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COURT OF APPEAL FOR ONTARIO CITATION: Armstrong v. Moore, 2020 ONCA 49 DATE: 20200127 DOCKET: C66333 Strathy C.J.O., MacPherson and Jamal JJ.A. BETWEEN William John Armstrong and Teresa Jesus Armstrong Plaintiffs (Appellants/Respondents by Cross-Appeal) and Howard Moore , Laureen Margaret Moore , Larry Joseph Edwards , Colleen Elizabeth Edwards , Wayne Cartwright, Janet Cartwright, Julie Edwards, Lawrence Henry Hierlihy, Jeannette Theodora Hierlihy, Gloria Mae Edmunds, Carolee Stacey Hofman, Donald Demers and Robert William Moore Defendants ( Respondents / Respondents and Appellants by Cross-Appeal ) Stuart R. Mackay, for the appellants/respondents by way of cross-appeal William John Armstrong and Teresa Jesus Armstrong Shawn J. O’Connor, for the respondent/appellant by way of cross-appeal Robert William Moore Joseph W.L. Griffiths and Matthew G. T. Glass, for the respondent/appellant by way of cross-appeal Howard Moore and for the respondent Laureen Margaret Moore No one appearing for the self-represented respondent Lisa Coutu (written submissions only) No one appearing for the respondents Larry Joseph Edwards and Colleen Elizabeth Edwards Heard: January 13, 2020 On appeal from the judgment of Justice Calum U.C. MacLeod of the Superior Court of Justice, dated November 27, 2018, with reasons reported at 2018 ONSC 7056, 5 R.P.R. (6th) 316. REASONS FOR DECISION A. overview [1] This appeal, involving claims for adverse possession and damages, arose in connection with the placement of an outhouse by one cottager on another cottager’s property, with permission, for over 40 years. The dispute arose when renovation activities on one property resulted in a washout of dirt that allegedly rendered unusable the outhouse and the cottage it serviced. [2] After a seven-day trial, the trial judge dismissed the appellants’ claim for adverse possession of a small area of land surrounding the outhouse but awarded them nominal compensatory and punitive damages, for a total of $15,000. The parties now appeal and cross-appeal that decision to this court. [3] At the conclusion of the oral argument we dismissed the appeal and cross-appeal, with reasons to follow. These are our reasons. B. background facts [4] In 2003, the appellants William and Teresa Armstrong bought a cottage on the Ottawa River near Pembroke, Ontario. The cottage, purchased for $38,000, had no indoor plumbing and is accessible only via an access road along a deeded right of way on the property of the respondents Howard and Laureen Moore. The only toilet servicing the Armstrong property was an outhouse located on a non-travelled portion of the right of way, where it had been for over 40 years. A shed stood next to the outhouse and both were sheltered by mature cedar trees. Although the outhouse and shed were on the Moores’ land, the Armstrongs treated them as part of their cottage. [5] In 2006, Howard and Laureen’s son, the respondent Robert Moore, acquired property uphill from the Armstrong’s property and began renovations. In 2007, Robert placed a large amount of fill on his land. When William Armstrong raised concerns with Robert and Howard Moore that the fill might seep onto his property, he was rudely rebuffed: Robert told him that it “sucks to be at the bottom of the hill” and suggested he get some sandbags, while Howard told him to get a lawyer if he was dissatisfied. [6] Later in 2007, a washout on Robert’s property caused mud and water to surround and enter the Armstrongs’ outhouse. The Armstrongs alleged that this rendered their cottage unusable because they now had no toilet and they believed they could not get a permit to build a new one. They retained an engineer in 2008 who advised them that they were at risk of future washouts and recommended that they install a retaining wall. [7] The Armstrongs did not use their cottage again. [8] In 2009, the Armstrongs sued Robert Moore for $250,000 in compensatory and punitive damages, claiming that his negligence resulted in the loss of the use and enjoyment of their cottage. [9] Also in 2009, Howard Moore learned of potential claims for adverse possession in connection with his property. He cut down the cedars sheltering the outhouse and shed, removed the tree stumps, and posted signs warning other residents that they might lose their right of way if the adverse possession claims succeeded. Later, the shed and outhouse were destroyed when someone dumped snow and gravel on them. [10] In 2011, the Armstrongs began a second action claiming adverse possession of the lands involving the outhouse, shed, and surrounding cedars, and $100,000 in damages against Howard, Laureen, and Robert Moore and others for the destruction of their outhouse and shed, for the loss of the use of their cottage, and for promoting animosity against them. [11] Most of the other defendants in the second action were property owners whose property was accessed by the right of way. While most did not participate in the action or appeal, Lisa Coutu filed written submissions with this court explaining that she and Deric Coutu had contributed to the maintenance and improvement of the right of way since buying their property in 2012 and that losing the right of way would impede service vehicles from accessing homes to the south of the Armstrongs’ cottage. C. the trial judge’s decision [12] Both actions were heard together in a joint trial. The trial judge rejected the adverse possession claim because he concluded that the Armstrongs had not established that their predecessors in title had intended to permanently exclude the rights of the registered owners of the fee or of the right of way. [13] The trial judge found Robert Moore negligent in placing fill on his land in a way that unreasonably interfered with the rights of his neighbours. However, he found that the Armstrongs had failed to prove the quantum of their damages and had not mitigated their loss by cleaning up, repairing, or rebuilding their outhouse. He therefore awarded only nominal damages of $5,000 for the cost of cleanup, repair, and reconstruction, and $2,000 for the interruption in the use of the cottage. [14] The trial judge also found Howard Moore liable for aiding, abetting, and encouraging the destruction of the outhouse. He found that Howard knew that the Armstrongs depended on the outhouse and that it would be difficult to use their property without it. He also found that Howard’s conduct in removing the cedars without advising the Armstrongs contributed to the destruction of the outhouse and shed and that Howard encouraged vandalism and engaged in intimidation. Since by then the outhouse had already been damaged by Robert’s negligence and there were frailties in the Armstrongs’ evidence as to their damages, the trial judge assessed nominal damages against Howard at an additional $3,000. [15] Finally, the trial judge found Howard liable for $5,000 in punitive damages for exacerbating the conflict between the parties, exposing the outhouse to further damage by removing the cedars, encouraging vandalism, engaging in intimidation, and for spoliation of evidence to impede the adverse possession claim by removing the cedars and their stumps so that their age could not be verified. D. Issues [16] The Armstrongs appeal on the issues of adverse possession, abandonment of the rights of way by other property owners, and the quantum of compensatory and punitive damages. Robert and Howard Moore cross-appeal on the issues of compensatory and punitive damages. [17] The four issues are thus: (1) adverse possession; (2) abandonment of rights of way; (3) compensatory damages; and (4) punitive damages. E. Analysis (1) Did the trial judge err in rejecting the Armstrongs’ claim for adverse possession? [18] To succeed on a claim for adverse possession, a claimant must establish possession that is open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner throughout a ten-year period: Real Property Limitations Act , R.S.O. 1990, c. L.15, s. 4. The claimant must prove: (i) actual possession of the land in issue; (ii) an intention to exclude the true owner from possession of their land; and (iii) effective exclusion of the true owner from possession of their land: Barbour v. Bailey , 2016 ONCA 98, 345 O.A.C. 311, at paras. 35-36; McKay v. Vautour , 2020 ONCA 16, at para. 7. The ten-year period of possession must have occurred entirely before the land was placed under the land titles system. Adverse possession cannot arise after that time but is preserved if already acquired: Land Titles Act , R.S.O. 1990, c. L.5, s. 51; McKay , at para. 6. [19] Here, because the disputed land was placed under the land titles system in August 1998, the Armstrongs had to establish that their claimed right to adverse possession had crystallized before then. [20] The trial judge found that the Armstrongs easily met the first requirement for adverse possession: their predecessors in title had actual possession of the disputed land and used it “as if it was a part of the cottage”. He found “clear evidence of continuous use for at least 30 years prior to 1998 and quite likely longer.” [21] However, the trial judge concluded that the Armstrongs had not established the second and third requirements: an intention to exclude and effective exclusion of the true owner from possession. For adverse possession, “[t]he element of adversity means that the claimant is in possession without the permission of the true owner”: Teis v. Ancaster (Town) (1997), 35 O.R. (3d) 216 (C.A.), at p. 221. Or, as the trial judge stated, in a claim for adverse possession “permission is fatal”. He noted that the outhouse had been moved by one of the Armstrongs’ predecessors in title at the request of another landowner to whom Howard and Laureen Moore had sold property on which the outhouse had formerly been located. The trial judge found that this “raises an inference that the outhouse was originally put in the new location with the consent of the Moores.” He also found it troubling that the Armstrongs had not called evidence from their predecessors in title or explained why such evidence could not be adduced. [22] The Armstrongs assert that the evidence did not permit the trial judge to infer that the outhouse was placed in its current location with the Moores’ consent or permission and that he conflated permission with acquiescence. [23] We do not accept this submission. Absent palpable and overriding error or an extricable error of law, this court must defer to a trial judge’s findings of fact, inferences drawn from the facts, and the inference-drawing process itself: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 6, 10, 19, 23; Nelson (City) v. Mowatt , 2017 SCC 8, [2017] 1 S.C.R. 138, at para. 38. [24] The Armstrongs have not met this exacting standard. There was an evidentiary basis for the inference that the Moores gave permission as to the placement of the outhouse on their land. The Moores were involved in the decision as to where to relocate the outhouse when it was moved from one part of their property to another part, such that the trial judge could infer that they did not merely acquiesce in but rather gave their permission as to where it was placed. In our view, on the evidence the trial judge was entitled to infer permission. There is no basis for this court to intervene. (2) Did the trial judge err in rejecting the Armstrongs’ claim that the other property owners had abandoned their rights of way? [25] The Armstrongs assert that the trial judge also erred in finding that the other property owners had not abandoned their rights of way. The Armstrongs contend that the trial judge “conflated the test for adverse possession with the test for abandonment of easement”. [26] We do not accept this submission. The trial judge found on the evidence that the Armstrongs’ predecessors in title did not intend to exclude permanently the rights of way of the other property owners, and that the use actually made of the land “was not obviously inconsistent with their rights.” As the trial judge noted, as a matter of law those property owners did not have to prove use of their rights of way in order to avoid losing them; indeed, the intention to abandon an expressly granted right of way cannot be presumed merely as a result of non-use: Bison Realty Ltd. v. Athersych (1998), 19 R.P.R. (3d) 48 (Ont. C.J.), at para. 82, aff’d (2000) 135 O.A.C. 226 (C.A.). In our view, the trial judge correctly identified the applicable legal principles and his application of those principles is entitled to deference. We therefore have no basis to intervene. (3) Did the trial judge err in awarding the appellants nominal compensatory damages against Robert and Howard Moore? [27] Both the Armstrongs and the Moores impugn the trial judge’s decision to award the Armstrongs nominal compensatory damages for Robert Moore’s negligence in causing damage to and loss of use of the outhouse and for Howard Moore’s aiding, abetting, and encouraging the destruction of the outhouse. The Armstrongs complain that the trial judge awarded too little; the Moores complain that he awarded too much. [28] We reject both positions. [29] The plaintiff bears the burden of proving their damages on the balance of probabilities. Where damages are difficult to assess, the court must do the best it can in the circumstances. But where the absence of evidence makes it impossible to assess damages, the court may award nominal damages: TMS Lighting Ltd. v. KJS Transport Inc. , 2014 ONCA 1, 314 O.A.C. 133, para. 61, citing Martin v. Goldfarb (1998), 41 O.R. (3d) 161 (C.A.), at para. 75, leave to appeal refused, [1998] S.C.C.A. No. 516. [30] Once the applicable legal principles are correctly identified, a trial judge’s assessment of damages attracts considerable deference before this court. Appellate interference is justified “only where the trial judge made an error in principle, misapprehended the evidence, failed to consider relevant factors, considered irrelevant factors, made an award without any evidentiary foundation, or otherwise made a wholly erroneous assessment of damages”: TMS Lighting Ltd. , at para. 60. [31] Here, the trial judge correctly identified the applicable legal principles. We do not accept the Armstrongs’ submission that the trial judge erred by improperly assessing the Armstrongs’ damages in 2018, with the benefit of hindsight that there had been no further washouts of their property, rather than from the perspective of 2008, when it was reasonably foreseeable based on their engineer’s report that there might be further washouts. This was only one factor, among several, for the trial judge’s conclusion that the Armstrongs were entitled to damages for only a short-term interruption of use of their cottage. [32] We also disagree with the Moores’ submission that they could not be liable for damage to the outhouse because Howard and Laureen owned the land on which the outhouse was situated. The trial judge correctly concluded that the outhouse was a chattel that the Armstrongs owned, rather than a fixture forming part of the land, because it had been moved on occasion and was purchased with the Armstrongs’ cottage. The trial judge found that the outhouse was located on the Moores’ land with their permission, and that Howard Moore was “reckless if not deliberate and negligent if not intentional” in taking actions that exposed it to foreseeable harm. [33] Having correctly identified the applicable legal principles, the trial judge’s decision to award only nominal damages is entitled to deference. He awarded modest nominal compensatory damages ($10,000 in total) because he was persuaded that the Armstrongs had “suffered damage that has a measurable cost”, but he was “hampered by the absence of specific evidence” as to the quantum of their damages, and he was satisfied that any further inquiry into the quantum would be disproportionate given the low amounts of damages potentially recoverable. We see no basis for this court to intervene with this decision. (4) Did the trial judge err in awarding the appellants nominal punitive damages against Howard Moore? [34] Lastly, the Armstrongs appeal and Howard Moore cross-appeals the nominal ($5,000) punitive damages awarded. The Armstrongs say the amount should have been $40,000, while Howard Moore says that none were justified. [35] Appellate deference is owed to a trial judge’s decision to award punitive damages, provided that they are a rational response to the facts, that is, where the misconduct of the defendant is so outrageous that punitive damages are rationally required to act as deterrence: Whiten v. Pilot Insurance Co. , 2002 SCC 18, [2002] 1 S.C.R. 595, at paras. 76, 100; Pita Royale Inc. (Aroma Taste of the Middle East) v. Buckingham Properties Inc. , 2019 ONCA 439, 1 R.P.R. (6th) 1, at para. 27, leave to appeal refused, [2019] S.C.C.A. No. 307. [36] In our view, there was a rational basis for the trial judge’s decision to award nominal punitive damages given his findings that Howard Moore exacerbated the conflict between the parties, exposed the outhouse to further damage by removing the cedars, encouraged vandalism, and engaged in intimidation. The trial judge was entitled to find these acts justified a punitive award as malicious, oppressive, and high-handed misconduct that offends the court’s sense of decency: Whiten , at para. 36, citing Hill v. Church of Scientology of Toronto , [1995] 2 S.C.R. 1130, at para. 196. It was open to the trial judge to conclude that punitive damages in this amount were rationally required. [37] However, we defer to another day whether a court is entitled to rely on spoliation of evidence as providing a basis for awarding punitive damages. Ontario jurisprudence has yet to resolve definitively whether spoliation is a cause action: See Spasic Estate v. Imperial Tobacco Ltd. (2000), 49 O.R. (3d) 699 (C.A.), at paras. 12, 22; leave to appeal refused, [2000] S.C.C.A. No. 547. In our view, that issue need not and should not be resolved in this appeal. F. Conclusion [38] The appeal and cross-appeal are dismissed. As agreed by the parties, given the divided success there shall be no order as to costs. “G.R. Strathy C.J.O.” “J.C. MacPherson J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Asfar v. Sun Life Assurance Company of Canada, 2020 ONCA 31 DATE: 20200120 DOCKET: C67095 Strathy C.J.O., MacPherson and Jamal JJ.A. BETWEEN Jean-Pierre N. Asfar and Equity Cheque Card Corporation Limited Plaintiffs (Appellants) and Sun Life Assurance Company of Canada, Sun Life Financial INC. and Sun Life Financial Canada Defendants (Respondents) M. Niki Kanavas, for the appellants Stephen H. Shantz and Aida Gregorian, for the respondents Heard: January 17, 2020 On appeal from the judgment of Justice Shaun Nakatsuru of the Superior Court of Justice, dated May 23, 2019, with reasons reported at 2019 ONSC 3098. REASONS FOR DECISION [1] Jean-Pierre Asfar is the principal of Equity Cheque Card Corporation Ltd. (“ECCC”). On April 26, 2018, Mr. Asfar and ECCC (collectively, “the appellants”) commenced an action against the respondents (“Sun Life”) on a number of grounds, including breach of contract, negligent or fraudulent misrepresentation, breach of trust, civil conspiracy and fraud. The action relates to five mortgages provided by Sun Life to the appellants. [2] Sun Life brought a motion to have the action dismissed on the grounds that it was frivolous and vexatious. The motion judge dismissed this motion on the basis that, while the Statement of Claim was confusing, it was not frivolous or vexatious. [3] Sun Life brought a motion for summary judgment on the basis that the appellants’ claim was barred by the Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B. The motion judge granted this motion. He held that Mr. Asfar became aware of his potential cause of action in May 2006. He commenced the action 12 years later, in April 2018. Thus, under both the general two-year limitation period or the ten-year limitation period for claims relating to real property, the appellants’ claims were statute-barred. [4] The appellants appeal from the motion judge’s decision. [5] The appellants’ principal argument is that the motion judge erred by concluding that Mr. Asfar discovered his potential claim against Sun Life in May 2006. [6] We disagree. On this issue, the motion judge said: From this record, I find it clear that Mr. Asfar knew by May 2006, that an action was the appropriate remedy for the losses and damages he believed that the Plaintiffs suffered at the hands of Sun Life. He took actions that individuals normally would in such a situation. He retained counsel. He sent numerous legal looking documents. He made demands. As well, these actions are consistent with his own affidavit. I have assessed the substance of what Mr. Asfar was claiming in 2006 with the substance of his claims in his Statement of Claim. The rather rambling and incoherent nature of his allegations both in 2006 and in his Statement of Claim does not make it an easy task. However, I find that they are fundamentally the same. Mr. Asfar takes issue with the financial dealings that he and his company had with Sun Life back in the 1990s and early 2000s. This constitutes the backbone of his claims. They are fundamentally the same. [7] There is no palpable and overriding error in this conclusion. Accordingly, the appeal is dismissed. [8] Sun Life is entitled to its costs of the appeal fixed at $3,450, inclusive of disbursements and HST. “G.R. Strathy C.J.O.” “J.C. MacPherson J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Australia v. Rogation, 2020 ONCA 72 DATE: 20200130 DOCKET: C65535 & C65986 Doherty, Watt and Hourigan JJ.A. BETWEEN The Minister of Justice and The Attorney General of Canada on Behalf of Australia Respondents and Lloyd Rogation Appellant John Collins, for the appellant Roy Lee, for the respondent Attorney General of Canada Heard: January 28, 2020 On judicial review of the decision of the Hon. Jody Wilson-Raybould, ordering the appellant’s unconditional surrender, dated December 21, 2017. APPEAL BOOK ENDORSEMENT [1] The appellant does not pursue the appeal from the committal order. That appeal is dismissed. [2] The Minister considered the four-year delay between the arrest of the appellant’s co-conspirators and the request for extradition. She concluded that the delay did not rise to the level of an abuse, rendering surrender offensive to notions of fair play. She concluded that the delay was explained by the various factors identified by the requesting state. [3] In his submissions, counsel declares the steps identified by the requesting state as perfunctory and automatic. He argues none offer any explanation for the delay. [4] There is nothing in the record to support counsel’s characterization. Certainly, it would not apply were those same steps taken by Canada as the requesting state. The Minister is entitled to accept the representations made by the requesting state, particularly as they relate to the processes engaged by the requesting state. [5] The Minister’s decision is reviewed on a reasonableness standard. Nothing in this record provides a basis for a finding that her decision to order the appellant’s surrender was unreasonable. [6] The application for judicial review is dismissed.

COURT OF APPEAL FOR ONTARIO CITATION: Aylward v. Rebuild Response Group Inc., 2020 ONCA 62 DATE: 20200131 DOCKET: C65844 Lauwers, Miller and Fairburn JJ.A. BETWEEN Mary Magdalene Aylward Plaintiff (Appellant) and Rebuild Response Group Inc., Harmony Homes Quinte Ltd. and Tom Streek Defendants (Respondents) Jonathan Mesiano-Crookston, for the appellant John Mastorakos, for the respondents Heard: January 28, 2020 On appeal from the judgment of Justice Wolfram Tausendfreund of the Superior Court of Justice, dated August 9, 2018, with reasons reported at 2018 ONSC 4800, 92 C.L.R. (4th) 291 and from the costs order, dated November 29, 2018, with reasons reported at 2018 ONSC 7174. REASONS FOR DECISION [1] The trial judge dismissed the appellant’s claim for the return of the deposit she paid to the respondents with respect to the building contract for a new home. The building contract provided for a “25% deposit due upon signing contract. - $175,432.50”. [2] The appellant terminated the building contract because she was unable to agree with the respondents on modifications to the building contract that could be done to reduce the cost to an amount that would be covered by fire insurance proceeds. [3] The appeal turns on the meaning of the term “deposit” in the building contract. [4] The law relating to deposits was set out generally by this court in Redstone Enterprises Ltd. v. Simple Technology Inc. , 2017 ONCA 282, 137 O.R. (3d) 374, which the trial judge cited at para. 70 of the decision. At para. 20 of Redstone , this court quoted with approval Tang v. Zhang , 2013 BCCA 52 , 359 D.L.R. (4th) 104, where Newbury J.A. noted, at para. 30, that: A true deposit is an ancient invention of the law designed to motivate contracting parties to carry through with their bargains. Consistent with its purpose, a deposit is generally forfeited by a buyer who repudiates the contract, and this is not dependent on proof of damages by the other party. If the contract is performed, the deposit is applied to the purchase price [.] [5] The language of the building contract expressly identified the first payment of 25 percent of the contract price as a deposit in the phrase: “25% deposit due upon signing contract. - $175,432.50”. As a real estate agent, the appellant would have been well aware of the ordinary role of a deposit. [6] The appellant argues that the trial judge erred in not taking the Independent Contractor Agreement [“ICA”] into account in his interpretation of the deposit provision in the building contract. The appellant argues that the word “deposit” in the building contract must be interpreted differently, in this case, in light of the ICA, which was signed by the parties on or about the same day as the parties signed the building contract. particular, the appellant invokes cl. 8 of the ICA, which provides: For the services rendered by the Contractor as required by this Agreement, the Customer will provide compensation (the “Compensation”) to the contractor as follows: 25% of contract amount upon completion of each phase of construction to the satisfaction of the Project Management Team as well as the TD Bank Adjuster. The appellant argues that the effect of the ICA is that the contractor was not entitled to the deposit unless it had completed 25 percent of the work. In other words, the deposit was not really a true deposit. The appellant argues that very little work had been done, as building plans had not been agreed to, a building permit had not been obtained, and no ground on the rebuild had been broken. [7] The trial judge analyzed the ICA at para. 34 of his reasons and pointed out a number of problems with it that prevented him from reading it together with the building contract; in essence, the ICA did not mesh with the building contract in material respects. He took the view, at para. 35, that the ICA was “a separate document and is not to be read as part of the building contract.” He added: “That is so, even if I were incorrect in my finding that the ICA is not enforceable in the absence of consideration.” [8] The appellant pleaded that the ICA was not an enforceable contract. Nonetheless, counsel argued that it properly forms part of the factual matrix. Giving effect to this proposition would not assist the appellant. We do not accept the interpretation of the term “deposit” proposed by the appellant. The deposit was paid under the building contract, not the ICA, which does not use the term deposit at all. The terms of the documents regarding payment and the deposit do not conflict. The payment provision in the ICA means that the respondent could appropriate the deposit as revenue at the completion of the first phase, but that did not affect the fundamental character of the deposit as a deposit if the contract were not performed. The contract was not performed, as the trial judge found, because the appellant repudiated it. [9] The appellant next argues that the trial judge erred in failing to grant relief from forfeiture under s. 98 of the Courts of Justice Act , R.S.O. 1990, c. C.43 . [10] The trial judge found, at para. 85, that the pleading was “not sufficiently specific for me to find that the plaintiff has pleaded relief from forfeiture.” But he then went on to analyze the claim and reject it, at paras. 87-90, on the basis that the forfeited sum was not out of all proportion to the damages suffered and that it would not be unconscionable for the respondents to retain the deposit, in accordance with the principles set out in Redstone . [11] Regarding proportionality and the damages, the trial judge’s assessment was largely factual in nature. He fixed the damages suffered by the respondents at $150,000: at para. 82. We are not persuaded that in doing so he made a palpable and overriding error. The size of the deposit is not so significant that it would give rise to a finding of unconscionability based on proportionality alone. The factors referred to at para. 30 of Redstone for assessing unconscionability, such as an inequality of bargaining power, or a substantially unfair bargain, simply do not exist in this case. In our view, the trial judge did not err in concluding that there was no basis for relief from forfeiture in this case. [12] The appellant also seeks leave to appeal costs. The trial judge noted that the respondents’ substantial indemnity costs would have been $63,000, which compared favourably to the appellant’s claim for substantial indemnity trial costs of $75,000. He considered that an award of partial indemnity costs to the respondents in the amount of $38,000 all-in was reasonable and proportional. We do not see any error in the trial judge’s reasoning leading to the costs award. [13] For these reasons we dismiss the appeal with costs to the respondents fixed in the amount of $ 9,000, all-inclusive. “P. Lauwers J.A.” “B.W. Miller J.A.” “Fairburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Bernard Property Maintenance v. Taylor, 2020 ONCA 27 DATE: 20200116 DOCKET: M51103 (M51039) Roberts, Paciocco and Harvison Young JJ.A. BETWEEN Bernard Property Maintenance Responding Party (Respondent in Appeal) and Paul Taylor Moving Party (Appellant) Paul Taylor, self-represented David S. Strashin, for the responding party Heard and released orally: January 9, 2020 REASONS FOR DECISION [1] Mr. Taylor seeks to vary the motion judge’s December 4, 2019 order, allowing on certain terms his motion for a stay of the order that he seeks leave to appeal. Specifically, Mr. Taylor seeks to remove the term in the motion judge’s order that requires Mr. Taylor to pay the respondent landlord arrears of rent in the amount of $14,250 by December 12, 2019. Mr. Taylor seeks to replace it with the term that he pays rent in the amount of $1,425 each month commencing January 1, 2020. It is common ground that Mr. Taylor has not made any payments to the respondent in accordance with the motion judge’s order. [2] These proceedings arise out of a landlord and tenant dispute between Mr. Taylor and the respondent. The respondent obtained an order for eviction and payment of rent arrears before the Landlord and Tenant Board, which Mr. Taylor unsuccessfully sought to appeal before a single judge of the Divisional Court and then a panel of this court reconstituted as a panel of Divisional Court. Mr. Taylor seeks leave to appeal the latter dismissal. He moved before a motion judge of this court for a stay of the order, which, as already mentioned, the motion judge granted on terms. [3] Mr. Taylor submits that he ought not to be required to pay rent arrears when he was obliged to use those monies to carry out necessary repairs to the leased premises. Mr. Taylor submits that the motion judge made the following reversible errors in requiring him to do so. [4] Mr. Taylor says that the motion judge effectively determined that Mr. Taylor made a mistake by not seeking a rent abatement from the Landlord and Tenant Board or the Court for the repairs to the leased premises that he says were necessary. According to Mr. Taylor, in doing so, the motion judge made an error of law by failing to comply with the principles under the Canadian Judicial Council Statement of Principles on Self‑Represented Litigants and Accused Persons. Mr. Taylor submits that he has rectified this error by filing an application for a rent abatement with the Landlord and Tenant Board and including the same request with this motion. Mr. Taylor abandoned his request that this panel adjudicate the rent abatement issue during oral submissions before this court. [5] We do not accept these submissions. [6] The motion judge did not determine that Mr. Taylor erred by failing to obtain a rent abatement. This issue was not before him. Mr. Taylor did not suggest to the motion judge that he wished to obtain a rent abatement. In paragraph 8 of his reasons, the motion judge sets out the respective submissions of Mr. Taylor and the respondent. These include Mr. Taylor’s dispute of the rental arrears given what he says are necessary repairs to the premises; and the respondent’s position that Mr. Taylor did not have any right to unilaterally decide that he would make repairs and offset the costs against his rent because no abatement had been authorized by the Board or any court, which was and remains true. The motion judge also notes, correctly, the fact that previous orders required rent to be paid. [7] We see no error in the motion judge’s decision. The CJC principles regarding self-represented parties were entirely respected. The motion judge could only deal with the evidence, issues and submissions before him. He thoroughly and carefully considered the evidence before him and the parties’ respective submissions. He properly applied the well-established test for a stay of the order that Mr. Taylor seeks leave to appeal. In particular, his reasons reflect a consideration of Mr. Taylor’s personal circumstances and potential prejudice if the stay were not granted. The motion judge exercised his discretion in favour of Mr. Taylor, granting the request to stay on reasonable terms, notwithstanding his conclusion that Mr. Taylor has an exceedingly difficult case to obtain leave to appeal the panel’s decision. The motion judge’s decision represents an appropriate balancing of all relevant factors and the parties’ competing interests. [8] For these reasons, we dismiss the motion. [9] Mr. Taylor shall pay the respondent its partial indemnity costs in the amount of $1,500, inclusive of disbursements and applicable taxes. “L.B. Roberts J.A.” “David M. Paciocco J.A.” “Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Clarke v. Sun Life Assurance Company of Canada, 2020 ONCA 11 DATE: 20200108 DOCKET: C67056 Brown, Huscroft and Trotter JJ.A. BETWEEN April Clarke Plaintiff (Respondent) and Sun Life Assurance Company of Canada Defendant (Appellant) Linda Plumpton and Davida Shiff, for the appellant Allan Chapnik, for the respondent Heard: December 18, 2019 On appeal from the order of Justice Janet Leiper of the Superior Court of Justice dated May 14, 2019, with reasons reported at 2019 ONSC 2942, 147 O.R. (3d) 55. BROWN J.A.: OVERVIEW [1] Sun Life Assurance Company of Canada brought a summary judgment motion to dismiss, as statute-barred, Ms. Clarke’s action for long-term disability benefits under a group policy of insurance. The motion judge dismissed the motion and, instead, declared that Ms. Clarke’s action was not statute-barred as the limitation period for the action commenced on June 19, 2017, a little over a year before Ms. Clarke issued her claim. Sun Life appeals, asking this court to set aside the order below and dismiss Ms. Clarke’s action. [2] For the reasons set out below, I would allow the appeal in part. BACKGROUND FACTS [3] Ms. Clarke was employed by Canada Post. Sun Life was the insurer for Canada Post’s group disability insurance plan. Ms. Clarke was a member of the plan. [4] Under the plan, an insured employee’s eligibility for total disability benefits was determined by reference to two periods of time. In the first period, which covered the plan’s elimination period and the following 24 months, the plan treated as “totally disabled” an insured who was prevented from performing the essential duties of her regular or “Own Occupation”. For the period beyond the 24 months, the plan treated an insured as “Totally Disabled for Any Occupation” if she was prevented from engaging in any commensurate occupation for which she was or became reasonably qualified by education, training, or experience. [5] Ms. Clarke made a claim for long-term disability benefits after she stopped working due to health problems in 2011.  In a letter dated March 19, 2012, Sun Life “denied” her claim, stating that it was unable to establish her total disability from returning to her own occupational duties. The letter informed Ms. Clarke that three levels of appeal were available to her. The appeal process was not a term of the plan of insurance but a practice by Sun Life that its counsel described as the “operationalization of the duty of good faith” of the insurer. [6] Ms. Clarke appealed. [7] By letter dated February 24, 2014, Sun Life wrote to Ms. Clarke to tell her that it had approved disability benefits for the “Own Occupation” period, which had ended in April 2013. The letter went on to tell Ms. Clarke that the medical information she had provided did not support her claim for “Any Occupation” total disability benefits. Specifically, the letter stated: The current medical information in your file does not appear to support Total Disability from Any Occupation. Therefore your last payment date is April 25, 2013 and your LTD file is now closed. Should you feel Totally Disabled from Any Occupation, you will need to provide medical information for our review. You will need to [provide] objective medical information including diagnosis, treatment, complications to date preventing you from working in any occupation. Kindly note this is your responsibility. [Emphasis in original.] [8] On February 26, 2014, Ms. Clarke and her union representative spoke to Sun Life and advised that she would appeal the “Any Occupation phase”. Sun Life’s call record of that conversation went on to state: “Union Rep stated that PM’s [Plan Member’s] doctor don’t think that PM is TD any [Totally Disabled Any Occupation], but due to a recent surgery in January/2014, PM needs few more months of LTD [long-term disability] benefits, she said maybe 1 more year of LTD benefits.” [9] The record before us does not disclose any further contact between Ms. Clarke and Sun Life over the next three years. [1] It was not until March 2017 that Ms. Clarke provided Sun Life with further medical information for her “Any Occupation” claim. [10] By letter dated April 24, 2017, Sun Life informed Ms. Clarke that “your request for a review of our decision is now being considered at the first level of appeal.” [11] On June 19, 2017, Sun Life wrote to Ms. Clarke about the “decision at the appeal process.” The letter reviewed the merits of Ms. Clarke’s claim for “Any Occupation” benefits, explaining in some detail why it maintained the position that she did not qualify for “Any Occupation” total disability benefits. The letter stated: “[W]hile we are pleased that we could issue payments for a considerable period, the current information on file is not sufficient to overturn our prior decision.” Like the February 24, 2014 letter, the June 19, 2017 letter advised Ms. Clarke that her file was closed; as well, it did not use the word “deny” in its text. [12] The June 19, 2017 letter informed Ms. Clarke that a final level of appeal was available. The letter concluded with a statement that Sun Life had not included in its previous communications with Ms. Clarke: Our consideration of an appeal shall not constitute a waiver of any of our rights under the policy or otherwise, including with respect to the applicable limitation period. If you decide to take legal action against Sun Life, please be advised that your claim is subject to a limitation period. This limitation is set out in the Limitations Act, 2002 [S.O. 2002, c. 24, Sched. B] or in the applicable contractual provisions. [13] On August 2, 2018, Ms. Clarke issued her statement of claim seeking the payment of arrears of long-term disability benefits from the cessation of payments on April 25, 2013. [14] Sun Life brought a motion for summary judgment to dismiss the action as statute-barred, which the motion judge denied. Sun Life appeals. ANALYSIS The day on which the injury, loss or damage occurred [15] The motion judge started her analysis under the Limitations Act, 2002 by considering the date the injury, loss or damage occurred: ss. 5(1)(a)(i) and (b). The motion judge did not accept Sun Life’s submission that the February 24, 2014 letter marked the time at which Ms. Clarke first knew that an injury, loss or damage had occurred. She described the letter as “equivocal” and noted that it “did not use the language of refusal or denial”: at para. 21. She concluded that it was “not clear that the words used by the Sun Life letter of February 24, 2014 [were] a denial of disability benefits that amounted to ‘injury, loss or damage’”: at para. 23. She ultimately found, at para. 30, that the limitation period commenced with the denial communicated to Ms. Clarke by Sun Life on June 19, 2017, notwithstanding that that letter also did not use language of denial. [16] With respect, the motion judge erred in law by failing to apply the principle stated by this court in Pepper v. Sanmina-Sci Systems (Canada) Inc. , 2017 ONCA 730, [2018] I.L.R. I-5996, at para. 1, that an insured has a cause of action for breach of contract against her insurer when the insurer stops paying long-term disability benefits. In its February 24, 2014 letter, Sun Life informed Ms. Clarke that her disability benefits terminated as of April 25, 2013, which was the date the “Own Occupation” benefits period ended. Sun Life went on to state that it would not pay “Any Occupation” benefits. Accordingly, by February 24, 2014, a “loss, injury or damage” had occurred that would have been known to a reasonable person with the abilities and in the circumstances of Ms. Clarke: Limitations Act, 2002 , ss. 5(1)(a)(i) and (b). [17] I note that in reaching her conclusion on s. 5(1)(a)(i), the motion judge relied on the decision of the Divisional Court in Western Life Assurance Company v. Penttila , 2019 ONSC 14, 144 O.R. (3d) 198. The motion judge appears to have misapplied Western Life Assurance on the issue of when an insured knows that a loss, injury or damage has occurred. As that decision clearly stated, at para. 17, the parties agreed that for the purposes of s. 5(1)(a)(i) the insured knew that a loss had occurred on the date her benefits came to an end, which is the governing principle as stated in Pepper . A proceeding would be an appropriate means [18] The motion judge next considered the issue of when a proceeding would be an appropriate means to remedy the loss, injury or damage: Limitations Act, 2002 , ss. 5(1)(a)(iv) and (b). For the reasons that follow, I conclude that the motion judge failed to conduct the analysis required by the Act on this point. [19] The discoverability analysis required by ss. 5(1) and (2) of the Act contains cumulative and comparative elements. [20] Section 5(1)(a) identifies the four elements a court must examine cumulatively to determine when a claim was “discovered”. When considering the four s. 5(1)(a) elements, a court must make two findings of fact: (i)       The court must determine the “day on which the person with the claim first knew” all four of the elements. In making this first finding of fact, the court must have regard to the presumed date of knowledge established by s. 5(2): “A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved”; and (ii)      The court must also determine “the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known” of the four elements identified in s. 5(1)(a). Armed with those two findings of fact, s. 5(1) then requires the court to compare the two dates and states that a claim is discovered on the earlier of the two dates: see Nasr Hospitality Services Inc. v. Intact Insurance , 2018 ONCA 725, 142 O.R. (3d) 561, at paras. 34-35. [21] Accordingly, as part of her cumulative and comparative discoverability analysis, the motion judge was required to determine (i) the day on which Ms. Clarke “first knew … that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it” (s. 5(1)(a)(iv)) and (ii) the day on which a reasonable person with the abilities and in the circumstances of Ms. Clarke first ought to have known of that matter (s. 5(1)(b)). [22] The motion judge’s reasons disclose that she failed to make any specific finding about either date. [23] Although the motion judge noted, at paras. 30(iii) and (iv), that Ms. Clarke’s three-year delay in providing additional medical information was “unexplained” and her evidence was “silent as to her knowledge, intentions or assumptions about the matter”, the motion judge was not prepared to draw any inferences from this absence of evidence. Read as a whole, her reasons disclose that she was not able to determine when Ms. Clarke first knew that a proceeding would be an appropriate means to seek to remedy her injury. [24] In that circumstance, the motion judge was required to deal with s. 5(2) of the Act, which presumes that a person with a claim knows of the matters in s. 5(1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. Applying the presumption requires the court to assess whether the claimant had acted with due diligence in determining if she had a claim: Miaskowski v. Persaud , 2015 ONCA 758, 393 D.L.R. (4th) 237, at paras. 24-27. The motion judge did not deal with the s. 5(2) presumption or the related obligation of the insured to act with due diligence. [25] Given the motion judge’s failure to make the requisite findings of fact in respect of ss. 5(1)(a)(iv), (b), and (2), her conclusion that Sun Life had not established the elements of a limitation defence under ss. 4 and 5 of the Act lacked an adequate legal and factual foundation. For that reason, her order must be set aside. [26] I do not consider this to be an appropriate case to exercise this court’s fact-finding powers under Courts of Justice Act , R.S.O. 1990, c. C.43, s. 134(4), in respect of ss. 5(1)(a)(iv), (b), and (2), including the issue of Ms. Clarke’s due diligence. No examinations for discovery or cross-examinations have been conducted in this proceeding. A fuller record is required to assess, for the purposes of the s. 5(1)(a)(iv) analysis, the significance of the informal appeal process offered by Sun Life and engaged by Ms. Clarke, including whether that process constituted an alternative process with a reasonably certain or ascertainable date on which it runs its course or is exhausted, as required by Presidential MSH Corporation v. Marr Foster & Co. LLP , 2017 ONCA 325, 135 O.R. (3d) 321, at para. 48. Accordingly, the remaining issues related to the limitation period defence are more appropriately determined through some form of trial. DISPOSITION [27] I would grant the appeal, set aside the order of the motion judge, and direct that the action proceed to trial. [28] The parties agreed that the successful party on the appeal should be awarded costs of $10,000, inclusive of disbursements and applicable taxes. Success on the appeal has been divided. Accordingly, I would fix the costs of the appeal at $10,000 but order that they be payable in the ultimate cause of the action. Released: “DB” JAN 08 2020 “David Brown J.A.” “I agree. Grant Huscroft J.A.” “I agree. Gary Trotter J.A.” [1] This unexplained lengthy period of inactivity by Ms. Clarke in pursuing an appeal factually distinguishes this case from the situation in Western Life Assurance Company v. Penttila , 2019 ONSC 14, 144 O.R. (3d) 198 (Div. Ct.), a case relied upon by Ms. Clarke. The lack of contact between the insured and insurer over the three-year period differentiates this case from the circumstances in Kassburg v. Sun Life Assurance Company of Canada , 2014 ONCA 922, 124 O.R. (3d) 171.

