] We have now received and considered the parties’ written submissions. [13] On a motion for an extension of time to appeal or to perfect an appeal, it is appropriate for the court to consider whether the appeal is moot. Just as it would not be in the interests of justice to extend time to appeal an order that lies outside the jurisdiction of this court, it would not be in the interests of justice to extend time to perfect an appeal that is moot: see, for example, Obermueller v. Kenfinch Co-operative Housing Inc. , 2016 ONCA 21, where the eviction authorized by the order under appeal had already taken place, and Willenbrecht v. Willenbrecht (1999), 120 O.A.C. 274, where a challenge to Ontario’s jurisdiction to enter a divorce judgment was rendered moot by the other forum ceding to Ontario’s jurisdiction to do so. [14] An appeal is moot where the factual substratum of the appeal has disappeared. This can occur where the order under appeal has been performed or is otherwise spent: Borowski v. Canada (Attorney General) , [1989] 1 S.C.R. 342, at p. 354. Where an appeal is moot, the court may nevertheless exercise its discretion to hear the appeal, considering such factors as the ongoing adversarial context, concerns for judicial economy and sensitivity to the role of the courts: Doucet-Boudreau v. Nova Scotia (Minister of Education) , 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 17. The onus is on the party seeking to permit a moot appeal to proceed to demonstrate why the court should depart from its usual practice of refusing to hear moot appeals: Tamil Co-operative Homes Inc. v. Arulappah (2000), 49 O.R. (3d) 566, at para. 17. [15] We have concluded that the appeal is moot, and there are no grounds for the exercise of the court’s discretion to hear the appeal. Accordingly, there is no basis for an extension of time to appeal. [16] The process contemplated by the Independent Review Order has been completed. The order appointed Mr. Pitfield as ISA to perform a review. The review has taken place and the ISA has submitted his report which has also been approved, through a subsequent order. [17] The moving parties, while continuing to make submissions about why it was wrong for the Supervising Judge to make the Independent Review order, and raising new concerns about the substance of the report and the procedures followed by the ISA, as well as the orders of the Supervising Judge approving the ISA’s interim and final reports (which are not under appeal) [6] , have not provided any rationale for why the moot appeal should be permitted to proceed or why their motion should not be dismissed. [18] Canada submits that the moving parties’ appeal is moot. However, it argues that it would be useful for future proceedings between the parties if this court would determine whether the Independent Review Order is final or interlocutory. We disagree. We are not persuaded that the Independent Review Order is the type of order to arise again in proceedings between the parties. [19] For these reasons the review motion is dismissed. Canada advised that it is not seeking costs of the motion, and no costs are awarded. “K. van Rensburg J.A.” “L.B. Roberts J.A.” “E. Ria Tzimas, J. (ad hoc)” [1] Although the moving parties appealed two orders – the order appointing Perell J. to hear the RFD and the Independent Review Order – they only sought an extension of time to appeal the Independent Review Order, and they are only seeking in this review motion to extend the time to appeal that order. [2] The RFD process is contemplated by the Implementation Order and the Court Administration Protocol, which is an appendix to that order. [3] In the Metatawabin RFD #2, which was filed on May 12, 2020 and amended in June 2020, the moving parties seek a declaration that Canada breached the 2014 and 2015 disclosure orders, as well as other relief, including an order compelling Canada to revise documentation used in their IAP claims so that St. Anne’s IRS IAP claimants can determine whether they should seek to re-open those claims. Canada has brought its own RFD seeking a summary dismissal and to strike the Metatawabin RFD #2 as an abuse of process. Both are before Glustein J. [4] Perell J. recused himself as Ontario Supervising Judge from hearing the Metatawabin RFD #2. See 2020 ONSC 3497, at paras. 20-24, a decision of Perell J. as Eastern Administrative Judge and Brown J. as Western Administrative Judge. Their order assigning the hearing of Metatawabin RFD #2 to Brown J. was overturned by this court in 2020 ONCA 688, which resulted in the appointment of Glustein J. by the Chief Justice of the Superior Court to hear the Metatawabin RFD #2. [5] In April 2021 the moving parties brought a motion to stay the Independent Review Order and for other relief before a single judge of this court. In reasons reported at 2021 ONCA 313, Paciocco J.A. dismissed the stay motion after concluding that a stay pending appeal was not in the interests of justice. In the course of his detailed reasons, Paciocco J.A. observed that the order was “probably interlocutory”, and therefore outside this court’s jurisdiction, militating against the existence of a serious issue to be determined on appeal. Following the dismissal of the stay motion, the moving parties filed a motion seeking leave to appeal to the Divisional Court. That motion was dismissed without reasons on July 8, 2021: 2021 ONSC 4848. [6] In its written submissions on the mootness issue, Canada suggests that the moving parties may seek leave or bring an appeal from the Final Report. At this stage, we are not aware of any such appeal having been taken to this court. This review motion deals only with the appeal of the Independent Review Order.