COURT OF APPEAL FOR ONTARIO CITATION: Conroy v. Vassel, 2020 ONCA 14 DATE: 20200108 DOCKET: C67278 Sharpe, Juriansz and Trotter JJ.A. BETWEEN David Conroy, Dana Conroy and Collin Conroy Plaintiff/Appellant and Donna Vassel Defendant/Respondent David Conroy, in person Joseph Figliomeni and Jonah Waxman, for the respondent Heard and released orally: January 6, 2020 On appeal from the order of Justice Michael A. Penny of the Superior Court of Justice, dated July 8, 2019. REASONS FOR DECISION [1] The appellant no longer appeals the dismissal of his property claim. He appeals only the dismissal of his action for spousal support and return of the bracelet. His real concern is the costs award made by the motion judge. [2] In our view, the motion judge did not err by striking the statement of claim. It was an inappropriate method to present the claims advanced by the appellant. However, reading the record as a whole, we do not see this so much as a case of abuse of process as the product of confusion on the part of an in-person litigant. The appellant did offer to amend and refile his proceedings on a case management motion and was told to proceed on the basis of the existing record. When making his costs order the motion judge said that the costs order made by Justice Belobaba “was apparently not a sufficient message”. In our view, there was no clear message but rather confusion on the part of this in-person litigant. [3] In these circumstances, we reduce the costs of the motion from $7,500 to $2,500 but otherwise, dismiss the appeal. No order as to costs of this appeal. “R.J. Sharpe J.A.” “R.G. Juriansz J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Elbasiouni v. Brampton (City), 2020 ONCA 43 DATE: 20200124 DOCKET: M50596 Feldman, Brown and Zarnett JJ.A.. BETWEEN Ahmed Elbasiouni Moving Party and The Chief Building Official (CBO) the Corporation of the City of Brampton Responding Party Ahmed Elbasiouni, acting in person Charles A. Painter, for the responding party Heard: In writing January 22, 2020 REASONS FOR DECISION [1] The appellant seeks leave to appeal a decision of the Divisional Court, dismissing appeals from three orders of the Superior Court affirming the dismissal of an appeal from a decision of the Chief Building Official of the City of Brampton. [2] Motions for leave to appeal from the Divisional Court under s. 6(1)(a) of the Courts of Justice Act , R.S.O 1990, c. C.43, are heard by this court in writing and in most cases, they are disposed of without reasons. [3] In this case, the respondent took the position that the motion for leave should be dismissed on the basis that there is no appeal to this court available, and in the alternative, that leave should not be granted applying the criteria under the Sault Dock test: Sault Dock Co. Ltd. v. Sault Ste. Marie (City) , [1973] 2 O.R. 479 (C.A.). [4] The purpose of these reasons is to clarify that leave to appeal to the Court of Appeal in accordance with s. 6(1)(a) of the Courts of Justice Act remains available for a decision of the Divisional Court made under s. 26 of the Building Code Act , 1992 , S.O. 1992, c. 23. Such leave is not precluded by ss. 25 and 26 of the Building Code Act , 1992 , which provide that a decision of an inspector or chief building official may be appealed first to a judge of the Superior Court, and then to the Divisional Court on the grounds and with the powers set out in those sections. [5] The motion for leave to appeal is dismissed on the alternative ground, with costs fixed at $500.00 inclusive of disbursements and HST. “K. Feldman J.A.” “David Brown J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Gajewski (Re), 2020 ONCA 4 DATE: 20200106 DOCKET: M50960 (C67007) Strathy C.J.O. (Motions Judge) IN THE MATTER OF:  BARTOSZ GAJEWSKI AN APPEAL UNDER PART XX.1 OF THE CODE Anita Szigeti, for the appellant/responding party Joanne Stuart, for the respondent/responding party, Attorney General of Ontario Michele Warner, for the respondent/responding party, the Person in Charge of the Centre for Addiction and Mental Health (CAMH) Sheila Block, for the moving party (proposed intervener), K.N. Michael Davies, for the moving party (proposed intervener), the Empowerment Council Heard: November 6, 2019 REASONS FOR DECISION [1] K.N. seeks leave to intervene as a “person interested” in this appeal from a disposition of the Ontario Review Board in respect of the appellant, Bartosz Gajewski. The motion is brought pursuant to rr. 23 and 38(3) of the Criminal Appeal Rules , SI/93-169, and r. 13 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. [2] The Empowerment Council, Systemic Advocates in Addiction and Mental Health, also seeks leave to intervene if K.N.’s motion is successful. [3] I dismissed K.N.’s motion with reasons to follow. These are my reasons. I. Background [4] In 2003, Mr. Gajewski became infatuated with K.N. She had done nothing to give him reason to be, and his feelings for her were not in any way reciprocated. He was later charged with criminal harassment and threatening bodily harm against her. The charges were withdrawn after he entered into a peace bond. [5] Mr. Gajewski had no further contact with K.N. until September 17, 2009 when the index offences occurred. [6] He dragged her from her car and down the street and attempted to kidnap her in the name of “Jehovah God” under a delusion that she and her father were involved in a conspiracy to commit crimes against him. He was charged with the index offences, assault and forcible confinement of K.N. He was subsequently diagnosed as suffering from a delusional disorder of a persecutory nature. [7] K.N. was injured in the course of the attack. The attack has had a lasting impact on her. To this day, she remains terrified of Mr. Gajewski. If granted leave to intervene, she proposes to submit that the Board erred in failing to impose a geographic boundary as a term of Mr. Gajewski’s release in order to protect her psychological and physical security. [8] To put her motion in context, it is necessary to briefly review the history of this matter before the ORB and in this court. II. Proceedings before the ORB [9] On March 24, 2011, Mr. Gajewski was found not criminally responsible by reason of a mental disorder. He has been under the jurisdiction of the Ontario Review Board since that date. [10] At his annual hearing in 2012, the ORB ordered that Mr. Gajewski be detained in the Secure Forensic Unit at CAMH. In 2013 and 2014, the ORB found that he remained a significant threat to the safety of the public and ordered that he continue to be detained in the Secure Forensic Unit, with privileges up to and including accompanied hospital and ground privileges. Mr. Gajewski appealed both decisions. The appeals were heard on April 24, 2014 and May 6, 2015 respectively, and were dismissed by this court: 2014 ONCA 332; 2015 ONCA 332. [11] In December 2015, Mr. Gajewski was transferred to the General Unit at the hospital. At his annual review in 2016, the ORB found that the appropriate disposition was detention in the General Unit, with indirectly supervised entry into the community of Toronto on passes for up to seven days. The Board also ordered that Mr. Gajewski refrain from coming within 500 metres of K.N.: 2016 CarswellOnt 17990. [12] The Crown appealed, arguing that the condition allowing Mr. Gajewski indirectly supervised entry into the community was unreasonable, and that K.N.’s father should also have been included in the 500-metre boundary condition. This court allowed the appeal in part, holding that K.N.’s father should be included in the restriction, but that the indirectly supervised entry into the community was not unreasonable: 2017 ONCA 354. [13] The issue of a boundary or geographic restriction in the terms of Mr. Gajewski’s release – the subject of K.N.’s proposed intervention submissions – was first raised by the Crown at his annual review in 2016. In the event Mr. Gajewski was granted indirectly supervised passes or community living, the Crown sought to create an “exclusion” zone around the area where K.N. and her father lived and worked. K.N. and her father appeared at the hearing, but after inconclusive attempts by the parties to resolve the issue, the Board observed: [The Crown] sought a boundary condition in the disposition in the event the accused was permitted to exercise indirectly supervised passes or to live in the community. Possible boundaries were proposed and discussed but, in the absence of information regarding the addresses at which the victim lives and works, no agreement was reached with respect to the issue. [14] The Board did not accept the Crown’s submission that a geographic boundary should be imposed. It held: The panel is of the opinion an area of exclusion with defined boundaries provides illusory reassurance to victims of crime, and finds an area of exclusion around individuals more effective in securing those persons’ safety than a defined geographical area. The panel devoted considerable thought to ensuring the safety of the victim in this matter and concluded a moving exclusion zone better fulfills that goal. Victims are entitled to feel secure wherever they may be and not only within a defined area. Combining the two adds no further security. Accordingly, Mr. Gajewski will be prohibited from attending within 500 metres of anywhere [K.N.] lives, works, worships, or is known by him to be. [15] The Crown renewed its request for a geographic boundary at the 2018 annual hearing. A majority of four of the five Board members declined to alter the 2016 disposition: 2018 CarswellOnt 9761. The dissenting member found that “the risk to the safety of the public could be minimized by including in the disposition a geographic envelope within which Mr. Gajewski would not be allowed to travel.” She stated: Imposition of this geographic restriction could have an additional benefit in that it could also serve to impede any efforts at surveillance by Mr. Gajewski. In addition, I believe that a non-contact clause with the victim of the offence and her father as described in the reasons of the majority should also be included. [16] The Crown did not appeal the disposition. [17] At his 2019 annual review, which is the subject of this appeal, the Crown, relying on the dissent in the 2018 decision, again sought a boundary restriction. In support of the argument, K.N. filed a victim impact statement, as she had done at previous hearings. The statement noted that, while K.N. understood that “a person deemed NCR should have access to the best possible treatment in order for the potential to improve and be able to return to the community”, the ORB was tasked with protecting her and her father. She claimed that a boundary restriction “is the only circumstance that can to some degree ensure [her] safety and that of [her] father.” Mr. Gajewski’s attending psychiatrist, who had testified at previous hearings, opined that a geographic boundary restriction was unnecessary. [18] The Board unanimously rejected the Crown’s request, finding that a geographic boundary was unnecessary: 2019 CarswellOnt 10003. The hearing panel included the member who had dissented at the 2018 hearing. The Board stated: We note that Mr. Gajewski has not had any such limitations for over a year and there has been no indication that there has been any attempts to contact the victim or members of her family. Given the fact that there has been no attempt to contact the victim, and a Detention Order which would permit the Hospital and the police to move quickly if there were to be any attempt to contact, we are of the view that it is unnecessary to include a geographical boundary limitation in the upcoming disposition. [19] However, the Board maintained the condition requiring Mr. Gajewski to refrain from contacting K.N., her father, or her lawyer, and not knowingly coming within 500 metres of K.N. or her father. III. Mr. Gajewski’s Condition [20] K.N. submits that the evidence demonstrates that Mr. Gajewski’s delusional beliefs are persistent and unchanged, and that he lacks insight into his illness and the need for treatment. [21] For the purpose of this motion, I accept that K.N. has a reasonable concern for her physical and psychological well-being and for that of her father. IV. The Parties’ Submissions [22] K.N. does not seek to intervene as a friend of the court in the traditional sense. Nor does she seek to intervene by virtue of her status as a past victim of Mr. Gajewski’s delusions. She asserts a direct interest in the appeal because she is the only target of Mr. Gajewski’s persistent delusions and her future safety is at issue. She maintains that her safety should have been the Board’s paramount consideration when it considered whether Mr. Gajewski was a significant risk to the safety of the “public”. [23] Because the Crown has not appealed the ORB’s refusal to impose a geographic boundary, she points out that her voice will not be heard unless she is granted leave to intervene. She says that the Board erred in law in finding that it was “unnecessary” to impose a geographic boundary, when the test was whether the boundary was “desirable”. Applying this higher standard was an error in law. [24] Counsel on behalf of the Hospital takes no position on the proposed intervention. Nor does counsel on behalf of the Attorney General, although she points out that it is unprecedented in the context of Ontario Review Board appeals to grant intervenor status to a complainant. [25] Counsel for Mr. Gajewski says that K.N.’s motion contravenes a basic rule of interventions – it raises an issue that is not raised by the parties and is therefore unfair and prejudicial to Mr. Gajewski. Moreover, the issue of a geographic boundary has been raised and dealt with at the past three annual reviews (2016, 2018, and 2019) and has each time been resolved against the position taken by K.N. The Crown, which has put a voice to K.N.’s concerns, has finally accepted this position and it is time for K.N. to do the same. [26] As noted above, the Empowerment Council will not pursue its request for intervener status if K.N. is not granted leave. V. Analysis [27] It is beyond dispute that “absent a constitutional issue, leave to intervene is seldom granted in criminal appeals”: R. v. McCullough (1995), 24 O.R. (3d) 239 (C.A.), at p. 243. A proposed intervener must be able to “make a useful contribution beyond that which would be offered by the parties and without causing an injustice to the immediate parties”: McCullough , at p. 243; R. v. Bedford , 2009 ONCA 669, 98 O.R. (3d) 792, at para. 2, quoting Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 74 O.R. (2d) 164 (C.A.), at p. 167. In criminal appeals, the primary concern is fairness and the appearance of fairness: R. v. K.A.R. (1992), 76 C.C.C. (3d) 536 (N.S.C.A.), at p. 540, citing R. v. Finta (1990), 1 O.R. (3d) 183 (C.A.), at p. 186. [28] No party identified any case in which a complainant has been granted leave to intervene in an ORB appeal. However, K.N. cites three cases in support of her position: · In R. v. McCullough , the accused’s counsel was granted leave to intervene because the trial judge had ordered him to pay certain costs of the proceedings below; · In R. v. K.A.R. , the victim of a sexual assault was granted leave to intervene, because the appellant sought an order pursuant to s. 683 of the Criminal Code , R.S.C. 1985, c. C-46, for production of her former psychiatrist’s file: see also R. v. J.L. , 1995 CarswellOnt 3536 (C.J.), aff’d [1997] O.J. No. 4953 (C.A.); and · In R. v. Bernardo (1995), 38 C.R. (4th) 229 (Ont. C.J.), LeSage A.C.J.O.C. granted the parents of the victims leave to intervene to argue that the public should be excluded from the courtroom during the playing of videotaped evidence. He observed that the circumstances were “strikingly unusual” and that the parents had a unique and different perspective on the issue. [29] In my view, none of these cases bear any resemblance to the circumstances of this case. Both McCullough and Bernardo involved applications by non-complainants and dealt with issues distinct from those at play here. While K.A.R. involved an application by a complainant, the order at issue concerned her privacy interests, which would not have been adequately addressed without her participation. The decision to allow a complainant to make submissions regarding the production of her medical records accords with the production regime established several years later by the Supreme Court of Canada in R. v. O’Connor , [1995] 4 S.C.R. 411, and the subsequent statutory scheme enacted by Parliament (ss. 278.1-278.9, the Mills regime: R. v. Mills , [1999] 3 S.C.R. 668). The Charter principles of privacy and equality motivating the protection of sexual violence complainants and their records are not engaged in this case. [30] Another decision involving an intervention application by a complainant is R. v. O’Connor (1993), 82 C.C.C. (3d) 495 (B.C.C.A.). In that case, four complainants who had been sexually assaulted by a priest while attending a residential school sought leave to intervene in a Crown appeal. The appeal was from a judicial stay of proceedings made during the course of the trial as a result of Crown disclosure delays that disadvantaged the accused. The complainants sought to make submissions regarding the proper law and procedure governing the disclosure of complainants’ confidential information in sexual assault cases. The court denied leave to intervene, observing that the complainants’ personal interest in the proceedings would make it impossible for them to address the issues before the court in a detached manner. [31] While the circumstances are somewhat distinct here – the complainants in O’Connor had launched parallel civil proceedings against the accused – similar fairness concerns are engaged. Permitting K.N. to make submissions would prejudice Mr. Gajewski, as her arguments are targeted at restricting Mr. Gajewski’s liberties beyond the restrictions already imposed by the Board. In my view, there is no basis on which to grant K.N. leave to intervene and it would be unfair to Mr. Gajewski to do so. [32] The Criminal Code provides a mechanism for the complainant to have a voice in the sentencing stage through a victim impact statement: s. 722. This applies to ORB proceedings as well: s. 672.5(14). K.N. filed a victim impact statement. [33] In addition, her concerns with respect to a boundary restriction were articulated by the Crown on three occasions, in 2016, 2018, and 2019. They were rejected by a majority of the Board in 2018 and unanimously in 2016 and 2019. The Board, possessed of expertise in its field, articulated sound reasons as to why a “moving” restriction would be more efficacious than a geographic one. [34] I respectfully agree with the observations of the Court of Appeal for British Columbia in O’Connor , that “complainants do not have special status in law by reason of being the persons named in the indictment”: at p. 503. An essential feature of the criminal law is its “public nature.” A “crime is, in fact, not a wrong against the actual person harmed … but a wrong against the community as a whole”: at p. 503, quoting Alan W. Mewett & Morris Manning, Criminal Law , 1st ed. (Toronto: Butterworths, 1978), at p. 14. [35] I accept K.N.’s argument that she, not the community, is at risk. However, as a member of the community, K.N.’s concern was addressed by the ORB pursuant to its mandate to determine whether Mr. Gajewski poses a significant threat to the safety of the public. Where there is a concern regarding whether or not the Board has carried out its mandate effectively, it is the Crown’s responsibility to speak for the community. VI. Disposition [36] For these reasons, I would dismiss the motion for leave to intervene. “G.R. Strathy C.J.O.”

COURT OF APPEAL FOR ONTARIO CITATION: H.M.B. Holdings Limited v. Antigua and Barbuda, 2020 ONCA 12 DATE: 20200109 DOCKET: C66765 Simmons, Pardu and Nordheimer JJ.A. BETWEEN H.M.B. Holdings Limited Applicant (Appellant) and The Attorney General of Antigua and Barbuda Respondent (Respondent) Lincoln Caylor and Nina Butz, for the appellant Steve Tenai and Sanj Sood, for the respondent Heard: November 7, 2019 On appeal from the order of Justice Paul Perell of the Superior Court of Justice, dated March 4, 2019, reported at 2019 ONSC 1445. Pardu J.A.: A. Overview [1] The underlying facts in this conflict of laws case are undisputed. Antigua and Barbuda (Antigua) expropriated property owned by H.M.B. Holdings Limited (HMB). The Judicial Committee of the Privy Council ordered Antigua to compensate HMB for the expropriation (Privy Council judgment). [2] HMB brought a common law action to enforce the Privy Council judgment in British Columbia. The British Columbia Supreme Court granted HMB’s action (British Columbia judgment). [3] HMB then applied, pursuant to the Reciprocal Enforcement of Judgments Act , R.S.O. 1990, c. R.5 ( REJA ) , to register the British Columbia judgment in Ontario. The Superior Court of Justice of Ontario dismissed HMB’s application. HMB now appeals from this dismissal. [4] The application judge refused registration on several bases. It was common ground before him that section 3(b) of the REJA required — as a prerequisite to registration in Ontario — Antigua to have been carrying on business in British Columbia at the time of the lawsuit there. The application judge found as a fact that Antigua was not carrying on business in British Columbia at the relevant time. [5] The application judge also considered section 3(g) of the REJA , which bars registration under the REJA if “a judgment debtor would have a good defence if an action were brought on the original judgment.” The parties disputed whether “original judgment” referred to the British Columbia judgment or the Privy Council judgment. [6] The application judge found that it would circumvent the REJA ’s purposes to permit registration in Ontario of a “ricochet judgment”, which is a judgment of a reciprocating province that was itself the result of a common law action to enforce a judgment obtained in a non-reciprocating jurisdiction under the REJA . Accordingly, “original judgment” could not include ricochet judgments. In turn, the “original judgment” in this case was the Privy Council judgment. Since Antigua would have had a good defence under the Limitations Act 2002 , S.O. 2002, c. 24, Sch. B, had a common law action to enforce the Privy Council judgment been brought in Ontario, registration should not be permitted. [7] HMB argues that the application judge erred in failing to: (1) apply the legal criteria for “carrying on business” more liberally, to find Antigua was carrying on business in British Columbia at the relevant time; and (2) interpret “original judgment” to mean the British Columbia judgment, not the Privy Council judgment. [8] I would not give effect to these arguments and would dismiss the appeal. The application judge did not err in finding that Antigua was not carrying on business in British Columbia at the relevant time. Consequently, section 3(b) of the REJA bars HMB from registering the British Columbia judgment in Ontario under the REJA . It is thus unnecessary to consider the second issue regarding the meaning of “original judgment”. B. Background [9] This appeal requires interpreting and applying the REJA . The relevant statutory provisions are as follows: Definitions 1. (1) In this Act, “judgment” means a judgment or an order of a court in any civil proceedings whereby any sum of money is payable , and includes an award in proceedings on an arbitration if the award has, in pursuance of the law in force in the province or territory where it was made, become enforceable in the same manner as a judgment given by a court therein; (“jugement”) “judgment creditor” means the person by whom the judgment was obtained, and includes the executors, administrators, successors and assigns of that person; (“créancier en vertu du jugement”) “judgment debtor” means the person against whom the judgment was given, and includes any person against whom the judgment is enforceable in the place where it was given; (“débiteur en vertu du jugement”) “original court”, in relation to a judgment, means the court by which the judgment was given; (“tribunal d’origine”) “registering court”, in relation to a judgment, means the court in which the judgment is registered under this Act. (“tribunal d’enregistrement”) Registration of judgment 2. (1) Where a judgment has been given in a court in a reciprocating state, the judgment creditor may apply to any court in Ontario having jurisdiction over the subject-matter of the judgment, or, despite the subject-matter, to the Superior Court of Justice at any time within six years after the date of the judgment to have the judgment registered in that court , and on any such application the court may, subject to this Act, order the judgment to be registered. Conditions of registration 3. No judgment shall be ordered to be registered under this Act if it is shown to the registering court that, (a) the original court acted without jurisdiction; or (b) the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit during the proceedings to the jurisdiction of that court; or (g) the judgment debtor would have a good defence if an action were brought on the original judgment . [Emphasis added]. [10] For the purposes of determining whether Antigua was carrying on business in British Columbia, the relevant activity is Antigua’s “Citizenship by Investment” program (CIP). [11] The CIP aimed to encourage investments in real estate, businesses, and in Antigua’s National Development Fund by offering citizenship to investors and their families in exchange for such investments. The CIP was administered by an Antiguan government agency, the Citizenship Investment Unit (CIU). [12] The Antiguan government engaged “Authorized Representatives” to facilitate introductions to potential investors. As mandated by legislation, the CIU appoints representatives and service providers to promote, advertise, and disseminate information about the CIP. [13] At the time of the British Columbia action, Antigua had four Authorized Representatives in that province. These were limited term appointments. These representatives were not agents of the Antiguan government. They carried on other businesses unrelated to the CIP. [14] Authorized Representatives have no authority to review or approve any application. They assist prospective investors by providing them with information about CIP and completing preliminary forms to send to “Authorized Agents” based in Antigua. [15] Authorized Agents assist applicants to obtain information for the application process, collect the required fees, and send the completed package to the CIU. In Antigua, the CIU decides to approve or deny the application. Authorized Representatives do not liaise with the Antiguan government or the CIU. If the application is ultimately approved, the Authorized Representative may be paid a commission, through the Authorized Agent. [16] The CIP program did not particularly target Canadian or British Columbia residents. Since the program’s inception in October 2013, only nine CIP applications were made by persons born in Canada. [17] Antigua did not maintain an office in British Columbia. It did not have employees or agents there. It did not attend in British Columbia for any purpose related to the CIP. It did not contract with prospective investors there or approve applications there. It did not deal with prospective investors there, did not trade in goods there, or engage in regular advertising of services there. C. Analysis [18] Antigua was served with the originating documents in the British Columbia action but did not appear or otherwise submit during that proceeding to the British Columbia court’s jurisdiction. Accordingly, under s. 3(b) of the REJA , Antigua had to be “carrying on business…within the jurisdiction of the original court” for registration to occur under the REJA . For the purposes of this issue, “original court” meant the Supreme Court of British Columbia. [19] The parties agreed that if Antigua did not carry on business in British Columbia, the British Columbia judgment could not be registered in Ontario. (1) Application judge’s decision [20] The application judge observed that whether a party is carrying on business in a province is a question of fact. Citing Chevron Corp. v. Yaiguaje, 2015 SCC 42, [2015] 3 S.C.R. 69 , the application judge noted that “for a party to be carrying on business within a province, he or she must have a meaningful presence in the province and that presence must be accompanied by a degree of business activity over a sustained period of time.” [21] He also referred to the holding in Club Resorts Ltd. v. Van Breda , 2012 SCC 17, [2012] 1 S.C.R. 572, at para. 87, that “carrying on business requires some form of actual, not only virtual, presence in the jurisdiction, such as maintaining an office there or regularly visiting the territory of the particular jurisdiction.” Active advertising in the jurisdiction and an internet presence would not suffice to establish that a corporation was carrying on business in a particular jurisdiction. [22] The application judge concluded that Antigua was not carrying on business in British Columbia: [52] In my opinion, the Antiguan Government was not carrying on business in British Columbia. It had no physical presence in the province, and it did not carry on any sustained business activity in the province. The four Authorized Representatives in British Columbia were undoubtedly carrying on business in British Company [ sic ], but the representatives were not agents or Licensed Agents of the Antiguan Government, and they were carrying on their own businesses that were independent of the businesses of the Antiguan Government, even if one assumes that the Citizenship by Investment Program is a business as distinct from a government activity that has a commercial aspect to it. [54] The Antiguan Government’s Program is not particularly focused on any jurisdiction - other than Antigua and Barbuda - where it appears to have been quite successful in bring entrepreneurs to the country. The Program has no particular focus on British Columbia or on Canada for that matter. Since the inception of the Program, there have been 1,547 applications to the Antiguan Government from around the world of which only nine have been from persons born in Canada. (2) Arguments on appeal [23] HMB argues that the application judge ought to have interpreted the legal criterion more liberally, given the desirability of recognizing judgments from sister provinces. HMB relies on Wilson v. Hull , 1995 ABCA 374, 34 Alta. L.R. (3d) 237, submitting that “carrying on business” only requires a defendant to have “some direct or indirect presence in the state asserting jurisdiction, accompanied by a degree of business activity which is sustained for a period of time”. [24] HMB submits that considering the usual indicia outlined in Wilson — physical presence in the jurisdiction, employment of salespersons, agents or other representatives or employees, commercial relationships with other residents of the jurisdiction, and advertising business activity or selling of products (here, they suggest citizenship) — mandates a conclusion that Antigua was carrying on business in British Columbia. [25] In oral submissions, counsel for the appellant conceded that the Authorized Representatives in British Columbia were not agents or employees of Antigua. Counsel also acknowledged Antigua had no physical presence in British Columbia. Despite this, he argued that the presence of the Authorized Representatives in British Columbia, involved in the process of selling passports through the CIP, was sufficient to constitute carrying on business in that location. [26] Antigua asserts that the record supports the application judge’s factual findings, and that there were no compelling indicia that Antigua was carrying on business in British Columbia. They submit that the application judge’s decision was consistent with Wilson and other existing jurisprudence that assess the degree of connection required to constitute carrying on business in a place. Antigua relies on Sgromo v. Scott , 2018 ONCA 5, 78 B.L.R. (5th) 37, and Yemec v. Atlantic Lottery Corp. , 2012 ONSC 4207, 41 C.P.C. (7th) 362, to point out that even active advertising within a province would not be enough to establish that an entity was carrying on business in that province. Additionally, marketing products through an agency also would not mean that the party retaining the agency was therefore carrying on business in the province, particularly where the party did not maintain a physical presence in nor regularly visit the jurisdiction. (3) Conclusion [27] It is common ground that deference is owed to the factual finding that Antigua was not carrying on business in British Columbia. Absent a palpable and overriding error, there is no basis for appellate intervention. [28] The application judge did not err in summarizing or applying the legal test for what constitutes carrying on business. His analysis was consistent with Wilson , which was relied upon by the HMB and approved of in Chevron. In Wilson , a buyer made regular purchases of equipment in Idaho from a seller located in Idaho, and transported that equipment to Alberta over a period of 11 months. The majority in Wilson found this activity did not amount to the buyer carrying on business in Idaho. [29] I can identify no error in the application judge’s assessment of whether Antigua was carrying on business in British Columbia. He weighed a multitude of factual circumstances and concluded the test was not met. This factual finding is owed deference. [30] This is quite apart from the question of whether the activity in question — government promotion of investment in Antigua in exchange for citizenship — can be said to amount to “business” at all. [31] This is sufficient to support dismissing the application for registration of the British Columbia judgment under the REJA and dismissing this appeal. [32] The trial judge’s interpretation of “carrying on business” does not deprive parties like HMB of a remedy, provided they bring the action within the applicable limitation period. HMB could have brought a common law action in Ontario upon the Privy Council order of May 27, 2014, provided it did so within the applicable two-year limitation period in Ontario. There would have been no jurisdictional hurdle to bringing such an action. As noted in Chevron, at para. 3: In an action to recognize and enforce a foreign judgment where the foreign court validly assumed jurisdiction, there is no need to prove that a real and substantial connection exists between the enforcing forum and either the judgment debtor or the dispute. It makes little sense to compel such a connection when, owing to the nature of the action itself, it will frequently be lacking. Nor is it necessary, in order for the action to proceed, that the foreign debtor contemporaneously possess assets in the enforcing forum. Jurisdiction to recognize and enforce a foreign judgment within Ontario exists by virtue of the debtor being served on the basis of the outstanding debt resulting from the judgment. [33] The only prerequisite is that the foreign court had a real and substantial connection with the litigants or with the subject matter of the dispute, matters not in issue in this case: Chevron at para. 27. This relaxed threshold is justified in part because enforcement of a foreign judgment is generally limited to measures within the jurisdiction where the enforcement action is brought. An enforcing court’s judgment generally has no coercive force outside that jurisdiction: Chevron , at para. 46. The substantive defences to an action to enforce a foreign judgment are limited, for example, fraud, denial of natural justice, or public policy: Chevron , at para. 77. ” [34] The REJA provides a more convenient and expedited way to recognize and enforce judgments, but in these circumstances imposes a threshold requiring that the defendant have been carrying on business in the jurisdiction from which the judgment sought to be registered was obtained. [35] It is therefore unnecessary to consider whether the application judge was correct to conclude that registering a “ricochet judgment” would run counter to the REJA ’s legislative objectives . I do not express agreement or disagreement with those conclusions but leave that question for another day, when it is necessary to dispose of an appeal. D. Disposition [36] On theses grounds, I would dismiss the appeal with costs to Antigua and Barbuda in the agreed sum of $17,500 partial indemnity, all inclusive. “G. Pardu J.A. ” “I agree Janet Simmons J.A. ” Nordheimer J.A. (dissenting): [37] I have reviewed the reasons of my colleague. I do not agree with the conclusion that she reaches. In my view, the application judge erred in refusing to register the judgment under the Reciprocal Enforcement of Judgments Act , R.S.O. 1990, c. R.5 ( REJA ). E. Analysis [38] My colleague has set out the background facts along with the relevant legislative provisions so there is no need for me to repeat them. (1) Antigua and Barbuda Was Carrying on Business in British Columbia [39] The first issue is whether Antigua and Barbuda (Antigua) was carrying on business in British Columbia. I conclude that it was. The application judge made a palpable and overriding error in concluding otherwise. He did so, both on any common-sense view of the facts, and by applying a restrictive interpretation as to what constitutes carrying on business in the context of the principles underlying the reciprocal enforcement of foreign judgments. [40] My colleague says that the application judge “did not err in summarizing or applying the legal test for what constitutes carrying on business”: at para. 28. I disagree. In interpreting and applying s. 3(b) of the REJA , the application judge erred in principle by failing to follow the clear direction of the Supreme Court of Canada enunciated in Chevron Corp. v. Yaiguaje , 2015 SCC 42, [2015] 2 S.C.R. 69. Instead, he applied the principles from Club Resorts Ltd. v. Van Breda , 2012 SCC 17, [2012] 1 S.C.R. 572, which have no application in a case such as this where the judgment that the creditor seeks to enforce is itself a judgment issued for the enforcement of a foreign judgment. The decision in Chevron is clear that Van Breda does not apply to the recognition and enforcement of foreign judgments. Van Breda is a case about jurisdiction at first instance. As Gascon J. said, at para 41: To accept Chevron's argument would be to extend Van Breda into an area in which it was not intended to apply, and in which it has no principled reason to meddle. In fact, and more compellingly, the principles that animate recognition and enforcement indicate that Van Breda's pronouncements should not apply to recognition and enforcement cases. [41] As Gascon J. pointed out in Chevron , courts must take a different approach to the question of jurisdiction when considering the enforcement of a foreign judgment as opposed to a claim of first instance based on events that occurred outside of Canada. As Gascon J. said at para. 27: “Canadian courts, like many others, have adopted a generous and liberal approach to the recognition and enforcement of foreign judgments.” [42] Consistent with this approach, in considering whether a party was carrying on business for the purpose of the REJA , and where the judgment to be registered is itself a judgment issued for the enforcement of a foreign judgment, that requirement should be interpreted in a fashion that establishes a very low bar. [43] In my view, the conduct of Antigua in British Columbia easily satisfies the requirement for carrying on business when a generous and liberal approach is taken to the determination of that factor. Antigua had hired companies to promote their “Citizenship by Investment” program (CIP). It is acknowledged that the purpose of the CIP was to generate monies for Antigua. Through the CIP, Antigua, in essence, sold citizenship in that country in exchange for the payment of significant sums by those desiring, for their own purposes, to obtain that citizenship. The evidence shows that Antigua received many millions of dollars through the CIP. [44] The application judge found that Antigua was not carrying on business in British Columbia because it did not have a physical presence in British Columbia and because it did not carry on “any sustained business activity”. The application judge erred in both of these respects. In order to carry on business for the purpose of the REJA , interpreted contextually in light of the facts of this case, one does not need a physical presence. Indeed, in this digital age, it is often unnecessary to have any physical presence in order to carry on a business. [45] The application judge found that Antigua did not have “any sustained business activity” in British Columbia That finding is a palpable and overriding error. The fact is that Antigua had promoted its CIP in British Columbia to citizens of that province for several years. There is no need for a specific length of time to have passed to determine whether someone is carrying on business. While admittedly a one-off transaction might not constitute carrying on business, neither is it necessary for transactions to be carried out for decades to constitute carrying on business in this context. [46] Further, the application judge’s reliance on the fact that the authorized representatives carried on their own businesses as justifying his conclusion that Antigua was not carrying on business through them, is entirely inconsistent with commercial reality. There are many businesses who act as agents for other companies, while maintaining their own business operations, and that does not change the fact that those companies carry on business through them. [47] Even if one accepts that the authorized representatives were not agents in the strict legal sense, as the appellant conceded, that does not change the fact that Antigua was carrying on business through them in British Columbia. Indeed, that would appear to be the sole reason why Antigua had authorized representatives in that province. [48] I note that the authorized representatives received a commission for each successful application that they directed to Antigua. I also note that the terms of the letters from Antigua appointing companies as authorized representatives use the following language to describe their role: “[A]n approved Representative and Service Provider of the Citizenship by Investment Programme.” [49] The fact remains that Antigua was promoting its CIP through these authorized representatives in British Columbia. It was promoting its product to the citizens of that province and encouraging citizens of that province to participate in it. In my view, that is sufficient to constitute carrying on business for the purposes of registering a judgment under the REJA that itself resulted from the enforcement of a foreign judgment in the reciprocating jurisdiction. I would add, on this point, that I would include within the ordinary meaning of the term “carrying on business” any government projects that have a commercial aspect. There is no reason to interpret that term in a fashion that would exempt governments from its application and thus render governments immune from the REJA . [50] I repeat that this analysis must be undertaken against the backdrop of what Gascon J. in Chevron described as an approach that favoured “generous enforcement rules”: at para. 42. The provisions of the REJA must be interpreted in a fashion that supports that approach. The application judge’s conclusion, as affirmed by my colleague, is not faithful to that approach. Indeed, the application judge’s conclusion permits Antigua to continue to avoid its financial obligations to the appellant, as determined by the Judicial Committee of the Privy Council (JCPC). On this point, I repeat the observation made by Gascon J. in Chevron , at para. 75: Cross-border transactions and interactions continue to multiply. As they do, comity requires an increasing willingness on the part of courts to recognize the acts of other states. (2) The “Original Judgment” was Granted in British Columbia [51] As a result of my conclusion, I must address the second issue and that is the meaning of original judgment in s. 3(g) of the REJA . In my view, that term clearly refers to the judgment that was granted in British Columbia. To conclude otherwise would yield a result where the word “original” is given a different meaning in s. 3(g) than it clearly bears in the definition section of the legislation. In s. 1(1) “original court” is defined as “the court by which the judgment was given”. There can be no dispute that, in this case, “judgment” means the British Columbia judgment since it is that judgment that is sought to be registered. Therefore, the original court is the British Columbia court. [52] If the application judge’s interpretation of s. 3(g) is correct, the term “original judgment” would mean something different than the term “original court”. The application judge would have the former term refer to the JCPC judgment and the latter term refer to the British Columbia court. There is no rational basis for interpreting the two terms in that manner or for having the same word in the same statute mean two entirely different things. The legislator is presumed to express itself with consistency, such that the same word is presumed to have the same meaning throughout a statute: R. v. Zeolkowski , [1989] 1 S.C.R. 1378, at p. 1387. [53] Here, there is nothing that warrants overturning this presumption. The application judge erred by interpreting “original judgment” so as to distinguish between different types of judgments made by the reciprocating jurisdiction, a distinction that the legislator did not make. His interpretation undermines the purpose of the REJA , which is to facilitate the enforcement of judgments properly issued by reciprocating jurisdictions. [54] Since the original judgment, in this context, means the British Columbia judgment, Antigua did not have a good, or indeed any, defence to that action. It does not suggest that it did. That is not surprising given that the British Columbia judgment sought to enforce the obligation that fell on Antigua when the JCPC issued its judgment, having found Antigua’s defence to the underlying claim brought against it to be wanting. F. Conclusion [55] I would allow the appeal and order that the British Columbia judgment be registered. [56] I would award the appellant its costs of the appeal in the agreed amount of $40,000 inclusive of disbursements and HST. Released: January 9, 2020 “GP” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Hydro Hawkesbury v. ABB Inc., 2020 ONCA 53 DATE: 20200128 DOCKET: C67238 Hoy A.C.J.O., Doherty J.A. and Marrocco A.C.J. ( ad hoc ) BETWEEN Hydro Hawkesbury Plaintiff and ABB Inc. and Pioneer Transformers Ltd. Defendants ( Appellant / Respondent ) Tara L. Lemke, for the appellant Jacqueline Horvat and Alexandria Chun, for the respondent Heard and released orally: January 16, 2020 On appeal from the order of Justice Robert Pelletier of the Superior Court of Justice, dated June 26, 2019, with reasons reported at 2019 ONSC 3930. REASONS FOR DECISION [1] The appellant appeals the motion judge’s stay of crossclaims between it and its co-defendant, the respondent ABB AB. In its crossclaims against ABB, the appellant seeks consequential damages arising as a result of a defective tap changer manufactured by ABB, supplied to the appellant, and included in a transformer the appellant sold to Hydro Hawkesbury. The transformer failed because of the defective tap changer and the motion judge granted Hydro Hawkesbury summary judgment against the appellant for breach of contract. [2] The appellants also appealed from that judgment, and we have provided separate reasons for dismissing that appeal. [3] After granting Hydro Hawkesbury’s motion for summary judgment against the appellant, the motion judge stayed the crossclaims because he found that the standard terms and conditions referred to as “Orgalime” applied to ABB’s supply of the tap changer to the appellant. Those terms included clauses requiring that disputes between the appellant and ABB are to be resolved under the Rules of Arbitration of the International Chamber of Commerce and clauses governing substantive law, and – most significantly – excluding liability for consequential loss. [4] On appeal, the appellant argues that the motion judge erred in concluding that Orgalime applied. Relying on Tilden Rent-a-Car Co. v. Clendenning , 18 O.R. (2d) 601 , the appellant argues that ABB was required to specifically bring these clauses in Orgalime to its attention and failed to do so. [5] The motion judge considered Tilden and concluded that “proper notice and tacit acceptance of the General Conditions were present when [the appellant] accepted the terms of the tap changer’s delivery by ABB”: at para. 14. We are not persuaded that there is any basis to interfere with his conclusion. [6] We agree with the motion judge that this case is different from Tilden . This is not a case where the signing party could not reasonably have been expected to read the contract before signing it. As the motion judge noted at paras. 8-10, the appellant was a “fairly sophisticated corporate consumer” and the Orgalime terms and conditions, which were readily available, were specifically referred to in two documents creating the contractual relationship between the appellant and ABB. The two documents were dated two weeks apart and the appellant confirmed the second document three days after receiving it. In the circumstances of this case, a “fairly sophisticated corporate consumer” doing business with a foreign supplier of electrical components in international markets would reasonably be expected to have reviewed the terms of both documents and would expect clauses of the type contained in Orgalime. [7] Given that Orgalime applies, arbitration was the appropriate dispute resolution mechanism, and the motion judge properly stayed the action. We note that because the clause in Orgalime excluding liability for consequential loss applies whether or not the dispute is resolved by arbitration, the appellant did not pursue its argument that ABB was precluded from invoking the arbitration clause because of its delay in doing so. [8] Accordingly, the appeal is dismissed. [9] ABB is entitled to its costs of the appeal, fixed in the amount of $5,000, inclusive of HST and disbursements. “Alexandra Hoy A.C.J.O.” “Doherty J.A.” “Marrocco A.C.J.S.C. ( ad hoc )”

COURT OF APPEAL FOR ONTARIO CITATION: Jadhav v. Jadhav, 2020 ONCA 19 DATE: 20200113 DOCKET: M51005 (C67542) Pardu, Brown and Huscroft JJ.A. BETWEEN Narendra Sahebrao Jadhav Applicant (Appellant in Appeal/Moving Party) and Shilpa Narendra Jadhav Respondent (Respondent in Appeal/Responding Party) Narendra Sahebrao Jadhav, in person Cheryl A. Hodgkin, for the respondent Heard: January 7, 2020 REASONS FOR DECISION [1] Mr. Jadhav asks this panel to review a decision of a single judge of this court refusing a stay of an order setting a date for a settlement conference and setting terms for filing documents in the Superior Court of Justice and seeking an extension of time to perfect his appeal. He submits that the motion judge erred in considering that this court had no jurisdiction to hear his appeal, which should have been brought to the Divisional Court. He submits that a decision that this court had no jurisdiction should have been made by a panel of this court and not by a single judge. [2] We do not agree with the arguments advanced by Mr. Jadhav. The decisions whether to grant a stay of the procedural order from which Mr. Jadhav appeals to this court and whether to extend time to appeal are discretionary decisions. We see no error in the motion judge’s consideration of this court’s lack of jurisdiction as a factor in refusing a stay and in refusing an extension of time to proceed with the appeal. There is no basis to interfere with the motion judge’s decision, and the motion for review of the decision of Fairburn J.A. is dismissed. [3] Costs to the respondent Ms. Jadhav are fixed at $5,000, payable within ten days. “G. Pardu J.A.” “David Brown J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Khan v. Krylov & Company, 2020 ONCA 13 DATE: 20200108 DOCKET: C66794 Simmons, Benotto and Harvison Young JJ.A. BETWEEN Zaka Ullah Khan Plaintiff (Appellant/Respondent by way of cross-appeal) and Krylov & Company and Devry Smith Frank LLP Defendants (Respondents/ Appellant by way of cross-appeal ) Zaka Ullah Khan, self-represented Bronwyn M. Martin and Visnja Jovanovic, for the respondent/appellant by way of cross-appeal Krylov & Company Louis P. Covens, for the respondent Devry Smith Frank LLP Heard and released orally: December 13, 2019 On appeal from the order of Justice James Stribopoulos of the Superior Court of Justice, dated March 15, 2019, with reasons reported at 2019 ONSC 1666, 91 C.C.L.I. (5 th ) 70 and from the costs order, dated May 1, 2019, with reasons reported at 2019 ONSC 2714. REASONS FOR DECISION [1] The motion judge dismissed the action pursuant to Rule 20, because he was satisfied that the action raised no genuine issue requiring a trial. In his submissions, Mr. Khan identifies a number of factual disputes and submits that a trial was required to resolve them. Those factual disputes include whether he actually signed the release, what occurred during his meeting at Krylov & Company and the length of this meeting. Mr. Khan submits that the motion judge should not have concluded that there was no genuine issue requiring a trial given these disputes. [2] We agree that while these factual disputes exist, they are not material to the resolution of the action, and therefore, the motion judge did not err in concluding that there was no genuine issue requiring a trial. [3] Mr. Khan’s claim as pleaded was entirely premised on his claim that his tort action had settled for an amount higher than $82,500, but that the respondents only forwarded the smaller sum to him and misappropriated the rest. The motion judge found that there was no evidence before him that could support the conclusion that the tort action settled for a greater amount, and that the money had been misappropriated by the respondents. Given this conclusion, the action could not succeed. [4] The motion judge found that there was substantial evidence before him that the total value of the settlement was $82,500 and that there was no evidence that could displace this evidence. [5] For these reasons, the appeal is dismissed. Leave to appeal the costs award is denied and leave to cross-appeal the costs order is also denied. [6] Costs of the appeal are awarded to the respondent, Devry Smith Frank LLP in the amount of $2,830 on a partial indemnity scale including taxes and disbursements. No costs of the appeal are awarded to the respondent, Krylov & Company and no costs of the cross-appeal are awarded to Mr. Khan. “Janet Simmons J.A.” “M.L. Benotto J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Lewis v. Lewis, 2020 ONCA 56 DATE: 20200129 DOCKET: C67329 Hoy A.C.J.O., Doherty J.A. and Marrocco A.C.J. ( ad hoc ) BETWEEN Sheldon Lewis, Marilyn Lewis, Donna Buckley and Marlene Lewis Applicants (Appellants) and Donald Lewis , Douglas Lewis , the Estate of Emerson Walker Lewis, and the Estate of Marie Theresa Lewis Respondents ( Respondents ) Patrick J. Kraemer, for the appellants Carol Craig, for the respondents Heard: January 17, 2020 On appeal from the order of Justice Hugh K. O’Connell of the Superior Court of Justice, dated July 31, 2019, with reasons reported at 2019 ONSC 4595. REASONS FOR DECISION [1] On April 16, 2013, Emerson and Marie Lewis appointed the respondents, two of their six adult children, as their attorneys for property. The appellants – the remaining four children – appeal the order of the application judge, dismissing their application under ss. 42(1) and (4) of the Substitute Decisions Act, 1992 , S.O. 1992, c. 30, (the “SDA”) for leave to require the respondents to pass their accounts.  The court was advised that Emerson and Marie Lewis died about seven weeks apart, shortly after the application was heard. [2] The appellants had also unsuccessfully challenged Marie Lewis’s appointment of the respondents as her attorneys for personal care and property. Their further appeal was also dismissed. [3] We dismissed this appeal, for reasons to follow. These are our reasons. [4] Section 42(1) of the SDA provides that “[t]he court may, on application, order that all or a specified part of the accounts of an attorney or guardian of property be passed”. In turn, s. 42(4) partially sets out who may make an application under s. 42(1). The list includes specified persons and “any other person, with leave of the court”. The jurisprudence suggests that “any other person” will not often be granted leave to bring an application under s. 41(1): see e.g., Groh v. Steele , 2017 ONSC 3625, 29 E.T.R. (4th) 121, at para. 53 [5] The parties agree that the test to be applied in determining whether a person should be granted “leave of the court” under s. 42(4) to make an application under s. 42(1) is that set out in Ali v. Fruci (2006), 22 E.T.R. (3d) 187 (Ont. S.C.), at para. 3: the court must be convinced that (1) the person or persons seeking leave have a genuine interest in the grantor’s welfare; and, (2) a court hearing the application under s. 42(1) may order the attorney or guardian to pass his or her accounts. [6] Even where a person has standing to apply under s. 42(4), it remains in the discretion of the court to order a passing of accounts under s. 42(1): Dzelme v. Dzelme , 2018 ONCA 1018, 46 E.T.R. (4th) 43, at para. 7; see also McAllister Estate v. Hudgin (2008), 42 E.T.R. (3d) 313 (Ont. S.C.), at paras. 9, 13. In Dzelme , at para. 7, this court stated that factors a court considers in exercising its discretion under s. 42(1) include the extent of the attorney’s involvement in the grantor’s financial affairs and whether the applicant has raised a significant concern in respect of the management of the grantor’s affairs to warrant an accounting. [7] On appeal, the first prong of the test in Ali v. Fruci is not at issue: the respondents concede that the appellants had a genuine interest in their parents’ welfare. The question is whether the appellants have established any basis for this court to interfere with the application judge’s conclusion that the second prong of the test was not met. That requires consideration of the applications judge’s reasons in light of Dzelme . [8] The application judge found that the “record falls far short and lacks evidentiary stamina to suggest that there is any direct allegation of misfeasance or wrongdoing”. Considering “what the attorneys have done and are willing to do”, he was not persuaded that he should exercise his discretion to grant leave to the appellants and order an accounting. He concluded that there was no “reason to believe that a court hearing the matter may order an accounting by the attorneys”. [9] The appellants argue that the application judge erred in finding that there was a lack of evidence relating to misfeasance or wrongdoing, erred in principle in the exercise of his discretion by focusing on whether there is a concern about misfeasance or wrongdoing, and improperly considered that Marie Lewis had capacity when she appointed the respondents as her attorney for property as a factor in his analysis. [10] We are not persuaded that there is a basis for this court to interfere with the application judge’s order dismissing the appellants’ application under s. 42(4). [11] Some brief background about the extent of the respondents’ involvement in their parents’ financial affairs and “what the attorneys have done” is helpful. [12] The uncontested evidence was that Emerson Lewis remained capable of managing his and his wife’s intertwined affairs. He continued to receive all bank statements until he and his wife moved into a long-term care facility in October 2016. The respondents helped their father manage his and their mother’s finances, such as paying his bills for him, but kept him apprised of all actions taken on their behalf. Before the appellants commenced their application, the respondents responded to their request to provide copies of documentation and continued to provide documentation in the course of the application. In his reasons, the application judge repeated – and, in our view, reasonably accepted – the respondents’ counsel’s characterization of the respondents as acting either at their father’s request, or with his knowledge and consent. [13] Moreover, Emerson Lewis, who was represented by counsel and participated fully in the application, gave evidence that he had no concerns with the respondents’ involvement in the management of his and his wife’s affairs and wanted the litigation to come to an end. [14] We agree with the application judge’s finding that the “record falls far short and lacks evidentiary stamina to suggest that there is any direct allegation of misfeasance or wrongdoing”. [15] We agree with the appellants that an attorney can be ordered to pass accounts, and accordingly leave can be granted under s. 42(4), in the absence of significant concerns about misfeasance or wrongdoing. Dzelme frames this part of the inquiry more broadly: whether the applicant has raised a significant concern in respect of the management of the grantor’s affairs to warrant an accounting: at para. 7. Other matters, such as a significant erosion of the grantor’s financial position, could raise a significant concern in respect of the management of the grantor’s affairs: see e.g., McAllister Estate , at paras. 15-16. [16] However, the application judge’s reasons must be considered in the context of the record and the appellants’ submissions. Emerson and Marie Lewis’s investment portfolios increased between the time that the respondents were appointed their attorneys for property and the time the appellants brought this application. The appellants made veiled allegations of misfeasance or wrongdoing.  The application judge’s focus on the lack of evidence of misfeasance or wrongdoing was responsive to their allegations. We are not persuaded that the application judge imposed a narrower test requiring proof of misfeasance or wrongdoing and thereby erred in principle in the exercise of his discretion. [17] Nor, in our view, did the application judge consider that the fact that Marie Lewis had capacity when she appointed the respondents as her attorneys for property was a reason to deny the appellants leave under s. 42(4). To the contrary, he specifically stated that whether she had capacity was not germane to the application. [18] Accordingly, the appeal was dismissed, and the appellants were ordered to pay the respondents their costs of the appeal, fixed in the amount of $13,500, inclusive of costs and disbursements. “Alexandra Hoy A.C.J.O.” “Doherty J.A.” “Marrocco A.C.J.S.C. ( ad hoc )”

COURT OF APPEAL FOR ONTARIO CITATION: McKay v. Vautour, 2020 ONCA 16 DATE: 20200110 DOCKET: C66724 Roberts, Paciocco and Harvison Young JJ.A. BETWEEN Susan Opal McKay Plaintiff (Appellant) and Joel Paul Vautour Defendant (Respondent) J. Sebastian Winny, for the appellant W. H. Peter Madorin, Q.C., for the respondent Heard: January 6, 2020 On appeal from the judgment of Justice James W. Sloan of the Superior Court of Justice, dated February 26, 2019, with reasons reported at 2019 ONSC 1312. REASONS FOR DECISION A. Overview [1] The appellant appeals from the dismissal of her claim for adverse possession. She claims possessory title over an approximately eight-foot wide strip of land running between her property and that of her next-door neighbour, the respondent. [2] For the following reasons, we dismiss the appeal. B. Background [3] In 2005, the appellant purchased her property, shown as Lot 11 in the 1980 Reference Plan attached as Exhibit 4 to her trial affidavit. In 2011, the respondent purchased Lots 6, 7, 8, 9 and 10, which had been owned by the same person, Roy Stumpf, for several decades. Lots 10 and 11 are adjacent to each other, Lot 10 being west of Lot 11. [4] The present dispute arose in 2012 when the respondent removed part of what has been referred to as a paddock or horse fence that was situated about 8 feet to the west of the actual boundary line between Lots 10 and 11, as shown in the 1980 survey produced at trial. The respondent replaced it with a fence located on the surveyed boundary line. It is agreed that the surveyed boundary line between the properties is accurately set out in the 1980 survey. There is no evidence either party saw the 1980 survey before purchasing their respective properties. [5] The appellant claims that the existence and location of the paddock fence establishes the true boundary line between the properties . There is no dispute that the paddock fence has been in place for several decades. [6] The parties’ properties were transferred into the land titles system on June 16, 2003. Section 51 of the Land Titles Act , R.S.O. 1990, c. L.5, prevents the creation of any new possessory titles through adverse possession once land has been placed under the land titles system, but preserves any rights to adverse possession acquired prior to the placement of the land under the land titles system: Cantera v. Eller (2007), 56 R.P.R. (4th) 39 (Ont. S.C.), at para. 40, aff’d 2008 ONCA 876, 74 R.P.R. (4th) 162. [7] As a result, to succeed in her claim for adverse possession, the appellant had the burden to establish that the use of the disputed strip by her predecessors in title was “open, notorious, constant, continuous, peaceful and exclusive of the right of the true owner”, namely, the respondent’s predecessors in title, for any ten-year period prior to June 16, 2003, and that this use met the following well-established criteria: i. Actual possession for the statutory period by the appellant’s predecessors in title through whom she claims; ii. Such possession was with the intention of excluding from possession the respondent’s predecessor in title; iii. Discontinuance of possession for the statutory period by the respondent’s predecessor in title. See: Pepper v. Brooker , 2017 ONCA 532, 139 O.R. (3d) 67, at para. 32; Cantera , at paras. 38, 39. [8] The trial judge concluded that the appellant failed to prove her claim for adverse possession. There was no evidence from her predecessors in title to establish the requisite use during the statutory period. Evidence was given by Shannon Deckers, the daughter of the respondent’s predecessor in title, Roy Stumpf, now deceased, but it was insufficient to establish such use. Moreover, evidence gleaned from the survey, and given by Ms. Deckers and the appellant, supported the existence of a wooden fence on the upper portion of the disputed strip on the actual, titled property line between the properties. The trial judge concluded that this “trumped” any inference that the paddock fence on the lower portion of the disputed strip established the true boundary between the parties’ properties. C. Analysis [9] The appellant submits that the trial judge made the following reversible errors: i. The trial judge incorrectly made an adverse inference against possession by the appellant because of the absence of evidence from her predecessors in title. ii. Inconsistent with r. 76 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, the trial judge failed to consider the affidavit evidence filed at the trial conducted under the Simplified Rules. iii. The trial judge erroneously excluded as hearsay evidence, the appellant’s testimony about the state of mind or belief of Mr. Stumpf, the respondent’s predecessor in title, concerning the location of the property boundary; iv. The trial judge incorrectly applied the law of adverse possession. [10] We do not give effect to these submissions. [11] First, we do not agree that the trial judge erred by making an adverse inference against the appellant because of the absence of evidence from her predecessors in title. The trial judge made no such inference. Rather, he determined that the appellant had not met her onus of establishing adverse possession because of the absence of cogent evidence supporting her claim. [12] Second, we see no basis for concluding that the trial judge failed to consider the affidavit evidence that was filed. He was obliged to consider the whole of the evidence. His reasons demonstrate that he considered the points raised in the affidavits in conjunction with the cross-examination, as he was required to do, and that he specifically referenced exhibits to those affidavits. [13] Third, even if the trial judge had erred in rejecting as hearsay evidence the appellant’s testimony concerning Mr. Stumpf’s state of mind about the boundary, we do not see this error as having any material outcome on the trial. The appellant’s evidence was that Mr. Stumpf had never raised with her any issue about the location of the paddock fence, nor her asphalt driveway that encroached on his property by about six inches. This evidence was equivocal regarding Mr. Stumpf’s state of mind and could equally be construed as a manifestation of neighbourly accommodation. [14] Finally, we see no error in the trial judge’s application of the doctrine of adverse possession. [15] We disagree with the appellant’s submission that the trial judge was required to conclude that the paddock fence established the correct boundary and was intended to exclude the true owner. While fences can provide powerful evidence giving rise to such an inference, such a presumption is not mandatory: Sammut v. Doheny , 2019 ONCA 693, at para. 3. [16] In this case, the evidence concerning the purpose and treatment of the paddock fence was at best ambiguous. While Ms. Deckers testified that the paddock fence had been in place since her childhood and that her father repaired the paddock fence, she did not know who first constructed it or why it was built. She indicated that it served as an enclosure for the animals that roamed freely in the paddock and that it prevented them from going onto Lot 11. There was no clear or direct evidence that the parties’ predecessors in title treated the paddock fence as the boundary line. The appellant did not give evidence that Mr. Stumpf agreed that the paddock fence constituted the boundary line. Ms. Deckers confirmed in cross-examination that she had never discussed property lines with her father. Moreover, the southerly continuation of the paddock fence into Lot 7, as described by Ms. Deckers and as shown on the 1980 Reference Plan, supports the characterization of the paddock fence as an enclosure of a paddock within the entirety of the respondent’s five lot boundaries, rather than simply as a boundary line between the parties’ respective properties, Lots 10 and 11. [17] Moreover, the evidence supported the existence of two fences – the paddock fence and another wooden fence located at the upper portion of the actual boundary line between Lots 10 and 11 (noted in handwriting on the 1980 survey as “wood fence built by neighbour”). The appellant confirmed the existence of a pressure-treated slat five- or six-foot high wooden fence that has been in place since prior to her purchase. Ms. Deckers had no recollection of the wooden fence described by the appellant but recalled that there was a fence that ran along the same upper stretch of the actual boundary line between Lots 10 and 11. As a result, it was open to the trial judge to conclude that the wooden fence displaced any inference that the paddock fence constituted and was treated as the boundary line between Lots 10 and 11. [18] Further, the trial judge was entitled to conclude that the absence of evidence from the appellant’s predecessors in title or any other evidence that would prove the requisite use of adverse possession for the statutory period was fatal to the appellant’s claim. Neither party had owned their properties prior to their conversion under the land titles system nor did either party have any personal knowledge of the use of the strip by their respective predecessors in title. It was also open to the trial judge to conclude that Ms. Deckers’ evidence was insufficient to establish the appellant’s claim for adverse possession. She was unable to adequately attest to the regular use that the appellant’s predecessors in title made of the disputed strip, their intentions with respect to the strip, or to her father’s view of such use or where the boundary line was located. [19] Notably, there was no evidence that the respondent’s predecessors in title were effectively excluded from the disputed strip for any ten-year period. There was no evidence that the appellant or any of her predecessors in title took any such exclusory steps. Rather, as Ms. Deckers confirmed, “in order to repair the [paddock] fence [her father] would have to work on either side of the fence”. It is well established that the true owner of the disputed property need not demonstrate the same continuous use that the adverse claimant must show. The true owner is in constructive possession of the entire property even when in actual possession of only a part of it. As such, “[f]airly trivial acts of dominion”, such as the paddock fence repairs carried out by Mr. Stumpf as described by Ms. Deckers, may demonstrate that the true owner has not been excluded: Barbour v. Bailey , 2016 ONCA 98, 66 R.P.R. (5th) 173, at para. 45; Fletcher v. Storoschuk et al. (1981), 35 O.R. (2d) 722 (C.A.), at p. 725. [20] Finally, we do not accept that the trial judge’s misstatement of the relevant statutory period as being from 1993 to 2003 was material to the outcome because there was no cogent evidence to establish any of the requisite elements of adverse possession for any ten-year period prior to 2003. D. Conclusion [21] For these reasons, we dismiss the appeal. [22] The respondent is entitled to his partial indemnity costs of the appeal in the agreed upon amount of $11,000, inclusive of disbursements and applicable taxes. “L.B. Roberts J.A.” “David M. Paciocco J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Metropolitan Toronto Condominium Corporation No. 1100 v. A. & G. Shanks Plumbing & Heating Limited, 2020 ONCA 67 DATE: 20200131 DOCKET: C64763 & C64784 Strathy C.J.O., MacPherson and Jamal JJ.A. DOCKET: C64763 BETWEEN Metropolitan Toronto Condominium Corporation No. 1100 Plaintiff (Appellant) and A. & G. Shanks Plumbing & Heating Limited , 1586208 Ontario Limited, carrying on business as Shanks Plumbing and Heating and Addison Heating and Cooling Ltd. Defendants ( Respondent ) DOCKET: C64784 BETWEEN David Bruce Fingold Plaintiff (Appellant) and A. & G. Shanks Plumbing & Heating Limited , 1586208 Ontario Limited, carrying on business as Shanks Plumbing and Heating and Addison Heating and Cooling Ltd. Defendants ( Respondent ) C. Kirk Boggs and Jennifer L. Hunter, for the appellants Metropolitan Toronto Condominium Corporation No. 1100 and David Bruce Fingold Christopher I.R. Morrison, Joel Cormier, and Peter K. Boeckle, for the respondent Heard: January 14, 2020 On appeal from the judgment of Justice Kenneth G. Hood of the Superior Court of Justice, dated December 4, 2017. REASONS FOR DECISION [1] The appellants appeal the dismissal of their actions for damages arising out of a fire that destroyed an historic mansion, which was part of a condominium development in Toronto. [2] The fire was detected shortly after a plumber, employed by the respondent, had repaired a leaking pipe in the basement ceiling, using a blowtorch and solder. The fire originated in the ceiling, near the location of the plumber’s work. [3] The appellants submit that the trial judge erred in failing to find that the fire was caused by the plumber’s negligence. We dismissed the appeal with reasons to follow. These are our reasons. Background [4] At the commencement of trial, counsel for the appellants stated that he did not propose to call expert evidence on the standard of care, because the plumber’s conduct was “egregious” and obviously fell below the standard. This position was taken in reference to this court’s decision in 495793 Ontario Ltd. (Central Auto Parts) v. Barclay , 2016 ONCA 656, 132 O.R. (3d) 241, which holds that expert evidence is not necessary “where the impugned actions are so egregious that it is obvious that the defendant’s conduct has fallen short of the standard of care without even knowing precisely the parameters of the standard of care”: at para. 57. The other established circumstance in which expert evidence is unnecessary is where the evidence concerns “nontechnical matters or those of which an ordinary person may be expected to have knowledge”: Barclay , at para. 55. [5] Notwithstanding their decision not to adduce expert evidence, the appellants tendered some evidence of the standard of care by reference to the National Fire Code of Canada 2005 and the Fire Code , O. Reg. 213/07. However, as the trial judge noted, there was no expert evidence that the National Fire Code formed part of the standard of care applicable to plumbers in Ontario in 2009, and the Ontario Fire Code did not include soldering as part of its “Hot Works” regulations at the time of the events. [6] On the issue of causation, the appellants adduced the evidence of two expert witnesses, who testified that the fire was caused by the flame of the plumber’s torch coming into contact with combustible materials in the work area – a fairly confined space between the basement ceiling and the floor above, where the leaking pipe was located. [7] The respondent did not adduce expert evidence on either the standard of care or causation. However, the plumber who performed the work testified about the precautions he had taken: · before starting the work, he inspected the work area and found no flammable or combustible materials; · he knew that it was necessary to wet down the work area to prevent a fire, but did not do so in this case because the area was “completely soaked” when he got there, due to a fan-shaped spray from the leaking pipe; · he placed a fire extinguisher beside his ladder while he was working; · while doing the work, he pointed the flame of the blowtorch in a downward direction and away from the wood structures above him; · he was aware of the need to use a fire-resistant blanket to protect flammable areas, but did not use one in this case because it would have been impractical as it would not have stayed in place in the ceiling; · after completing the soldering work, he remained in the area and carried out a 30-minute “fire watch” to ensure that there was no sign of fire or smoldering – he did not notice any; and · before leaving the site, he went up his ladder one last time to check his work. [8] The trial judge found the plumber’s evidence was both credible and reliable. He accepted the plumber’s evidence that the work area was “completely soaked” due to the spray from the leaking pipe and that he did not observe any combustibles, other than the wooden structural materials, which were also wet from the leak. He also accepted the plumber’s evidence that he had pointed his torch downwards while performing his work (a fact also admitted by the appellants in an agreed statement of facts), and that any combustibles were above the work and therefore above the flame of his torch. The appellants’ experts did not address how the fire could have occurred in light of the plumber’s evidence. [9] On the issue of standard of care, the trial judge found that neither Barclay exception was applicable: soldering is a technical matter requiring expert evidence of the standard of care and there was nothing egregious about the plumber’s conduct. He concluded: “In my view it was incumbent upon the plaintiffs to lead expert evidence to establish the appropriate standard of care in order for the court to find that it had been breached. They did not do so and because of this their claim must be dismissed.” [10] The trial judge also addressed causation, finding that, while the evidence was “somewhat problematic”, as the plumber was the only one working in the vicinity of the location where the fire started, “there was no evidence that anything he did caused the fire.” [11] On appeal, the appellants make two primary arguments: first, that the trial judge erred by failing to draw an inference of a breach of the standard of care based on the circumstantial evidence, namely, that a fire occurred under the plumber’s watch, with no alternate explanation for how the fire occurred; and second, that the trial judge erred by failing to draw an inference of causation in light of the circumstantial evidence. Elements of negligence [12] To succeed in a claim for negligence, a plaintiff must establish: (a) that the defendant owed them a duty of care; (b) that the defendant’s conduct breached the standard of care; (c) that they sustained damage; and (d) that the damage was caused, in fact and in law, by the defendant’s breach: Mustapha v. Culligan of Canada Ltd. , 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3. [13] There was obviously a duty of care in this case. A plumber carrying out work in a house owes a duty of care to the owner to use reasonable care in the performance of that work. [14] Nor is there any dispute that the plaintiffs suffered damages, although there is a live controversy about the quantum. [15] The real issues in this case are: (b) whether the defendant’s conduct breached the standard of care and, if so, (d) whether that breach caused the plaintiffs’ damage. Analysis [16] In Fontaine v. British Columbia (Official Administrator) , [1998] 1 S.C.R. 424, the Supreme Court of Canada explained the proper approach to be taken by trial judges when considering circumstantial evidence in negligence cases. The court stated, at para. 27: [Circumstantial] 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. [17] In other words, where circumstantial evidence has been adduced, the trial judge must consider whether that evidence gives rise to an inference, or a series of inferences, that support a finding of a breach of the standard of care or of causation. The trial judge must then weigh any such inferences along with any direct evidence to determine whether, on a balance of probabilities, the plaintiff has established a breach of the standard of care or causation. Where a plaintiff has done so, the defendant bears a strategic burden to present its own evidence to rebut the plaintiff’s case. The “legal burden of proof, of course, remains on the plaintiff throughout”: Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318, at para. 10. [18] Where, as here, the plaintiff has done nothing to cause the fire, and the defendant is effectively in control of the place or thing that is the source of the fire, an inference of a breach of the standard of care, or of factual causation, or of both, may arise from the very happening of the fire. The defendant can rebut those inferences by adducing evidence that undermines the plaintiff’s case, points to other non-negligent causes of the fire, or supports the exercise of reasonable care. The precise nature of the evidence required to do so will be different in every case, depending on the relative strength of the plaintiff’s evidence in support of the finding. [19] In this case, the trial judge explicitly rejected the appellants’ argument that the plumber’s conduct was “egregious”. As the appellants called no expert evidence to show that the plumber’s precautions fell below the applicable standard of care, the trial judge was entitled to conclude that, considering all the direct and circumstantial evidence, including the respondent’s evidence, the appellants had failed to discharge their burden of proving a breach of the standard of care. We are not satisfied that he erred in that conclusion. [20] As the trial judge did not err on the standard of care issue, there is no need to address his causation analysis. [21] We would, therefore, dismiss the appeal. The respondent’s cross-appeal on damages is rendered moot. Costs of the appeal and cross-appeal are awarded to the respondents, fixed in the amount of $40,000, inclusive of disbursements and all applicable taxes. “G.R. Strathy C.J.O.” “J.C. MacPherson J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Mohammad v. The Manufacturers Life Insurance Company, 2020 ONCA 57 DATE: 20200129 DOCKET: C67151 Simmons, Lauwers and Nordheimer JJ.A. BETWEEN Fadia Khalil Mohammad Plaintiff (Respondent) and The Manufacturers Life Insurance Company Defendant (Appellant) Gordon Jermane, for the appellant Michael K. Walter, for the respondent Heard: January 23, 2020 On appeal from the judgment of Justice Shaun O’Brien of the Superior Court of Justice dated May 31, 2019, with reasons reported at 2019 ONSC 3386. REASONS FOR DECISION A. Overview [1] The defendant appeals from the summary judgment granted by the motion judge that determined that the plaintiff was entitled to payment of the death benefit for her husband, pursuant to a life insurance policy. For the following reasons, we allow the appeal, set aside the judgment below, and substitute judgment dismissing the action. B. Background [2] On April 10, 1987, the respondent’s husband (the “deceased”) completed an application for life insurance with a predecessor to the appellant. He required the life insurance in order to obtain a mortgage. On the application, the deceased provided a social insurance number. He also stated that he had “[j]ust moved to Canada from Spain.” [3] Unbeknownst to the appellant, the deceased had been convicted in Greece many years earlier of various offences, including manslaughter. At the time, the deceased was a member of a terrorist entity known as the Popular Front for the Liberation of Palestine (“PFLP”). Along with a fellow terrorist, he stormed an El Al civilian aircraft in 1968, throwing grenades and firing live rounds at the occupants. At least one person was killed. [4] Not long after he was convicted, the deceased was released as the result of a hostage negotiation that arose when other members of the PFLP stormed another plane and demanded his release. The deceased then moved to Lebanon. Eventually, in 1987, the deceased came to Canada. He did so fraudulently by using an alias. That is also how he obtained his social insurance number. Eventually, the deceased’s past activities were discovered by Canadian authorities. In 2013, the deceased was deported to Lebanon from Canada. He died from lung cancer in 2015. [5] None of the information respecting his involvement with the PFLP was provided by the deceased when he applied for the life insurance policy (the “policy”). The policy was issued insuring the life of the deceased. The respondent was the spouse of the deceased and is the sole beneficiary of the policy. The policy insured the deceased’s life for $75,000. [6] The application for the policy did not contain any questions concerning the deceased’s status as a citizen or permanent resident of Canada, nor did it contain any questions asking whether he had been convicted of any crimes. The application did, however, contain the following warning: The Owner and insured agree that the meaning and importance of the questions in the Application have been explained and each question is fully understood. They declare that the statements recorded in the Application are true and complete to the best of their knowledge and belief, and form the basis of any policy which is issued. They understand that the Company requires complete and accurate answers in order to provide insurance and that THE COMPANY MAY CANCEL THE POLICY OR ANY RIDER OR DENY A CLAIM IF ANY ANSWERS ARE INCORRECT. [Emphasis in original.] C. decision below [7] The motion judge granted summary judgment in favour of the respondent awarding her payment under the policy. She found that, in providing his social insurance number, the deceased did not misrepresent his immigration status. The motion judge noted that the application form did not contain any questions that asked anything about the deceased’s immigration status or citizenship. She also concluded that the deceased had not failed to disclose all material facts in his application. In so concluding, the motion judge found that the appellant’s failure to ask any questions relating to immigration status or criminal history “signaled that these issues were not material.” D. Analysis [8] In our view, the motion judge made a palpable and overriding error in finding that the deceased’s failure to reveal his past activities did not constitute a failure to reveal material facts that vitiated the policy. We begin with s. 183(1) of the Insurance Act , R.S.O. 1990, c. I.8, which reads: An applicant for insurance and a person whose life is to be insured shall each disclose to the insurer in the application, on a medical examination, if any, and in any written statements or answers furnished as evidence of insurability, every fact within the person’s knowledge that is material to the insurance and is not so disclosed by the other. [9] The past actions of the deceased were material to the risk that he posed for the purpose of having his life insured. On this point, the motion judge’s reliance on the decision in Sagl v. Chubb Insurance Company of Canada, 2009 ONCA 388, 249 O.A.C. 234, leave to appeal refused, [2009] S.C.C.A. No. 303, is misplaced. The materiality of the unrevealed information in Sagl , a fire insurance case, is of an entirely different kind than is the case here. There the insurer made no inquiries about information related to the ownership of the property, which it knew or should have known existed, such that the trial judge was entitled to infer that this information was not material. Here there is no suggestion that the appellant ought to have known that the information related to the deceased’s past existed, and therefore cannot be faulted for not having inquired into it. [10] The motion judge also erred in relying on the absence of questions in the application form as disposing of the deceased’s obligation to reveal material facts. It is a principle of long standing that an applicant for insurance has an obligation to reveal to the insurer any information that is material to the application: Carter v. Boehm (1766), 3 Burr. 1905 (Eng. K.B.). This principle was stated by Morden A.C.J.O. in Vrbancic v. London Life Insurance Co. (1995), 25 O.R. (3d) 710 (C.A.), at p. 727: The trial judge also appears to have held that simply giving full answers to the questions of the insurer's agent amounted to full disclosure. This is not necessarily so. “As a general rule the fact that particular questions relating to the risk are put to the proposer does not per se relieve him of his independent obligation to disclose all material facts”. [Citations omitted.] [11] The deceased knew that his past activities were relevant to his application for life insurance. Indeed, shortly after he applied for the life insurance, the deceased filed an affidavit in his immigration proceedings in which he said that his life would be in danger if he were to be deported to Israel. He was well aware that his past activities, coupled with his illegal entry into Canada, put him at serious risk of physical harm. It is clear to us that the deceased intentionally hid his past activities from the appellant, just as he hid them from the Government of Canada when he sought entry to this country. [12] Having concluded that there was a failure to reveal a material fact by the deceased, the issue is then whether that withholding was fraudulent. Section 184(2) of the Insurance Act provides that: [W]here a contract, or an addition, increase or change referred to in subsection 183 (3) has been in effect for two years during the lifetime of the person whose life is insured, a failure to disclose or a misrepresentation of a fact required to be disclosed by section 183 does not, in the absence of fraud, render the contract voidable. [13] Our conclusion that the deceased intentionally withheld this information is sufficient to establish fraud. E. Conclusion [14] The appeal is allowed, the judgment below is set aside, and in its place, judgment is granted allowing the appellant’s motion for summary judgment and dismissing the action. The appellant is entitled to its costs of the appeal fixed in the agreed amount of $5,000 inclusive of disbursements and HST. As also agreed, there will not be any order as to costs of the action, including the motion below. “Janet Simmons J.A.” “P. Lauwers J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Noguera v. Muskoka Condominium Corporation No. 22, 2020 ONCA 46 DATE: 20200127 DOCKET: C66412 and C66413 MacPherson, Pepall and Lauwers JJ.A. DOCKET: C66412 BETWEEN Michael Noguera and Victoria Noguera Applicants (Respondents) and Muskoka Condominium Corporation No. 22 Respondent (Appellant) DOCKET: C66413 AND BETWEEN Muskoka Condominium Corporation No. 22 Applicant (Appellant) and Michael Noguera and Victoria Noguera Respondents (Respondents) Erik Savas, for the appellant Megan Mackey, for the respondents Heard: October 21, 2019 On appeal from the judgments of Justice Wendy Matheson of the Superior Court of Justice, dated December 11, 2018, with reasons reported at 2018 ONSC 7278 . REASONS FOR DECISION [1] The Nogueras purchased Unit 210 in Muskoka Condominium Corporation No. 22 (“the Condominium”), a lakeside condominium development, in May 2014. In February 2016 their immediate neighbour, Don Mitchell, advised them that Unit 211 was to be sold. The Nogueras were interested in purchasing, but only if they could make an opening from their unit into the adjoining unit. [2] Before making an offer on Unit 211 and without committing to buy it, Mr. Noguera asked the Condominium’s board of directors for permission to make the alterations. This request was addressed at the board meeting on March 25, 2016. Mr. Noguera was then a director as was Mr. Mitchell, the seller of Unit 211. Mr. Mitchell absented himself from the meeting but Mr. Noguera remained. The board approved the proposal with several conditions. Mr. Noguera did not vote on the proposal. We note in passing that with respect to Unit 211, Mr. Noguera was not an owner, and the board could have refused his request to consider the proposal. But it proceeded as it was entitled to do. [3] The minutes of the meeting were set out in the application judge’s decision at para. 9. The board imposed seven conditions on the approval, set out by the application judge at para. 54: (1) that the unit owner pay all the costs; (2) that the alteration not affect the use and enjoyment of other unit owners; (3) that the alteration not affect the symmetry of the building; (4) that the alteration not affect the Condominium’s budget; (5) that all the necessary engineering and town approval be given before the work commenced; (6) that the wall be returned to its existing state if the unit owner (Mr. Noguera) was to sell one of the units and at no cost to the Condominium; and, (7) that the two units “could never be sold as one unit.” [4] Section 98 of the Condominium Act, 1998 , S.O. 1998, c. 19 (“ Condominium Act ”) required the Condominium to enter into and register on the title to the units an agreement with the Nogueras before they made “an addition, alteration or improvement to the common elements.” Consistent with its long-standing past practice, the Condominium neglected to do so. [5] The respondent Nogueras provided the property manager with a copy of the plans in April 2016. They showed an opening on the main floor and a door on the second. The Condominium gave a letter to the Town on June 6, 2016, confirming the board’s approval and stating that “All conditions have been met to the [b]oard’s satisfaction.” [6] Based on the board’s approval, the Nogueras bought the adjoining unit.  They signed an offer to purchase on June 16, 2016 and the transaction closed in August 2016.  Renovations began in the summer of 2017 and were completed in early 2018. [7] The membership of the board of directors changed, and the new board sought to unravel all that had gone before regarding the two units owned by the Nogueras, largely on the basis that there was no s. 98 agreement covering the alterations. The new president of the board also advised the Nogueras that they could not use the lakeside path based on unproven allegations of window peeping. [8] The controversy between the parties alerted the Condominium board to a problem. The evidence was that the Condominium had consistently neglected to enter into agreements required by s. 98 of the Condominium Act , from the Nogueras or from anyone else who had made “an addition, alteration or improvement to the common elements”. The application judge noted, at para. 10, that “[m]ost of the unit owners had previously made structural changes, and none had been required to enter into the statutorily-required s. 98 agreement.” [9] The board decided to validate retrospectively the changes made by unit owners by what was termed “blanket” s. 98 agreements. The Nogueras agreed to sign a s. 98 agreement and were told that others who had made structural changes would sign one too. The s. 98 agreements provided to the affected unit owners were identical, except for the one provided to the Nogueras. Their s. 98 agreement, as proposed by the Condominium board contained the following additional language in clause 5: The Improvements shall be removed by the Unit Owner, at the Unit Owner's sole expense, before the Unit is sold. Specifically, the Unit shall be restored to the condition before the Improvements were made, including but not limited to the reinstallation of the common element demising wall within the Unit and any changes that were made by the Unit Owner related thereto . [Emphasis added by application judge.] [10] Two board meetings were held without notice to Mr. Noguera even though he was a director. [11] The Nogueras brought an application under s. 135 of the Condominium Act for an oppression remedy on the basis that they were “targeted” after their relationship with members of the new board began to break down: at para. 23. The indicia were described by the application judge, at para. 72, and signal considerable animosity on the part of some members of the new board towards the Nogueras, who consequently asked for the following relief: (1) that the Condominium be foreclosed from re-opening the approval process as it has requested in its cross-application; (2) that the operative s. 98 agreement be that proposed by the applicants; (3) that the applicants may use the lakeside path again; and, (4) that the applicants receive damages for their loss of enjoyment of their property. [12] In response, the Condominium sought extensive relief. The relief sought, which the application judge outlined at para. 75, included: a cease and desist order regarding the structural change (even though the work has been completed), more plans (even though the plans were provided long ago), consent to obtain the Town’s files (even though it confirmed to the Town that its conditions had been met long ago), written consent of the current Board, unit owner approval by two-thirds vote, its version of the s. 98 agreement, the right to impose more conditions and require changes at the applicants’ expense and numerous other orders. [13] The application judge dismissed the Condominium’s cross-application, and granted the Nogueras’ oppression application, in part, on the following terms: 1) This Court Declares that on March 25, 2016 the board of directors of the Respondent approved changes to the demising wall between suite 210 and 211 to create two openings, one on the main floor and one of the second floor. 2) This Court Orders that the parties are required to execute the Respondent’s requested form of section 98 agreement. The following terms must be added as clause no. 5: The changes to the demising wall should be removed by the Unit Owner, at the Unit Owner’s sole expense, before the unit is sold. Specifically, the Unit shall be restored to the condition before the demising wall was altered. 3) This Court orders that the Respondent shall pay Michael Noguera and Victoria Noguera $10,000 in damages for oppression. 4) This Court orders that Michael Noguera and Victoria Noguera may resume use of the lake-front path. [14] The Condominium appeals. [15] We dismiss the Condominium’s appeal because we largely agree with the application judge’s oppression analysis. [16] We begin with s. 135 of the Condominium Act , the oppression remedy provision found in the Act. It was introduced by the legislature in 1998 and came into effect in 2001. Section 135(2) and (3) provide: (2) On an application, if the court determines that the conduct of an owner, a corporation, a declarant or a mortgagee of a unit is or threatens to be oppressive or unfairly prejudicial to the applicant or unfairly disregards the interests of the applicant, it may make an order to rectify the matter. (3) On an application, the judge may make any order the judge deems proper including, (a) an order prohibiting the conduct referred to in the application; and (b) an order requiring the payment of compensation. [17] The test for oppression under s. 135 mirrors that for oppression in corporate law generally: Metropolitan Toronto Condominium Corp. No. 1272 v. Beach Development (Phase II) Corporation , 2011 ONCA 667, 285 O.A.C. 372, at paras. 5-6. In BCE Inc. v. 1976 Debentureholders , 2008 SCC 69, [2008] 3 S.C.R. 560, the Supreme Court described the two-part test for oppression. First the claimant must establish that there has been a breach of reasonable expectations and second, the conduct must be oppressive, unfairly prejudicial or unfairly disregard the interests of the claimant. The subjective expectation of the claimant is not conclusive; rather the question is “whether the expectation is reasonable having regard to the facts of the specific case, the relationship at issue, and the entire context, including the fact that there may be conflicting claims and expectations”: BCE , at para. 62. The availability of the oppression remedy largely turns on a factual analysis. [18] At its heart, the oppression remedy is equitable in nature and seeks to ensure what is “just and equitable”: BCE , at para. 58. In a case such as this one, relevant considerations include the board’s statutory duties and the conduct of the parties. [19] The appellant Condominium submits that the application judge cited the law correctly, but she erred in its application. It argues that in essence, she disregarded both the board’s duty to ensure statutory compliance and the expectations of other unit owners. In support of its argument, it relies on Carleton Condominium Corporation No. 279 v. Rochon et al. (1987), 59 O.R. (2d) 545; Orr v. Metropolitan Toronto Condominium Corporation No. 1056 , 2011 ONSC 4876, 11 R.P.R. (5th) 189, rev’d on other grounds, 2014 ONCA 855, 327 O.A.C. 228 ; and Toronto Common Element Condominium Corp. No. 158 v. Stasyna , 2012 ONSC 1504, 18 R.P.R. (5th) 15 . [20] We disagree with the Condominium’s position. [21] As the application judge correctly observed, the oppression remedy is broad and flexible and under s. 135, the court may make “any order the judge deems proper”. She also noted that the statutory regime is a significant factor. Citing Hakim v. Toronto Standard Condominium No. 1737 , 2012 ONSC 404, 1 B.L.R. (5th) 159, she stated at para. 36 that “[t]he court must balance the objectively reasonable expectations of an owner with the condominium board’s ability to exercise judgment and secure the safety, security and welfare of all owners and the condominium’s property assets.” Having considered these factors, she then went on to conclude that the Condominium’s conduct was oppressive and unfair. [22] The application judge, at para. 83, canvassed the instances of oppressive behaviour by the Condominium at some length: The Condominium proceeded in breach of its governance obligations by holding board meetings without proper notice. The Condominium proceeded as if it had little or no responsibility for the circumstances giving rise to the disputed approval and that stance was taken even in oral argument before me. There is no doubt that the Condominium was responsible for a great deal of what happened here, most notably for an illegal past practice regarding s. 98 agreements that was in place before the applicants even became unit owners. The approach taken with these unit owners, as if the Condominium had little or no role in the prior events, was harsh and unfair. This is in stark contrast to the approach taken with other unit owners who had also made structural changes with now admittedly defective approvals. I recognize that there was a range of types of structural changes, and opening the demising wall had not been done before, but the s. 98 requirement applies to all of the changes. The Condominium treated the applicants more harshly than the other unit owners. Associated conduct by Board members shows targeting and ill will toward the applicants. Bearing everything in mind in the exercise of my discretion, I would foreclose the Condominium’s requested orders. [23] She found, at para. 73, “that the Condominium wrongly disparaged the applicants, especially [Mr. Noguera], wrongly excluded them from use of common elements, specifically the path, and wrongly fostered an atmosphere that made them uncomfortable.” She made the finding, at para. 77, that the particular form of s. 98 agreement to which the Condominium would accede was “abusive and unfair, and prejudicial” to the Nogueras. She concluded, on the evidence, that the requirements of the oppression remedy under s. 135 had been met. [24] The application judge’s view was so strong that she added, at para. 81: I have found that the 2016 approval process was not deficient and the Condominium is therefore not entitled to reopen or revisit that approval or require that the applicants restore the demising wall other than in connection with a sale. However, if I am wrong and there were defects, I would grant the applicants’ request that the Condominium be foreclosed from its requested relief of essentially restarting the approval process now. I would make that order under s. 135 of the Act. [25] These conclusions were available to the application judge on the basis of the evidence before her. The three cases relied upon by the appellant Condominium are quite different. Rochon predated the incorporation of the oppression remedy into the Condominium Act ; relief from oppression was never sought in Stayna and moreover there was a total absence of any reasonable expectation; and in Orr , the application judge found no oppression. Quite apart from those factors, the underlying facts in these three cases differed significantly from those in this case. [26] The Condominium also argues that the board meeting at which the alterations were approved was invalid under s. 40 of the Condominium Act . The Condominium argues that Mr. Noguera had a conflict of interest and could not be counted in the quorum, as required by s. 32 of the Act. If this argument is correct, then the meeting at which the alteration proposal was approved lacked a quorum. Although Mr. Noguera was present at the meeting, he did not vote. [27] We agree with the application judge’s analysis of the quorum issue. Section 40 provides: 40 (1) A director of a corporation who has, directly or indirectly, an interest in a contract or transaction to which the corporation is a party or a proposed contract or transaction to which the corporation will be a party, shall disclose in writing to the corporation the nature and extent of the interest. (2) Subsection (1) does not apply to a contract or transaction or a proposed contract or transaction unless both it and the director’s interest in it are material. [28] Section 40(6) provides that the director “shall not be present during the discussion at a meeting, vote or be counted in the quorum on a vote” where, as noted in s. 40(2), the interests of both the director and the Condominium in the contract or transaction are “material.” If they are not material, then the director may be present and may vote. [29] The application judge concluded, at para. 47, that “Mr. Noguera did not have a conflict because the proposal was not material to the Condominium.” She viewed materiality in functional terms, and noted, at para. 43: The change was to an interior wall. It would not be used by and was not even visible to anyone outside of these two units. There was no financial impact on the Condominium. The applicants were paying for the work. The common expenses and other financial obligations of each of # 210 and # 211 would not be reduced or eliminated. There was no impact on the Condominium’s insurance. I find that the proposed transaction was properly described in the minutes as a “minor alteration” from the standpoint of the Condominium. [30] The application judge rejected the Condominium’s argument, largely based on the cost of the alteration, that “the proposed transaction is material to it, in hindsight”: at para. 42. The cost was initially estimated at between $6,000 and $8,000, but once the Town imposed its requirements that the doors in the openings be fire-rated, the cost climbed to about $32,000. [31] The application judge rejected the Condominium’s argument that materiality should be judged on the ultimate costs that were incurred rather than on the initial estimate. She found, at para. 44, that “in financial terms, it was not material to the Condominium at the time it was approved, and the Condominium has not established that hindsight should control the analysis in this case.” We agree. [32] The Condominium does not dispute that s. 98 could be available to the Nogueras to retrospectively validate and ratify their alterations. The terms required by the application judge in her order would comply with s. 98(2), and save harmless the Condominium. [33] The Condominium renewed before us the argument that the court has no business making an order prescribing the terms of the s. 98 agreement. The parties should be left to negotiate the terms of the agreement with the Condominium retaining its complete discretion. We reject this argument. The application judge provided relief from oppression, a remedy that is broad and flexible. The application judge described in para. 83 an attitude on the Condominium’s part that “ shows targeting and ill will”. The Condominium had provided s. 98 agreements to the other unit owners who had completed alterations but the one prepared for the Nogueras to sign was both onerous and different. It is not surprising that the application judge declined to give effect to the Condominium’s argument. The evidence supporting her view is overwhelming. The application judge’s remedy served to rectify the Condominium’s oppressive conduct, which seeped through all its actions, including its approach to this litigation. The Condominium’s real interests were entirely protected by the s. 98 agreement ordered by the application judge, which simply incorporated the conditions imposed when the Board originally approved the Nogueras’ proposal. [34] The appeal is dismissed with costs as agreed payable by the Condominium to the Nogueras in the amount of $20,000, all-inclusive.