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Green, 2021 ONCA 932 DATE: 20211231 DOCKET: C68581 Tulloch, Hourigan and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Adrian Green Appellant Adrian Green, acting in person Richard Litkowski, appearing as duty counsel Philippe Cowle, for the respondent Heard: November 3, 2021 by video conference On appeal from the sentence imposed on August 12, 2020 by Justice Myrna L. Lack of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] In February 2018, the appellant committed a series of offences for which he has been convicted, all of which are significantly more serious than his previous criminal record. [2] The underlying facts of these offences included the appellant driving at a high rate of speed through a residential area so dangerously that he knocked down a stop sign and crashed into a fence. He then fled the scene to escape the police. Once apprehended, the car was searched, and he was found to be in possession of an illegal loaded firearm with an oversized magazine capable of holding 12 rounds of ammunition, with 11 rounds of ammunition loaded. The appellant was also found to be in possession of large quantities of illicit drugs, which included cocaine, both in powder form as well as crack cocaine, and a mixture of heroin and fentanyl. [3] The appellant pleaded not guilty but was found guilty after an 18-day trial. [4] At sentencing, the Crown sought a global sentence of 10 to 12 years, less pre-sentence custody. The defence sought a sentence in the range of 7 to 8 years, less pre-sentence custody on an enhanced 2 to 1 basis, as well as Duncan credit to factor in the harsh pre-trial custodial conditions, including a significant amount of time spent under lockdown. [5] The sentencing judge imposed a global sentence of 10 years, less pre-sentence custody of 918 days, on an enhanced rate of 1.5 to 1, or the equivalent of 46 months for a net sentence of 6 years and 2 months of incarceration. [6] The sentence was broken down as follows: four years’ custody for the firearm-related offences; four years of custody for the drug offences, to be served consecutively with the firearm-related offences; followed by six months of custody for the driving offences, to be served consecutively; and one year of custody for each of the possession of firearm while prohibited charges, to be served consecutively to the other offences, but concurrent to each other. [7] The appellant, through the assistance of Mr. Litkowski acting as duty counsel, raises three grounds of appeal: a. The sentencing judge erred in principle by failing to apply the jump principle; b. The sentencing judge failed to apply the Duncan credit principle; and c. The sentencing judge erred in principle by failing to consider the appellant’s personal circumstances, and more specifically did not address the systemic issues which may have impacted his moral blameworthiness, pursuant to this court’s recent decision in R. v. Morris , 2021 ONCA 680. Did The Sentencing Judge Err in Principle by Failing to Apply the Jump Principle? [8] At the outset of the imposition of sentence, the sentencing judge noted that the defence had raised the jump principle in support of their position on sentencing, and she quoted from the case of R. v. Borde (2003), 63 O.R. (3d) 417, at para. 39: This principle cautions a court against imposing a dramatically more severe sentence than the sentences imposed upon the offender for similar offences in the recent the past. It has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness. [9] She also cited this court’s decision in R. v. Courtney , 2012 ONCA 478, in which the court found that where an offender’s crimes were fundamentally different in kind and seriousness than the crimes for which they were previously sentenced, the jump principle is not engaged. Accordingly, in the appellant’s case, because the offences for which he was being sentenced were significantly more serious than his previous offences, the jump principle was not engaged. [10] We agree with the sentencing judge’s assessment. [11] The jump principle stands for the proposition that a subsequent sentence imposed on an offender should not be disproportionate to sentences imposed for prior offences, provided the subsequent offence is not significantly more serious than the prior offence. Essentially, a subsequent sentence for an offence should have an incremental increase proportionate to the frequency of the repeated offence: R. v. White , 2007 NLCA 44, 270 Nfld & P.E.I.R. 351. The application of this principle is contextual to the level of seriousness of the subsequent offences. [12] As noted by Rosenberg J.A. in Borde , at para. 39, the jump principle “has little application where the severity of the offender’s crimes shows a dramatic increase in violence and seriousness”. The same is true when dealing with multiple convictions for an offender with a lengthy criminal record, or where previous sanctions have been ineffective in deterring the offender. [13] This is the case with the appellant. He has a significantly long criminal record, and the subject offences are significantly more serious than his prior offences. In addition, from his antecedents, it is obvious that previous lenient sentences have not affected his conduct or served to deter his subsequent behaviour. We also agree with the Crown’s submissions that, taken together, the current offences