COURT OF APPEAL FOR ONTARIO CITATION: Piekut v. Romoli, 2020 ONCA 26 DATE: 20200116 DOCKET: C66865 Strathy C.J.O, MacPherson and Jamal JJ.A. BETWEEN Helen Piekut Applicant (Respondent) and Krystyna Romoli and Victor Wroblewski Respondents ( Appellant ) Romeo D'Ambrosio, for the appellant Jonathan M. Friedman, for the respondent Helen Piekut Paul Trudelle, for Victor Wroblewski Heard: January 15, 2020 On appeal from the judgment of Justice Bernadette Dietrich of the Superior Court of Justice, dated March 26, 2019, with reasons reported at 2019 ONSC 1190. REASONS FOR DECISION [1] Stanislaw and Jadwiga Wroblewski, a married couple, owned five properties in Toronto. They had three grown children – Helen, Victor and Krystyna. On February 2, 2001, Mr. and Mrs. Wroblewski executed a will providing that, upon both their deaths, their estate would be divided equally among their three children. [2] After both parents died in June and July 2008, Krystyna asserted that her parents had executed codicils to their wills in July 2006 providing that Krystyna was to inherit two of the five properties (the “Dundas St. properties”). Krystyna did not tell her siblings about these purported codicils until after both parents had died. [3] In January 2015, Helen brought an application in the Superior Court of Justice seeking a determination as to whether the codicils were valid. Krystyna brought a motion for summary judgment, seeking the dismissal of Helen’s claim on the basis that it was statute-barred pursuant to the Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B. Helen brought a cross-motion for summary judgment on her application. [4] The motion judge decided that both Krystyna’s motion and Helen’s cross-motion were appropriate for summary judgment. [5] On Krystyna’s motion, the motion judge held that Helen’s application for a declaration on the validity of the codicils was not barred by the Limitations Act . Applying s. 16 (1)(a) of the Limitations Act , which provides that “there is no limitation period in respect of a proceeding for a declaration if no consequential relief is sought”, she said: I find that Helen’s question with respect to the validity of the codicils is restricted to declaratory relief. She is not seeking consequential relief. She is not asking the court to determine the ultimate beneficiary of Dundas St. properties or to vest the properties in any particular beneficiary or beneficiaries. [6] On Helen’s motion, the motion judge held that the purported codicils were invalid. She reviewed several factors and summarized her conclusion in this fashion: Taken together, I find that the evidence before the court cannot lead to a declaration that the codicils of each of Mr. and Mrs. Wroblewski and the "joint" codicil are valid. There is insufficient evidence to find that the codicils were executed in compliance with the requisite formalities as set out in the Succession Law Reform Act. There is no evidence, other than Krystyna's uncorroborated evidence, to confirm that the codicils were executed by two witnesses who were present at the same time as each other and at the same time as the testator and testatrix and who saw the latter sign the codicils. There is also no evidence to show that the testator and testatrix reviewed the codicils and signed them in the presence of the witnesses. In addition to the possible non-compliance with the requisite formalities, there is evidence of a probable lack of testamentary capacity on behalf of Mr. Wroblewski, and there are suspicious circumstances surrounding the preparation and execution of all codicils. [7] Krystyna appeals from the motion judge’s decision. She makes two submissions. [8] First, Krystyna submits that it was inappropriate for the motion judge to make a declaration about the codicils in the context of summary judgment motions. Rather, the context required that evidence be placed before the judge, presumably by testimony from various witnesses. [9] We disagree. Both parties brought summary judgment motions in these proceedings. Both filed affidavits and attached exhibits. The motion judge applied the test in Hryniak v. Mauldin , 2014 SCC 7, and found that a trial was not required because the court could make a fair and just determination of the issues. [10] Second, Krystyna’s principal argument is that the motion judge erred in her analysis and conclusion on the limitation period issue. She says that Helen acknowledged receiving the codicils on August 19, 2009. She therefore had until August 19, 2011 to challenge them. She did not do so; she commenced her claim on January 13, 2015, more than three years outside the two-year statutory period. In support of this position, Krystyna relies on Leibel v. Leibel , 2014 ONSC 4516, and Birtzu v. McCron , 2017 ONSC 1420. [11] We do not accept this submission. Both Leibel and Birtzu are readily distinguishable from this appeal. [12] In Leibel , Greer J. acknowledged the potential application of s. 16(1)(a) of the Limitations Act , but held that it did not apply because the applicants had clearly sought consequential relief in addition to a determination of the validity of the will. This consequential relief included: an Order revoking the grant of the Certificate of Appointment of Estate Trustees with a Will; an Order removing the Estate Trustees; an Order that the Estate Trustees pass their accounts; an Order appointing an Estate Trustee During Litigation; and an Order for damages in negligence against the drafting solicitor and her law firm. In addition, in Leibel the primary will of the deceased had been probated. Birtzu had a similar fact pattern. [13] In contrast, in this case Helen sought none of this consequential relief. Nor has anyone done anything to propound the will. It sat there for seven years, presumably because the siblings were all trying to work out their disagreements. In these circumstances, Helen was entitled to seek declaratory relief, simply to establish the validity, or lack of validity, of the codicils – to define the rights of the parties in order to avoid future disputes. [14] The appeal is dismissed. Helen is entitled to her costs of the appeal fixed at $12,500 inclusive of disbursements and HST. “G.R. Strathy C.J.O.” “J.C. MacPherson J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Pierce v. Belows, 2020 ONCA 41 DATE: 20200124 DOCKET: C67065 Simmons, Lauwers and Nordheimer JJ.A. BETWEEN Robert Edward Pierce Plaintiff (Appellant) and Lesley Karen Belows Defendant (Respondent) Lauren Tomasich, Elie Farkas and Sean Lawler, for the appellant Jordan Goldblatt, for the respondent Heard: January 21, 2020 On appeal from the judgment of Justice Lorne Sossin of the Superior Court of Justice, dated May 16, 2019, with reasons reported at 2019 ONSC 3014. REASONS FOR DECISION [1] The first issue we must address is whether an agreement by the appellant’s former counsel and respondent’s counsel to settle this matter should be enforced. [2] On May 16, 2019 the motion judge granted summary judgment in the appellant’s favour in relation to a $12,000 loan but dismissed the bulk of his claims. [3] In early June 2019, the appellant’s former counsel and the respondent’s counsel exchanged email correspondence concerning settlement. [4] The appellant acknowledges that based on a review of the email correspondence between counsel an objective observer would conclude that this matter had settled on terms that included the appellant waiving his right of appeal from the May 16, 2019 order and forgiving the $12,000 loan plus interest in exchange for a waiver of costs. [5] Nonetheless, the appellant submits his unchallenged evidence establishes he never intended to make a binding offer to settle. Relying on this court’s decision in Milios v. Zagas (1998), 38 O.R. (3d) 218 (C.A.), he submits that, in these circumstances, several factors support this court exercising its discretion not to enforce the settlement. These factors include: the short time – mere hours – that elapsed between the settlement and his former counsel’s repudiation of the settlement, thus leaving the parties’ pre-settlement positions intact; apart from losing the benefit of the settlement, the absence of prejudice to the respondent if the settlement is not enforced; the relative prejudice to the appellant in losing his right of appeal; and the fact that no third parties will be affected if the settlement is not enforced. [6] We do not accept the appellant’s argument. As a starting point, Milios is distinguishable from this case. In Milios , this court acknowledged the well-established pre-rule 49 principle from Scherer v. Paletta , [1966] 2 O.R. 524 (C.A.), that a solicitor whose retainer is established may bind his client to a settlement unless the client had limited the solicitor’s authority and the limitation was known to the opposing side. [1] However, at para. 16 of Milios , this court held the facts of that case ( Milios ) involved a mistake, not a limitation of authority. Following consideration of the whole of the underlying circumstances, this court exercised its discretion not to enforce the settlement. [7] Unlike Milios , this is not a rule 49 case. Further, the facts of this case are very different from the facts in Milios . In Milios the client’s wife advised counsel her husband was away but had told her “to go ahead with the settlement.” Acting on these instructions, counsel accepted an offer made by the opposing side. On his return, the client clarified he told his wife to go ahead with his (the client’s) previous settlement offer, not the offer from the other side. [8] In this case, the appellant acknowledges instructing his former counsel “to open negotiations with [the respondent’s] lawyer about settling the dispute”. However, he asserts he did not authorize his former counsel to make an offer to settle. Unlike Milios , this is not an assertion of a mistake. Rather, it is an assertion that counsel’s authority was limited and did not extend to making an offer to settle. [9] Although this court retains discretion not to enforce a settlement, the facts of this case do not compel that result. The appellant’s former counsel was retained, had authority to – and was instructed to – engage in settlement negotiations. No limitation on his authority was communicated to the respondent. Declining enforcement in the circumstances of this case could undermine the certainty that is essential to encouraging meaningful settlement negotiations between counsel. [10] Given our conclusion that the settlement should be enforced, we decline to address the issues raised by the appellant, but in doing so we are not to be taken as necessarily agreeing with the motion judge’s reasons. [11] The appeal is allowed, the order below is set aside and in its place an order in accordance with the settlement is substituted. In all the circumstances, we make no order as to the costs of the appeal or of the motion below. “Janet Simmons J.A.” “P. Lauwers J.A.” “I.V.B. Nordheimer J.A.” [1] Scherer was pre-rule 49 but – consistent with rule 49 – acknowledged the discretionary power of the court to inquire into the circumstances of a settlement and decide whether or not to enforce it.

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. A.V., 2020 ONCA 58 DATE: 20200129 DOCKET: C64964 Pardu, Brown and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and A.V. Appellant Anthony Moustacalis, for the appellant Adam Wheeler, for the respondent Heard: January 9, 2020 On appeal from the conviction entered on October 19, 2017 and the sentence imposed on February 9, 2018 by Justice Grant R. Dow of the Superior Court of Justice, sitting without a jury. REASONS FOR DECISION [1] The appellant was convicted of sexual interference, sexual exploitation, and sexual assault against the complainant, his stepdaughter. The complainant alleged that, over a period of several years beginning when she was in grade six or seven, the appellant required her to massage and crack his back. This occurred while the appellant lay on his bed. The complainant testified that the appellant touched her thighs and vagina once her brother left the room. [2] The offences were alleged to have occurred while the complainant’s mother was at work. The complainant alleged that on one occasion, the appellant applied lotion to her legs and licked her vagina. She also alleged that the appellant touched her vagina through her jeans as they were watching a movie in a hotel room, while the complainant’s mother was taking a shower. [3] The appellant informed the court that his request for leave to appeal sentence was abandoned. [4] The appellant raised several grounds of appeal against conviction in his factum, but focused on two issues at the hearing. The appellant says that the trial judge erred in admitting prior consistent statements and erred in relying on those statements for the proof of their contents. [5] We have concluded that the prior consistent statements were properly admitted. However, as we will explain, we accept the appellant’s argument that the trial judge erred in relying on the prior consistent statements as proof the offences occurred. [6] Accordingly, the appeal is allowed for the following reasons. Prior consistent statements were admitted properly [7] The trial judge admitted evidence from a childhood friend of the complainant who testified that, when they were in grade six or seven, the complainant had told her that the appellant had come into her bedroom and assaulted her, and that they had discussed it a number of times after that. The complainant’s high school boyfriend testified that around 2012, while they were watching a movie that concerned sexual abuse, the complainant told him that the appellant had abused her. [8] The appellant says that there was no allegation of recent fabrication that justified the admission of this evidence. [9] We disagree. [10] It is clear that trial counsel for the appellant put the question of recent fabrication in play in the course of cross-examining the complainant. In particular, he suggested that she had made up the allegations because she was upset with certain events in her home life; that she was saying nasty things about the appellant because it was a way of getting back at the appellant and her mother; and that she got the idea to make allegations against the appellant from watching a movie with her boyfriend. [11] As a result, it was open to the trial judge to use the complainant’s prior consistent statements to address the recent fabrication allegation and the suggestion that the complainant had a motive to lie about the appellant. [12] The evidence of the complainant’s childhood friend was inconsistent with the complainant’s, in that the friend said that the complainant told her the abuse occurred in her bedroom rather than in the appellant’s bedroom, but the trial judge explained why he considered this a minor detail. This was the trial judge’s call to make, and there is no basis to interfere with it on appeal. Although the childhood friend testified that the complainant spoke of a single incident rather than multiple incidents, as alleged by the complainant, her evidence was called in order to rebut the recent fabrication/motive to lie allegation, rather than to corroborate the complainant’s evidence. No further analysis was required. The W.(D.) analysis [13] The appellant argues that the trial judge erred in his W.(D.) analysis by relying on the prior consistent statements for their truth in corroborating the complainant’s evidence. [14] We agree, and allow the appeal on this basis. [15] The trial judge properly instructed himself as to the requirements from R. v. W.(D.) , [1991] 1 S.C.R. 742, and provided reasons for rejecting the evidence of the appellant and for finding that the appellant’s evidence did not raise a reasonable doubt. He recognized that his rejection of the appellant’s evidence was insufficient to establish guilt beyond a reasonable doubt and went on to consider the evidence as a whole. [16] This case turned on credibility. The trial judge was entitled to use the evidence of the complainant’s prior consistent statements to rehabilitate her credibility, given the motives to lie and recent fabrications that trial counsel attributed to her. But once this was done, the trial judge had to determine that her evidence was credible without relying on the prior consistent statements for proof of their contents to corroborate the complainant’s evidence. [17] The key passage in the decision is this: Counsel for [the appellant] also submitted to me that disbelief of the accused’s evidence does not satisfy the burden of proof beyond a reasonable doubt. Again, I entirely agree. However, the vast majority of sexual assault prosecutions turn on the evidence of the two witnesses involved in the conduct alleged. Here there is not only evidence of [the complainant] about what occurred, but that she revealed it to a senior elementary school friend, her first boyfriend, her aunt, and her mother before going to the police. This reinforces my being satisfied beyond a reasonable doubt of the sexual contact and of the elements of the offences charged having occurred . [Emphasis added.] [18] The Crown submits that this passage must be read in light of the totality of the evidence and the rest of the trial judge’s analysis. The Crown says that the W.(D.) analysis was complete when the judge made these statements and the only issue remaining was whether the complainant’s evidence was credible or a fabrication. The trial judge had earlier concluded that the complainant’s evidence was reliable. According to the Crown, the trial judge used the prior consistent statements to neutralize the allegation of recent fabrication, allowing him to find that the complainant’s evidence was credible and so conclude that the appellant’s guilt had been established beyond a reasonable doubt. [19] The difficulty with this analysis is that the trial judge’s reasons say otherwise. The trial judge specifically states that the complainant’s having revealed the abuse to several people – her friend, her boyfriend, her aunt, and her mother – “reinforces my being satisfied beyond a reasonable doubt”. [20] This statement cannot fairly be read as limited to the rehabilitative effect of the prior consistent statements on the complainant’s credibility — a proper use to which the statements could have been put. The trial judge does not refer to the complainant’s alleged motive to lie or the recent fabrication allegation in discussing the prior consistent statements. Instead, after having said that most cases turn on the evidence of the two witnesses involved in the conduct alleged, the trial judge refers to the statements as reinforcing his conclusion that the offences occurred. In other words, the trial judge considered that this case was unusual in that there was evidence beyond that of the complainant and the appellant on which he could base his decision. This statement shows that, in determining whether the offences were proven beyond a reasonable doubt, the trial judge relied on the complainant’s prior consistent statements for the truth of their contents, to corroborate the complainant’s evidence. That is an impermissible use of the statements, as R. v. Dinardo , 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 36 makes clear. See also R. v. J.A.T. , 2012 ONCA 177, 290 O.A.C. 130, at paras. 97-100. [21] Accordingly, the appeal is allowed and a new trial is ordered on all counts. “G. Pardu J.A.” “David Brown J.A.” “Grant Huscroft 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. B.D., 2020 ONCA 50 DATE: 20200127 DOCKET: C66604 Gillese, Rouleau and Fairburn JJ.A. BETWEEN Her Majesty the Queen Respondent and B.D. Appellant J. Scott Cowan, for the appellant Charmaine Wong, for the respondent Heard and released orally: January 16, 2020 On appeal from the conviction entered on November 29, 2018 by Justice Joseph M.W. Donohue of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant appeals from his conviction for sexual assault. He advances only one ground of appeal. [2] The appellant argues that the trial judge erred in admitting a statement he made to the police. Specifically, he submits that, on a proper reading of the statement, it is apparent that he had invoked his right to counsel and the interviewing officer did not facilitate the exercise of that right. [3] We reject this ground of appeal. [4] The appellant acknowledges that the informational component under s. 10(b) of the Canadian Charter of Rights and Freedoms was properly met. The sole issue is whether the implementational component was fulfilled. [5] The appellant sought to exclude his videotaped interview by police. The trial judge reviewed and considered the transcript and video of the exchange between the appellant and the interrogating officer. As well, the interrogating officer testified on the voir dire . The trial judge concluded on a balance of probabilities that, despite being aware of his right to counsel, the appellant had not expressed a desire to consult counsel. This determination is a finding of fact which, absent palpable and overriding errors, is entitled to deference. [6] The exchange relied on by the appellant is about two thirds into a 94- page-long transcribed statement. The critical exchange is as follows: APPELLANT: can I call a lawyer then because like OFFICER: you can call a lawyer APPELLANT: no no I don’t think I’m guilty that’s the issue and you keep pressuring me more into it OFFICER: I’m not okay APPELLANT: no no OFFICER: I’m not pressure you [7] The appellant submits that this constitutes an equivocal request to consult a lawyer and that the police were obliged to stop the interview at this point and facilitate the request. [8] The statement has to be viewed in context, which context includes the officer repeatedly reminding the appellant of his right to counsel, including virtually immediately following the above exchange where the officer stated: anytime you wanna to talk to a lawyer you can like that’s not a problem I haven’t got a problem with that thing is I have to stop the interview and put you into a private room so you can do that but at any time you can do that. [9] The trial judge reviewed the entire video statement and heard the evidence from the officer. The trial judge applied the proper legal principles and based on the whole of the evidence, he found that there had not been an invocation of his right to consult a lawyer. This was a finding open to him and we find no error in it. [10] For these reasons, the appeal is dismissed. “Eileen E. Gillese J.A.” “Paul Rouleau J.A.” “Fairburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Baskaran, 2020 ONCA 25 DATE: 20200117 DOCKET: C62607 & C62608 & C62614 & C62652 Hoy A.C.J.O., Lauwers and Nordheimer JJ.A. DOCKET: C62607 BETWEEN Her Majesty the Queen Respondent and Majurathan Baskaran Appellant DOCKET: C62608 AND BETWEEN Her Majesty the Queen Respondent and Thirumal Kanthasamy Appellant DOCKET: C62614 AND BETWEEN Her Majesty the Queen Respondent and Jananthan Kanagasivam Appellant DOCKET: C62652 AND BETWEEN Her Majesty the Queen Respondent and Srimoorthy Pathmanathan Appellant Daisy McCabe-Lokos, for the appellant Majurathan Baskaran Cate Martell, for the appellant Thirumal Kanthasamy Michael Dineen, for the appellant Jananthan Kanagasivam Frank Addario and Julia Kindrachuk, for the appellant Srimoorthy Pathmanathan Holly Loubert and Kathleen Doherty, for the respondent Heard: December 12, 2019 On appeal from the convictions entered by Justice Michal Fairburn of the Superior Court of Justice, sitting with a jury, on March 18, 2016 (C62607, C62608, C62614 & C62652), and from the sentences imposed on September 6, 2016 (C62607, C62614 & C62652). Nordheimer J.A.: A. Overview [1] These appeals arise from convictions that stem from a series of tractor trailer thefts and robberies spanning a period of six months. Majurathan Baskaran, Thirumal Kanthasamy, Jananthan Kanagasivam and Srimoorthy Pathmanathan appeal from their convictions on various counts of theft over $5,000, robbery, kidnapping, use imitation firearm and possession of stolen property. All four appellants challenge the trial judge’s ruling respecting a production order for cell phone tower records and her ruling permitting count to count similar act evidence. Mr. Baskaran and Mr. Kanthasamy challenge the trial judge’s s. 24(2) analysis with respect to two separate production orders that the Crown conceded had breached their rights under s. 8 of the Canadian Charter of Rights and Freedoms . Mr. Kanthasamy also challenges his convictions on two counts of possession of property obtained by crime. Finally, Mr. Baskaran, Mr. Kanagasivam and Mr. Pathmanathan seek leave to appeal the sentences imposed on them. [2] I would dismiss the conviction appeals. The trial judge made no reviewable error in her ruling respecting the production order for the cell phone tower data. Nor did the trial judge err in her similar act evidence ruling or in her s. 24(2) analysis. The guilty verdicts rendered by the jury against Mr. Kanthasamy in respect of the possession charges were not unreasonable and this ground of appeal also fails. [3] I would grant leave to appeal sentence to Mr. Baskaran, Mr. Kanagasivam and Mr. Pathmanathan, and would allow their sentence appeals. The trial judge erred in her comparison of these offences to home invasion robberies and, in the case of Mr. Pathmanathan, erred in her application of the parity principle. Their sentences must be reduced as a consequence. B. Background [4] The offences arise out of a number of thefts and robberies of tractor trailers that occurred between March 2009 and August 2009. The robberies involved a group of men who stole loaded trailers containing valuable products of different types. During many of the robberies, either the driver of the truck connected to the trailer, or a security guard working at the yard where the trailer was located, was confined and held. The theory of the Crown was that all of these robberies were committed by the same criminal group, although membership in the group varied from robbery to robbery. [5] The first theft occurred on March 13, 2009. A second occurred on May 2, 2009, this time involving kidnapping and robbery, followed by a robbery on May 12, 2009. The police investigating the May 12, 2009 robbery believed that the driver of the truck that was stolen had been followed for some time before he was confronted, held, and his truck stolen. Based on video footage, the police believed that there were at least two vehicles and five men involved in following the truck and in the resulting robbery. The police further believed that these individuals likely used cell phones to stay in touch with each other as they followed the truck. Consequently, the police sought a production order for cell phone records from certain cell towers that were along the route that the truck had taken. Put simply, they sought a so-called “tower dump” order. [6] Specifically, the police sought an order in the following terms: All records pertaining to cellular calls through the cellular tower #27111 and tower #27217 of Rogers Communications Inc. during the time period 6:15 am on May 12, 2009 and 6:55 am on May 12, 2009. All records pertaining to cellular calls through the cellular tower #26952 and tower #26958 of Rogers Communications Inc. during the time period 7:25 am on May 12, 2009 and 7:35 am on May 12, 2009. All records pertaining to cellular calls through the cellular tower #38993 and tower #38999 of Rogers Communications Inc. during the time period 8:25 am on May 12, 2009 and 8:40 am on May 12, 2009. All records pertaining to cellular calls through the cellular tower #38993 and tower #38999 of Rogers Communications Inc. during the time period 8:30 am on May 5, 2009 and 8:50 am on May 5, 2009. [7] The order specified that the “sought records shall include all subscriber records relevant during the time period of the requested records, including start or initiation of service and end or termination of service dates when the currently registered subscriber is different from the subscriber registered during the requested time period.” [8] The police obtained this order on June 7, 2009 (the “June production order”). As a result of information received from the June production order, the police were able to identify Mr. Pathmanathan, along with others, as possibly being involved in the May 12, 2009 robbery. The police sought and obtained a further production order in August 2009 relating to three phone numbers identified from the June production order. [9] Mr. Kanthasamy and Mr. Baskaran, along with others, were arrested on August 28, 2009. Cell phones were seized from Mr. Kanthasamy and Mr. Baskaran incident to their arrests. After the arrests, the police obtained two further production orders – one in September 2009 and one in November 2009. These production orders were obtained, at least in part, based on improper searches conducted by a police officer of the phones seized from Mr. Kanthasamy and Mr. Baskaran. The Crown conceded that, once the improperly obtained information was excised from the Information to Obtain (“ITO”) for the September and November production orders, those orders could not have properly issued. The question then became whether the information obtained from those orders should be excluded from the evidence, pursuant to s. 24(2) of the Charter . The trial judge found that it should not be excluded. [10] The trial proceeded before a jury over a period of approximately 60 days from late 2015 into early 2016. The jury eventually returned with 61 verdicts. Prior to trial, four other accused pleaded guilty to their involvement in the robberies. Three of them testified at the trial. C. Analysis [11] The appellants raise two common grounds of appeal. One is with respect to the June production order and the other is with respect to the count to count similar act ruling. I will deal with the June production order first. (1) The June Production Order [12] The appellants say that the June production order should not have issued because (i) there were insufficient grounds for it to be granted and (ii) the order was overbroad. As a result, the seizure of the records infringed s. 8 of the Charter . The trial judge rejected both of these arguments. I do as well. (a) There Were Sufficient Grounds to Grant the June Production Order [13] The trial judge gave detailed reasons for her conclusions. The appellants have failed to establish any error in those reasons. The appellants contend that the police had nothing more than speculation that cell phones were being used by the perpetrators in their efforts to follow the truck and that speculation was insufficient to provide a proper foundation for the granting of the June production order. In contrast, the trial judge found that it was “an available common sense inference” arising from the facts that cell phones were likely being used so that the perpetrators could keep in contact with each other. That common sense inference provided the necessary foundation, along with other evidence, for the June production order to be issued. [14] There can be no realistic challenge to the trial judge’s conclusion on this point. Given that there were multiple persons keeping an eye on this truck in order to determine its route, so that they could subsequently confront the driver and steal the truck, the practical reality is that the perpetrators would need to keep in contact with each other. While the appellants suggest that they could have used two-way radios, even in 2009 it would be much more common for persons to have, and to use, cell phones for this purpose. I note, on that point, that in a case just two years later that, on its facts, is very similar to this one, this court referred to cell phone use as “ubiquitous”: R. v. Mahmood , 2011 ONCA 693, 107 O.R. (3d) 641 (“ Mahmood (ONCA) ”), at para. 1, leave to appeal refused, [2012] S.C.C.A. No. 111. [15] In any event, the mere possibility that the perpetrators could have used two-way radios does not negate the possibility that cell phones were used. The issue is whether the use of cell phones was a common sense inference. The trial judge found that it was. I agree. The appellants point to the fact that the trial judge in Mahmood reached a contrary conclusion: R. v. Mahmood (2008), 236 C.C.C. (3d) 3 (Ont. S.C.) (“ Mahmood (SC) ”), at paras. 90, 91. This court is not bound by that decision, but, in any event, the fact that two judges reached different conclusions on this issue does not, in and of itself, establish that one of the decisions is wrong. The trial judge in Mahmood (SC) was faced with a very different factual situation than was the trial judge here. [16] The appellants also quarrel with the trial judge’s reliance on the evidence of a police surveillance officer, contained within the ITO, regarding his surveillance experience. In fact, it is not clear that the trial judge placed any significant reliance on this evidence, other than to mention it. In any event, all that evidence did was confirm what would be a common sense understanding, that is, if multiple people in different vehicles are attempting to follow someone, there is a need for them to keep in touch with each other in furtherance of their objective. The police do this to maintain surveillance. The perpetrators were engaged in the same exercise. [17] In the end result, there were ample grounds for the June production order to issue. (b) The June Production Order Was Not Overbroad [18] The appellants also challenge the June production order on the basis that it was overbroad. They say that, by its terms, the order captured the private information of a great many innocent persons. The appellants say that the capture of all of this information cannot be justified. It involved too great an invasion of the privacy of innocent members of the public and constituted an unreasonable search or seizure. Consequently, the order resulted in an infringement of s. 8 of the Charter . [19] As the trial judge identified, there is a fatal flaw with this challenge to the seizure of records pursuant to the June production order. The actual information obtained by the police, pursuant to the order, was never placed in evidence before the trial judge. It was therefore impossible for the trial judge to evaluate how much information was actually obtained by the police, and the extent of that information. This court is left at the same disadvantage. [20] For example, in argument, the appellants contended that the police obtained financial information for everyone whose phone numbers appeared in the records. I do not know that to be the case because I do not have either the information that was actually produced or evidence about the information actually produced. Further, it is not clear that “[a]ll records pertaining to cellular calls through” the specified cell towers during the specified times that were “relevant” would have been interpreted, by the telco that received the production order, as including financial records, and, if so, what financial records. But this should not be a matter of speculation. If the appellants wished to advance the overbreadth argument on that basis, they bore the burden of putting before the trial judge the actual information that was produced to the police as the evidentiary foundation for their position. This they failed to do. Consequently, there was no basis for the trial judge to properly determine whether this had occurred. It follows that there is no basis for this court to make that determination either. [21] On this point, the appellants submit that the production order is overbroad on its face. I do not agree. The production order is narrow in its scope. It requires records from six towers, and covers only two dates. The order is narrowly circumscribed by time depending on the towers involved: 40 minutes, 10 minutes, 15 minutes and 20 minutes, respectively. The police were responsible by limiting their request in an effort to avoid overbreadth. That said, it is inevitable, when an order of this nature is sought, that some information of innocent persons will be captured by any order that is ultimately granted. The task for the issuing justice is to limit that collection. In my view, the police took a responsible approach to that issue in terms of the order that they sought in this case. [22] On this point, the appellants place great reliance on the decision in R. v. Thompson , [1990] 2 S.C.R. 1111. In my view, that decision does not assist the appellants’ position. Indeed, that decision recognizes the reality that I have just noted, that is, that authorizations will inevitably intrude on the privacy interests of innocent persons. As Sopinka J. said, at pp. 1143-44: In any authorization there is the possibility of invasion of privacy of innocent third parties. For instance, a wiretap placed on the home telephone of a target will record communications by other members of the household. This is an unfortunate cost of electronic surveillance. But it is one which Parliament has obviously judged is justified in appropriate circumstances in the investigation of serious crime. [23] The issue is whether that inevitable intrusion has been limited to an acceptable degree. Put another way, is the search no more intrusive than is reasonably necessary to achieve its objective?: R. v. Vu , 2013 SCC 60, [2013] S.C.R. 657 at para. 22. As I have said, I agree with the trial judge that the June production order was carefully limited in this case. I also agree with the trial judge that the appellants bore the onus of establishing their overbreadth challenge to the production order. Their failure to put before the court the actual information that was obtained was fatal to that challenge. [24] I therefore reject the overbreadth ground of attack on the June production order. [25] Nevertheless, I accept, admittedly with the benefit of hindsight, that the production order itself could have been more carefully drafted. In particular, the records requested could have been more clearly defined. It would be a better practice, in the future, for any production order to outline specifically the records being sought so that there is no confusion between what the police seek, and what the recipient provides. The issuing justice should ensure that this is done. (c) The Challenge to the August Production Order Also Fails [26] The appellants’ challenge to the August production order stands or falls based on the result respecting the June production order. Given my conclusion on the June production order, the challenge to the August production order also fails. (d) The Records Would Not be Excluded Pursuant to s. 24(2) [27] The appellants also take issue with the trial judge’s s. 24(2) analysis. It is technically not necessary to address this issue in light of my conclusion rejecting the challenge to the June production order. However, like the trial judge, I address it in the interests of completeness. [28] The seriousness of the Charter -infringing state conduct was not high. The police obtained a judicial authorization to obtain the information. They acted in good faith. They had a reasonable belief that cell phones had been used by the perpetrators, and they made reasonable efforts to minimize the production of private information of innocent parties, to which I have referred above. [29] The impact of the breach on the Charter -protected interests of the accused, while not insignificant, was moderate, given both the information that was obtained and the information that it, in turn, revealed. The impact was certainly not as high as it might be where other private information is obtained by the police. In addition, this court has recognized that the privacy interests in cell phone records is “one that is significantly reduced”: Mahmood (ONCA) , at para. 131. [30] I reiterate, however, that this evaluation depends on the precise nature of the information obtained and the corresponding information that is revealed. In the absence of the actual records produced pursuant to the production order, there is no basis to distinguish the records in this case from the usual cell phone records. In light of my conclusion, it is unnecessary to address the respondent’s argument that the records might have been obtainable under s. 492.2 of the Criminal Code , that carries a reduced threshold. [31] The information obtained pursuant to the June production order was “real evidence” that was central to the investigation, and the identification of the persons involved. It was central to the prosecution of these serious offences. Society has a clear interest in the adjudication of this case on its merits. [32] In my view, the first and third factors from R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 61, weigh strongly in favour of admission. The second factor weighs against admission but only weakly. A proper weighing of the factors as a whole supports the conclusion that the evidence should not have been excluded. Again, I agree with the trial judge’s conclusion on this point. (2) Count to Count Similar Act Ruling [33] The appellants’ second joint ground of appeal is their challenge to the trial judge’s ruling that the jury could, in deciding a particular count under which a particular appellant was charged, use the evidence on other counts with which that appellant was also charged to assist them. This ruling, reported as R. v. Kanagasivam , 2016 ONSC 2548 (“ Kanagasivam II”) , was limited to certain counts related to kidnapping, robbery and use imitation firearm on seven of the 11 offence dates. [34] The central issue in this case was identity. As stated by Watt J.A. in R. v. Durant , 2019 ONCA 74, 144 O.R. (3d) 465, at para. 90, the use of similar act evidence to establish identity generally requires an analysis of the similarities between the acts: In the usual course where evidence of similar acts is proposed for admission in proof of a perpetrator's identity, the trial judge should review the manner in which the similar acts were committed, that is to say, whether the allegedly similar acts involve a unique trademark or reveal a number of significant similarities. This review enables the trial judge to determine whether the alleged similar acts were likely all committed by the same person. [35] The appellants argue that the trial judge erred in concluding that it was likely that the same group carried out each of the offences. In her reasons on this issue, the trial judge outlined 17 items of similarity, at para. 127: · The offences were accomplished with the theft of a truck. · The offences involved the theft of at least one trailer and load. · The kidnapping victims were all placed in the back sleeper areas of the trucks. · With one exception, two men got into the back sleeper areas of the trucks with each of the victims. · The victims were driven around in the back sleeper areas of the trucks. · With one exception, three or four people were inside the trucks. · The assailants used a language other than English. · The kidnapping victims were bound. · With one exception, each victim was bound in the sleeper areas of the trucks when they were abandoned. · With two exceptions, each kidnapping victim was the driver of the truck that was stolen. · The drivers in each incident generally knew how to operate a large truck. · There were no serious injuries. · With one exception, the kidnapping victims testified to the use or threatened use of a gun. · With one exception, the kidnapping victims had personal property taken from them. · The kidnapping victims were taken during the evening or as it was getting dark out. · In each case an effort was made to obstruct the kidnapping victims from seeing the assailants. · The loads that were taken were valuable. [36] I accept the appellants’ point that some of these similarities are generic, that is, they would be present in any case where these offences are committed. For example, the fact that the goods stolen are valuable. It is unlikely that robbers would steal worthless items. Another is the fact that a truck was stolen in each case. It is, of course, difficult to steal a transport trailer without a truck to move it. [37] However, there were other similarities that were more unique. These included that the perpetrators spoke in a language other than English. Another was that drivers or security guards were kidnapped and driven around during the course of the robberies. Yet another was that the drivers or security guards were all robbed of personal effects. Further, a gun was used, or its use was intimated, in all but one robbery. Lastly, all but one of the acts were linked to the same individual – the “ringleader”. [38] The overall point of this exercise is to show that the objective probability of coincidence, given all of the items of similarity, together with the connections among the individuals, is low. Thus, it is permissible to infer that the same group committed the acts: R. v. Perrier , 2004 SCC 56, [2004] 3 S.C.R. 228, at para. 31. [39] On this point, when considering similar act evidence in a context such as this, one should avoid placing too much emphasis on some of the language used, in various authorities, to describe the requisite degree of similarity, such as “signature” or “fingerprints”. What is required is that the trial judge be satisfied that there is the high degree of similarity needed to reach the necessary conclusion that the alleged similar acts were, more likely than not, all committed by the same group: Perrier , at para. 21. That sufficient degree is often characterized in different language. For example, it is sometimes characterized as “striking”. But the use of such adjectives does not change the nature of the inquiry. Using a word such as “striking” simply means that the circumstances stand out to an independent observer. [40] In my view, the trial judge was correct in concluding that the various robberies were sufficiently similar, based on the items of similarity that the trial judge mentioned, and which I have set out above. While some of those items can be challenged individually in terms of whether their similarity would suggest conduct by the same actors, that is not the proper approach. The proper approach is whether the similarities, viewed collectively, are sufficient to establish on a balance of probabilities that they are the product of the same actors. I have no difficulty in agreeing with the trial judge that, in this case, they are. The likelihood that these robberies occurred randomly at the instance of entirely different individuals, or groups of individuals, is remote. As Binnie J. noted in R. v. Handy , 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 45: “Coincidence, as an explanation, has its limitations.” [41] The appellants also complain that the trial judge failed to consider for each appellant whether there was sufficient similarity between the offences with which that specific appellant was charged, and instead made this determination globally. This argument fails. The trial judge was not required to lay out her analysis in the manner suggested by the appellants. It is clear from her reasons that she was satisfied that each offence for which the Crown sought to admit count to count similar act evidence was committed by the same group. I note, in particular, that many of the similarities identified, including those identified by the trial judge as being the most striking, were present in all occurrences. Further, her jury charge, with which the appellants take no objection, made it clear to the jury that they were to assess similarity accused by accused. I see no error here. [42] Accordingly, I do not see any error in the trial judge’s analysis and this ground of appeal fails. (3) The September and November Production Orders [43] I now turn to the two individual grounds of appeal. The first of those is the appeal by Mr. Baskaran and Mr. Kanthasamy regarding the trial judge’s decision to admit the evidence gathered under the September and November production orders. Those orders were obtained based on an illegal search of the cell phones of Mr. Baskaran and Mr. Kanthasamy after the two had been arrested. [44] These appellants say that the trial judge took too narrow a view of the information obtained by those production orders and this resulted in her engaging in a flawed s. 24(2) analysis. In particular, these appellants complain that the trial judge underestimated the impact on their rights arising from the information that was revealed to the police as a consequence of the information that they obtained from the flawed production orders. I do not agree. [45] Central to these appellants’ complaint is their reliance on the decision in R. v. Spencer , 2014 SCC 43, [2014] 2 S.C.R. 212, which, they contend, ought to have caused the trial judge to take a more serious view of the information obtained through the flawed orders and thus reach a different conclusion on the Grant factors. On this point, I agree with the Crown that the privacy interest arising from a customer’s name, address and telephone number information (“CNA”) is not unidimensional. It depends on the context in which the CNA is obtained, the use to which it will be put, and the information it reveals. [46] The multidimensional nature of the privacy interests associated with CNA is the reason why the interests engaged in this case are not comparable to the interests that were engaged in Spencer and why these two cases do not direct similar results. This distinction was noted by Cromwell J. in Spencer , at para. 47: In my view, the identity of a person linked to their use of the Internet must be recognized as giving rise to a privacy interest beyond that inherent in the person's name, address and telephone number found in the subscriber information. [47] There was no corresponding invasion of any individual’s anonymity in this case of the type that was involved in Spencer . The CNA here carried with it a reduced expectation of privacy – a fact that the trial judge also relied upon. The fact that the CNA revealed the location of these appellants out in the public at a particular point in time does not give rise to the type of breach of anonymity involved by the accused in Spencer regarding his activities in his own home. The infringement of privacy is of an entirely different, and lesser, magnitude. [48] The trial judge properly considered the impact and reached the same conclusion. I do not see any error in her conclusion on the proper application of s. 24(2). (4) Possession of Property Convictions [49] Mr. Kanthasamy appeals his convictions on two counts of possession of property obtained by crime. These convictions relate to the discovery in a warehouse of a load of LG appliances stolen on August 11, 2009 and a load of cigarettes stolen on August 27, 2009. Mr. Kanthasamy was not connected to the actual robberies of these goods. Rather, he was connected to the possession of them by his presence outside of the warehouse when the appellants and others were arrested, his presence at the warehouse the previous evening in the company of the “ringleader” of the robberies, and the presence of certain phone calls between him and the person who had rented the warehouse space in which the stolen goods were located. [50] Mr. Kanthasamy says that the evidence showed that the ringleader of these robberies would hire people, such as Mr. Kanthasamy, on an ad hoc basis to assist in committing the robberies. He says that the evidence in this case shows nothing more than that he may have been hired to help move these stolen goods. There appears to be no dispute that this was the reason why all of these persons were present at the warehouse that particular evening when the arrests occurred. The evidence revealed that they had to move the stolen goods to another location. [51] In his submissions, Mr. Kanthasamy ignores the salient fact that this was a trial before a jury. It was the jury’s job to decide whether they were satisfied, on the evidence and beyond a reasonable doubt, that Mr. Kanthasamy was guilty of these offences. No issue is taken with the instructions that the trial judge gave with respect to these offences – or otherwise for that matter. [52] In light of that reality, Mr. Kanthasamy’s argument has to rise to the level of saying that the verdicts were unreasonable. To that end, he would have to establish that there was no evidence upon which this properly instructed jury, acting judicially, could reasonably have rendered these verdicts. [53] I note that this was an issue upon which Mr. Kanthasamy brought a directed verdict application. That application was dismissed, with reasons reported at R. v. Kanagasivam , 2016 ONSC 2545 (“ Kanagasivam I ”). In dismissing the application, the trial judge referred to the above evidence and concluded, at para. 106: The jury could infer from all of this evidence that the men who had met earlier, who were in the van that had passed by the address earlier, and who parked where they could observe a moving van come into the area, were there because they were in joint or constructive possession of the property that they were about to move. For Mr. Kanthasamy, this inference is only bolstered by his presence in the area the night before and his contact with [the person who rented the warehouse space] the night before. [54] The same analysis and conclusion apply to the argument in this court. There was evidence upon which the jury could conclude that Mr. Kanthasamy’s presence at the warehouse was the result of him being more than just a hired hand. For example, if he was just a hired hand being used to move the goods, why was he communicating with the person who rented the warehouse space, and why was he outside the warehouse the night before? [55] It was up to the jury to evaluate all of the evidence and decide whether it proved that Mr. Kanthasamy had possession of the stolen property. They reached the conclusion that he did. That was a verdict that was open to the jury on the evidence. This ground of appeal fails. (5) The Sentence Appeals [56] Each of Mr. Baskaran, Mr. Kanagasivam, and Mr. Pathmanathan seek leave to appeal the sentences imposed on them by the trial judge. I would grant them leave and allow the appeals. [57] I will begin by explaining the approach that the trial judge took to imposing sentences on these four appellants, and the error that I find that she made in reaching the conclusions that she did. [58] The trial judge first determined the appropriate sentence for each offence. For example, she determined that the counts of theft over $5,000 would attract a five year sentence, the robbery and kidnapping counts would attract a three year sentence (save for one robbery where a three and one-half year sentence was imposed), and the use imitation firearm counts would attract a one year sentence. The trial judge also concluded that sentences on the robbery and kidnapping counts should be concurrent in each occurrence, but that the sentence on the imitation firearm counts should be consecutive. [59] The trial judge also concluded that the sentences for the offences for each occurrence should be consecutive to each other. This conclusion invariably led to very high total sentences. For example, on this approach, the total sentence for Mr. Pathmanathan amounted to 26½ years. Recognizing the problem that consecutive sentences led to, the trial judge applied the principle of totality and reduced the sentences accordingly. In Mr. Pathmanathan’s case, the 26½ year sentence was reduced to 16 years. [60] In fashioning each of the ultimate sentences imposed, the trial judge also considered the principle of parity. She recognized that the sentences had to reflect the varying degrees of involvement of each of the appellants in this series of occurrences, both in relation to each other and in relation to others who had earlier pleaded guilty. Of the appellants, Mr. Pathmanathan was the most heavily involved. It would follow that Mr. Pathmanathan would receive the highest sentence. [61] The appellants first submit that the trial judge erred in imposing the same sentence on each appellant with respect to each robbery/theft from occurrence to occurrence. They submit that this approach failed to distinguish between the varying roles that each of the appellants played in carrying out these robberies/thefts. [62] I accept that, if one looks at the sentence starting point that the trial judge used, it would appear that there was a failure to distinguish between the levels of involvement of the various players. However, this isolated viewpoint fails to take into account the trial judge’s recognition, and application, of the parity principle in arriving at the ultimate sentence. For example, Mr. Pathmanathan, who was the person most heavily involved in all of these occurrences, received a much higher sentence than did the others. This reflects the very different role that he played. [63] That said, as I shall explain, I do find an error in the trial judge’s analysis. It is an error that drove the sentences that she imposed across the board and thus contributed to the problem that the totality principle attempted to address. The particular error has to do with the comparison of these offences to home invasion robberies. [64] In identifying this error, I am conscious of the fact that the trial judge was not provided with any authority that purported to establish a range of sentence for these types of offences in these circumstances. The trial judge was, therefore, very much dealing with a matter of first instance. [65] On this point, the trial judge said that she agreed with Crown counsel “that it is appropriate to compare tractor trailer robberies and kidnappings to carjackings and home invasions.” I do not agree. I appreciate that, because of the nature of their work, drivers of tractor trailers may be required to sleep in their vehicles. That is the nature of long-haul truck transport. However, comparing that aspect of their employment to the nature of a person’s intimate connection to their personal home space overstates any relationship that there may be between the two. It would also exaggerate the relative impact of the offence. [66] In considering this issue, I am mindful of the fact that people like to believe that they should be safe in a variety of different locations: walking down a residential street, sitting in the back of a cab, staying in a hotel room, riding on a bus or train, and in many other places. The fact is that people should be safe in all of those locations, but the unfortunate reality is that they are, too often, not. This is due in part to the fact that these places are easily accessible by other people. In contrast, private homes are special places. They are not easily accessible to others. Homes take on a special significance as a consequence of that physical reality, coupled with the mental state that accompanies it. Simply put, the sleeping cab of a truck cannot be properly analogized to the sanctity of a home. [67] I agree that it was appropriate for the trial judge to take into account that the victims of these occurrences were vulnerable persons arising from the nature of their work. However, she overemphasized that vulnerability, in terms of sentencing, in drawing comparisons with sentences imposed in home invasion robberies. It was an error for the trial judge to do so and this error impacted the sentences that she imposed. [68] In particular, this comparison led her to impose a five year sentence on each of the offences of theft over $5,000. The circumstances surrounding these offences would not have warranted that high a sentence for those offences. Had the comparison not been drawn, a more moderate sentence would have been imposed, the total sentence would have been reduced, and the application of the totality principle would then have reduced the sentences further, certainly below those that the trial judge settled on. (a) Srimoorthy Pathmanathan [69] The error, to which I have just referred, impacted the sentences imposed on each of these accused persons. It thus falls to this court to “inquire into the fitness of the sentence and replace it with the sentence it considers appropriate”: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 43. [70] Admittedly, Mr. Pathmanathan was involved in all of these many occurrences. At the same time, the occurrences took place over a relatively short period of time. Further, Mr. Pathmanathan was a person with no criminal record and who expressed remorse for his actions. A sentence of 16 years fails to adequately reflect those salient mitigating factors. [71] Further, in terms of parity, the trial judge found that Mr. Pathmanathan’s role was “very much on par with” that of the ringleader. The ringleader had pleaded guilty five years earlier. He pleaded guilty, however, to only some of the occurrences, fewer than the ones in relation to which Mr. Pathmanathan was convicted. In addition to his guilty plea, the ringleader was going to be deported after he completed his sentence. This was another distinguishing feature from Mr. Pathmanathan. The ringleader received a sentence of seven years. The trial judge characterized this sentence as “extremely light”. [72] When one views the sentence imposed on Mr. Pathmanathan contrasted with the one imposed on the ringleader, in my view, it reveals a serious problem in terms of parity. I accept that the ringleader pleaded guilty to offences in a lesser number of occurrences, but I also observe that the facts relating to some of the other occurrences were read in as part of his sentencing. Further, his plea to lesser counts does not change the fact, acknowledged by the trial judge, that he was the orchestrating mind behind all of these occurrences. [73] Further, the “discounts” that the ringleader received on his sentence because of his guilty plea, and because of the deportation factor, cannot, in my view, justify imposing on Mr. Pathmanathan, as the trial judge did, a sentence that is almost two and one-half times as great as that imposed on the ringleader. [74] In the end result, in light of the mitigating factors that I have mentioned, and the principle of parity, an appropriate sentence for Mr. Pathmanathan would be 12 years (before credit for pre-sentence custody). (b) Majurathan Baskaran [75] Using the same approach that I set out above, the trial judge imposed a sentence of 19 years on Mr. Baskaran, which she reduced to 11 years applying the totality principle. [76] I do not accept Mr. Baskaran’s submissions that the level of his involvement in the offences was “minor”. The trial judge considered all of the relevant factors in determining Mr. Baskaran’s sentence. She noted that he had been convicted of a large number of offences. She also noted that he had a criminal record. At the same time, the trial judge was fully aware that Mr. Baskaran was a young man who had expressed sincere remorse for his actions. [77] There is, however, a cascading effect to the error that I earlier identified in the trial judge’s approach. Because I have reduced the sentence for Mr. Pathmanathan, who had a greater involvement in these occurrences than did any of the other appellants, parity requires that Mr. Baskaran’s sentence be reduced. At the same time, that same principle suggests that Mr. Baskaran’s sentence should be higher than that imposed on Mr. Kanthasamy (who did not appeal his sentence) of eight and one-half years. Mr. Kanthasamy was convicted of a lesser number of offences than was Mr. Baskaran. [78] In the end result, I would reduce Mr. Baskaran’s sentence to nine years (before credit for pre-sentence custody). (c) Jananthan Kanagasivam [79] Mr. Kanagasivam received the lowest sentence of the four appellants. He was convicted of offences relating to only two of the occurrences. The trial judge sentenced him to six years which was reduced to four years and two months after the application of the totality principle. [80] As noted by the trial judge, Mr. Kanagasivam was a young man with no criminal record. However, he was heavily involved in one of the kidnappings. He also participated in two separate occurrences that were almost four months apart. The nature of his conduct warranted a penitentiary term of imprisonment, even though this was a first offence for him. [81] Again, however, because of the cascading effect that I mentioned, and to maintain parity with the other sentences, including those in relation to other offenders who pleaded guilty and who were similarly situated to Mr. Kanagasivam (and to which the trial judge made reference), I would reduce his sentence to three years (prior to credit for pre-sentence custody). D. Conclusion [82] I would dismiss the conviction appeals. I would grant leave to appeal sentence to Mr. Baskaran, Mr. Kanagasivam, and Mr. Pathmanathan, allow their sentence appeals, and reduce their sentences as set out above. Released: “A.H” January 17, 2020 “I.V.B. Nordheimer J.A.” “I agree. Alexandra Hoy A.C.J.O.” “I agree. P. Lauwers J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Chaly, 2020 ONCA 35 DATE: 20200121 DOCKET: M50182 Benotto, Paciocco and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Alisa Chaly Appellant Alisa Chaly, acting in person Andrew Hotke, for the respondent Heard and released orally: January 13, 2020 REASONS FOR DECISION [1] The motor vehicle Ms. Chaly was operating was stopped on April 15, 2016. After investigation, she was arrested for impaired driving and a breath demand was made. She was ultimately charged with impaired driving, refusing to provide a breath sample, and breaching the keep the peace condition of a peace bond recognizance that was in effect. [2] After trial, Ms. Chaly was acquitted of impaired driving but convicted of refusing to provide a breath sample and breach of recognizance. She was fined $1,000 and $100 respectively and a one-year driving prohibition was put in effect. [3] Ms. Chaly unsuccessfully appealed her conviction to a summary conviction appeal court. She now brings an inmate appeal to this court seeking leave to appeal, raising two grounds of appeal, one relating to whether proper rulings were made on the arbitrariness of her detention and the other relating to the treatment of the loss of the booking area video. [4] This is not an appropriate case for leave to appeal, since there are no questions of law raised that have significance to the administration of justice and no clear errors were committed. Even if we granted leave to appeal, we would be required to dismiss Ms. Chaly’s appeal. [5] Ms. Chaly urges that the trial judge erred in denying her claim that she was arbitrarily detained by being held longer than required after she was charged. The trial judge denied this claim because Ms. Chaly failed to offer evidence of how long she had been detained. Absent such evidence, her Charter motion could not succeed. [6] Nor was there an error in the summary conviction appeal justice’s decision to deny an appeal from the trial judge’s refusal to grant a stay based on the loss of the booking area video. The trial judge found appropriately that the loss of the video was not caused by negligence but by reasonable policies relating to the retention of booking area videos. We see no basis for interfering with that decision. [7] Moreover, the destruction of the video caused Ms. Chaly no material prejudice. The trial judge explicitly chose not to rely on what transpired in the booking area as evidence against Ms. Chaly as proof of her impairment, and the video could have only marginal relevance on the remaining charges. There was video tape evidence relating to Ms. Chaly’s refusal to provide a sample. The refusal charge turned on that video, not on issues relating to the officer’s credibility. As the trial judge noted: The evidence that is disclosed in the breath room video provides ample support for the contention by the Crown that there was a deliberate refusal to provide breath samples. [8] Leave to appeal the conviction appeal is therefore denied. On consent, we set aside the victim surcharge. “M.L. Benotto J.A.” “David M. Paciocco J.A.” “Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Chouhan, 2020 ONCA 40 DATE: 20200123 DOCKET: C67600 Doherty, Watt and Tulloch JJ.A. BETWEEN Her Majesty the Queen Respondent and Pardeep Singh Chouhan Appellant Dirk Derstine, Tania Bariteau, and Laura Remigio, for the appellant Andreea Baiasu and Rebecca Law, for the respondent Jeffrey G. Johnston, for the intervener Attorney General of Canada Jonathan Rudin and Emily Hill, for the intervener Aboriginal Legal Services Nathan Gorham and Mindy Caterina, for the intervener Criminal Lawyers’ Association Heard: December 19, 2019 On appeal from the conviction entered by Justice John B. McMahon of the Superior Court of Justice, sitting with a jury, on October 24, 2019. Watt J.A.: [1] For 150 years, even before Parliament created our first Criminal Code , jury selection in a criminal trial followed an established pattern. The parties could challenge a fixed number of jurors peremptorily. When permitted, they could also challenge prospective jurors for cause. And for the most part, lay triers determined the truth of the challenge for cause. [2] Things changed on September 19, 2019. No more peremptory challenges. No more trials of challenges for cause by lay triers. Instead, only challenges for cause determined by the trial judge. [3] In this case, I am required to decide whether one, both, or neither of these amendments to the jury selection procedure can withstand Charter scrutiny. If both pass constitutional muster, I then have to determine whether they operate prospectively or retrospectively. [4] I decide that neither the abolition of peremptory challenges nor the substitution of the trial judge for lay triers to determine the truth of the challenge for cause is constitutionally flawed. [5] With respect to the temporal application of the amendments, I decide that the abolition of the peremptory challenge applies prospectively, that is to say, only to cases where the accused’s right to a trial by judge and jury vested on or after September 19, 2019. But I conclude the amendment making the presiding judge the trier of all challenges for cause applies retrospectively, that is to say, to all cases tried on or after September 19, 2019, irrespective of when the right vested. THE BACKGROUND FACTS [6] About three months ago, a jury found Pardeep Singh Chouhan (the “appellant”) guilty of first degree murder. Within a week of his conviction and before the trial judge imposed the mandatory sentence upon him, the appellant appealed his conviction. His only grounds of appeal relate to the trial judge’s rulings on the procedure to be followed in selecting the trial jury. A brief reference to the procedural history of the case is sufficient background for our purposes. The Charge [7] The appellant was indicted directly on a single count of first degree murder alleged to have taken place on September 30, 2016. The nature of the offence charged and the governing procedural provisions of the Criminal Code , R.S.C. 1985, c. C-46, meant that, without the consent of the appellant and the Attorney General, the trial would be held in the Superior Court of Justice by a court composed of a judge sitting with a jury. The Jury Selection Proceedings [8] Before jury selection in the appellant’s case was scheduled to begin, Parliament enacted legislation which, among other things, abolished peremptory challenges and substituted the presiding judge as the adjudicator of the truth of challenges for cause: Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts , 1st Sess., 42nd Parl., 2019, c. 25, ss. 269, 272. These amendments came into force on September 19, 2019: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts , s. 406. [9] In advance of jury selection, which was scheduled to begin on September 19, 2019, the parties appeared before the trial judge to make submissions on three issues arising out of the amendments: i. the constitutionality of the repeal of s. 634 of the Criminal Code which abolished peremptory challenges for both parties; ii. the constitutionality of the amendment to s. 640 of the Criminal Code substituting the presiding judge as the adjudicator of the truth of the challenge for cause rather than lay triers as had previously been the case; and iii. if the provisions were declared to be constitutional, whether they operate prospectively and were thus inapplicable to the appellant’s trial. The Evidence on the Challenge [10] At trial, the appellant filed affidavits and adduced viva voce evidence from two very experienced criminal lawyers. Each had practised as defence counsel in criminal cases for more than a quarter century and had represented many racialized accused. [11] The witnesses described their racialized clients as active participants in their exercise of peremptory challenges. The clients provided information to counsel based largely on the clients’ observations of the appearance and demeanour of prospective jurors as the prospective jurors were asked to face the accused. The peremptory challenge offered the accused, in particular racialized accused, their only chance to participate in jury selection. [12] Peremptory challenges, the witnesses testified, permit them to remove potentially partial prospective jurors and, in the case of a racialized accused, to assist their efforts to choose some jurors who are similarly racialized so that their client believes the jury to be representative. And when racialized accused feel that a fair jury has been selected, the witnesses testified that they have more confidence in the trial process and are more accepting of its eventual outcome irrespective of the actual result. [13] The trial Crown did not cross-examine either defence counsel who testified in support of the application. The Ruling of the Trial Judge [14] In written reasons released one week after the conclusion of lengthy oral argument (reported at 2019 ONSC 5512), the trial judge held that: i. the abolition of peremptory challenges by the repeal of s. 634 of the Criminal Code was not unconstitutional; ii. the substitution of the presiding judge as the trier of the truth of the challenge for cause, rather than lay triers, through the amendment of s. 640 of the Criminal Code, was not unconstitutional; and iii. the amendments operated retrospectively, and thus applied to prosecutions that began before September 19, 2019 but tried thereafter. [15] The appellant’s trial proceeded without either party having the right to challenge prospective jurors peremptorily. The trial judge determined the truth of each challenge for cause. The Verdict of the Jury [16] On October 24, 2019, the jury found the appellant guilty of first degree murder. Two weeks later, the trial judge sentenced the appellant to imprisonment for life, without the possibility of parole for 25 years. THE GROUNDS OF APPEAL [17] The appellant appeals his conviction solely on the basis of the trial judge’s ruling in the jury selection process. He contends that the trial judge erred: i. in failing to find that the abolition of peremptory challenges by the repeal of s. 634 breached ss. 11(d), 11(f), and 7 of the Charter and could not be saved by s. 1; ii. in failing to find that the amendments to s. 640, which substituted the presiding judge for lay triers as the trier of truth in the challenge for cause, breached ss. 11(d), 11(f) and 7 of the Charter and could not be saved by s. 1; and, iii. in deciding that these amendments applied retrospectively not prospectively. [18] The appellant seeks a new trial. Ground #1: The Constitutionality of the Abolition of Peremptory Challenges [19] The first ground of appeal challenges the constitutionality of the abolition of peremptory challenges by the repeal of s. 634 of the Criminal Code . The appellant’s principal argument is that the abolition of peremptory challenges violates s. 11(d) of the Charter . That provision provides the following: Any person charged with an offence has the right … to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. [20] The appellant also argues, to a lesser extent, that the abolition of peremptory challenges violates ss. 11(f) and 7 of the Charter . Section 11(f) reads as follows: Any person charged with an offence has the right … except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment. Section 7 provides: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. [21] Like the parties’ submissions, these reasons will focus on the s. 11(d) argument. A brief reference to the 150-year history of peremptory challenges to prospective jurors creates a suitable framework for the discussion that follows. The Statutory Background [22] Canada inherited the availability of peremptory challenges from England but has varied the number of these challenges available to the accused and Crown over the years. In our first unified statute governing criminal procedure – An Act respecting Procedure in Criminal Cases, and other matters relating to Criminal Law , S.C. 1869 (2nd Sess.), c. 29, s. 37 – an accused was entitled to exercise 20, 12 or 4 peremptory challenges depending on the seriousness of the offence charged. The Crown was entitled to four peremptory challenges irrespective of the nature or seriousness of the offence. But the Crown could stand by an unlimited number of prospective jurors. [23] In 1892, Parliament enacted our first Criminal Code : S.C. 1892 (2nd Sess.), c. 29. The accused retained the same schedule of peremptory challenges as had been the case in the unified statute of 1869 with 20 challenges reserved for “treason or any offence punishable with death”: s. 688. The Crown retained its four peremptory challenges and unlimited stand bys. [24] In 1917, Parliament amended the Criminal Code to reduce the number of stand bys available to the Crown to 48: An Act to Amend the Criminal Code (Respecting Jurors) , S.C. 1917, c. 13, s. 1. [25] In 1976, when Parliament abolished capital punishment for civilian offences, it revised the offences for which the highest number of peremptory challenges – 20 – were available: The Criminal Law Amendment Act (No. 2), 1976 , S.C. 1974-75-76 (1st Sess.), c. 105, s. 10. An accused charged with high treason or first degree murder could challenge 20 prospective jurors peremptorily. The remaining schedule of challenges for the defence and Crown and the number of stand bys available to the Crown remained the same. [26] In 1992, however, a majority of the Supreme Court held in R. v. Bain , [1992] 1 S.C.R. 91, that the authority of the Crown to stand by up to 48 prospective jurors violated s. 11(d) of the Charter . The court reasoned that the availability of stand bys created an imbalance in the Crown’s ability to shape the composition of the jury. This undermined the appearance of a fair trial: Bain , at pp. 102-4, per Cory J., at p. 161, per Stevenson J. [27] Parliament responded to the decision in Bain by removing the stand by authority of the Crown and equalizing the number of peremptory challenges as between the Crown and accused: An Act to Amend the Criminal Code (Jury) , S.C. 1992, c. 41, s. 2. [28] Finally, in 2019, Parliament repealed s. 634 of the Criminal Code , thus abolishing peremptory challenges previously available to the parties under that section: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts , s. 269. At the same time, the stand by authority of the judge presiding over jury selection was expanded in a new s. 633 which provides: The judge may direct a juror who has been called under subsection 631(3) or (3.1) to stand by for reasons of personal hardship, maintaining public confidence in the administration of justice or any other reasonable cause. [Emphasis added.] [29] These amendments came into force on September 19, 2019. The Challenge under Section 11(d) of the Charter [30] Section 11(d)’s guarantee of a right to a fair trial was central to the appellant’s claim that the abolition of peremptory challenges is unconstitutional. The trial judge concluded otherwise. And I agree. [31] I begin with a brief reference to the trial judge’s reasons for rejecting the appellant’s claim before turning to the arguments advanced on the same issue, the principles which control my decision, and the conclusion those principles mandate in this case. The Reasons of the Trial Judge [32] The trial judge considered whether the abolition of peremptory challenges violates the accused’s s. 11(d) right to a fair trial by asking whether a reasonable person, fully informed of the circumstances, would have a reasonable apprehension of bias. He concluded such a person would not. [33] The trial judge emphasized the strong presumption of jury impartiality and the stringent standard required to rebut it. The limited number of peremptory challenges available to each side depending on the seriousness of the offence underscored that the peremptory challenge was not an unlimited right. Moreover, there were a number of safeguards which ensured an independent and impartial jury: i. an accused’s right to a representative jury panel, but not to a jury representative of the population or made up of members of the accused’s gender, group, or race; ii. the randomness of both the out-of-court process to compile the jury rolls and of the in-court process to select the jury for trial; iii. the availability of unlimited challenges for cause upon a preliminary showing of a reasonable prospect of partiality; iv. the discretion of the trial judge to excuse prospective jurors; and v. the discretion of the trial judge to stand by prospective jurors not only for personal hardship or other reasonable cause, but also to maintain public confidence in the administration of justice. [34] The trial judge concluded abolition of peremptory challenges does not infringe s. 11(d): Our criminal justice system should strive for transparency and openness. The ability to exclude a potential juror based simply on their appearance, their look, or a person’s gut feeling, without furnishing a reason, is not transparent. The elimination of the peremptory challenge does make the justice system more transparent, but without removing either parties’ ability to set aside potential jurors for articulable reasons. A reasonable person, fully informed of the safeguards available in our selection process for Canadian jurors, could not reach the conclusion that an accused’s right to an independent and impartial jury would be violated by the elimination of the peremptory challenge. It is for these reasons that the repeal of s. 634 does not violate the accused’s constitutional rights pursuant to s. 11(d). The Arguments on Appeal [35] The parties and interveners each made submissions on this issue. The Criminal Lawyers’ Association (“CLA”) supported the position of the appellant. Aboriginal Legal Services (“ALS”) and the Attorney General of Canada (“AG Canada”) aligned with the respondent (the provincial Crown). The Appellant’s Position [36] The appellant principally takes issue with two aspects of the trial judge’s reasons. [37] First, the appellant says that the test under s. 11(d) must include the accused’s perception. Courts have recognized widespread racial prejudice and discrimination in the criminal justice system. The trial judge erred when he failed to take into account this well-documented fact. According to the appellant, widespread racism rebuts the presumption of juror impartiality in cases where the accused is racialized and necessitates a right to peremptory challenges. The appellant submits that, in assessing his s. 11(d) claim, the trial judge had to ask himself whether a reasonable person, in the position of a racialized or otherwise marginalized accused, fully informed of the circumstances, would have a reasonable apprehension of bias when unable to challenge prospective jurors peremptorily. [38] Second, the appellant submits the trial judge erred in finding that the other safeguards available in the jury selection process were sufficient to protect the appellant’s s. 11(d) interests. For example, the appellant contends representativeness and randomness do not weed out bias. Rather, they ensure that some prospective jurors will have racist beliefs and become involved in the selection process. Similarly, while the challenge for cause is a tool to root out potentially racist jurors, it is a coarse filter. Its “yes” or “no” answers to the questions and rejection of demeanour as a determinant allow some prospective jurors with racist beliefs to slip through the cracks. And while the presiding judge has the power to excuse and stand by potential jurors, these powers are not linked to issues of potential bias or prejudice and are exercised by the judge without participation by the accused or their counsel. The expanded stand by ground – “maintaining public confidence in the administration of justice” – adds nothing to the former authority. [39] In making these arguments, the appellant emphasizes that peremptory challenges were an important tool for an accused. They helped to ensure that justice was seen to be done. And they gave an accused at least some minimal control over who would decide their case. This fostered confidence in the fairness of the trial process and promoted acceptance of the verdict ultimately rendered, even if adverse to the accused’s interest. [40] The CLA supports the appellant’s position and adds that peremptory challenges allow an accused to challenge prospective jurors who acknowledge biases but are not eliminated during the challenge for cause procedure; or who are disinterested or dishonest, something that the remaining safeguards cannot achieve. Absent peremptory challenges, an accused has no other means to eliminate their residual concerns about such persons. Most jurisdictions have retained peremptory challenges, which, the CLA adds, is evidence peremptory challenges are necessary to ensure a fair and impartial hearing by an independent tribunal. The Respondent’s Position [41] The respondent disagrees with the s. 11(d) test put forward by the appellant and his submissions on the impact of the safeguards on the accused’s right to a fair trial. The respondent emphasizes that no party, including an accused, has a constitutional right to shape the composition of the jury in their ideal image. Section 11(d) does not protect a statutory right to exclude a limited number of prospective jurors for no reason, or for purely speculative inarticulate reasons with no connection to impartiality and often fuelled by stereotypical attitudes. [42] According to the respondent, the trial judge applied the correct test for deciding the s. 11(d) claim, that is, whether a reasonable person, fully informed of the circumstances (including the strong presumption of juror impartiality), would have a reasonable belief the trial was unfair. The perspective is holistic, from the vantage point of a reasonable, informed observer. [43] The respondent contends that other safeguards in the jury selection process, when considered cumulatively, would lead a reasonable person, fully informed of these safeguards, to conclude that the process was fair and likely to ensure an impartial jury. [44] AG Canada supports the respondent’s position and adds that peremptory challenges have a minimal effect on juror impartiality. It is pure happenstance if a peremptory challenge excludes a partial juror. It is just as likely to exclude an impartial one as a partial one. The elimination of peremptory challenges does not impermissibly limit s. 11(d) simply because it reduces the accused’s level of involvement in the selection process. A reasonable person fully informed of the circumstances (including the presumption of juror impartiality, the juror’s oath or affirmation to deliver a verdict based on the law and facts of the case, as well as the various trial safeguards to ensure impartiality) would not conclude the abolition of peremptory challenges undermines the accused’s right to a fair trial by an impartial jury. [45] ALS also supports the respondent’s position and adds that peremptory challenges perpetuate discrimination against Indigenous persons. Ridding the jury selection process of a tool used to discriminate against Indigenous persons ensures, rather than impairs, trial fairness. The Governing Principles [46] Section 11(d) of the Charter guarantees to any person charged with an offence the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. [47] The appellant focuses on two aspects of the s. 11(d) right: i. a fair hearing; and ii. an impartial tribunal. The Right to a Fair Hearing [48] Section 11(d) guarantees the accused and community perceive the trial to be fair. It guarantees the trial satisfies its truth-seeking function. And it guarantees the accused basic procedural fairness: R. v. Harrer , [1995] 3 S.C.R. 562, at para. 45. All of this within the practical limits of the justice system: R. v. Find , 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 28. [49] But s. 11(d) does not guarantee a particular trial process. Nor does it guarantee the process most advantageous to the accused: R. v. Rodgers , 2006 SCC 15, [2006] 1 S.C.R. 554, at para. 47; United States of America v. Ferras ; United States of America v. Latty , 2006 SCC 33, [2006] 2 S.C.R. 77, at para. 14; R. v. Lyons , [1987] 2 S.C.R. 309, at p. 362; Harrer , at para. 45. [50] When, as here, Parliament alters the jury selection process and the alteration is challenged under s. 11(d), the focus of our inquiry is on whether the effect of the change renders the trial unfair, whether by undermining the guarantee of impartiality or otherwise: R. v. Kokopenace , 2015 SCC 28, [2015] 2 S.C.R. 398, at para. 48. [51] Our courts have long recognized the importance of peremptory challenges and the benefits that they bring to the jury selection process. For example, an accused may lack sufficient information to bring a challenge for cause yet encounter a prospective juror whom they may feel is unsuitable to be a member of the trial jury. In some circumstances, peremptory challenges may assist in empanelment of a more representative jury depending upon both the nature of the community and the accused: see R. v. Sherratt , [1991] 1 S.C.R. 509, at pp. 532-33. See also R. v. Yumnu , 2010 ONCA 637, 260 C.C.C. (3d) 421, at paras. 123-24, aff’d 2012 SCC 73, [2012] 3 S.C.R. 777. [52] Unlike challenges for cause, peremptory challenges permit the direct involvement of the accused in the jury selection process. This enhances the confidence of the accused, and perhaps the public, in the fairness and transparency of the process. Peremptory challenges also provide a safety valve, within their inherent limitations, to remove prospective jurors who appear unsuitable for the adjudicative task ahead because they appear uneasy, unwilling, or overeager to embrace it. [53] On the other hand, we also recognize that peremptory challenges may not always advance the cause of a fair hearing and the selection of an impartial jury. [54] As the descriptive “peremptory” suggests, these challenges are by nature arbitrary and subjective. It is very difficult for counsel in a moment to forecast, let alone to do so accurately, a prospective juror’s beliefs and attitudes based on that person’s race, gender, age, ethnic origin, demeanour, or manner of dress. An arbitrary measure is not designed to secure an impartial jury. [55] Peremptory challenges may also be a source of juror frustration and humiliation, all the more so when they are exercised after the prospective juror has been found to be impartial on a challenge for cause. [56] In addition, peremptory challenges can enhance or facilitate discrimination against racialized or marginalized prospective jurors. This is so because the exercise of peremptory challenges may often be based on assumptions, stereotypes, or prejudices. The result is a diminution rather than an enhancement of representativeness in the trial jury. [57] At bottom, peremptory challenges are not an effective tool for weeding out biased jurors. They are exercised arbitrarily, relying on guess work and uncertain mythologies about those most likely to react unfavourably to the challenger’s case. [58] The legislative history in this case reveals that both houses of Parliament and their respective legislative committees were well aware of both sides of the debate about the value of peremptory challenges as a mechanism to promote the empanelment of an impartial jury and ensure the fair trial rights of the accused. The committees of both houses received evidence and submissions from practitioners and scholars arguing for and against the elimination of peremptory challenges. In the end, Parliament determined that their potential for abuse outweighed their benefits as part of a selection process designed to ensure a fair trial and the empanelment of an impartial jury. This cost-benefit analysis was for Parliament to undertake. Parliament made its decision. That decision must be respected by the court unless the statutory result is unconstitutional. [59] Some other common law jurisdictions have come to the same conclusion. The abolition of the peremptory challenge in Northern Ireland provides an example. After Northern Ireland abolished the peremptory challenge, a court ruled that the abolition did not violate an accused’s right to a fair trial under art. 6 of the European Convention on Human Rights , E.T.S. 5, (4 November 1950), because peremptory challenges were not indispensable to the fair trial right. The court reasoned that the clear and proper public objective underpinning their removal (ensuring that the trial process is fair and delivers justice for defendants, victims and society at large) represented a fair balance between the general interest of the community and the personal rights of the individual: McParland, Re Judicial Review , [2008] N.I.Q.B. 1, at para. 52. [60] In Canada, Parliament has similarly decided to abolish peremptory challenges. In deciding whether that abolition violates s. 11(d), the court must ask itself whether the effect of that change renders the trial unfair, whether by undermining the guarantee of impartiality or otherwise. The Right to an Impartial Tribunal [61] Section 11(d) includes the right be tried by an impartial jury: R. v. Williams , [1998] 1 S.C.R. 1128, at para. 48. [62] To determine whether a tribunal is impartial, the question is whether a reasonable person, fully informed of the circumstances, would have a reasonable apprehension of bias: Kokopenace , at para. 49 ; Bain , at pp. 101, 111-12 and 147-48. The informed person begins their analysis with a strong presumption of juror impartiality and a firm understanding of the numerous safeguards in the jury selection process designed to weed out potentially biased candidates and to ensure that selected jurors will judge the case impartially. The reasonable apprehension of bias has never hinged on the existence of a jury roll or, for that matter, a jury that proportionally represents the various groups in our society: Kokopenace , at para. 53; Find , at paras. 26, 41-42 and 107; Williams , at para. 47. [63] The test for impartiality includes a twofold objective component. First, the observer. The person considering the alleged bias must be reasonable. The observer must be informed of the relevant facts and view the matter realistically and practically. The reasonable observer does not depend on the views or conclusions of the accused: R. v. S. (R.D.) , [1997] 3 S.C.R. 484, at para. 111, per Cory J.; R. v. Dowholis , 2016 ONCA 801, 341 C.C.C. (3d) 443, at para. 20. Second, the apprehension of bias. That too must be reasonable in the circumstances of the case: S. (R.D.) , at para. 111, per Cory J. [64] In applying the test for impartiality, a court must be cognizant of the well-established and undisputed fact that racial prejudice can lead to a risk of empanelling prejudiced jurors who will not give a racialized accused a fair trial. As this court observed more than two decades ago in R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.), at p. 369, leave to appeal refused, [1993] S.C.C.A. No. 481: Racism, and in particular anti-black racism, is part of our community’s psyche. A significant segment of our community holds overtly racist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. Furthermore, our institutions, including the criminal justice system, reflect and perpetuate those negative stereotypes. These elements combine to infect our society as a whole with the evil of racism. See also Williams , at para. 58. [65] It is also an established fact that widespread prejudice affects juries. It introduces the risk that jurors may not be impartial because of racial prejudice. Partiality, in the sense relevant to s. 11(d), has both an attitudinal and behavioural component: Parks , at p. 364; Find , at paras. 32-33. In order to be partial a juror must not only hold biased views but also allow these to influence their deliberation. [66] Various in-court mechanisms are available to protect against juror bias and ensure the constitutional guarantee of an impartial jury is met. Notably, s. 638(1)(b) of the Criminal Code permits an accused and the Crown to exercise any number of challenges for cause on the ground that “a juror is not impartial”. The challenge for cause is a two-stage process. First, the judge must determine whether there is a realistic potential or possibility for partiality. Second, if the judge permits challenges for cause, potential jurors are questioned to determine if they will be able to act impartially: Williams , at paras. 32-34. [67] Other in-court mechanisms also protect against jury partiality. For example, s. 632(c) of the Criminal Code permits the presiding judge, at any time before the commencement of the trial, before or after the juror’s card has been selected by the registrar, or before the prospective juror has been challenged, to excuse the prospective juror for reasons of “personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused.” [68] Under s. 632(c), the presiding judge may alert the entire jury panel about the nature of the offence charged and invite those who would find it difficult to be a member of the jury chosen to try the case to identify themselves. After brief inquiry, the judge may excuse jurors on the basis of “personal hardship” or “any other reasonable cause”: R. v. B. (A.) (1997), 115 C.C.C. (3d) 421 (Ont. C.A.), at p. 443, leave to appeal refused, [1997] S.C.C.A. No. 461. This authority is not a substitute for a challenge for cause and must not be used to circumvent the threshold required for a challenge for cause: Sherratt, at pp. 533-34. This procedure also has the value of transparency: R. v. Barrow , [1987] 2 S.C.R. 694, at pp. 713-14. [69] Another in-court mechanism is the stand by authority of the presiding judge. Under the recently amended s. 633 of the Criminal Code , the presiding judge may stand by potential jurors for personal hardship, maintaining public confidence in the administration of justice, or any other reasonable cause. [70] This stand by authority is available after a prospective juror has been called under s. 631(3) or (3.1), and thus is available before or after a challenge for cause has been heard and its truth determined. The language of “personal hardship” and “any other reasonable cause” duplicates that in the excusal authority of s. 632(c). But the language “maintaining public confidence in the administration of justice” is new and, as a matter of statutory construction, covers different ground. In this case, for example, the trial judge used it to direct a prospective juror, who had been found impartial on the challenge for cause, to stand by. The basis for its exercise was the appellant’s belief, communicated to the trial judge through counsel, that a rude gesture had been made by the prospective juror when asked to face the appellant. [71] We did not receive any submissions that would permit me to mark out the boundaries of this additional authority. Suffice it to say that its presence is of further assistance in ensuring the constitutional requirement – an impartial jury. [72] Additional procedures also exist to ensure that the actual and apparent impartiality of the jury as empaneled continues throughout the trial. The opening instructions to the jury. Periodic reminders about the need to keep an open mind and to withhold judgment until deliberations. Mid-trial and final instructions about permitted and prohibited use of evidence. And, of course, the charge to the jury. [73] A final point concerns the role of representativeness in jury selection under s. 11(d) and its relationship to impartiality. [74] Representativeness is an important feature of the jury. But its meaning is circumscribed. Representativeness promotes impartiality through the process used to compile the jury roll, not through its ultimate composition: Kokopenace , at para. 54. An accused has no right to a jury roll of a particular composition. Nor to one that proportionally represents all the diverse groups in our multicultural society. Nor to a particular number of persons of the accused’s race on the jury roll or selected jury: Kokopenace , at para. 39; R. v. Church of Scientology (1997), 116 C.C.C. (3d) 1 (Ont. C.A.), at pp. 62-63, leave to appeal refused, [1997] S.C.C.A. No. 683. The Principles Applied [75] As I will explain, I agree with the trial judge that the abolition of peremptory challenges by the repeal of former s. 634 of the Criminal Code does not infringe the appellant’s rights as guaranteed by s. 11(d) of the Charter . [76] Preliminary to an assessment of this claim, it is helpful to recall the availability and nature of peremptory challenges and their role in the selection of a trial jury. In this way, we can establish what has been lost by their abolition, to better gauge whether the loss is of constitutional dimension. [77] The parties in a criminal prosecution, the accused and the Crown, have been able to challenge prospective jurors peremptorily for over 150 years. In exercising this right, as the descriptive “peremptory” attests, the challenge is decisive, dispositive of the prospective juror’s participation as a juror at trial. No ifs. No ands. No buts. End of story for the prospective juror peremptorily challenged. No questions asked. No reasons required, even if the prospective juror has been found impartial on a challenge for cause. [78] Second, by nature, a peremptory challenge is negative, exclusive not inclusive. Said in another way, it does not directly determine who will become a juror, rather, when exercised, it determines who will not serve in that capacity. [79] Third, peremptory challenges are not the exclusive property of the defence. They are equally available to the Crown. [80] Fourth, peremptory challenges are not unlimited. Their number has always been fixed by statute according to the nature of the offence charged or the sentence which can be imposed on conviction. [81] Fifth, the number of peremptory challenges available has varied over time. Yet their fluctuation in number throughout history has never been tied to the fairness of the trial or the impartiality of the jury. [82] Sixth, the dominant considerations which influence the exercise of peremptory challenges are subjective. They can and often are exercised, not on the basis of facts which have been or can be proven, but rather on the mere belief by a party in the existence of a certain state of mind in the prospective juror. Often, stereotypical reasoning is afoot in their exercise. No one gainsays that they are open to abuse. [83] Further, peremptory challenges have nothing to do with any pre-trial procedures designed to compose the jury roll in a manner that is at once random and representative of the population in the venue of trial. Nor do they have a say in the random in-court selection of prospective jurors, the authority of the presiding judge to excuse or stand by prospective jurors, or the challenge for cause process. [84] Bearing in mind these observations, I conclude that the appellant’s claim of an infringement of the fair hearing and impartial tribunal components of s. 11(d) fails. I say this for several reasons. [85] I begin with the nature of the right guaranteed by s. 11(d). A fair hearing by an impartial jury is the constitutional requirement. Neither component guarantees a particular process or that peremptory challenges are a part of that process. Nor does s. 11(d) guarantee that the process be the most advantageous to an accused or perfect in the eyes of an accused. What is required is a prevailing system of jury selection, consisting of the sum of its various components, that results in a fair trial. What remains after the abolition of peremptory challenges does so. [86] Second, and relatedly, the appellant’s exclusive focus on peremptory challenges and the effect of their abolition fails to recognize that it is the jury selection process as a whole, not each component, which must satisfy the constitutional standard. This includes not only the in-court process, such as its randomness, the authority to excuse and stand by jurors and the availability of challenges for cause, but also the out-of-court process to compose the jury roll. [87] Third, the appellant’s argument that peremptory challenges are essential to ensure an impartial jury has inherent in it a paradox. Impartiality is an objective standard or quality. Yet to achieve it, the appellant invokes peremptory challenges which he acknowledges are exercised for purely subjective, often stereotypical reasons. [88] There is no doubt that racial prejudice can lead to a risk of empanelling prejudiced jurors who are not impartial. However, the reality of racial prejudice and the risk of prejudiced and partial jurors does not elevate peremptory challenges to the level of a constitutionally guaranteed right. The limited number of peremptory challenges and their exercise based on inherently subjective considerations make them structurally incapable of solving for real or perceived racial bias, let alone necessary to secure the right to a fair hearing and impartial tribunal. [89] To the contrary, once a real risk of partiality has been established, the next step must be to identify and exclude all jurors who are partial. In the abstract, whatever mechanism is used to identify partiality must be applied to (or, at minimum, be capable of being applied to) every potential juror. This is because the risk of prejudice that the appellant identifies is a general one. It is a concern about the jury pool as a whole and is not limited to specific jurors. If every potential juror may be prejudiced or partial, then the “filter” for partiality must apply to all potential jurors. The peremptory challenge, by its very nature, cannot fill this role. [90] Fourth, the appellant overvalues the efficacy of peremptory challenges to ensure an impartial jury or a fair hearing. There is no evidence that the subjective considerations which underlie the exercise of peremptory challenges render them more likely to exclude potentially partial jurors than impartial jurors. And it scarcely follows from the availability of a fixed number of peremptory challenges that the remaining jurors are all likely to be impartial, especially where there is no challenge for cause. [91] Further, the standard applied to determine impartiality, as well as independence, is an objective standard. The question to be answered is whether a reasonable person, fully informed of the circumstances and relevant considerations, viewing the matter realistically and practically and having thought it through, would conclude that the jury was not impartial. The fully informed person must appreciate the existence of racism in society, but the application of this standard does not depend on the subjective views of the accused. [92] We recognize a strong presumption of juror impartiality. And we require cogent evidence, not conjecture or speculation, to rebut it. It is not rebutted by the existence of racism in society as a whole, nor by a determination that prospective jurors may be challenged for cause. Fully informed of the safeguards in place to ensure the selection of an impartial jury, and the in-trial mechanisms to ensure that the jury once empanelled remains so, the reasonable person would nonetheless have to conclude that, absent peremptory challenges, a jury would not likely decide the case fairly. No such conclusion would logically follow. [93] A final point concerns the impact of peremptory challenges on the representativeness of the jury which the appellant contends at least fosters, if not is essential to, an impartial jury. [94] This argument founders for at least two reasons. As we have seen, representativeness promotes impartiality through the process used to compile the jury roll, not through its ultimate composition. In addition, an accused is not entitled to a particular racial or ethnic composition of the jury selected for the trial. Thus, the availability of peremptory challenges to achieve something to which an accused is not constitutionally entitled does not make the abolition of those challenges unconstitutional. [95] The appellant’s argument that the elimination of peremptory challenges violates s. 11(d) of the Charter accordingly fails. The Challenge under Section 11(f) of the Charter [96] While the appellant accepts that this case turns primarily on his s. 11(d) argument, he also invokes s. 11(f) of the Charter to advance his case that the abolition of peremptory challenges infringes his right to the benefit of a trial by jury. I disagree. [97] Brief reference to the trial judge’s conclusion provides the necessary background to determine this issue. The Reasons of the Trial Judge [98] The trial judge rejected the claim under s. 11(f) in brief terms: I have already concluded that the safeguards in relation to the jury selection process that are in place are such that the elimination of peremptory challenges does not violate the accused’s rights to an impartial jury. The representativeness of the panel, the randomness of its selection and the ability for either party to challenge the process provide sufficient safeguards of the selection process. I cannot conclude that the accused’s s. 11(f) rights have been violated. The Arguments on Appeal The Appellant’s Position [99] The appellant says the trial judge restricted his examination of this issue to representativeness and, in doing so, failed to give proper effect to the nature of this s. 11(f) right – the benefit of trial by jury. To understand the “benefit of trial by jury” in a purposive way, “trial by jury” must have more than the trappings of a jury trial. [100] The appellant contends the right to challenge prospective jurors peremptorily is one of the baseline procedural guarantees necessary to give effect to the s. 11(f) right to “the benefit of trial by jury”. Because he could not challenge prospective jurors peremptorily, the appellant says he lost the ability to participate in the jury selection process, to challenge persons he believed were not impartial, and to select a jury with some persons of the same racial and cultural background as him. This eroded his confidence in the impartiality and independence of the jury. [101] The CLA agrees with the appellant and adds that many other common law countries permit peremptory challenges. This demonstrates the value of peremptory challenges in selecting an impartial jury, an essential feature of “the benefit of trial by jury”. The Respondent’s Position [102] The respondent says s. 11(f) of the Charter offers no additional constitutional guarantees than that for which s. 11(d) provides in the circumstances of this case. If the abolition of peremptory challenges does not infringe the appellant’s right to a fair trial by an independent and impartial jury under s. 11(d), it cannot contravene the right to the benefit of a jury trial under s. 11(f). [103] The focus of the s. 11(f) guarantee, the respondent says, is on the representativeness of the jury roll. An alteration to the in-court jury selection procedure does not, indeed cannot, offend s. 11(f), especially if it meets the standard in s. 11(d). There is no freestanding right to peremptory challenges. They are creatures of statute, not constitutional requirements to give effect to the benefit of a trial by jury. [104] AG Canada agrees with the respondent. AG Canada accepts that the role of representativeness is broader under s. 11(f) than under s. 11(d) but submits that the obligation of representativeness fixed on the state is the same under s. 11(f) as it is under s. 11(d). That obligation extends only to the process used to compile the jury roll. And it does not reach the in-court selection process where the ultimate composition of the jury is selected for trial. The Governing Principles [105] Section 11(f) of the Charter guarantees the benefit of a jury trial to an accused charged with an offence for which the maximum punishment is imprisonment for five years or a more severe punishment. A central component of this right is representativeness, which plays a larger role in the constitutional guarantee in s. 11(f) of the Charter . This is so because representativeness is a component of the right to the benefit of trial by jury. But the meaning assigned to representativeness under s. 11(f) is the same as that allotted to it under s. 11(d). Representativeness protects an accused’s right to an adequate selection process. The state discharges its obligation of representativeness when it provides a fair opportunity for a broad cross-section of society to participate in the jury process: Kokopenace , at paras. 55, 56, and 61. [106] An accused’s right to the benefit of a trial by jury does not extend to proportionate representation at any stage of the jury selection process: neither the process followed to compile the jury panel roll nor the in-court process to select the jury to try the issues on the indictment: Kokopenace , at paras. 70-71. See also R. v. Biddle , [1995] 1 S.C.R. 761, at paras. 