for which the appellant was sentenced and that are the subject of this appeal eclipse the appellant’s prior criminal record as observed in Courtney , where the court stated, at para. 10: The appellant’s crimes are fundamentally different in kind and seriousness than the crimes for which he was previously sentenced. Accordingly, the rationale for the jump principle – that successive sentences should be increased gradually – is simply not engaged. [14] For all these reasons, we would not give effect to the appellant’s arguments on this ground of appeal. Did the Sentencing judge Err in Failing to Apply the Duncan Credit Principle? [15] The second argument raised by the appellant is that the sentencing judge erred in principle by failing to give effect to the Duncan credit principle. The appellant submits that his time in custody was exacerbated by the impact of COVID-19 lockdowns and the resulting inability to communicate with his family and receive family support. This resulted in the appellant suffering from post traumatic stress disorder and depression. In addition, according to the appellant, he was unable to secure medical treatment. He further submits that the sentencing judge was obliged to take these factors into consideration, and to give him additional enhanced credit. [16] While we agree that the sentencing judge was obliged to consider the harshness of the appellant’s pre-sentence custodial conditions, she was also obliged to weigh the evidence she heard on the issue and determine what weight, if any, she should place on such evidence. In our view, she did exactly that and decided not to place much weight on the appellant’s evidence on his pre-sentence custody. [17] Duncan credit is a mitigating factor that a sentencing judge can consider in arriving at an appropriate sentence. As this court recently stated in the case of R. v. Marshall , 2021 ONCA 344, at paras. 52-53: [52]  The “ Duncan ” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “ Summers ” credit will be deducted. Because the “ Duncan ” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors. [53]  Often times, a specific number of days or months are given as “ Duncan ” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “ Duncan ” credit, only one of presumably several relevant factors, there is a risk the “ Duncan ” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “ Summers ” credit. If treated in that way, the “ Duncan ” credit can take on an unwarranted significance in fixing the ultimate sentence imposed. Arguably, that is what happened in this case, where on the sentencing judge’s calculations, the “ Duncan ” credit devoured three-quarters of what the sentencing judge had deemed to be the appropriate sentence but for pretrial custody. [Citation omitted.] [18] The sentencing judge considered all the relevant factors on sentencing, including the mitigating and aggravating factors. She specifically noted that the appellant filed an affidavit and gave viva voce evidence at his sentencing hearing on the harshness of the pre-sentence incarceration and its impact on him. She also reviewed his extensive medical record and noted contradictions in his evidence. In particular, the appellant gave evidence about the extent and impact of the lockdowns on him, and his evidence was rejected. It was open to the sentencing judge to reject his evidence, and having rejected his evidence it was also open to the sentencing judge to determine whether she would treat the lockdown period of the pre-sentence custody as a mitigating factor. [19] In the end, she was not satisfied that the appellant’s pre-sentence incarceration, including his time spent in lockdown, warranted being treated as mitigating on his sentence, and therefore did not justify a further enhanced pre-sentence credit beyond the 1.5 to 1 basis. Her exercise of discretion is entitled to deference. We see no basis to interfere. Did the Sentencing Judge Err by Failing to Consider the Appellant’s Personal Circumstances? [20] Finally, the appellant argues that the sentencing judge failed to consider the personal circumstances of the appellant, and more specifically the principles outlined in this court’s recent guidance in Morris . We do not agree. [21] A complete reading of the sentencing decision reveals that the sentencing judge took into consideration the personal circumstances of the appellant, both as outlined in his pre-sentence report, as well as his viva voce evidence given at the sentencing hearing. The sentencing judge specifically recited a significant amount of the appellant’s personal history and circumstances under the heading, “Pre-Sentence Report.” It is true that she did not specifically reference his racial background and/or the impact of either systemic or specific racial discrimination, and how this might factor into his moral blameworthiness; however, this issue was never raised at his sentencing hearing, nor was any evidence adduced on the issue. Furthermore, the sentencing judge did not have the benefit of the Morris decision at the time of sentencing. We would not give effect to this ground of appeal. Disposition [22] We are satisfied that the ultimate global sentence imposed in this case was appropriate in the circumstances, considering the seriousness of the offences, and the appellant’s antecedents. The sentence imposed was a fit one, and we see no error in principle that warrants appellate intervention. [23] Accordingly, leave to appeal sentence is granted, but the sentence appeal is dismissed. “M. Tulloch J.A.” “C.W. Hourigan J.A.” “Harvison Young J.A.”