56-58, per McLachlin J. (concurring). The Principles Applied [107] The challenge grounded on s. 11(f) of the Charter also fails. I reach this conclusion for three reasons. [108] First, the core of this dispute involves the impact of the abolition of peremptory challenges on the impartiality of the jury selected to try the case and the fairness of the trial. These are interests guaranteed more particularly by s. 11(d) of the Charter . In the absence of any infringement of s. 11(d), there can be no infringement of the right to a trial by jury as guaranteed by s. 11(f). [109] Second, although the role of representativeness is broader under s. 11(f) than under s. 11(d), the obligation imposed on the state remains the same. And that obligation relates to the process used to compile the jury roll, not the in-court selection process or the composition of the trial jury. [110] Finally, what remains is what s. 11(f) guarantees – “trial by jury”. The abolition of peremptory challenges does not change this. The Challenge under Section 7 of the Charter [111] The third and final ground of challenge to the abolition of peremptory challenges, one not vigorously pressed in oral argument, involves the guarantee in s. 7 of the Charter . The appellant says the abolition of the peremptory challenge is contrary to the principles of fundamental justice. I would not give effect to this ground of appeal. [112] A brief reference to the trial judge’s reasons is sufficient to sketch out the background on this issue. The Reasons of the Trial Judge [113] At trial, the appellant contended that the abolition of peremptory challenges infringed his right to liberty and security of the person. [114] The trial judge first considered whether the abolition compromised trial fairness, and thus breached s. 7: I find the applicant’s arguments under s. 7 based on trial fairness are subsumed in the ss. 11(d) and 11(f) analysis. Section 7 of the Charter dealing with trial fairness provides no greater protection than s. 11(d). [115] The trial judge then turned to three discrete, but related, claims of an infringement of s. 7: arbitrariness, gross disproportionality and overbreadth. He rejected each. [116] In rejecting the claim of arbitrariness, the trial judge said: I cannot conclude that the purpose of the legislation, including in relation to the removal of peremptory challenges, was to guarantee the representativeness of the jury. When examining the legislation itself, it would appear that one of the key purposes was to make the jury selection process more transparent and promote fairness. Eliminating the ability of both parties to challenge prospective jurors, without having to justify the reason, makes the jury selection process more transparent. It is clear from the amendment to s. 633 that if the individual party can articulate a reason why a prospective juror is not impartial or a reason why the juror needs to be stood aside to maintain the public’s confidence in the administration of justice, then the judge can do so. This results in an increased level of accountability and openness. I cannot conclude that the legislation is arbitrary in nature on this basis. The effect on the parties is rationally connected to the legislation’s purpose: Canada v. Bedford , at para. 111; Carter v. Canada (Attorney General) , 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 83. [117] In rejecting the claim of gross disproportionality, the trial judge wrote: As was determined earlier in these reasons, the abolition of peremptory challenges would not cause a reasonable and informed observer to conclude that accused persons will now be subject to unfair trials by juries that are not impartial or independent. This limits the applicant’s contention about the disproportionate effect of the legislation on accused persons. Further, the problem with the applicant’s argument is the new procedure and the existing safeguards provide both parties with an opportunity to raise concerns if they have articulable reasons why a prospective juror could not be impartial. What is being eliminated is the ability to remove otherwise qualified prospective jurors based on unspecified hunches, gut feelings and instincts. It also removes the ability of either party to seek a favourable jury. I cannot conclude the legislation eliminating the peremptory challenge is grossly disproportionate. [118] And in rejecting the claim that the abolition was overbroad, the trial judge reasoned: The last argument is that the repeal of the peremptory challenge is overbroad because the total elimination of the peremptory challenge will not result in a representative jury and prevent discrimination against minority jurors. To be overbroad in scope, the law must include some conduct that bears no relation to the purpose of the law: Canada v. Bedford , at para. 112. I cannot conclude the elimination of the peremptory challenge is overly broad in scope. The abolition of peremptory challenges, on its face, achieves what it sets out to do: increase transparency and openness in the Canadian jury selection process. It goes no further. For these reasons I find the elimination of the peremptory challenge does not violate s. 7 of the Charter. The Arguments on Appeal The Appellant’s Position [119] The appellant says s. 7 is concerned with capturing inherently bad laws. He argues that the overall purpose of the abolition of peremptory challenges was to address the underrepresentation of Indigenous persons on juries and concerns that peremptory challenges were being used in a discriminatory manner in the selection of juries. He says the legislation overshoots this purpose. [120] The trial judge, the appellant argues, erred in concluding that the purpose of the legislation was transparency, rather than ensuring the representativeness of the jury. Transparency is not a constitutional principle and is much too general to accord with s. 7 of the Charter . The elimination of peremptory challenges is arbitrary, overbroad, and grossly disproportionate because it does not accord with the legislation’s purpose. The Respondent’s Position [121] The respondent says that to the extent that the appellant’s arguments under s. 7 are grounded on trial fairness concerns, these arguments are subsumed into the s. 11(d) claim. Section 7 provides no greater or different protection than that offered by the fair hearing and impartial jury guarantees in s. 11(d). [122] In any event, the s. 7 argument fails at the threshold for want of any deprivation of liberty or security of the person. Moreover, even if the appellant could establish a deprivation of liberty or security of the person, the abolition of peremptory challenges does not overshoot the amendment’s remedial purpose, which is to eliminate the potential discriminatory use of peremptory challenges and to promote fairness, impartiality, and transparency in the jury selection process. [123] AG Canada adopts a similar approach. The Governing Principles [124] The appellant’s reliance on s. 7 does not require a forced march through the expanse of jurisprudence developed under the section. For the purposes of this appeal, it is enough to canvass only two aspects of the precedents. The first has to do with the threshold requirement arising out of the interests protected: “life, liberty and security of the person”. The second is concerned with the relationship between specifically protected rights and the more general language of s. 7. [125] First, the s. 7 trigger. [126] To trigger the operation of s. 7, an applicant must establish, and a court must find, a deprivation of the right to life, liberty, or security of the person: Blencoe v. British Columbia (Human Rights Commission) , 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 47; R. v. Beare , [1988] 2 S.C.R. 387, at p. 401. There must also be a sufficient causal connection between the state-caused effect and the resulting deprivation suffered by the claimant: Blencoe , at para. 60; Canada (Attorney General) v. Bedford , 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 75. [127] To demonstrate an interference with security of the person, an applicant must show either: i. interference with bodily integrity and autonomy, including deprivation of control over one’s body; or ii. serious state-imposed psychological stress. Bogaerts v. Ontario (Attorney General), 2019 ONCA 876, at para. 52. See also Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at paras. 66-67; Blencoe , at paras. 81-86. [128] Where the interest involved under s. 7 is liberty, there must not be any intermediate steps between the operation of the provision and the deprivation of liberty. A court is not entitled to speculate about the possible eventual outcome to bring the case within s. 7: Bogaerts , at para. 49. [129] Second, the relationship between specific enumerated rights and the rights afforded by s. 7. [130] As a matter of general principle, when both a specific guarantee and a claim under s. 7 are advanced in respect of the same state conduct, courts should determine the issue under the specific guarantee: Canada (Attorney General) v. Whaling , 2014 SCC 20, [2014] 1 S.C.R. 392, at para. 76; Harrer , at para. 13; R. v. Généreux , [1992] 1 S.C.R. 259, at p. 310. [131] The right to a fair hearing is specifically protected under s. 11(d). But it is also a principle of fundamental justice within s. 7: Harrer , at para. 40. Section 7 does not offer greater protection to a fair hearing or impartial jury tribunal than the specific guarantee afforded by s. 11(d): Généreux , at p. 310. It would seem logically to follow that: i. the claim should be adjudicated under the specific guarantee of s. 11(d), rather than under s. 7; and ii. the determination under s. 11(d) is dispositive of the claim under s. 7. The Principles Applied [132] The appellant did not vigorously pursue his claim of an infringement of s. 7 of the Charter . In any event, I would not give effect to it for two principal reasons. [133] The first is that the appellant cannot establish a causal connection between the abolition of peremptory challenges and the deprivation of his right to liberty or to the security of his person. [134] Where the liberty interest is involved, there must not be any intermediate steps between the operation of the provision – the abolition of peremptory challenges in the selection of the trial jury – and the deprivation of liberty. But there are many such steps here including those essential to proof of guilt. The necessary causal connection is wanting. [135] Where the security of the person interest is invoked, the appellant must show either an interference with bodily integrity and autonomy or serious state-imposed psychological stress as a result of the abolition of peremptory challenges. Neither has been demonstrated. [136] The second reason for dismissing the s. 7 argument has to do with the essence of the appellant’s claim focused on trial fairness and an impartial jury. These interests are specifically protected under s. 11(d). Section 7 adds nothing to their content. The rejection of this claim under s. 11(d) for the reasons earlier provided is dispositive of the claim under s. 7. Ground #2: The Constitutionality of Substituting the Judge as the Trier of the Challenge for Cause [137] This ground of appeal focuses on the amendment to s. 640 of the Criminal Code , which designates the judge presiding over jury selection as the arbiter of all challenges for cause. Previously, most, but not all, challenges for cause were decided by lay triers. The appellant says this amendment violates their ss. 11(d), 11(f), and 7 Charter rights. I disagree. [138] The origins of the challenge for cause, the trial judge’s reasons, the parties’ positions, and the principles which inform my decision provide a suitable cadre within which to assess this ground of appeal. The Background [139] Canadian law has always afforded parties the right to challenge prospective jurors for cause. But the nature of this right has changed over time. The main challenge for cause ground with which we are concerned here – partiality – has always been decided, prior to September 19, 2019, by two lay triers. [140] More specifically, the first consolidated procedural statute and the 1892 Criminal Code gave parties an unlimited right to challenge prospective jurors for specific causes listed in the governing statute, provided they met the threshold required to do so. The impartiality of the prospective jurors was the most frequently invoked challenge for cause. Lay triers decided the challenge for cause. [141] This feature remained through the various iterations of the Criminal Code . Immediately before its most recent amendment, s. 638(1) of the Criminal Code listed the only six grounds on which prospective jurors could be challenged for cause, including on the basis of juror impartiality. Section 640 governed the trial of challenges for cause. The presiding judge was responsible for determining the truth of the challenge that the prospective juror’s name did not appear on the panel. But otherwise, all challenges for cause were determined by lay triers. [142] Effective September 19, 2019, s. 640 of the Criminal Code, as it then read, was repealed. It was replaced by a new provision that did away with lay triers and made the presiding judge the trier of the truth for all challenges for cause. Section 640(1) describes the presiding judge’s role as trier: If a challenge is made on a ground mentioned in section 638, the judge shall determine whether the alleged ground is true or not and, if the judge is satisfied that it is true, the juror shall not be sworn. [143] Section 640(1) also describes the consequence of a finding that the challenge for cause is true: the prospective juror “shall not be sworn.” The consequences of a finding that the challenge is not true are not specified. The Reasons of the Trial Judge [144] The trial judge rejected the appellant’s claim that substituting the presiding judge for lay triers as the arbiter of the truth of the challenge for cause, infringed ss. 11(d), 11(f) and 7 of the Charter and could not be justified under s. 1. The essence of his reasons for doing so appears in the following three paragraphs of his decision: The elimination of the triers and the replacement with the trial judge, in my view, in no way usurps the independence of the jury or impacts on the jury’s impartiality. The amendments actually increase transparency, and the independence of the actual jury, who must decide the guilt or innocence of the accused. The jury members will no longer have to make determinations in relation to the impartiality of other jurors and, when selected, can concentrate on their primary goal, which is determining the guilt or innocence of the accused. For these reasons, I cannot conclude that the amendments to s. 640 of the Criminal Code violate any or all of ss. 11(d), 11(f) and 7 of the Charter . Since the applicant’s concerns with the amended challenge for cause procedure pertain only to the independence and impartiality of the jury, these concerns are subsumed under ss. 11(d) and 11(f) and, therefore, there is no need to assess this amendment separately under s. 7 of the Charter . The Arguments on Appeal The Appellant’s Position [145] In this court, the appellant characterizes the amendment of s. 640(1) as involving a significant change to a well-established process to determine how jurors are selected. In effect, with the abolition of peremptory challenges, the judge, not the parties, decides the composition of the jury. This, the appellant says, results in a jury that is not independent of the judge. It has consequences for an accused’s perception of the fairness of the process and the impartiality of the jury: the judge is seen as an arm of the state and the jury a mere extension of the judge. And it also excludes the direct participation of the community in the selection of the jury. The amendment leaves an indelible imprint on the appellant’s substantive rights and rises to the level of a constitutional infringement not justified by s. 1 of the Charter . The Respondent’s Position [146] The respondent says the substitution of one trier for another has no effect on the accused’s right to challenge prospective jurors for cause based on partiality. Rather, the amendment reaffirms the challenge for cause as an essential safeguard of an accused’s s. 11(d) right to a fair trial and an impartial jury. [147] The assertion that the judge is aligned with the state, thus not independent, the respondent contends, is also untenable. Like jurors, judges are presumed to be impartial. And like jurors, this presumption is not easily dislodged by a simple say-so. Substituting the presiding judge as decision-maker of the truth of the challenge for cause increases the transparency of the decision-making process and gives the parties a greater participatory role. [148] Further, the respondent submits, the appellant’s claim that the jury is no longer a self-selecting and self-governing entity as it was when lay triers presided over a challenge for cause cannot be sustained. Under the former scheme, if the accused chose static triers, those triers need not be members of the jury panel and would never become trial jurors. Even with rotating triers, the first two triers need not be members of the jury panel and would not become trial jurors. It overstates the case to say that the jury self-selected. [149] AG Canada agrees and underscores what it characterizes as the purpose underlying the amendment – to bring greater fairness and transparency to the jury selection process. An accused does not have a constitutional right to a particular process to determine the truth of a challenge for cause. To designate judges rather than lay triers as the decider of the truth of the challenge for cause on grounds of partiality does not undermine trial fairness or compromise the independence or impartiality of the jury. The strong presumption of judicial impartiality is not dislodged by the subjective perception of the person on trial that the judge is part of the state, thus aligned with the Crown. The Governing Principles [150] The appellant challenges the amendment to s. 640(1) substituting the presiding judge for lay triers as triers of the truth of the challenge for cause on the same grounds – ss. 11(d), 11(f), and 7 of the Charter – as he invoked in his challenge to the abolition of peremptory challenges. The principles which inform the operation of those provisions were canvassed at length in connection with the first ground of appeal. No useful purpose will be achieved by their repetition here. Three brief reminders will suffice. [151] First, the test for independence and impartiality of a tribunal is the same: whether a reasonable person, fully informed of the circumstances, viewing the matter realistically and practically and having thought the matter through, would conclude that the decision-maker is not likely to decide the issue fairly: Kokopenace , at para. 49; Valente v. the Queen , [1985] 2 S.C.R. 673, at p. 689; S. (R.D.) , at para. 111, per Cory J. [152] Second, the ultimate requirement of a system of jury selection is that it results in a fair trial. A fair trial is not a perfect trial. It is not the most advantageous trial possible from the perspective of the accused. Nor is it a trial made in the accused’s image. What constitutes a fair trial takes into account not only the perspective of the accused, but also the practical limits of our system of justice and the interests of others involved in the process, including the public. Our law demands fundamentally fair, not perfect justice: Find , at para. 28. [153] Third, the selection of an impartial jury is crucial to a fair trial. The accused, the Crown and the public at large have the right to be sure that the jury selected is impartial and the trial fair. No single step in the selection process is dispositive of either issue. The machinery to ensure both has many parts each of which has its own function to ensure these ends are achieved: Barrow , at pp. 710, 714. The Principles Applied [154] In combination, several reasons persuade me that the substitution of the presiding judge for lay triers as the trier of the truth of the challenge for cause does not contravene ss. 11(d), 11(f), or 7 of the Charter . [155] First, the substitution of the presiding judge as the arbiter of the truth of the challenge for cause does not compromise the independence of the jury. The standard the judge applies in determining the question of impartiality which frames the challenge is identical to that applied by lay triers. Like lay triers, the judge benefits from a strong presumption of impartiality. And, as in the case of lay triers, the presumption is only rebutted by cogent evidence. The subjective beliefs of an accused that a judge is tethered to the state is not evidence. Indeed, the practice as it has developed since September 19, 2019, albeit not statutorily mandated, is to permit the parties to make submissions about each prospective juror’s impartiality. This procedure was not followed with lay triers, whether rotating or static. [156] Second, the substitution of the presiding judge as the trier of the truth of the challenge does not compromise the impartiality of the jury. Prospective jurors found not to be impartial by the judge must not be empanelled as jurors for the trial. Section 640(1) of the Criminal Code makes this clear. And those found impartial may yet be subject to excusal or being stood aside by the trial judge. To preserve impartiality, various in-trial mechanisms serve as antidotes to counter bias, especially the ability to provide jurors with instructions throughout and at the end of the trial. [157] Third, it is the jury selection process itself that must be fair and uncompromising of the trial jury’s independence and impartiality. Whether the process, taken as a whole, achieves this standard is not determined by asking whether it conforms with or departs from anyone’s ideal or includes or omits specific components previously included. Substituting a single trier for a pair of triers, each presumed impartial and applying the same standard to determine the question framed for their decision, compromises neither the independence nor the impartiality of the trial jury or the process of its selection. [158] Fourth, the self-selecting nature of the lay trier procedure is not constitutionally mandated. What is more, the term “self-selecting” rather overstates the previous scheme of lay triers in assessing the truth of a challenge for cause. Static triers would never become jurors. Neither would the first pair of rotating triers. And, in both cases, findings of impartiality could be overtaken by peremptory challenges under that same regime. [159] Finally, the assignment of the presiding judge to the role of trier of the truth of the challenge for cause does not compromise the traditional division of responsibilities between judge and jury in a criminal trial. Parliament has always assigned a role in decisions about challenges for cause to the presiding judge. For example, to determine whether a juror’s name was on the panel. Or what to do if lay triers were unable to make a decision within a reasonable time on a challenge for cause. Or choosing lay triers. And instructing the lay triers. This is not a usurpation of a role assigned to others. [160] What I have said is sufficient to reject the claim of infringement under s. 11(d). For the reasons given on the first ground of appeal, this finding also compels the same fate for the arguments that the substitution breaches ss. 11(f) and 7 of the Charter . Ground #3: The Temporal Application of the Amendments [161] What remains to be decided is the temporal application of the amendments abolishing peremptory challenges and replacing lay triers as the decision-makers on the challenge for cause with the presiding judge. This determination requires consideration not only of common law principles, but also the Interpretation Act , R.S.C. 1985, c. I-21, because no transitional provisions have been included in the amending legislation in connection with either amendment. [162] I conclude the abolition of the peremptory challenge applies prospectively, that is to say, only to cases where the accused’s right to a trial by judge and jury vested on or after September 19, 2019. Conversely, I conclude the amendment making the presiding judge the trier of all challenges for cause applies retrospectively, that is to say, to all cases tried on or after September 19, 2019, irrespective of when the right vested. [163] A brief reference to the procedural history of this case provides the necessary background. The Procedural History [164] The appellant is alleged to have committed first degree murder on September 30, 2016. As a person charged with an offence listed in s. 469(a)(viii) of the Criminal Code , the appellant’s trial was to be held in the Superior Court of Justice. And, absent consent from both the appellant and the Attorney General, the trial was to be conducted by a judge and jury. This mode of trial was confirmed by the preferment of a direct indictment which mandates a jury trial: see Criminal Code , s. 577(a). [165] When the appellant was first charged and later when he was directly indicted, both he and the Crown had the right to challenge 20 prospective jurors peremptorily. If permitted to challenge prospective jurors for cause, the appellant was entitled to have the truth of each challenge determined by lay triers according to the procedures then available. Neither the appellant nor the Crown would be required to exercise a peremptory challenge until the lay triers had first been satisfied the prospective juror was impartial. [166] These rights to challenge prospective jurors, whether for cause or peremptorily, remained inchoate until the appellant’s trial began. Until that time, the appellant could do nothing to implement them. [167] Jury selection for the appellant was scheduled to commence on September 19, 2019. That same day the amendments abolishing peremptory challenges and making the presiding judge the trier of all challenges for cause came into force. The Ruling of The Trial Judge [168] After the trial judge had concluded that both amendments were constitutionally sound, counsel made brief submissions about the temporal application of the amendments. The trial judge held that the amendments applied retrospectively in brief terms: I find that the legislative amendments are procedural in nature. They impact the process of selecting the jury. I conclude the peremptory challenge is not a substantive right that stands on its own. I agree with the conclusion of my brother Thomas J. in R. v. Thomas Lako and William McDonald , 2019 ONSC 5362. For this reason, following Dineley , I am satisfied the repeal of s. 634 and the amendments to s. 640 of the Criminal Code are retrospective in nature. [169] The jury selection proceeded according to the trial judge’s ruling. Neither the Crown nor the defence was permitted to challenge prospective jurors peremptorily. The trial judge determined the truth of each challenge for cause. In other words, jury selection proceeded in accordance with the amendments which came into force on September 19, 2019. The Arguments on Appeal [170] The arguments on this issue are primarily those of the parties. The Appellant’s Position [171] The appellant acknowledges the divided trial level authorities on this issue, and the diverging viewpoints among prosecutorial services across Canada. [172] The appellant says that the trial judge erred in holding the amendments abolishing peremptory challenges and replacing lay triers of the challenge for cause with the presiding judge operate retrospectively, that is to say, that they apply to all cases (new and pending) as of September 19, 2019 irrespective of when the offence occurred or charges were laid. [173] The appellant does not contest the general rule that procedural amendments apply to cases pending when the amendment comes into force. But to engage this rule, which is a general but not unyielding rule, the amendments under consideration must be purely procedural, not tinctured with substantive features. And the rule does tolerate exceptions. [174] To begin, the appellant reminds us that, absent clear language to the contrary, Parliament does not intend the laws it enacts to operate retrospectively. Admittedly, this general rule against retrospective operation is turned on its head when the amendment in issue is purely procedural. But the question of temporal application is not decided simply by characterizing an amendment as procedural or substantive. For even if the amendment is by nature procedural, further inquiry is necessary to determine whether the amendment affects a substantive right, and thus cannot operate retrospectively. [175] In this case, the appellant contends the amendments have procedural aspects about them but they affect substantive rights that the appellant acquired before the amendment came into force: the right to challenge prospective jurors peremptorily and thus to have a say in the composition of the trial jury, and the right to have lay triers determine the truth of the challenges for cause in a manner of the appellant’s choosing. The appellant is similarly situated to the appellant in R. v. R.S. , 2019 ONCA 906. He did all he could have done in advance of the amendments to convert his inchoate rights to reality. If his trial had begun and proceeded to jury selection before September 19, 2019, he would have exercised those rights. [176] The appellant says the amendments are not purely procedural because of their substantive effect on his right to a fair trial in which his guilt is determined by an independent and impartial jury. The removal of his right to challenge 20 jurors peremptorily deprived him of a valuable tool to select an impartial jury. And the substitution of the presiding judge for lay triers to determine the truth of the challenges for cause undermined the jury’s independence and impartiality. This affected the jury’s composition and requires a new trial. The Respondent’s Position [177] The respondent characterizes the amendments as purely procedural in nature and invokes the presumption that such amendments apply to both pending and future cases to support the conclusion reached by the trial judge about their temporal application. [178] The respondent acknowledges that the presumption that procedural law applies retrospectively is rebuttable when the provisions affect substantive rights. But the respondent says the exception is not at work here because the substantive right in issue – a fair trial by an impartial jury – is not compromised or otherwise affected by either amendment or both amendments in combination. No one has a vested right in procedure, including the procedure followed to select a jury. [179] The respondent contends that in determining whether the presumption of retrospectivity for procedural enactments applies, our task is not simply to affix one label – “procedural” – instead of another – “substantive” – to the amendment. What is required is a functional inquiry to determine whether the amendment affects substantive rights. [180] The repeal of peremptory challenges, the respondent argues, does not affect any substantive right of the appellant. He is not denied the right to have a jury trial. Unlike the situation in R.S. , in which the amendment removed the preliminary inquiry and the prospect of discharge for those entitled to it, the right to a jury trial does not include the right to a particular procedure for jury selection or composition of the trial jury. An amendment that is fundamentally procedural in nature only becomes substantive where it affects or compromises a substantive right such as those at play in the fair hearing or independence and impartiality components of the right to trial by a jury. [181] In this case, as the respondent characterizes it, the repeal of the right to challenge prospective jurors peremptorily did not affect the appellant’s right to a fair trial by an independent and impartial jury. Other out-of-court and in-court safeguards ensured the independence and the initial and continued impartiality of the trial jury. The appellant was not entitled to a favourable or ethnically and racially balanced trial jury. Nor did the amendment to the challenge for cause procedure affect the appellant’s substantive rights. All that occurred was a re-ordering of responsibility for trial of the truth of the challenge for cause according to the same standard or test. Rather than instructing others on the test, the presiding judge self-instructs and makes the decision. [182] Finally, the respondent specifically rejects any reliance on the proviso in s. 686(1)(b)(iv) to save as harmless any errors in the trial judge’s conclusion. The Governing Principles [183] The principles governing the temporal application of statutory amendments are well settled. They derive from two sources, the common law and the Interpretation Act . But, as the precedents marshalled in written submissions and oral argument on this appeal show, they lack consistency in their application. This is because neither of the prevalent descriptors – “retrospective” and “prospective” – are entirely satisfactory or unfailingly accurate. To the extent possible, I describe the temporal application of the new amendments by reference to the events to which they relate. [184] To begin, absent transitional provisions, the courts must decide whether the new legislation applies only to events or conduct occurring on or after the legislation comes into effect (prospectively), or whether it applies as well to prior events or conduct which is the subject of pending litigation when the new legislation comes into effect (retrospectively). The common law developed several principles to inform decisions about the temporal application of legislation which amended, repealed, or replaced legislation previously in force without any transitional provisions to define its application. The Interpretation Act also provides further direction. [185] As a matter of first principle, the common law presumes legislation does not apply retrospectively to events or conduct that took place before the legislation comes into force. The terms or labels applied to this presumption vary but are, in their effect, the same: British Columbia v. Imperial Tobacco Canada Ltd ., 2005 SCC 49, [2005] 2 S.C.R. 473, at para. 71; Gustavson Drilling (1964) Ltd. v. The Minister of Natural Resources , [1977] 1 S.C.R. 271, at p. 279; Tran v. Canada (Public Safety and Emergency Preparedness) , 2017 SCC 50, [2017] 2 S.C.R. 289, at para. 43; R. v. Dineley , 2012 SCC 58, [2012] 3 S.C.R. 272, at paras. 44-45, per Cromwell J. (dissenting, but not on this point); Cobb v. Long Estate , 2017 ONCA 717, 416 D.L.R. (4th) 222, at para. 80. [186] The presumption against retrospectivity is a tool for determining the intended temporal reach of legislation. Absent evidence that Parliament considered the potentially unfair effects, legislation does not affect prior events or conduct in pending litigation. The purpose of the presumption is to prevent a change in the law from looking to the past and attaching new prejudicial consequences to a completed transaction. The presumption bespeaks fairness and engages the rule of law. Its effect is that new legislation operates from the date of its enactment and applies to what takes place going forward: Tran , at paras. 43-45, 48; Imperial Tobacco , at para. 71. [187] However, like many other presumptions, this presumption is not absolute, unyielding, or preclusive. It may be rebutted by Parliament, expressly or by necessary implication. Or it may be rebutted because the nature or character of the legislation itself gives rise to a countervailing presumption that procedural legislation applies retrospectively – immediately and generally to both pending and future acts and events. [188] The presumption of immediate application of procedural legislation finds support in ss. 44(c) and (d) of the Interpretation Act . It has been characterized in several different ways. No one has a vested right in procedure. The effect of a procedural change is considered a benefit for all. Procedural provisions are an exception to the presumption against retrospectivity. Procedural provisions are intended to have immediate effect: Application under s. 83.28 of the Criminal Code (Re) , 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 62; R. v. Wildman , [1984] 2 S.C.R. 311, at p. 331; Peel (Police) v. Ontario (Special Investigations Unit) , 2012 ONCA 292, 110 O.R. (3d) 536, at para. 72. But this presumption may also yield, as it does, for example, where Parliament’s contrary intent appears: Application under s. 83.28 , at para. 63; R. v. Ali , [1980] 1 S.C.R. 221, at p. 235. [189] To engage the presumption that a procedural amendment applies immediately and generally to both pending and future acts or conduct, the legislation must be purely procedural. This qualification, which finds statutory support in s. 43(c) of the Interpretation Act , means that the amendment must govern only how rights are enforced or asserted, not affect substantive rights: Application under s. 83.28 , at para. 57; Dineley , at paras. 10-11; Wildman , at pp. 331-32. [190] To determine whether legislation is procedural and, more narrowly, purely procedural, we do not look simply at the form in which it is enacted. We must also have regard to its function and effect: Dineley , at para. 55, per Cromwell J. (dissenting, but not on this point); Angus v. Sun Alliance Insurance Co ., [1988] 2 S.C.R. 256, at pp. 265-66. The important thing is not the label we attach to the provision, but its effect on existing rights and obligations: Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. (Markham, Ont.: LexisNexis, 2014), at § 25.116. [191] This requires a functional inquiry into the circumstances of each case. The inquiry focuses on whether the application of the amending provisions affects any substantive rights. With this as our focus, we are able to determine whether the new legislation is or is not exclusively procedural, thus whether it will apply only to events going forward or to past events as well: Dineley , at para. 11; R.S ., at para. 27; Angus , at pp. 265-66. The Principles Applied [192] As I will explain, I would give effect to this ground of appeal in part and conclude that the amendment abolishing peremptory challenges applies only prospectively, but the amendment substituting the presiding judge as the trier of the truth of the challenge for cause applies retrospectively. [193] My analysis begins with some general observations about the jury selection process, in particular, the place occupied in the in-court component of that process by peremptory challenges and challenges for cause. Several steps follow to reach the conclusion I have just described. The Jury Selection Process [194] As we have seen, the jury selection process has two parts: the out-of-court process with which we are not concerned and the in-court process which occupies our attention. Individually and together the purpose of the parts is to empanel an independent and impartial jury to fairly hear and determine the truth of the allegations contained in the indictment on which the accused has been given in their charge. [195] The in-court component of the jury selection process largely assigns the responsibility of choosing the jury to the parties, subject to the supervision of the presiding judge to ensure its compliance with the law. It begins with the presiding judge pre-vetting prospective jurors to ensure availability and, to some extent, suitability for the pending trial. Random selection of prospective jurors follows. [196] Under the prior statutory scheme, the parties had available to them two mechanisms to challenge prospective jurors: peremptory challenges and, subject to satisfaction of certain preliminary requirements, challenges for cause. Peremptory challenges were as of right and numerically limited depending on the offence charged or the punishment on conviction. Challenges for cause were limited to specified grounds, but unlimited in number once any prerequisites for their use were satisfied. They were tried by lay triers both of whom were selected by the presiding judge who instructed them on their obligations. The Temporal Application of the Jury Selection Amendments [197] To determine the temporal application of the amendments which abolished peremptory challenges and replaced lay triers of the challenge for cause with the presiding judge, I begin from a foundation of the general presumption against retrospective application of statutes, that is to say, against their immediate application to past and future events, absent a clear indication to the contrary by the legislative authority. Often, but not always, that contrary intention is expressed in transitional provisions of which there are none here. Nor is there any other indication to the contrary expressly stated or arising by necessary implication from what is stated or left unstated in the legislation. [198] The general or foundational principle just described, however, is not preclusive and may be rebutted. And that rebuttal is sometimes the result of a countervailing presumption that procedural legislation is retrospective in its operation, that is to say, it applies immediately to past and future events. [199] At first light, amendments which deal with jury selection, in other words, how the trial jury is chosen by the parties, seem inherently procedural. It would seem logically to follow then, as ss. 44(c) and (d) of the Interpretation Act appear to confirm, that the amendments would apply to these proceedings. [200] But the presumption that procedural legislation applies immediately to past and future events is not itself of universal application. It too may be defeated. For it applies only where the procedural legislation is purely or exclusively procedural. And so it becomes necessary to consider and determine whether the amendments affect previously acquired substantive rights. Procedural legislation which alters or takes away any substantive rights is not purely procedural, thus the presumed retrospectivity of procedural legislation does not apply, leaving it applicable only to future events. [201] In applying these principles to the amendments at issue in this case, trail courts across Canada have divided on whether the amendments apply retrospectively or prospectively. In Ontario, most cases have held that the amendments have retrospective application, although that holding is not universal. In provinces other than Ontario, most cases have favoured a prospective interpretation. As I explain below, I reach the conclusion that the amendment eliminating peremptory challenges applies prospectively, while the amendment to the challenge for cause procedure applies retrospectively. Abolition of Peremptory Challenges [202] At common law, since our earliest consolidated criminal statute and prior to September 19, 2019 throughout our various Criminal Codes , the parties, in particular, the defence, have had the right to challenge prospective jurors peremptorily. The number of peremptory challenges available have always been limited. But peremptory challenges were available as of right. They were not subject to a formal request nor to any preliminary showing beyond the nature of the charge. They could be used up, but not taken away. When exercised, their effect was invariable: the prospective juror challenged peremptorily did not become a member of the trial jury. [203] As the evidence before the trial judge in this case demonstrated, peremptory challenges were exercised, not let lie as a right not taken up. Essentially negative, in the sense that they removed prospective jurors from being empanelled rather than having them seated as trial jurors, they had an impact by necessary implication on the composition of the trial jury. [204] In Yumnu , at paras. 123-24, this court recognized the importance of the role played by peremptory challenges in the jury selection process: Peremptory challenges are an important part of the jury selection process. Unlike challenges for cause, that rest upon allegations of lack of impartiality that must be established by evidence adduced by the challenging party, peremptory challenges require no justification or explanation, much less an evidentiary foundation or proof. The very basis upon which peremptory challenges are founded is subjective, not objective: R. v. Cloutier , [1979] 2 S.C.R. 709, at pp. 720-21. Peremptory challenges rest upon no firmer foundation than a mere belief, more often a hunch, of a party that within the prospective juror resides a state of mind at odds with impartiality. Jury selection is not a science. Anyone who has ever prosecuted, defended or tried a criminal case with a jury has their own views about the basis upon which to exercise a peremptory challenge. Occupation. Education. Mode of dress. Age. None are verifiable empirically. Many, if not most, cannot withstand objective analysis. Peremptory challenges permit a party to remove from jury service a limited number of persons whom the party believes, in the circumstances of the case to be tried, may not reach an impartial, evidence-driven conclusion. The availability of peremptory challenges fosters confidence in the adjudicative fairness of the criminal jury trial. Parties often exercise peremptory challenges in an attempt to secure what they hope will be a sympathetic jury. The equalization of the number of peremptory challenges available to both parties tends to ensure that neither gains an unfair advantage over the other in this aspect of jury selection. [205] To determine whether the elimination of peremptory challenges affects a substantive right, we must identify the substantive right potentially affected. I have already held that the amendment does not infringe the constitutional rights guaranteed by s. 7, 11(d) or 11(f). That is not determinative, however, of the temporal scope of the amendment. Not all substantive rights are constitutional and not all legislation which negatively impacts on a substantive right amounts to an infringement of a constitutional right. For the purposes of determining the temporal scope of the legislation, the nature of the substantive right engaged may be assessed by reference to the legislation as it existed prior to the amendments. The prior legislation gave accused the right to be tried by a jury. I do not think anyone would suggest that the right to trial by jury is not a substantive right. [206] The right to trial by jury as it existed in the prior legislation included various means by which an accused could participate in the selection of the jury. Included in those various participatory opportunities were peremptory challenges. Peremptory challenges gave an accused a limited veto over the selection of the jury. As noted previously, that ability has been judicially recognized as an important feature of the jury selection process: see e.g., Yumnu , at paras. 123-24 , Sherratt , at pp. 532-33 . [207] The question becomes: did the amendment which eliminated that mode of participation in the jury selection process impair or negatively affect the right to trial by jury as it existed prior to the amendment? [208] Elimination of peremptory challenges will almost inevitably have a significant impact on the composition of the jury eventually selected to determine the accused’s fate. In most cases, the absence of any peremptory challenges will result in a differently constituted jury. [209] The fact that the jury is differently constituted does not, as I have held in my constitutional analysis, mean that the jury selected will be in any way constitutionally unsound. It does mean, however, that the jury will be different and will not reflect the exercise of the limited veto power formerly enjoyed by an accused over those who will participate as triers of fact in the accused’s trial. [210] In my view, an amendment which significantly diminishes an accused's ability to affect the ultimate composition of the jury chosen to try the accused negatively impacts on the accused’s statutory right to trial by jury as it existed prior to the amendment. For the purposes of determining the temporal scope of the legislation, this loss of one aspect of the accused’s right to participate in the selection of the jury affects in a negative way the accused’s right to trial by jury as it existed before the amendment. Therefore, the amendment is presumptively prospective. Nothing in the language of the amendment or in the material placed before this court rebuts that presumption. [211] In short, the amendment eliminating peremptory challenges applies prospectively, that is to say, only to cases where the accused’s right to a trial by judge and jury vested on or after September 19, 2019. Stated otherwise, if, prior to September 19, 2019, an accused had a vested right to a trial by judge and jury as it existed in the prior legislation, then the amendment does not apply and both the accused and Crown have the right to peremptory challenges, even if the trial is held after that date. [212] To be clear, not all accused charged with an offence before September 19, 2019 have a vested right to a trial by judge and jury under the former legislation. For the right to have vested, the accused must have, before September 19, 2019: (i) been charged with an offence within the exclusive jurisdiction of the Superior Court; (ii) been directly indicted; or (iii) elected for a trial in Superior Court by judge and jury. I include in the third category accused who have formally entered an election as well as those who have made a clear, but informal election, as evinced by the transcript of proceedings or endorsements on the information. Otherwise, the accused’s right did not vest, the amendment applies, and no party has a right to peremptory challenges at the trial. Triers of Challenge for Cause [213] Turning to the amendment to the challenge for cause procedure, I reach a different conclusion about its temporal application. [214] The effect of this amendment is to substitute the presiding judge as the only trier of the challenge for cause, or more accurately, all challenges for cause. The judge replaces two lay triers. The presumption of impartiality, both of the trier and prospective juror, remains. The burden on the challenger to show cause and the standard of proof required to demonstrate it remain the same. So too the consequence of a finding that a prospective juror is not impartial: the juror will not be sworn or affirmed, thus will not become a juror at trial. [215] The essential difference between the former and current provisions is twofold. The identity of the trier. And the availability of a choice of trial procedure (rotating versus static triers). Unlike the abolition of peremptory challenges, however, the challenge for cause procedure remains available with the same threshold for access, burden of proof, standard of proof and consequence if successful. The change effected by the amendment does not impair or negatively affect the right to trial by judge and jury as it existed prior to the amendment. [216] In the result, I am satisfied that the amendment to the challenge for cause procedure is purely procedural, thus applies to both past and future events, irrespective of whether the accused had a vested right before September 19, 2019 to a trial by judge and jury under the former legislation. DISPOSITION [217] For these reasons, I conclude that: i. the amendments abolishing peremptory challenges and substituting the presiding judge for lay triers in the determination of the truth of the challenge for cause do not infringe the appellant’s rights under ss. 11(d), 11(f), or 7 of the Charter ; ii. the substitution of the presiding judge as the decision-maker on the challenge for cause, rather than lay triers, is purely procedural, thus applies to both historical and future events and thus to this case; and iii. the abolition of peremptory challenges affected the substantive rights of the appellant, thus it should not have applied to the selection of the jury in his case nor should it apply to the selection of the jury in other cases if the accused had a vested right before September 19, 2019 to a trial by judge and jury as it existed in the prior legislation. [218] Crown counsel specifically declined to invoke the provisions of s. 686(1)(b)(iv) of the Criminal Code to save as harmless any error in the application of the amendments. [219] I would allow the appeal, set aside the conviction and order a new trial on the indictment. Released: (“DD”) January 23, 2020 “David Watt J.A.” “I agree. Doherty J.A.” “I agree. M. Tulloch J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. D.L., 2020 ONCA 77 DATE: 20200131 DOCKET: C64746 Watt, Tulloch and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and D.L. Appellant Mark Halfyard, for the appellant Elizabeth Teed, for the respondent Heard and released orally: January 22, 2020 On appeal from the conviction entered on October 31, 2017 and the sentence imposed on June 4, 2018 by Justice Thomas A. Bielby of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of counts of sexual assault and sexual interference after a trial before a judge of the Superior Court of Justice sitting without a jury. He was sentenced to a term of imprisonment of six months less one day and ordered to comply with the terms of a probation order for a period of two years as well as the usual ancillary orders. [2] He appeals from the conviction. The Background Facts [3] The allegations against the appellant were historical in nature. They involved two complainants. In respect of one complainant, the appellant was acquitted. In respect of the other, he was convicted. The complainants were sisters in relation to whom the appellant occupied a position of trust. [4] The appellant testified at trial. As he had done during a videotaped interview on arrest, he denied that the events of which the complainants testified occurred. The Grounds of Appeal [5] In oral argument, the appellant advanced three principal grounds of appeal. He says that the trial judge erred: i. in failing to reconcile inconsistencies between the evidence of the complainant and the testimony of other witnesses, including her mother, about prior reporting of the assault and access to, and use of, a computer in the appellant’s home office; ii. in overemphasizing the demeanour of the appellant during a police interview as the principal basis for rejecting his evidence denying that the events alleged ever too place; and iii. in assigning too much weight to the youthfulness of the complainant in assessing her credibility as a witness and the reliability of her testimony. Discussion [6] The appellant readily accepts that a trial judge is under no obligation to reconcile every inconsistency, whether internal or external, in the testimony of a witness, in this case the complainant. He also acknowledges that demeanour is a factor that the trial judge was entitled to consider in assessing the credibility of any witness who testified at trial. Nor does he dispute that a trial judge is entitled to consider the age of a witness at the time of relevant events as a factor to consider in assessing the truthfulness of that witness, in particular, in reconciling various inconsistencies in that witness’ evidence. [7] We are not persuaded that the claims of error advanced, whether considered individually or cumulatively, warrant our intervention. That another judge might have provided a more detailed assessment of the inconsistencies in the complainant’s evidence; or explored more fully the discrepancies between her evidence and that of other witnesses; or might have relied less on demeanour as a credibility and/or reliability determinant; or have accorded less latitude to the complainant’s age in the evaluation of her evidence does not mean that the analysis of this trial judge is fatally flawed. [8] In the result, we are satisfied that the findings made by the trial judge were open to him. The specific complaints advanced do not rise to the level required to warrant our interference. Disposition [9] The appeal from conviction is dismissed. [10] In his notice of appeal, the appellant also appealed sentence. This appeal was not pursued in the factum or in oral argument. The appeal from sentence is dismissed. “David Watt J.A.” “M. Tulloch J.A.” “Gary Trotter J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. DiMichele, 2020 ONCA 48 DATE: 20200127 DOCKET: C64049 Benotto, Paciocco and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Giuseppe DiMichele Appellant Giuseppe DiMichele, acting in person Brian Snell, appearing as duty counsel Andrew Hotke, for the respondent Heard: January 14, 2020 On appeal from the conviction entered on February 17, 2017 and the sentence imposed on April 25, 2017 by Justice Mark L. Edwards of the Superior Court of Justice, with reasons for sentence reported at 2017 ONSC 2550. REASONS FOR DECISION [1] The appellant was found guilty of sexual assault and sexual interference. He was sentenced to 40 months’ custody and was given no credit for time spent under house arrest awaiting trial. He appeals both the conviction and sentence. At the conclusion of oral submissions, we advised the parties that the appeal was dismissed with reasons to follow. These are the reasons. [2] The trial judge found that the appellant sexually assaulted a 15-year-old girl whom he had employed for a few days. The complainant testified that she and her 19-year-old friend went to the appellant’s hotel room to get paid. He poured her a drink, which she believed was whisky. She left and consumed more alcohol and ingested drugs before returning to the hotel room where her 19-year old friend had remained. Thereafter, she had no memory of what occurred until she awoke in the hotel room and found the appellant on top of her having sexual intercourse. She ran out of the room naked and screaming. [3] The hotel security video shows the complainant running out of the hotel room naked. In addition, a witness saw her collapsed under a tree near the hotel, crying and screaming. Her friend also testified that shortly after, the complainant was distraught, repeating: “he raped me”. [4] No forensic evidence linked the appellant to the complainant, although DNA swabs had been taken from both of them. [5] The appellant appeals on the basis that the trial judge erred in relying on the statement made to the complainant’s friend, “he raped me”, for the truth of its contents. This statement, he submits, was hearsay and not possible to admit as res gestae because it was made 20 minutes after the complainant left the hotel room. He also contends that it was an inadmissible prior consistent statement. [6] We do not agree. The act of making the statement was part of the complainant’s distressed reaction to the events that had happened shortly before. The fact she made that statement was therefore admissible as part of the narrative and properly before the court. There is no basis for concluding that the trial judge relied upon the statement for the truth of its contents, or for its consistency with subsequent statements. It was in his summary of evidence that the trial judge referred to this statement. He did not do so in his analysis. In the analysis portion of his decision, the trial judge made clear that he accepted the complainant’s evidence primarily because of the independent security video showing her leaving the hotel room naked and hysterical and the evidence of the independent witness who saw her under the tree. [7] The appellant further submits that the trial judge erred by concluding, in the absence of forensic evidence, that intercourse had taken place. He characterizes this as a W.(D.) error because the trial judge did not directly advert to the second part of the test: R. v. W.(D.), [1991] 1 S.C.R. 742. [8] Again, we do not agree. The trial judge commented on the absence of forensic evidence establishing intercourse, saying, “The fact that such evidence was not presented to the Court does not mean that the Crown has failed to prove the case against Mr. DiMichele beyond a reasonable doubt.” This passage makes clear that the trial judge concluded that the absence of forensic proof of intercourse did not raise a reasonable doubt. He also found that the Crown’s evidence as a whole established guilt beyond a reasonable doubt. He was entitled to come to this conclusion. There was no basis on the evidence for concluding that the absence of forensic evidence casts meaningful doubt on whether intercourse occurred. Moreover, in this case the complainant showered before the forensic testing. [9] We do not agree that the sentence of 40 months was manifestly unfit. The sentence was fit and within the appropriate range in light of: the nature of the assault; the age of the complainant; the position of trust the appellant was in (as her employer, albeit for a very short time); and the fact that the appellant had a prior criminal record for unrelated offences. [10] While the trial judge did not give the appellant credit for time spent on restrictive bail conditions, this was because, as the trial judge noted, he had breached his bail conditions by consuming alcohol and driving while under the influence. [11] The conviction appeal is dismissed. Leave to appeal the sentence is allowed, but the sentence appeal is dismissed. “M.L. Benotto J.A.” “David M. Paciocco 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. C OURT OF APPE AL FOR ONTARIO CITATION: R. v. E.H., 2020 ONCA 405 DATE: 20200623 DOCKET: C66510 Simmons, Pepall and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and E.H. Appellant Nader R. Hasan, for the appellant Lisa Fineberg, for the respondent Heard: February 5, 2020 On appeal from the conviction entered on October 4, 2018 by Justice Paul T. O’Marra of the Ontario Court of Justice. Trotter J.A.: A. introduction [1] The appellant was found guilty of two counts each of sexual assault ( Criminal Code , R.S.C. 1985, c. C-46, s. 276) and sexual interference (s. 151) against the two young daughters of his former girlfriend. The allegations relate to events in 2002 to 2004. [2] At the time of trial, [1] V.M. was 28 years old and testified about events when she was 12 to 14; whereas W.M.(1) was 23 and reported being abused by the appellant when she was 6 to 8. They both claimed that the abuse occurred in their respective bedrooms when the appellant stayed overnight at their house. The appellant testified and denied the allegations. [3] In lengthy reasons for judgment, the trial judge accepted the evidence of both complainants and was satisfied beyond a reasonable doubt of their allegations. He made detailed credibility findings. The trial judge disbelieved the appellant and rejected his evidence, finding that it did not raise a reasonable doubt. [4] The appellant advances numerous grounds of appeal. The common thread that runs through them is an attack on the trial judge’s credibility findings. The appellant essentially asks this court to re-try the case on a paper record. I would not accede to this request. [5] The trial judge’s findings were supported by the evidentiary record. He explained how he reached his conclusions with respect to each witness. The appellant has identified no errors that would displace the deference to which the trial judge’s reasons are entitled on appeal. B. factual background [6] In this section, I provide a brief summary of the evidence at trial. More detail is provided below as necessary in the discussion of specific grounds of appeal. (1) Introduction [7] W.M. is the mother of both complainants, V.M. and W.M.(1). W.M.(1) has a twin brother. The three children lived with their mother after she separated from her previous husband. [8] W.M. met the appellant shortly after the separation. The appellant worked at a convenience store close to W.M.’s house. He came to Canada from Iraq, where most of his family remained. In addition to working, the appellant attended college. [9] W.M. frequently took her children to the store where the appellant worked to buy them candy. The appellant and W.M. eventually started to have a relationship. After a few months, the appellant occasionally stayed overnight at W.M.’s house but maintained his own residence. The frequency of his overnight visits was contentious at trial. [10] The relationship between the appellant and W.M. lasted about two years. They had different ideas about the nature of their relationship. W.M. wanted a committed relationship, while the appellant was content with something more casual. He was concerned that his family, for cultural reasons, would never fully accept W.M. When the relationship ended, W.M. was deeply disappointed. [11] As discussed in more detail below, the appellant’s relationships with V.M. and W.M.(1) were very different. Whereas W.M.(1) liked the appellant and got along well with him, V.M. did not; their relationship was fraught and conflictual. (2) The Allegations of V.M. [12] V.M., the older of the two girls, was initially wary of the appellant because he was the first person their mother dated after her marriage ended. V.M. did not have a good feeling about the appellant when he first came into their lives. [13] In 2002, V.M.’s bedroom was on the bottom level of what was described as a five-level, split-level home. This bedroom had been converted from an office. Everyone else slept on the top floor of the house. [14] The first time the appellant came into V.M.’s room at night he lay down on her bed beside her, scratched her back, and stroked her hair. V.M. could feel the appellant’s erection against her buttocks and described a “dry humping” motion. As things progressed, he touched her breast area under and over her bra. He also put his hand under V.M.’s underwear and touched her buttocks. On some occasions, the appellant did this while he was on top of V.M. The incidents lasted about 45 minutes on average. [15] V.M. was unsure about how often the bedroom visits occurred. In her police statement, she said that it happened two to three times a week. At trial, she testified that it happened, “Too many times to count. It became a regular thing.” In cross-examination, she agreed with the suggestion that the appellant came to her room about twice a week, both during the week and on weekends. In terms of the number of times the appellant stayed over, V.M. disagreed with her mother that it was only once a week or once every second week. [16] V.M. agreed that she was rude to the appellant, but not all of the time. She called him a “douchebag”. It was suggested to V.M. that she made fun of his accent, disliked the food he cooked, and once told him to go back to where he came from. She said that she did not have a specific memory of these things because it happened so long ago, “but I’m not going to say I didn't say it”. At one point in her testimony she said, “Again, I don't have a memory of it, but I didn’t like him and I don’t think I was the nicest and I probably said some hurtful things.” V.M. explained that she disliked one of the spices he used to cook and she reported having misophonia – a negative, emotional reaction to certain sounds, such as the sound of people eating or chewing their food. [17] Although V.M. was admittedly rude towards the appellant, she testified that she did not have a good relationship with her mother. She felt helpless and did not think that her mother would believe her if she disclosed what was happening. V.M. was pleased when her mother and the appellant broke up. (3) The Allegations of W.M.(1) [18] W.M.(1) testified that, when she met the appellant, he seemed nice and she did not have any negative feelings towards him. Her views changed when he touched her in a sexual manner. W.M.(1) said that the appellant came into her bedroom at night, which was on the same level as her mother’s bedroom. She remembered it happening four times. He stayed for about five minutes each time. W.M.(1) testified that the appellant touched her below her waist, including her vagina, and sometimes her buttocks after pulling her pyjama bottoms down. She was scared and confused but did not tell anyone because she did not understand what was happening. W.M.(1) was about six years old at the time. [19] There were inconsistencies between her testimony and her 2010 statement to the police in terms of precisely what the appellant did to her. She also told the police that it sometimes felt like it was “just a dream”. However, at trial she repeatedly asserted that the sexual abuse was real. [20] W.M.(1) testified that the appellant stayed over once or twice a week. (4) W.M.’s Evidence [21] W.M. did not witness any of the conduct or activity alleged by her daughters. However, she was able to provide context on some issues. [22] W.M. described her relationship with the appellant in positive terms. She was in love with him and was disappointed when the relationship ended. She now looks at the relationship differently, in light of the subsequent allegations. She admitted to seeing everything through a “different lens”. [23] W.M. testified that the appellant stayed over at her house once every week or two weeks. There was a period of time, when they were considering moving in together, where he stayed more often. But this only lasted for a couple of weeks to a month. When the appellant stayed overnight, he would sometimes leave the bedroom to use the washroom. He also went to the girls’ bedrooms to say “good night” to them. She thought it was “sweet” that he wanted to tuck them in, but she did not see it happen. In cross-examination, W.M. agreed that she never woke up to find that the appellant was not there; however, she was a heavy sleeper. W.M. acknowledged that she never told the police about the appellant tucking her daughters in when she gave a statement in 2010. (5) The Appellant’s Evidence [24] The appellant was 46 years old at trial. By that time, he had been married since 2007 and had two children. Born in Iraq, the appellant came to Canada alone in 1998, but he had some relatives who he saw regularly. The appellant soon learned English and took college courses. He worked at a number of part-time jobs, including the one at the store where he met W.M. [25] At first, the appellant thought that W.M. was married. He eventually asked W.M. if she was interested in going out with him. He asked her if she would be his “best friend.” The appellant explained that, in his culture, it meant “a romantic and sexual relationship but without commitment to any marriage, or move in.” W.M. said, “Sure, and we can have fun”. It was not until a few months later that he explained to W.M. what “best friends” meant. He advised her that it was always his intention to marry someone from his own culture. This was the source of arguments between them. He did not tell any of his relatives that he was dating W.M. as it would have been improper. He did tell some of his friends. [26] The appellant described a very positive relationship with W.M.(1) and her twin brother. He said that he loved the twins, as they did him. It was different with V.M. The first time he met V.M. at the house, she did not seem happy that he was there. He described a very bad relationship with V.M. She criticized his cooking and the way he spoke. The appellant said, “I didn’t like her and she didn’t like me” and “I didn’t like her at all.” W.M. confirmed this characterization of the relationship. [27] The appellant went to W.M.’s house for dinner two to three times a week. He slept over about three times a month – sometimes it was twice a month; sometimes it was four times a month. He denied staying over on weekdays, or if he had to work the following day. He mostly stayed over on Saturdays, following late nights out at a bar or club. He said, “that would be around 85 percent of the time.” [28] The appellant contradicted W.M.’s evidence that there was a period when they tried living together and that he stayed over more frequently during that time. He said, “That never happened.” [29] The appellant agreed that he wanted to spend all the time that he could with W.M. However, while he visited often for dinner during the week, he did not stay over on those nights because he worked or attended school during the week. He acknowledged that he lived a short distance from W.M.’s house, and that the convenience store and the college he attended were both nearby (essentially equidistant from his home and W.M.’s house). However, the appellant said it “didn’t matter” how close they were because he never tried it. The appellant kept a t-shirt and underwear at W.M.’s home, and she provided him with a toothbrush. [30] The appellant insisted that he always remained in the master bedroom once he and W.M. retired for the evening. He said he “never” took part in putting the kids to bed, and “never” had to deal with them during the night if they ever woke up. (6) The Disclosure of the Allegations [31] The allegations came to light in 2010 – roughly six years after the relationship ended. W.M.(1) was 15 and in grade 10; V.M. was away at university. The disclosure arose during a fierce argument between W.M.(1) and her mother. [32] One evening, W.M. confronted W.M.(1) about her chronic truancy. W.M.(1) had been lying to her mother, and hiding it from her, by deleting voicemail messages left by school authorities. W.M. was very angry and threatened serious discipline, such as terminating W.M.(1)’s access to her computer, cellphone, and social media. W.M.(1) testified that this would have been like a jail sentence to her. [33] W.M.(1) then got in touch with V.M. The sisters communicated through Facebook. W.M.(1) told V.M. that she had been sexually abused by the appellant. V.M. said that she experienced the same thing. W.M.(1) asked V.M. not to tell their mother, afraid that she would “freak out.” At the time of this exchange, V.M.’s friend was with her and was made aware of what had transpired. This friend contacted W.M. to explain the situation. The police were called that evening. [34] In cross-examination, W.M.(1) acknowledged that, when she spoke to the police on that first occasion, she did not tell them that she was in trouble with her mother at the time. She explained that she was nervous and forgot about it. C. the trial judge’s reasons [35] In his reasons for judgment, the trial judge gave a full account of the evidence, in addition to accurately setting out the positions of the Crown and the defence. He made detailed credibility findings. I will examine some of these findings more closely below. For the time being, I reproduce the trial judge’s general assessment of the evidence, at paras. 155-156: By way of overall observation, both complainants testified as mature adult women about events that occurred when they were children. In my view, [W.M.(1)] was measured but more subdued in her testimony. V.M. was thoughtful and balanced in her testimony. V.M. conceded that there were limitations on her memory. Both complainants were emotional at times. [Mr. H.] was a guarded witness and appeared uneasy. He was combative and flippant to a certain degree during his cross-examination. [36] The trial judge also said of the appellant: “I find his evidence unconvincing. He was neither a credible nor a reliable witness.”  The trial judge observed that the appellant was “motivated by an attempt to distance himself from any likely opportunity to have committed these offences”. [37] In its closing submissions, the Crown argued that the evidence of each complainant could be used as similar fact evidence in considering the evidence of the other. The appellant resisted the application. In his reasons, the trial judge concluded that “standing alone and independent to each other, the complainants’ evidence was proof beyond a reasonable doubt.” Nonetheless, he allowed the similar fact application and analyzed the evidence within this framework. D. discussion [38] The appellant advances many grounds of appeal. He submits that the trial judge: applied different standards of scrutiny between the evidence of the complainants and the appellant; misapprehended parts of the evidence; relied unduly on the demeanour of the witnesses; improperly used a prior statement made by V.M.; improperly relied upon common sense assumptions about human behaviour; disregarded the timing and nature of the disclosure; and erred in his similar fact evidence ruling. As noted in para. 4, above, all grounds of appeal drive towards the same point – the trial judge erred in making his credibility assessments. (1) Uneven Scrutiny and Misapprehension of the Evidence [39] The appellant submits that the trial judge applied different standards of scrutiny as between the evidence of the complainants and the appellant. Under this general heading, the appellant focuses on 11 findings that he says demonstrate this skewed approach. There is some overlap between this ground of appeal and the appellant’s contention that the trial judge misapprehended certain aspects of the evidence. In the discussion below, I flag where the appellant’s submissions also involve claims of misapprehension. [40] A claim of uneven scrutiny is often made in cases where the evidence “pits the word of the complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments”: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59. That description applies to this case. [41] This court has often observed that success on this ground of appeal is very difficult to achieve: see R. v. Gravesande , 2015 ONCA 774, 128 O.R. (3d) 111, at para. 18; R. v. Kiss , 2018 ONCA 184, at paras. 4 and 83; R. v. R.M . , 2019 ONCA 419, at para. 31; R. v. Bartholomew , 2019 ONCA 377, 375 C.C.C. (3d) 534, at para. 30; R. v. Polanco , 2018 ONCA 444, at para. 33; R. v. Chanmany , 2016 ONCA 576, 338 C.C.C. (3d) 578, at paras. 26-28, leave to appeal refused, [2017] S.C.C.A. No. 88; R. v. D.E.S . , 2018 ONCA 1046, at paras. 15-16; R. v. Rhayel , 2015 ONCA 377, 324 C.C.C. (3d) 362, at para. 96; and R. v. Phan , 2013 ONCA 787, 313 O.A.C. 352, at para. 34. In R. v. Aird , 2013 ONCA 447, 307 O.A.C. 183, Laskin J.A. explains why, at para. 39: It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge's credibility determinations. [Emphasis added.] [42] Skepticism is warranted here. Although styled as an uneven scrutiny argument, the appellant asks this court to substitute its own credibility findings.  And while not confronting the issue directly as a ground of appeal under s. 686(1)(a)(i) of the Criminal Code , he suggests that the verdict is unreasonable. He submits that, “even if this court should disagree with that submission, the trial judge’s forgiving approach to the complainants’ evidence stands in stark contrast to his assessment of the defendant’s evidence”. I reject both submissions. [43] Although an unreasonable verdict claim may be based on credibility findings, it cannot succeed unless the trial judge’s determinations “cannot be supported on any reasonable view of the evidence”: see R. v. Burke , [1996] 1 S.C.R. 474, at para. 7; R. v. R.P . , 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 10; R. v. L.E . , 2019 ONCA 961, 382 C.C.C. (3d) 202, at para. 108. Here, the trial judge was entitled to accept the evidence of the complainants’ first-hand account of being abused by the appellant. [44] The trial judge did not employ a more exacting standard of scrutiny to the appellant’s evidence. Taking advantage of his “unique position…in being able to see and hear the witnesses” ( R. v. Gagnon , 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 11), the trial judge explained his assessment of the evidence of the complainants and the appellant. There is no indication that his approach to his task was unbalanced or skewed. Unlike Gravesande and Kiss , in which the uneven scrutiny claims succeeded, the appellant has been unable to point to specific, demonstrable problems with the evidence of the Crown witnesses. (a) The Complainants’ Evidence Prior inconsistent statements/inconsistencies between Crown witnesses [45] The appellant submits that the trial judge failed to properly address the many internal contradictions in the evidence of V.M. and W.M.(1), as well as the conflicts between the evidence of all three Crown witnesses. [46] The trial judge was aware of the internal inconsistencies in the evidence of the complainants when compared with their statements to the police and their testimony given at the first trial. These contradictions were reviewed for him in significant detail during submissions. He found them to be “slight and inconsequential” and they did not undermine the core allegations made by each complainant. Although he did not discuss every inconsistency identified by defence counsel at trial, he was not required to do so: see R. v. R.A . , 2017 ONCA 714, 355 C.C.C. (3d) 400, at para. 45, aff’d 2018 SCC 13, [2018] 1 S.C.R. 307. [47] The trial judge responded to the purported conflicts in the evidence between V.M., W.M., and W.M.(1) that were relied upon by trial counsel in his final submissions. The trial judge evaluated the evidence of all three witnesses in light of the dated allegations, reaching back to 2002 to 2004, when V.M. was a young teenager and W.M.(1) was a child. I see no error in the trial judge’s approach. There is no indication that he was unduly tolerant or forbearing. Motives to fabricate [48] Although framed as an indicium of uneven scrutiny, the appellant faults the trial judge for not giving effect to the purported motives of the complainants to fabricate their allegations against the appellant. He submits that V.M.’s childhood hatred for the appellant and her desire to support her sister were her motives to lie, whereas W.M.(1) made up the allegations to escape punishment for truancy. [49] There was no doubt that V.M. did not like the appellant. The appellant knew this and did not like V.M. The appellant contends that this motivated V.M. to allege sexual abuse against him years after his relationship with her mother had ended, an outcome that pleased V.M. According to the appellant, this nascent motive was only acted upon when W.M.(1) made her disclosure, apparently triggered by something completely unrelated. The trial judge was entitled to reject these alleged motives as far-fetched. [50] It is in this context that the appellant submits that the trial judge dealt unfairly with V.M.’s evidence, especially concerning the things she said to the appellant as a child. The trial judge addressed this submission in the following way, at para. 164: I found that V.M. was candid with the court when she admitted she did have gaps in her memory and was not prepared to fill the gaps with untruths . V.M. also admitted to unflattering aspects to her personality when she was a teenager. In my view, the name calling was not just indicative of a jealous teenage girl but had borderline racist overtones. V.M. detested the foods which he ate and the way he prepared meals. In addition, she made fun of his accent. In my view, these admissions enhanced her credibility . [Emphasis added.] [51] The appellant complains that the trial judge gave V.M. credit for being racist, when it should have undermined her trustworthiness. I disagree. In this passage, the trial judge dealt with a number of aspects of V.M.’s evidence, including her candid admission to behaviour that reflected poorly on her and her refusal to fill in the gaps when she could not remember certain things. [52] The appellant further suggests that the trial judge mischaracterized V.M.’s willingness to admit her faults, especially with respect to her treatment of the appellant. Instead of being forthcoming, V.M. only admitted unfavourable aspects when pressed in cross-examination. This was all laid out before the trial judge and he was entitled to view the evidence as he did. [53] Moreover, it is important to have regard for how this issue was addressed at trial. Trial counsel did not suggest to V.M. that she was racist; nor did counsel ask the trial judge to characterize her treatment of the appellant as racist. V.M. was 12 to 14 years old at the time. The trial judge recognized the obvious impropriety in what she said to the appellant and he used the expression “borderline racist” of his own accord. His failure to characterize this misbehaviour of a child in stronger language, with a greater impact on her trustworthiness many years later, is not indicative of uneven scrutiny. [54] Turning to W.M.(1)’s imputed motive to lie, the trial judge was unconvinced and explained why he was of this view. As he said, at paras. 165-166: I also have difficulty with the defence companion theory that W.M.(1) was in so much hot water with her mother and was on the cusp of losing phone and computer privileges that she chose the “nuclear option” and concocted a scheme, with her sister to point the finger of blame at [Mr. H.]. W.M. questioned W.M.(1) if she was being bullied at her new school or if there were any other problems. It seemed logical that she could have escaped her mother’s wrath by availing herself to other excuses or explanations in order to get out of trouble. Moreover, W.M.(1) had no credible reason years later (absent the allegations) to hate [Mr. H.] that much and falsely accuse him of sexual assault. W.M.(1) testified that she was ambivalent towards [Mr. H.] notwithstanding that she was cognizant of the fact that V.M. did not like [Mr. H.]. In my view, the defence submission that W.M.(1) picked [Mr. H.] as the scapegoat is untenable when compared to [Mr. H.’s] testimony regarding his relationship with W.M.(1). [Mr. H.] testified that W.M.(1) did not dislike him. In fact, he testified that W.M.(1) loved him and there were no problems in their relationship when he broke up with W.M. I agree with the Crown’s submissions that it made no sense that even though W.M.(1) was aware of V.M.’s hatred towards [Mr. H.] that years later, according to the defence, W.M.(1) exacted her revenge. [Emphasis added.] [55] Given the positive relationship between W.M.(1) and the appellant, and in view of the passage of time between the end of the relationship and the disclosure, the alleged motive was, at best, weak. The trial judge was entitled to reject it. His failure to buy into this theory is not indicative of an unbalanced approach. Implausible nature of the assaults [56] The appellant submits that the trial judge overlooked the implausible nature of the abuse of V.M., which the appellant characterizes as “the height of audaciousness”. Given the hostility she had for the appellant, it made her subsequent allegations implausible, according to the appellant. [57] The appellant takes issue with the following passage from the trial judge’s reasons. In discussing V.M.’s credibility, he said at para. 162: The defence argued that given that there were open hostilities between [Mr. H.] and V.M. it defied credulity that [Mr. H.] was that intrepid to enter V.M.’s bedroom during the night. On its face it was an intriguing argument. However, another reasonable inference could be that [Mr. H.] had engaged in a regular routine of abuse and since V.M. did not complain it may have emboldened him. [Emphasis added.] [58] This conclusion was open to the trial judge on the evidence. V.M. testified that although she disliked the appellant, she was not able to disclose the abuse, especially given her mother’s love for the appellant. Moreover, V.M. testified that, while she did not like the appellant from the beginning, her antipathy for him became more intense after the sexual abuse started. Accordingly, I reject the appellant’s expansive contention that this portion of the trial judge’s reasons is indicative of a “pattern of taking every fact or constellation of facts and attaching the most sinister possible inference against [Mr. H.]”. V.M.’s propensity to “cry wolf” and previous false allegations [59] The appellant submits in his factum that, “[V.M.] did not simply have a motive to lie; she had both a motive to lie and a propensity to lie .” [Emphasis in the original.] The appellant further submits that “her own mother” conceded she had a propensity to lie. [60] First, this is not a fair characterization of what W.M. said of her daughter. W.M. agreed that, although V.M. was the “sort of kid” who would “cry wolf”, she was at pains to stress, numerous times, that this occurred “when she was little” and it was only with respect to “little things” and not “big things”. [61] The appellant points to an incident in the house when the appellant and V.M. walked past each other and V.M. said, “Hey, he touched my boob.” The appellant submits that W.M. “fortunately” witnessed the incident and was sure that nothing had happened. But this view came from the appellant. The appellant alleged that W.M. and V.M. were evasive about the incident but they did not deny that it happened. The evidence did not give a clear picture of what transpired at the time. The trial judge’s failure to mention this vague body of evidence is not indicative of differing levels of scrutiny. [62] The appellant makes the same argument in relation to another alleged incident where V.M. said that the appellant threw a phone at her after she had called him a “pervert”. The appellant remembered the “pervert” reference but denied throwing his phone at V.M. W.M. had a memory of the “pervert” remark, but no memory of a phone being thrown. [63] It is important to consider how this evidence emerged. The defence raised the issue in the cross-examination of V.M. in an attempt to establish an example of a made-up allegation – i.e. , that the appellant threw a phone at her. The appellant submits, “One would have thought that [W.M.] would remember such a memorable incident. A more plausible inference is that this incident never took place and was another example of [V.M.’s] lies.” Once again, this submission quibbles with the credibility findings of the trial judge. It also ignores that it was his province to accept some, none, or all of a witness’ evidence. This evidence was not referenced in the closing submissions of the Crown or the defence. It was not important. The complainants’ evasiveness [64] The appellant challenges the trial judge’s finding that the complainants testified in a thoughtful and balanced way. He submits that this was unfair because his own testimony was characterized as “evasive and combative”. He relies on the fact that the complaints often “refused to answer questions” with “I don’t know” or “I can’t remember”. Apparently, this type of response was collectively invoked 400 times by the complainants, in response to questions about things “that the complainants could be expected to remember”. [65] The appellant may believe the complainants were evasive, but the trial judge did not. He was entitled to reach this conclusion. There are a number of reasons why it is not indicative of a skewed approach. First, the complainants testified about events that happened in 2002 to 2004, when they were both young. Second, a witness’ response of “I don’t know” or “I don’t remember” does not necessarily amount to a “refusal” to answer. Third, without more, the number of times that these types of answers were given is unhelpful. The appellant also asserted a lack of memory numerous times in his testimony. As he said at one point in his cross-examination, “There are things I remember and there are things I forget.” Lastly, trial counsel did not urge the trial judge to make this finding about the complainants, presumably because of the appellant’s responses along the same lines. (b) The Appellant’s Evidence [66] The appellant points to the trial judge’s findings about his own evidence as indicative of an unbalanced approach. The appellant submits that the trial judge fixated on “trivial inconsistencies”. He also submits that the trial judge misapprehended the evidence in relation to the first two examples discussed below (“Infrequency of staying overnight” and “Recalling events that defied belief”). This overlaps with a separate ground of appeal dealing with misapprehensions of the evidence. I will deal with both grounds together. Infrequency of staying overnight [67] As noted above, the frequency with which the appellant was at W.M.’s house, and how often he stayed over, was contentious. It impacted on the plausibility of V.M.’s evidence because she testified that the appellant sexually assaulted her, “Too many times to count. It became a regular thing.” This evidence was not important to W.M.(1)’s allegations because she said she was sexually assaulted about four times in total. [68] The appellant submits that the manner in which the trial judge handled this evidence reflects the application of an unduly harsh standard as it relates to his consideration of the appellant’s evidence. He submits that the trial judge should have accepted his own assertion of how often he stayed over because it was corroborated by W.M. [69] There was a good deal of evidence at trial about how often the appellant stayed overnight, some of which is reviewed above. To recap: · W.M. testified that the appellant stayed over once a week or once every two weeks; · V.M. testified that the abuse happened on both weekends and weekdays. She told the police that the appellant touched her two to three times a week. She disagreed with her mother’s estimate of how often the appellant stayed overnight; · W.M.(1) said that the appellant stayed over once or twice a week; and · The appellant testified he stayed over about three times a month – sometimes twice a month; sometimes four times a month. [70] Because W.M.’s evidence was consistent with the appellant’s estimate, the appellant contends that it was unfair for the trial judge to reject the appellant’s evidence on this point, reflecting a lack of balance in the trial judge’s reasons as a whole. I disagree. [71] When first addressing this issue, the trial judge said, at para. 8: “According to W.M. [Mr. H.] stayed over approximately two or three times a week.” This seems to have been a typographical mistake; it was V.M. who estimated this frequency, not her mother. Nevertheless, the trial judge accurately recorded W.M.’s frequency evidence in para. 43 of his reasons: “After they initially dated [W.M.] estimated that [Mr. H.] stayed over approximately once every week or every two weeks until the end of the relationship.” Thus, the trial judge understood the various frequency estimates in the evidence. He did not misapprehend W.M.’s evidence. [72] However, more needs to be said about W.M.’s evidence as a whole, and how the trial judge approached it. When the trial judge first addressed her evidence in his reasons, he said the following at para. 41: “I do not intend to spend a lot of time outlining W.M.’s evidence as will be explained further on in my reasons.” In summarizing the parties’ positions, the trial judge wrote, at para. 107: It was conceded by both the Crown and the defence that W.M.’s evidence had significant limitations due to her inability to recall conversations and specific events. The Crown urged that the court should not accept her evidence unless it was corroborated or supported by other testimony from other witnesses or by common sense . The Crown suggested that there were aspects of her evidence that the court can accept that pertained to the sleeping arrangements and her schedule. [Emphasis added.] [73] It is clear from his reasons that the trial judge understood W.M.’s evidence. However, and while he did not say so explicitly, he rejected her evidence on this point. This was not unfair, nor was it indicative of uneven scrutiny. [74] There were other aspects of her evidence to which he did not refer which, if accepted, would have been damaging to the appellant’s position. For instance, the appellant said that he never stayed over during the week; W.M. said that he did, but not frequently. W.M. said there was a 2-4 week trial period when they tried living together; the appellant said this never happened. W.M. said that the relationship had been serious and they might have married had the appellant’s family approved; the appellant said marriage had never been a possibility. Perhaps most importantly, W.M. testified that the appellant would go to her children’s bedrooms to tuck them in at night; the appellant denied this happened. On this last point, W.M.’s evidence was potentially very damning to the appellant, who claimed minimal opportunities to commit the offences, and insisted on never leaving the master bedroom except to use the bathroom after having sex with W.M. [75] It might have been preferable had the trial judge better explained why he did not rely upon W.M.’s evidence of the frequency of overnight stays. However, his choice not to do was rational and his overall treatment of her evidence was very fair to the appellant. Far from engaging in an unbalanced assessment of the evidence, as the appellant suggests, the trial judge’s overall treatment of W.M.’s evidence was to the benefit of the appellant. Recalling events that “defied belief” [76] As another example of uneven scrutiny, the appellant points to the trial judge’s rejection of his claim that V.M. had a lock on her bedroom door. The appellant explained a confrontation between V.M. and her mother when V.M. ran to her bedroom and locked the door behind her. The trial judge said the following about this part of his evidence, at para. 175: I found [Mr. H.’s] ability to recall details that he could not have possible known would be relevant sixteen (16) years later defied belief. For example, [Mr. H.] had a specific recollection that there was a lock on V.M.’s door. He recalled an incident whereby V.M. ran into her bedroom and locked herself in her room. V.M. [ sic , W.M.] demanded that she unlock the door, after V.M. [ sic , W.M.] could not unlock it from the outside with a pin. Eventually the incident ended by V.M. unlocking the door. I found it odd that [Mr. H.] recalled such an insignificant event so many years later. In my view, this was another attempt to demonstrate limited access to a bedroom. However, V.M. testified that she did not have a lock on her door as she slept in a converted office. [Emphasis added.] [77] The appellant takes issue with this passage. He says the issue should have been decided differently: “There is nothing bizarre about remembering such an incident. It would have been more unusual if he had no memory of what appeared to be a significant confrontation.” It must be remembered that the trial judge made this assessment in the light of his general findings that the appellant had sought to minimize his opportunities to commit the offences against the complainants. The conclusions he reached were available to him on the record. [78] The appellant also submits that the trial judge misapprehended the evidence on this issue. He says that the evidence confirmed his view that there was a lock on this bedroom door. But the evidence was conflicting. W.M. testified that she did not remember whether the kids’ rooms had locks. However, she later said that V.M. would lock her door after arguments. W.M.(1) testified that she did not think V.M. had a lock on her door. V.M. flatly denied the suggestion: “There was not a lock on my door, I was not allowed to have locks.” [79] Moreover, the trial judge’s focus was not on whether or not there was a lock on V.M.’s bedroom door, but the appellant’s claim to have remembered such a trivial detail, years later, and especially in light of the trial judge’s broader conclusion that the appellant attempted to distance himself from opportunities to commit the offences. His reasons reveal no error, nor any inclination to hold the appellant’s evidence to a higher standard. The trip to the beach [80] The appellant takes issue with the trial judge’s appraisal of part of the appellant’s cross-examination concerning a visit to the beach. The issue unfolded during the following exchange: Q.:     There was a time in fact you took [W.M.(1)] to the beach, is that correct? A.:     I took [W.M.(1)] to the beach you say? Q.:     Yes. A.:     No. [81] The appellant was then confronted with his testimony from his previous trial in which he said he had gone to the beach with W.M.(1), V.M., and W.M. In the ensuing exchange, the appellant insisted that he had answered the Crown’s question accurately – the Crown had only asked about W.M.(1) alone, not W.M.(1), V.M., and W.M. [82] The trial Crown pointed to this exchange as indicative of the appellant’s insincerity. The trial judge agreed and said, at para. 173: When he was confronted with his testimony in his previous trial that in fact he admitted that he had taken the entire family to the beach, however, in my view he ‘double downed’ when he responded that he was asked if he only took W.M.(1) to the beach. While this may have been a clever response, which perhaps technically may be accurate to the specific question poised, it was an unpersuasive answer that was intended to not fully answer the question. In my view, if [Mr. H.] wanted to be open and honest in his evidence he should have fully answered the question, rather than focusing on a slight language distinction to cover the fact that he did not recall whether or not he took W.M.(1) to the beach. [Emphasis added.] [83] The trial judge was entitled to reach this finding on the record. Moreover, it must be considered in view of his overall impression of the appellant as “combative and flippant” during cross-examination. The trial judge had the advantage of being present during this exchange. Allowing for the fact that other judges may have treated the evidence differently, it cannot be said that the trial judge’s observations were inaccurate or unfair. Leaving the bedroom during the night [84] The appellant submits that the trial judge was too harsh in his criticism of his evidence on the issue of whether he ever left the bedroom at night. The appellant testified that, following intimacies with W.M., he would use the bathroom. The appellant was asked about his testimony at his first trial when he said that he never left the room. He clarified that, once he and W.M. had gone to sleep, he never left the bedroom. This exchange was made problematic by the trial Crown’s tendency to summarize the questions and answers from the first trial, rather than reading them verbatim , as defence counsel quite properly insisted. [85] The trial judge agreed with defence counsel’s objection as to the form of the cross-examination; nonetheless, he was still unimpressed by the appellant’s evidence on this point. As he said, at para. 174: I also found that during the entirety of the relationship [Mr. H.’s] claim that he never left the bedroom at night other than when he went to the washroom after sex difficult to accept. His previous trial testimony, which was put to him, made it clear that he never left the bedroom after going to sleep. However, in his current testimony when he said that he did leave the bedroom after sex he did go to the washroom. There was a defence objection that the Crown’s question was about not leaving the bedroom after sex. However, [Mr. H.] admitted that he never left the bedroom at all. I simply find this hard to believe. In my view, it was another transparent example of [Mr. H.] denying that he had an exclusive opportunity to carry out the acts alleged. [Emphasis added.] [86] This finding was open to the trial judge to make on the entirety of the record. It does not reflect the application of an unduly exacting standard of scrutiny. (c) Conclusion [87] The appellant has failed to make out the case for uneven scrutiny. The complaint he makes is not so much about the application of discordant standards as it is about the complainants being believed when he was not. In essence, the appellant’s claim was an assertion of an unreasonable verdict. Referring to the shortcomings in the evidence of the complainants, the appellant submits in his factum: “Any number of these flaws would have been ample basis to raise a reasonable doubt. The cumulative evidence of these credibility flaws made the verdict unreasonable.” [88] In my view, the verdicts were neither unreasonable, nor were they the product of a flawed or unfair fact-finding process. I would dismiss this ground of appeal. (2) Undue Reliance on Demeanour Evidence [89] The appellant submits that the trial judge placed undue emphasis on evidence of demeanour when he characterized the appellant as “uneasy” and “guarded”. The appellant asserts that, “Particularly given the cultural and linguistic differences – [Mr. H.] is a relatively recent immigrant who speaks English as a second language – the Court should be mindful of overemphasizing demeanour and making assumptions about culturally appropriate conduct.” [90] Respectfully, there is no merit in this submission. There was not a hint in the trial judge’s reasons that he made any assumptions about the appellant’s linguistic abilities. The appellant declined the assistance of the Assyrian interpreter who had originally been requested for the trial. There is no indication in the record that the appellant struggled to express himself. Moreover, I fail to see any connection between the trial judge’s use of the terms “uneasy” or “guarded” and the appellant’s allusion to “culturally appropriate conduct”. [91] Triers of fact, whether judges or jurors, must guard against undue reliance on demeanour. That does not mean that demeanour is irrelevant. It is one of the factors that a trial judge may consider in evaluating a witness’s credibility: R. v. O.M . , 2014 ONCA 503, 313 C.C.C. (3d) 5, at para. 34; R. v. T.H . , 2016 ONCA 439, at para. 4. In this case, demeanour was just one of the factors that the trial judge relied upon in making his credibility assessments. He did not over-emphasize demeanour, nor did he treat it as a controlling factor. [92] I would reject this ground of appeal. (3) Misuse of a Prior Statement [93] The appellant submits that the trial judge erred in using a prior statement made by V.M. as confirmatory of her trial testimony. This ground of appeal relates to the incident in which V.M. called the appellant a “pervert”. This evidence was adduced by the defence in its cross-examination of V.M. in an effort to demonstrate that she made things up about the appellant. [94] In his reasons for judgment, the trial judge referred to this incident as “quite telling”. He said: “I agree that there was no confirmatory evidence that [Mr. H.] threw a telephone in response. However, W.M., V.M., and [Mr. H.] agreed that the word ‘pervert’ had been used at some point in time. I accept as a fact that at the time V.M. was reaching out to her mother.” [95] The trial judge was tracking the language of V.M. in her assessment of the incident. It is important to appreciate the context in which the statement was made. V.M. said she made the comment because the appellant watched television shows that she thought were inappropriate. This would embarrass her when she had company over. V.M. explained: It wasn't something that was ever on in my house prior to that…I didn’t know how to handle the situation because my relationship with my mother at the time was rocky at best, and I felt helpless, and I – it was like my way of reaching out without saying anything, but obviously it didn't set off any alarms for anyone. [96] Moreover, the trial judge’s finding was made after a finding in favour of the appellant, based on the totality of the evidence, that there was no confirmation for V.M.’s evidence that the appellant threw his phone at her. It would have been preferable had the trial judge further explained why he referred to the “reaching out” statement. However, there is no indication that it played any further role in his analysis, nor that he used it to bolster V.M.’s credibility. [97] I would not give effect to this ground of appeal. (4) Improper Common Sense Assumptions about Human Behaviour [98] The appellant submits that the trial judge erred in making a common sense assumption about the nature of the appellant’s relationship with W.M. In his consideration of how often the appellant stayed overnight, and whether he stayed over on weeknights (which the appellant denied), the trial judge referenced the strong feelings that the appellant said that he had for W.M. at the time. [99] In cross-examination, the appellant agreed with the suggestion that he and W.M. “wanted to spend basically all the time [they] could together”. The trial judge considered this evidence along with the evidence that the appellant often went to W.M.’s house for dinner during the week, kept underwear and a t-shirt at the house, and that W.M.’s house was close to the appellant’s own residence, his place of employment, and the college he attended. But as the trial judge said, at para. 172, “It was difficult to accept that never once given all the circumstances, as he testified, [Mr. H.] never slept over on a week night even though he admitted that he wanted to spend as much time as he could with W.M.” [100] The trial judge did not make unwarranted assumptions about human behaviour. He evaluated the evidence on this issue and highlighted a contradiction between the appellant’s stated actions and his purported state of mind. The appellant testified that he wanted to spend as much time as he could with W.M., but he also testified that he did not even try to stay overnight more frequently. Again, these findings must be considered within the trial judge’s overall assessment that the appellant sought to minimize his access and opportunities to commit the offences. [101] I would reject this ground of appeal. (5) Delayed Disclosure [102] The appellant submits that the trial judge erred in not giving effect to the argument that V.M.’s delay in disclosure should have given the trial judge pause for concern because she was an assertive person who was not shy about criticizing the appellant. Such a person would be expected to make a timely disclosure, so the argument goes. The trial judge disagreed, at para. 160: V.M. was a strong minded and opinionated teenager, however, I do not accept that just because she was an “in your face” teenager that should have made her more inclined to disclose the alleged sexual abuse. This was close to the stereotypical reasoning in sexual assault cases that courts strive to avoid in engaging. The defence promoted the idea [that] V.M. always stood up for herself and in fact was extremely disrespectful and rude to [Mr. H.], so why did she not disclose the allegations? Whether as a teenage girl V.M. was insecure about her relationship with her mother or whether both complainants were not emotionally equipped to deal with the sexual abuse and to tell anyone about it, was neither here nor there. The delay in disclosure standing alone does not give rise to an adverse inference against credibility. [Emphasis added.] [103] In reaching this conclusion, the trial judge was applying the principles articulated in R. v. D.D . , 2000 SCC 43, [2000] 2 S.C.R. 275. Writing for the majority, Major J. held that, in order to dispel the possibility of stereotypical reasoning, a trial judge should instruct the jury that “there is no inviolable rule on how people who are the victims of trauma like a sexual assault will behave”; “the timing of the complaint is simply one circumstances to consider in the factual mosaic of a particular case”, and “[a] delay in disclosure, standing alone, will never give rise to an adverse inference against the credibility of the complainant”: D.D . , at para. 65. [104] The appellant attempts to sidestep this authority by asserting that it was not suggested that delayed disclosure alone undermined V.M.’s credibility, but rather it was highly unlikely that “ this complainant would have delayed disclosure given everything else we know about her.” [Emphasis in the original.] [105] The distinction the appellant attempts to draw is unconvincing. Every case involves the application of the principles in D.D . to a specific complainant ( i.e. , “ this complainant ”). To the extent that D.D . should not apply to V.M. because she was an assertive teenager would turn this line of authority on its head. It would mean that D.D . would only apply to cases involving non-aggressive or demure complainants, and not those who are assertive or aggressive. I reject this proposition. [106] I would dismiss this ground of appeal. (6) Similar Fact Evidence [107] The appellant submits that the trial judge erred in allowing the Crown’s similar act application. However, as noted in para. 37, above, the trial judge found that the allegations had been proven against the appellant beyond a reasonable doubt without having to rely upon this mode of reasoning. In the circumstances, it is not necessary to address this ground of appeal. E. disposition [108] I would dismiss the appeal. Released: “JS” June 23, 2020 “Gary Trotter J.A.” “I agree. Janet Simmons J.A.” “I agree. S.E. Pepall J.A.” [1] This was the appellant’s second trial. After being convicted at his first trial, the appellant successfully appealed his convictions to this court: see R. v. E.H. , 2017 ONCA 423.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ezechukwu, 2020 ONCA 8 DATE: 20200107 DOCKET: C66208 Hoy A.C.J.O., van Rensburg and Hourigan JJ.A. BETWEEN Her Majesty the Queen Respondent and Francis Ezechukwu Appellant Ravin Pillay, for the appellant David Quayat, for the respondent Heard: December 19, 2019 On appeal from the conviction entered on November 6, 2017, with reasons reported at 2017 ONSC 5441, and the sentence imposed on April 17, 2018 by Justice Joseph M. Fragomeni of the Superior Court of Justice. REASONS FOR DECISION A. Introduction [1] Francis Ezechukwu was convicted of importing cocaine, possession of cocaine for the purpose of trafficking, and conspiracy to import cocaine. He was sentenced to nine years imprisonment. [2] On appeal, he submits that the trial judge: (1) misapprehended the evidence on matters that went to the core of the findings of guilt, (2) erred in his application of the law on importing and post-offence conduct, and (3) rendered an unreasonable verdict. The appellant has abandoned his sentence appeal. [3] For the following reasons, we dismiss the appeal. B. Facts [4] On September 8, 2014, a package arrived at Toronto Pearson International Airport from Lima, Peru. The declared contents of the package were alpaca rugs and wool bags. It was shipped via FedEx and addressed to David Galino – Peruvian Arts, 1650 Dundas St. East, Mississauga, Ontario, telephone number (647) 924-2887. The commercial invoice for the package was dated September 5, 2014 and the FedEx receipt shows a direct shipment date of September 5. [5] An officer of the Canadian Border Services Agency (the “CBSA”) examined the package and discovered plastic pouches that contained a white powdery substance that he believed to be cocaine. At that point, custody of the package was transferred from the CBSA to the Royal Canadian Mounted Police (the “RCMP”). [6] The RCMP confirmed through Health Canada that the substance in the plastic pouches was cocaine, totaling 3,535 grams. In 2014, the value of the seized cocaine in the Greater Toronto Area, if sold at the kilogram level, was between $175,000 and $227,000. If sold at the gram level, the value was roughly $282,800. [7] An RCMP constable prepared the package for a controlled delivery. He removed the cocaine, save for the 1.5-gram sample that had been tested by Health Canada. The RCMP unsuccessfully attempted a controlled delivery on two occasions on September 11, 2014. The same day, however, a male who identified himself as “Dave” called FedEx and inquired about the package. He confirmed the address and specified that it should be delivered to unit 265. [8] On September 12, 2014, the RCMP attempted to deliver the package again. At 11:43 a.m., it was received by a man named David Gani, who took the package inside the foyer of 1650 Dundas and gave it to Randy Boddis. Gani then exited the premises without the package and went into a variety store where he was arrested. [9] Boddis put a black garbage bag over the package and got into a taxi. The taxi travelled to an apartment building in Rexdale. A short time later, the appellant came out of the side door of the building. He approached the taxi and paid the fare. As the appellant and Boddis walked toward the door of the building, Boddis was carrying the package. [10] When Boddis and the appellant neared the building, an RCMP officer, Corporal Randhawa, ran to the door, yelled “Wait, hold on!”, and stopped the door from closing. Once he had control of the door, Corporal Randhawa yelled loudly, “Police — stop”, several times and arrested Boddis. The appellant turned, looked Corporal Randhawa in the eyes, and ran. Another officer, Corporal Belfour, chased the appellant and called out “Police — stop” multiple times during the chase. At that point, Constable MacDougall, got out of his vehicle and yelled “Police — stop”. The appellant heard this and changed directions, running into another building’s courtyard. Another RCMP team member was there and tackled him. [11] The appellant was arrested and searched incident to arrest. That search revealed, among other items, a piece of paper containing the following information: tracking number 804952423148, David Galino – 1650 Dundas Street East, Mississauga, Unit 265, M4X 2Z3, (647) 924-2887, 1 (800) 463-3339, and Payment Confirmation 91620927. The cash in the appellant’s wallet totalled $820 CAD and $52 USD. A search of unit 206 of the apartment building resulted in the seizure of various documents with the appellant’s name and/or address and a small bag of marijuana in the freezer. [12] Cell phone records seized as part of the police investigation revealed several calls between a cell phone seized from the appellant and one of two phones seized from Boddis. Boddis’s phone was in contact with the appellant’s phone since at least August 27, 2014. [13] Boddis’s phone was also frequently in contact with the phone seized from Gani from July 2014 until September 11, 2014. During this same time period, Gani’s phone and Boddis’s phone were in contact with seven common contact numbers. On September 12, 2014, Gani’s phone and the second phone seized from Boddis were, collectively, in contact with a common number nine times. C. Analysis (1) Did the trial judge misapprehend the evidence ? [14] The appellant submits that the trial judge misapprehended the evidence. Specifically, in his analysis of conspiracy charge, the trial judge stated at para. 113 that he was relying on “[t]he number of telephone exchanges during the relevant time period up to and including the day of the controlled delivery, namely September 12, 2014. These exchanges included contact with Gani and Boddis, who received the package containing the cocaine from the cover.” [15] The appellant submits that this finding was contrary to the evidence. Indeed, the parties explicitly stated in the Agreed Statement of Facts that there was no contact between the appellant’s phone and the cell phone linked to Gani. The appellant submits that this erroneous finding “significantly advanced the case for the Crown” because it connected the appellant to the prime mover in the scheme. [16] The appellant also takes issue with the trial judge’s conclusion at para. 123 of his reasons that “[t]he false address of 1650 Dundas St. East with the name Peruvian Arts was designed and calculated by the [appellant] to avoid detection by not using his own name and address.” The appellant submits that there was no evidence capable of supporting the finding that he designed the false address. Notably, the document in the appellant’s possession did not name “Peruvian Arts”. According to the appellant, this erroneous finding elevated him to the prime mover of the alleged conspiracy. [17] Finally, the appellant submits that the trial judge erred in finding that his flight from the police was evidence of his state of mind. At trial, the defence took the position that the flight was equally consistent with a violation of his parole for possession of marijuana and therefore had no probative value. The trial judge rejected that argument, finding that there was no evidence that his actions breached his parole terms. The appellant submits that the trial judge erred in this regard because possessing marijuana was a breach of his condition to obey the law and keep the peace. [18] In R. v. Gill , 2019 ONCA 902, at para. 10, this court considered the standard to be applied to an alleged misapprehension of evidence: The standard applied when misapprehension of evidence is said to warrant reversal of a conviction is a stringent one. The misapprehension of the evidence must relate to the substance of the evidence, not simply a matter of detail. It must be material, rather than peripheral to the reasoning of the judge. But that is not all. The errors alleged must also play an essential part, not just in the narrative of the judgment, but in the reasoning process resulting in the conviction. Misapprehensions of evidence amount to a miscarriage of justice only if striking the misapprehension from the judgment would leave the judge’s reasoning on unsteady ground. [Citations omitted.] [19] Regarding the post-offence conduct, we agree with the Crown’s submission that it strains credibility that a small quantity of marijuana located in an apartment some distance away would be capable of explaining the appellant’s flight when he was proximate to a large amount of cocaine. Accordingly, we are not satisfied that the trial judge made a factual error in rejecting the argument that the appellant’s post-offence flight was equally consistent with a violation of his parole. [20] It is not entirely clear that the trial judge meant to convey that there had been contact between the cell phone seized from the appellant and the one seized from Gani. Earlier in his reasons, at para. 96, he noted that the parties agreed that there had been no such contact between these phones. For the purposes of this analysis, we are prepared to accept that the trial judge erred on this point. We are also prepared to accept that the trial judge erred in finding that the appellant designed the false address. [21] These errors must be placed in context of a very strong Crown case. The compelling evidence of the appellant’s guilt included his possession of the paper with the shipping details, the numerous telephone calls between the appellant and Boddis, and the fact that he met and paid for the taxi and was leading Boddis into the apartment. While direct evidence of communication between Gani and the appellant would have strengthened the Crown’s case, it was not essential to the convictions. Similarly, whether the appellant “designed and calculated” the false address and business name was of marginal relevance. (2) Did the trial judge err in his application of the law on importing and post-offence conduct? [22] The appellant submits that the trial judge made two errors of law in his analysis. First, relying on R. v. Bell , [1983] 2 S.C.R. 471, he argues that the trial judge failed to consider whether the importing had been complete when Gani received the package. According to the appellant, a proper application of importing in Bell would have precluded a conviction. [23] The appellant’s reliance on Bell is misplaced. At para. 128 of his reasons, the trial judge made clear that he was convicting the appellant based on his being a principal to the importation. The trial judge found that the appellant knew that the cocaine was being imported into Canada. That finding was open to him based on the record. In particular, the appellant’s possession of the shipping details of the package — including a unit number at 1650 Dundas that was not included in any of the shipping documents — and the telephone contact with Boddis’s phone that predated the shipment of the package, provided a compelling evidentiary basis for this finding. Given the appellant’s involvement as a principal on this count, it is not dispositive that Gani received the package and the appellant never touched it. [24] Second, the appellant submits, relying on R. v. Chambers , 2016 ONCA 684, 342 C.C.C. (3d) 285, that because there were multiple offences charged, the trial judge erred in failing to consider whether the post-offence conduct was probative of one, two, or all three of the offences. He argues that the flight from police was only potentially relevant to the possession for the purpose of trafficking count. [25] We disagree. The appellant’s guilt of the offences charged turned largely on the same underlying factual matrix. It was thus unnecessary for the trial judge to tie his analysis of the post-offence conduct to a particular count. Nor are we of the view that the post-offence conduct could only potentially be relevant to the possession for the purpose of trafficking count. It was circumstantial evidence that the appellant was engaged in criminal conduct, regardless of the precise charge. [26] In any event, given the strong circumstantial evidence of guilt, even if the appellant’s flight was excluded from the evidence, we are not satisfied that it would have impacted the trial judge’s findings of guilt. (3) Did the trial judge render an unreasonable verdict? [27] The appellant submits that the trial judge erred in failing to find that a reasonable doubt arose from gaps in the evidence and in failing to find that inferences inconsistent with the appellant’s guilt could be drawn from the evidence. [28] The appellant’s argument on this ground of appeal amounts to nothing more than an invitation to reweigh various pieces of circumstantial evidence in isolation. We decline to do so. Assessing the reasonableness of a verdict requires an appellate court to ask whether a trier of fact, properly instructed, could have returned a guilty verdict. It is not a re-trial and the appellate court must look at the evidence in its totality: R. v. Biniaris , 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. [29] We note that the appellant elected not to testify. In considering the reasonableness of the verdict, we treat the appellant’s silence as indicating that he could not provide an innocent explanation for his conduct. His failure to provide an innocent explanation at trial undermines the alternative inferences he says were available on the evidence: 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; R. v. Wu , 2017 ONCA 620, at para. 16. [30] In our view, the evidence against the appellant was overwhelming and no inference short of guilt on all three charges was available. Accordingly, we reject this ground of appeal. D. Disposition [31] For the foregoing reasons, the conviction appeal is dismissed. The sentence appeal is dismissed as abandoned. “Alexandra Hoy A.C.J.O.” “K. van Rensburg J.A.” “C.W. Hourigan 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.H., 2020 ONCA 1 DATE: 20200102 DOCKET: C64337 van Rensburg, Benotto and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and G.H. Appellant Catriona Verner, for the appellant Joanne K. Stuart, for the respondent Heard: December 9, 2019 On appeal from the conviction entered on January 25, 2017 by Justice Wolfram U. Tausendfreund of the Superior Court of Justice, sitting with a jury. Benotto J.A.: [1] A jury found the appellant guilty of sexual interference and incest in relation to one of his daughters. The complainant alleged that he had touched her and engaged in sexual intercourse with her over a period of years, up to the night before she disclosed the alleged abuse. The defence theory at trial was that the complainant had fabricated her allegations so that her mother, who was travelling for work, would return home. [2] The appellant alleges that the trial judge erred by: (i) allowing the Crown to cross-examine him about why his daughter would lie; (ii) failing to properly instruct the jury with respect to consistent and inconsistent statements of the witnesses; (iii) permitting the Crown to violate the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.); and (iv) misstating the evidence during his charge to the jury. [3] As I will explain, the cross-examination of the appellant about the complainant’s motive to lie was improper and prejudicial and the trial judge’s failure to instruct the jury on a prior inconsistent statement of a witness was an error of law. Taken together, these errors require a new trial. It is therefore not necessary to address the other grounds of appeal. FACTS [4] The appellant lived with his wife and three daughters. In June 2011, his wife started a new job in Alberta that required her to be away from home for two weeks at a time. The complainant missed her mother very much. [5] A family friend, “S.C.”, and her son lived with the appellant and his family. S.C. was close to the complainant and was like a second mother. In September 2014, the appellant began having an affair with S.C. [6] The complainant is the youngest of three daughters. She alleged that, beginning when she was six years old, the appellant touched her crotch in his room and in the backyard pool. Beginning when she was nine years old, he had intercourse with her several times, sometimes using a purple vibrator and Vaseline. He never used a condom and used a towel to wipe down the vibrator and himself. He would give her cash afterwards. [7] On March 3, 2015, the complainant disclosed the abuse to friends, a teacher, and the police. She told the police that intercourse had occurred the night before in the appellant’s bed. [8] The appellant was arrested the same day. S.C. was interviewed and told the police that the night before – on March 2, 2015 – the complainant started out sleeping in her bed but got up in the night to go and sleep in the appellant’s bed. [9] The police searched the home and found a purple vibrator, Vaseline, and a towel near the appellant’s bed. One of the complainant’s pillows was on the bed. [10] DNA testing on the seized items showed the following: · The complainant’s DNA was not found on the vibrator, Vaseline or towel. · The appellant’s DNA was found on the complainant’s neck but not her genitalia. (He testified that he had kissed her when she left for school that day). · The appellant’s DNA was found on the vibrator, as was female DNA that did not match the complainant. · A small amount of semen, Vaseline and male DNA was found on the outside of the complainant’s vagina. No semen was found on internal and external vaginal swabs. · Semen was found on the crotch of the complainant’s underwear. [11] A physician examined the complainant but could not confirm whether she had been assaulted or whether she had ever engaged in intercourse. THE TRIAL Cross-examination of the appellant [12] At trial, defence counsel (not appellate counsel) cross-examined the Crown witnesses on the fact that the complainant had difficulty with her mother being away from home and that her mother had returned home immediately as a result of the allegations. The appellant, who testified at trial, did not state in his direct evidence that he thought the complainant fabricated the allegations to bring her mother home, or at all. His counsel had raised this as a theory in her cross-examination of the complainant and other Crown witnesses. However, the Crown cross-examined the appellant as follows: Q. So, if we believe what you’re indicating and that this never happened, [the complainant is] what, fabricating these allegations? A. Yeah, obviously. Q. She missed her mom so much that she made up these allegations against you, is that your understanding? A. I would hope that she didn’t, but it sure appears that way, yes. I’m going to say, yes. She missed her mother. She wanted her mother home and yes, I believe that the easiest way to make sure her mother stayed home and did not go back out west was to ensure that there was a reason for her to stay here. [13] Defence counsel interjected as follows: [CROWN]: Your Honour there’s an objection. [DEFENCE]: Your Honour my friend has canvassed this area with my client and he .... THE COURT: I’m sorry? [DEFENCE]: My friend has canvassed this with my client. He has answered the questions. I don’t think that he can know with any detail what was in his daughter’s head. He has answered the question and .... THE COURT: Well, that’s likely so, yes, but I think it’s relevant what [the appellant] believes that her motivation might have been. It’s not about what was in her head, but what he believes. Please continue. [14] The questioning continued, and the Crown ended the cross-examination as follows: Q: …I’m going to suggest to you the reason why she said the things that she did is because they are true? A: They are not true. I did not sexually assault my daughter. Q: And nothing else makes sense given what we’ve heard over the course of this trial. Isn’t that correct? A: I can’t answer that question. The prior inconsistent statement [15] Where the complainant slept on March 2, 2015 (the night before the disclosure) became a significant issue at trial. [16] The complainant testified that she slept in the appellant’s bed where she woke up. [17] Both of the complainant’s sisters testified that the complainant slept in S.C.’s bed. One sister testified that she explicitly remembered going to S.C.’s room to wake the complainant for school. The other sister, a Crown witness, testified that she did not remember the complainant ever sleeping in the appellant’s room, let alone that night – except perhaps when she was sick. [18] S.C. testified that the complainant slept with her that night. She was cross-examined about the police statement where she had stated that the complainant started the night with her but got up during the night and went to the appellant’s room. She explained that, when she gave the statement on March 3, 2015, she was confused as a result of the allegations, did not think there was any significance to the sleeping arrangements, and was in error. She did not adopt the prior inconsistent statement. Crown closing [19] The Crown relied on the cross-examination of the appellant in closing submissions: The Defence will have you believe that [the complainant] fabricated or made up these allegations …because she missed her mother, wanted her back home. I ask you to apply your common sense and ask yourself does that make sense? Is it logical that [she] waits five years before saying anything and at the age of eleven concocts this entire elaborate extreme plan just to get her mother home? No. [20] The Crown also asked the jury to disbelieve the sisters’, the appellant’s and S.C.’s trial testimony, and instead rely on S.C.’s prior inconsistent statement, which “on its face would corroborate what [the complainant] was saying.” The jury charge [21] The trial judge referred to the cross-examination of the appellant concerning the complainant’s motive to fabricate, and specifically invited the jury to consider this evidence in assessing the appellant’s guilt: When asked about [the complainant’s] allegation of sexual touching and intercourse with him, he agreed with the Crown that [she] missed her mother, wanted her home and that she made up this evidence, he stated, to have her mom return from Alberta. [22] The trial judge also referred to S.C.’s prior inconsistent statement when reviewing the evidence at trial. He stated: [S.C.] agreed that in her statement of March 3 rd , …[the complainant] had gotten up during the night and had gone to her father’s room…. She stated that this however was not correct. She had planned on correcting that statement at the time of the preliminary inquiry when she testified. However she did not as she was not asked about it. [23] The trial judge did not provide the jury with a limiting instruction regarding the use that could be made of the prior inconsistent statement. DISCUSSION The cross-examination of the appellant [24] This court has consistently held that “it is improper to call upon an accused to comment on the credibility of his accusers”: see R. v. Rose (2001), 53 O.R. (3d) 417 (C.A.), at para. 27. In R. v. L.L. , 2009 ONCA 413, 96 O.R. (3d) 412, Simmons J.A. explained the twofold rationale to preclude this line of questioning: it is improper for a witness to remark on another witness’s truthfulness and there is a risk the burden of proof may be improperly shifted to the accused. Moreover, in a jury trial, this type of questioning may lead the jury to draw an adverse inference if the accused is unable to provide a compelling answer for why the complainant made the allegations. A more comprehensive discussion of these concerns appears at paras. 15-16: First, as a general matter, it is improper to invite one witness to comment on the veracity of another. This principle has particular application to an accuser and the accused. As noted by Charron J.A. in R. v. Rose , (2001), 2001 CanLII 24079 (ON CA) , 53 O.R. (3d) 417 (C.A.) at para. 27 , this court “has held repeatedly that it is improper to call upon an accused to comment on the credibility of his accusers”. Second, questions of this type create a risk of shifting the burden of proof because they may mislead the trier of fact into focusing on whether the accused can provide an explanation for the complainant’s allegations instead of focusing on the central issue of whether the Crown has proved beyond a reasonable doubt that the allegations are true. As this court said in R. v. F.(C.) , [1996] CanLII 623 (Ont. C.A.), such questions create a risk that the jury may draw an adverse inference if the accused fails to provide a “reasoned or persuasive” response. [Citations omitted.] [25] In R. v. T.M., 2014 ONCA 854, leave to appeal refused, [2015] S.C.C.A. No. 110, this court explained the scope of permissible questions about a complainant’s motive to fabricate. Questions that explore the nature of the relationship between the appellant and the complainant are proper. These questions elicit information within the appellant’s knowledge: at para. 40. However, questions that go to motive “become improper when they go beyond eliciting facts known to the accused and instead invite the accused to speculate”: at para. 41. [26] The Crown submits that the cross-examination was proper because defence counsel had raised recent fabrication and offered the motive for the fabrication. Thus, the Crown was entitled to explore this line of questioning in the cross-examination of the appellant. [27] I do not agree. [28] The questions were improper. The questions did not concern the relationship between the family members, but rather asked the appellant to offer an explanation for the complainant’s allegations. In asking the appellant about why the complainant made the allegations, the Crown stated, “nothing else makes sense given what we’ve heard”. As a result, the questions caused the appellant to speculate about the reasons for the accusation and to come up with a reason “that makes sense”. [29] The trial judge’s comments in response to defence counsel’s objection cemented the unfairness when he said that the questions were “relevant” because of what the appellant believed the complainant’s motivation may have been. This is both wrong and misleading. What the appellant “believed” to be the complainant’s motivation was not relevant. The questioning was misleading because the jury could have been left with the impression that he should have had a credible explanation for the allegations. [30] The Crown compounded this impression in closing submissions, which referred to the appellant’s cross-examination as not making sense. [31] The trial judge should have instructed the jury to ignore the portion of the cross-examination requiring the appellant to explain the reasons for the allegations. In connection with this corrective instruction, the trial judge should have reminded the jury of the presumption of innocence and the burden of proof. In this case, the standard charge given on the presumption of innocence and the burden of proof was not sufficient to explain to the jury why this evidence, although referred to by the judge and the Crown, should be ignored. The failure to give proper jury instructions was an error. The prior inconsistent statement of S.C. [32] A prior inconsistent statement can be used to cross-examine a witness. It can only be used on the issue of credibility. However, unless the prior inconsistent statement is adopted by the witness, it cannot be used for the truth of its contents. Failure to provide a limiting instruction to the jury has been held to be a reversible error: Deacon v. The King , [1947] S.C.R. 531; McInroy and Rouse v. R. , [1979] 1 S.C.R. 588; R. v. Mannion , [1986] 2 S.C.R. 272. [33] The Crown submits that the appellant is precluded from raising this issue now because defence counsel failed to pursue the request at the pre-charge conference. At the pre-charge conference, the trial judge appears to have been mistaken about the law. When the Crown referred to S.C.’s prior inconsistent statement, the trial judge said: These are two different statements … and it’s up to [the jury members] to decide as to which of the two versions to accept …. [34] In the present appeal, this error of law is not excused by the failure of defence counsel to object. As I explain below in connection with the proviso , the jury could have accepted the prior inconsistent statement for the truth of its contents and concluded that the complainant slept in the appellant’s bed on the night of March 2, 2015. It was up to the trial judge to make it clear to the jury that the prior inconsistent statement could not be used for the truth of its contents whether or not defence counsel raised the issue.  As stated by Spence J. in R. v. Squire , [1977] 2 S.C.R. 13, at p. 19: It is … the duty of a trial judge to submit to the jury in his charge any defence available to the accused which had been revealed by the evidence whether or not counsel for the accused chose to advance that defence in his address to the jury. [Citations omitted.] [35] Nor can it be remedied, as submitted by the Crown, by the standard jury charge concerning the assessment of credibility. Those instructions are meant to help jurors assess credibility. One of the factors that can be considered is whether the witness said something different at another time. This standard charge is not a substitute for a specific limiting instruction when, as here, it is required. The trial judge should have explained to the jury the permitted use of the particular prior inconsistent statement at issue, followed by its prohibited use. Instruction on the “evidentiary value of prior inconsistent statements … is essential to proper juror understanding of the use of this evidence”: David Watt, Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Canada, 2005), at p. 77. This instruction is important to remind jurors to use their common sense in assessing how much reliance to place on the witness’s testimony at trial and that “the fact, nature and extent of the differences, as well as any explanation … for them are factors to consider” in assessing the credibility and reliability of a witness’s testimony: Watt, at p. 78. [36] The importance of these jury instructions is exactly what is referred to in R. v. Bevan , [1993] 2 S.C.R. 599, at p. 618: The real danger flowing from the failure of the trial judge to instruct the jury on the use that may be made of prior inconsistent statements is that the jury may not have understood that such statements could not be used as evidence to prove the truth of their contents. This danger was exacerbated by the trial judge's making a number of comments that may have caused the jury to conclude that all prior statements (consistent or inconsistent) could be used as substantive evidence. [37] The failure to provide a limiting instruction here was an error of law. THE PROVISO [38] The Crown submits that if this court concludes there were reversible errors, the curative provision should be applied. The Crown submits that there has been no substantial wrong or a miscarriage of justice as a result of the trial judge's errors because "the verdict would necessarily have been the same if such error had not occurred": see Colpitts v. The Queen , [1965] S.C.R. 739, per Cartwright J. (as he then was), at p. 745; Wildman v. The Queen , [1984] 2 S.C.R. 311, at pp. 328-29. [39] I do not agree that the verdict would necessarily have been the same, particularly without a limiting instruction on S.C.’s prior inconsistent statement. Absent that instruction, there was no way for the jury to know that S.C.’s statement to the police could not be relied on for the truth of its contents. Given the significance of the sleeping arrangements on the night of March 2, 2015, it is entirely likely that the jury accepted the prior inconsistent statement to confirm that the complainant slept in the appellant’s bed. This prospect was all the more possible given the trial judge’s remarks regarding the earlier version of the statement. [40] I therefore do not accept that – absent the errors – the verdict would have been the same. DISPOSITION [41] I would allow the appeal and order a new trial. Released: January 02, 2020 “MLB” “M.L. Benotto J.A.” “I agree. K. van Rensburg J.A.” “I agree. Harvison Young J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ghadghoni, 2020 ONCA 24 DATE: 20200116 DOCKET: C65659 Pardu, Roberts and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Saied Ghadghoni Appellant David M. Humphrey and Jill D. Makepeace, for the appellant Hannah Freeman, for the respondent Heard: December 6, 2019 On appeal from the conviction entered on June 9, 2017 and the sentence imposed on June 27, 2018 by Justice Hugh K. O’Connell of the Superior Court of Justice. Pardu J.A.: [1] Saied Ghadghoni appeals from his conviction for sexual assault and seeks leave to appeal from the 30-month sentence which followed upon his conviction. The basis for the conviction was a finding that the appellant initiated sexual intercourse with a sleeping woman, circumstances inconsistent with consent on her part. [2] The appellant submits that the trial judge applied uneven scrutiny to the evidence, rigorously scrutinizing his evidence but tolerating inconsistencies in the complainant’s evidence. [3] I would reject this ground of appeal. The appellant’s statement to the police regarding the relevant events was inconsistent with other objective, relatively uncontroversial evidence, which went to the heart of whether he had intercourse with a sleeping woman. The inconsistencies in the complainant’s evidence went to peripheral matters which the trial judge found did not materially affect the complainant’s credibility and reliability regarding the central sexual assault allegation. [4] I would allow the sentence appeal. The trial judge made an unreasonable factual finding that affected the sentence. A. Factual narrative [5] The appellant met the complainant at a gym. They exchanged a few social media and text messages. About a day later, they both separately went to a nightclub event. The complainant went with her own friends and family. They arrived at about 11:45 p.m. and sat at a booth they had reserved. The appellant said he met his own friends and family at the club. [6] The complainant said that she had less than three drinks, but she became profoundly intoxicated. The appellant did not consume alcohol. The appellant and the complainant interacted at some points throughout the evening, sometimes dancing together. [7] Video surveillance captured the appellant and the complainant leaving the nightclub at about 2:39 a.m. She had gone out for a cigarette but was so intoxicated she could barely stand up or light her own cigarette. The bouncer refused her re-entry. After a short discussion, the appellant took the complainant to his car. She needed his physical support to get to the car. [8] In his police statement, the appellant said the complainant told him she could not go home, and she agreed with his suggestion to go to his parent’s home, which was about 40 minutes away. According to the appellant, the complainant vomited in his car after they left the club. He said they arrived at his home around 3:30 a.m. He noted that the complainant was so intoxicated she could not get out of the car or walk by herself. [9] The appellant says he helped the complainant clean the vomit off her person, gave her clothing to wear, helped her change, and gave her food and water. Afterwards, according to the appellant, the complainant really wanted to have sex with him, initiated that contact, and participated enthusiastically and vigorously. The appellant said they then cuddled and fell asleep at around 5:00 a.m. [10] The appellant said he and the complainant slept until about 8:00 or 8:30 a.m. She asked him the time and said she had to go home so she could be at work by 11:00 a.m. The appellant told the police that the complainant then initiated sexual intercourse again, and that she was a willing and active participant. [11] The complainant had no memory of events unfolding after 12:30 a.m. She testified that she woke around 8:00 a.m. to find herself naked, lying on her stomach with the appellant having intercourse with her from behind. She said she told the appellant “stop” two or three times and the appellant replied, “hold on, hold on”, at which point she got up from the bed. She said about 20 seconds elapsed between the time she realized the appellant was having intercourse with her and the time she pushed herself off the bed. [12] The complainant asked the appellant to drop her off at her friend R.’s home. She said she had no idea where she was and was nervous about antagonizing the appellant. Once she was dropped off at her friend’s car, she began crying and told her friend what she thought had happened. Her friend took her to a police station. An investigation began, leading to the charge against the appellant. B. The trial judge’s reasons [13] The trial judge concluded that the complainant’s intoxication level was incompatible with the appellant’s description of the first sexual encounter after they arrived at his home. The trial judge relied on the toxicologist’s evidence and video surveillance of the complainant and appellant outside the club, just before they left. [14] The toxicologist calculated that the complainant would have had a very high blood alcohol concentration at around 1:30 a.m. (between 175-344 milligrams of alcohol in 100 milliliters of blood) and around 3:00 to 3:30 a.m. (between 155-314 milligrams of alcohol in 100 milliliters of blood). The trial judge noted the effects of such levels of alcohol at paras. 175-176 of his reasons: [S]uffice it to say I do find that the B.A.C. contents as [the toxicologist] described them to be are [ sic ] consistent with the evidence of [the complainant] and the video outside of the bar of her level of impairment. Some of the indicia of impairment referred to by this witness once you get higher up between the 150 and 200 milligrams of alcohol in your blood are consistent with the effects [the complainant] was showing: loss of balance, issues with gross fine motor coordination, and I refer to the video again, possibly nausea and vomiting and possibly severe sedation, which I take it is a very deep sleep. [15] The trial judge also described the video surveillance of the complainant outside the club, at paras. 94-96 and 142: [I]n the video it’s clear she is having serious trouble gaining her balance . She appears at one point in time on the video, and indeed does, not simply appears, to stumble backwards into the rope cord, and the bouncer has to actually put his hand up to ensure she doesn’t fall over, and that is manifestly obvious. I also note that in the video [the appellant] lights a cigarette for her. Perhaps he did so in a chivalrous manner, but I certainly find she has no recollection of this event and it appeared to my eye on that video that he lit her cigarette because she was in no position to actually stand there, hold it and light it herself. Her motor skills were grotesquely affected, and again resort only be made [ sic ] to that video which is an exhibit in this proceeding. ...and there was some evidence there was ice outside, but I’m completely satisfied on all the evidence this wasn’t a slip based on ice. This was loss of balance based on manifestly severe intoxication by [the complainant] on that evening. But again, as I found, her inability to gain balance outside, even while standing still, and that’s critical, and that video speaks a million words, is because she was so inebriated that she couldn’t stand. And I remind again that it was the bouncer whose good hand stopped her from literally falling right over the velvet cord [16] The appellant also told police that the complainant’s phone was dead. When she woke around 8:00 a.m., the complainant’s cellphone was turned off and was on the appellant’s side of the bed. The complainant testified that the appellant told her he had turned off her phone as it had no battery power. However, when the complainant turned on her phone after waking, the battery was at 27 percent power, and she saw she had missed calls and texts from friends who were concerned about her after she disappeared from the club. As also reflected in the cellphone records produced, her use of the phone after she woke around 8:00 a.m. and on the way to her friend’s home demonstrated that the battery was not dead at that time. The trial judge concluded that the appellant had turned off the complainant’s phone so that his activities with the complainant would not be interrupted. [17] The trial judge concluded that the appellant’s narrative of the events at his home was not true and did not raise a reasonable doubt. The complainant would have been incapable of the activities the appellant described as the first consensual sexual intercourse. The appellant himself said that the complainant was incapable of walking by herself when they arrived at his home. The trial judge found this first incident of intercourse described by the appellant did not occur. This rejection of the appellant’s evidence was grounded in other objective evidence and went to the central issue of consent to sexual contact between the parties. [18] The trial judge also found that the complainant was asleep when the appellant penetrated her in the morning, around 8:00 a.m. As the complainant was asleep, she could not and did not consent to the sexual intercourse. Consequently, the trial judge found the appellant guilty of sexual assault. C. Analysis (1) Appeal from conviction [19] I begin with the observation that the defence’s argument at trial was that the complainant regretted going to a near stranger’s home and having sexual relations with him. As a result, the complainant “reinvented” her account of what had occurred. Defence counsel indicated that he did not doubt the complainant’s sincerity but suggested to her that she decided “this gentleman was not [her] best choice and [she] decided to block it.” [20] The appellant submits the complainant’s evidence required heightened scrutiny because of the large gap in her memory, her intoxication, and various inconsistencies in her evidence. [21] The complainant’s intoxication level was incompatible with her stated alcohol consumption. The trial judge accepted her evidence that she had three drinks. However, he found that she clearly had had more alcohol than that, but he could not say how that came to pass. The toxicology evidence provided the most reliable evidence of the complainant’s intoxication level. [22] Defence counsel pointed out several inconsistencies in the complainant’s evidence. In examination in chief, she said she finished her third drink; in cross-examination she said she did not remember finishing it. At trial, she said that she held her shoes in her hands and was barefoot when she went out to the appellant’s car in the morning, when the appellant was about to take her to her friend’s home. Defence counsel pointed out that she had also said her shoes were on her feet at this time. [23] The trial judge did not view these as material inconsistencies. The complainant was testifying at trial about events occurring more than three years previously. [24] The appellant argues the trial judge unfairly scrutinized and did not give fair consideration to evidence favouring the defence. [25] There was video surveillance showing the appellant lighting a cigarette for the complainant, and dialogue with the bouncer outside the club. The appellant argues the trial judge should have used this footage to confirm the appellant’s evidence that the complainant initiated the departure from the bar. Instead, the trial judge found that the appellant initiated the departure. He concluded that: she was…so inebriated the bouncer wouldn’t let her back in. She couldn’t get a jacket, and [the appellant]’s mind at that point in time, I’m completely satisfied, was to get her into the car and get her back to his place so that things could happen as he wanted them to, and in a situation where there is not one iota of consent to her doing it, even after I carefully have assessed [the appellant], the now found guilty party’s evidence as to what he said happened at that house where he resided with his parents at the material time. [26] The appellant submits that the trial judge’s unfounded finding that the appellant initiated the departure became an integral component of his analysis that tainted his assessment of the entire evidence. Specifically, the trial judge viewed this as the first of several steps in what he concluded was the appellant’s deliberate scheme to isolate and take advantage of the complainant. The trial judge’s error resulted in uneven scrutiny leading him to accept the complainant’s evidence and reject any evidence that did not fit within this frame. [27] I agree that the evidence does not support that the appellant planned the offence from the time he and the complainant left the nightclub. This would have required the appellant to have foreseen that the complainant would go outside to smoke, that the bouncer would not allow re-entry into the club, and that the complainant would say she could not go home. The earliest indication of planning might be when the appellant took the complainant’s cell phone and turned it off, sometime after they were both in bed. [28] However, I do not accept that the trial judge’s error tainted his entire view of the evidence or his determination of the central issue in the case, namely, whether the appellant had sexual intercourse with a sleeping woman. As a result, the question of who initiated the departure from the bar was peripheral to the central issue in the case. [29] The appellant argues that the trial judge should have given more weight to his father’s testimony, who saw the complainant in the home after she woke up and was preparing to leave. The father testified that he came downstairs in the morning, said hello and that his son then introduced him to the complainant. He said the complainant did not appear upset during their brief exchange. After they left a few minutes later, the father went upstairs to a window on the second floor. He saw the appellant and the complainant in the car together and they appeared to be taking a selfie photograph and they were smiling. The trial judge found that the father’s evidence was “embellished” and held that the complainant was anxious to get out of the home, did not know who the person was, she was scared and was trying to stay calm. [30] The trial judge accepted that the complainant was anxious to get out of the home, did not know who the father was and did not exhibit any upset to the father during their meeting for understandable reasons. [31] The appellant submits that differences between the evidence of the complainant and her friend R. about the precise timing of the disclosure to R. and whether they went to Tim Horton’s before going to the police station should have undermined the complainant’s credibility and reliability. The appellant makes the same argument about differences between the evidence of the complainant and R. about the frequency of the complainant’s visits to nightclubs on other occasions. Again, the trial judge did not regard these differences as material to his assessment of the complainant’s credibility and reliability. [32] The appellant argues that the trial judge erred by equating incapacity to consent to sexual relations with the entire period for which the complainant had no memory (i.e. from around 12:30 a.m. until the complainant woke up around 8:00 a.m.). Whether or not she had the capacity to consent to sexual relations during this earlier period was not relevant to the question of whether the appellant initiated sexual intercourse with her when she was sleeping. [33] Nothing in either the appellant’s or the complainant’s narrative of events or defence counsel’s submissions suggests that the complainant was impaired by alcohol when she woke up to the extent that she could not be a reliable historian of what she experienced as she woke up. She got up, got dressed, looked for her underwear, found her phone, called and texted friends, spoke to the appellant and asked for a ride to a friend’s home. She went to the police station and the hospital and recounted her experience, as she saw it. [34] The trial judge expressly cautioned himself to apply R. v. W.(D . ) , [1991] 1 S.C.R. 742, to the statement the appellant gave to police. He expressly considered the complainant’s reliability and credibility, and the other evidence. He cited R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41, which states: Credibility and reliability are different. Credibility has to do with a witness’s veracity, reliability with the accuracy of the witness’s testimony. Accuracy engages consideration of the witness’s ability to accurately i. observe; ii. recall; and iii. recount events in issue. Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence. [Citations omitted.] [35] To subject the evidence favouring the defence to a stricter level of scrutiny than the evidence of the Crown is an error of law, which displaces the deference ordinarily owed to the trial judge’s credibility assessment: R. v. Phan , 2013 ONCA 787, 313 O.A.C. 352, at paras. 30-31. [36] In R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at paras. 58-59, Doherty J.A. described the difficulties associated with this argument, Counsel … contends that the trial judge applied a higher standard of scrutiny in his assessment of the appellant's evidence and credibility than he did when considering the evidence and credibility of [the complainant]. This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge's credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant. [37] This difficulty was reiterated in R. v. Aird , 2013 ONCA 447, 307 O.A.C. 183 , at para. 39: The “different standards of scrutiny” argument is a difficult argument to succeed on in an appellate court. It is difficult for two related reasons: credibility findings are the province of the trial judge and attract a very high degree of deference on appeal; and appellate courts invariably view this argument with skepticism, seeing it as a veiled invitation to reassess the trial judge’s credibility determinations. [38] Here, I am not persuaded that the trial judge applied different scrutiny to Crown and defence evidence. He rejected the appellant’s evidence and accepted the complainant’s evidence based on the evidence as a whole, logical inferences, and the importance of particular testimony to the central issue in the trial. The trial judge expressly considered the same arguments about the credibility and reliability of the evidence now made on appeal. [39] This is not a case like Howe , where both the defence and Crown witnesses lied under oath, and defence evidence was rejected because of the lie, but the Crown witness’s lie did not affect the assessment of her credibility. [40] Nor am I persuaded that the trial judge materially misapprehended the evidence on the central issue, which is whether the appellant had sexual intercourse with a sleeping woman . (2) Appeal from sentence [41] When the appellant was a child, he suffered a severe head injury that left him with serious cognitive deficits. Dr. MacGregor explained that people with this type of brain injury, “just can’t put the brakes on, they just have to keep going, that’s the impulsivity, distractibility, just can’t stop it.” Dr. MacGregor further testified that he has problems with impulsivity, distractibility and self-control. Expert evidence indicated that he has difficulty recognizing social cues in interactions with others. He has limited ability to learn from punishment. [42] The trial judge concluded that an appropriate sentence would have been 36 months. However, he ultimately imposed a 30-month sentence, because serving prison time would be more difficult for the appellant, due to his disabilities. [43] The appellant submits that the trial judge erred by failing to recognize that his disabilities reduced his moral blameworthiness. The appellant submits further that the trial judge erred in concluding that the offence was methodically planned over a sustained time. Finally, the appellant argues that the trial judge misidentified the appropriate range of sentence as from two years less a day to four years. The appellant submits that the usual range of sentence for intercourse with a sleeping or incapacitated victim is between 18 months and three years. [44] The trial judge did not mitigate the sentence further because he concluded that there was no causal link between the appellant’s disabilities and the offence. He noted the offence was not “an impulsive act based on the personality defect based on his brain injury or that can rationally be connected to his brain injury.” The trial judge observed that it was clear from the appellant’s videotaped police statement that he was “well aware of the issue of consent.” [45] Cognitive impairment, where it affects behaviour resulting in criminal liability, “can attenuate the moral blameworthiness attached to that behaviour. It can also justify less emphasis on the principles of specific and general deterrence”: R. v. Manitowabi , 2014 ONCA 301, 318 O.A.C. 175, at para. 64. [46] On this record, however, it cannot be determined whether this offence was committed impulsively or whether the appellant’s cognitive deficits otherwise contributed to his commission of the offence. [47] However, as earlier explained in para. 27, I agree that the evidence does not support the trial judge’s finding that the offence was methodically planned from the time they left the club. The trial judge therefore erred in relying on this characterization of the offence as an aggravating factor that was not established by the Crown beyond a reasonable doubt. [48] I further agree that the usual range identified in past jurisprudence for sexual assaults committed in similar circumstances has been between 18 months and three years: see, for example, R. v. Christopher Smith , 2015 ONSC 4304, at paras. 32-33. Even if the trial judge identified a range that slightly exceeds that imposed in similar circumstances, the actual sentence imposed is within the appellant’s proposed range. Deviation from a sentencing range is not, in itself, an error in principle: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 60. [49] The appellant submits that a lesser sentence would have been appropriate because he was only 22 years old at the time of the offence, the offence was not planned, his head injury reduced his moral blameworthiness, he immediately desisted when the complainant told him to stop, he had no prior record, and the offence was out of character. He argues that rehabilitation should have been given more weight in fashioning an appropriate sentence. [50] I agree further that the trial judge could have imposed a lesser sentence within the appropriate range that has been identified. The fact that he did not, does not open the door to appellate interference, absent an error in principle that had an impact on the sentence. [51] In my view, the trial judge erred by finding an aggravating factor, that the appellant methodically planned to commit the offence from the time he left the club; this was not proven beyond a reasonable doubt. As a result, I would reduce the appellant’s sentence to two years less a day. [52] Accordingly, the appeal from conviction is dismissed. I would allow the appeal from sentence and substitute a sentence of two years less a day. Released: January 16, 2020 “GP” “G. Pardu J.A.” “I agree L.B. Roberts J.A.” “I agree J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Gignac, 2020 ONCA 42 DATE: 20200128 DOCKET: C64528 Pardu, Brown and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Steven Gignac Appellant Daniel Santoro and Nicola Fernandes, for the appellant Jeremy Streeter, for the respondent Heard: January 6, 2020 On appeal from the conviction entered on August 1, 2017 and the sentence imposed on February 28, 2018 by Justice Graham Wakefield of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of drug offences related to drugs found in a safe in the living room of his house where he lived with his wife. The appellant submits that the trial judge erred in failing to exclude a statement he made shortly after police violated his rights to counsel under section 10(b) of the Canadian Charter of Rights and Freedoms . [2] The trial judge concluded that the appellant was not a credible witness on the Charter motion. On that basis, he dismissed the appellant’s application to exclude the evidence. He did not expressly deal with the argument that the officer’s evidence alone was sufficient to establish Charter violations and result in the exclusion of the evidence and it falls to this court to consider that argument. [3] Upon arrest at 3:01 a.m. on January 22, 2016, the appellant indicated he did not wish to give a statement until after he had consulted counsel. The arresting officer continued to read from a pre-printed card to ask twice whether the appellant wished to make a statement. The appellant indicated that he did not. [4] The appellant was handcuffed and placed in the back of a van to await transport to the Durham police station. Shortly after, the appellant asked the arresting officer whether his wife was going to be arrested. The arresting officer told the appellant that “there [was] a search warrant being executed...at his home in Oshawa” and that he “couldn’t really give an answer as to whether or not [the appellant’s] wife was actually going to be arrested”. The appellant then said there was a safe in the living room of his home, the safe had cocaine in it, and the cocaine was his. The appellant also advised the officer of the combination to the living room safe where the drugs were found. [5] The appellant submits that the officer violated his s. 10(b) Charter rights because 1) the officer asked twice whether the appellant wanted to make a statement, even though the appellant said he wanted to speak to counsel; and 2) the officer’s truthful response to the appellant’s question amounted to an elicitation of a statement. [6] The Crown concedes that the officer committed the error described in R. v. G.T.D. , 2018 SCC 7, [2018] 1 S.C.R 220 (“ G.T.D. ”), by twice asking the appellant whether he wished to make a statement after the appellant indicated he wished to consult counsel. However, the Crown disagrees that the officer’s truthful response to the appellant’s spontaneous question could in any way be construed as an elicitation of a statement from the appellant. [7] The Crown concedes that the temporal connection between the admitted Charter violations and the appellant’s incriminatory statements is sufficient to require a consideration of s. 24(2) of the Charter . [8] The Crown submits that the following factors favour admitting the appellant’s statements: · the individual good faith of the officer who read the rights to counsel and posed the questions from a pre-printed card some two years before the decision in G.T.D .; · the absence of any causal connection between the Charter violations and the incriminatory statements made; · the Charter violations’ negligible effect on the appellant’s Charter protected interests; · the reliability of the evidence; and · the strong societal interest in a trial on the merits. Analysis [9] The appellant spontaneously asked police if his wife was going to be arrested. The officer answered truthfully that a search warrant was then being executed at the appellant’s home and that the officer did not know whether the appellant’s wife was to be arrested. This truthful answer cannot be construed as an attempt by the officer to elicit evidence from the appellant. The officer’s answer to the appellant’s question did not therefore violate the appellant’s s. 10(b) Charter rights. [10] However, we agree that the Charter violations conceded by the Crown and their temporal connection to the incriminatory statements, which the Crown also concedes, are sufficient to engage s. 24(2) of the Charter : R. v. Plaha (2004) , 188 C.C.C. (3d) 289 (Ont. C.A.) at para. 45. [11] We therefore turn to whether admitting the evidence obtained in breach of the Charter would bring the administration of justice into disrepute. This requires assessing three factors: 1) the seriousness of the Charter infringing state conduct; 2) the impact on the Charter protected interests of the accused; and 3) society’s interest in an adjudication of the case on the merits: R. v. Grant , 2009 SCC 32, [2009] 2 SCR 353 at para. 71. [12] In Grant at paras. 91-98, the Supreme Court of Canada pointed out that courts have tended to exclude statements obtained in breach of the Charter . Having said that, the court also noted at para. 96 that particular circumstances may attenuate a Charter breach’s impact on the accused’s protected interests, for example: [I]f an individual is clearly informed of his or her choice to speak to the police, but compliance with s. 10( b ) was technically defective at either the informational or implementational stage, the impact on the liberty and autonomy interests of the accused in making an informed choice may be reduced. Likewise, when a statement is made spontaneously following a Charter breach, or in the exceptional circumstances where it can confidently be said that the statement in question would have been made notwithstanding the Charter breach, the impact of the breach on the accused’s protected interest in informed choice may be less. [Citation omitted.] Seriousness of the Charter infringing conduct [13] There is no real dispute that the arresting officer acted in good faith. We acknowledge that the officer’s pre-printed card, which indicated what was to be read to an arrested person, raises concerns about systemic failures to protect Charter rights. However, as the Alberta Court of Appeal noted, there was a degree of legal uncertainty on this issue that tempered the seriousness of the breach: R. v. G.T.D. , 2017 ABCA 274, 57 Alta. L.R. (6th) 213, at para. 93 (“ G.T.D. (ABCA)”) . Although G.T.D. was based on long established Supreme Court of Canada jurisprudence, the decision only brought clarification some two years after the arrest in this case. Impact on the appellant’s Charter protected interests [14] The police must hold off from attempts to elicit evidence from an accused until he or she has had a reasonable opportunity to consult counsel: G.T.D. at para. 2. This case is different from G.T.D. , in which the accused made incriminatory statements in response to the questions posed from the flawed standard caution. [15] Here, there was no causal connection between the Charter violations and the appellant’s incriminatory statements. The appellant clearly understood that he did not have to speak to police and asserted his right to consult counsel. He refused to make any statement after asserting his wish to speak to counsel, despite the two questions about whether he wished to make a statement after that assertion. The breaches up to that point had no impact on his Charter protected interests. Societal interest in a trial on the merits [16] There is no doubt the statement was voluntary. It was reliable evidence. The combination opened the living room safe in which the drugs were found. The statement was strong evidence of the appellant’s knowledge of the contents of the safe and control of those contents. Twelve 75 microgram per hour Fentanyl patches, as well as cocaine and other drugs, were in the safe. This court has reiterated the dangers that Fentanyl poses to the community on several occasions. [17] Balancing these factors, we conclude that admitting the appellant’s statement would not bring the administration of justice into disrepute. The appeal from conviction is dismissed. [18] The appeal from sentence concerns the sentences imposed for offences related to drugs found in the appellant’s car when he was arrested. In the event the conviction appeal related to the drugs found in the living room safe is dismissed, the appellant does not pursue the sentence appeal. Accordingly, the appeal from sentence is also dismissed. “G. Pardu J.A.” “David Brown J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Joseph, 2020 ONCA 73 DATE: 20200131 DOCKET: C63237 Watt, Miller and Fairburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Phillip Joseph Appellant Najma Jamaldin, for the appellant John A. Neander and Melissa Adams, for the respondent Heard: September 9, 2019 On appeal from the conviction entered on October 16, 2015, and the sentence imposed on May 10, 2016, by Justice Michael Code of the Superior Court of Justice, sitting with a jury, with reasons reported at 2016 ONSC 3061. Fairburn J.A.: OVERVIEW [1] During the evening of March 4, 2013, Michael Cocomello-Mandino told his mother that he was going to buy some TTC tokens. Fifteen minutes later, Mr. Cocomello-Mandino’s mother found her son bleeding to death outside of their home. Mr. Cocomello-Mandino told his mother that “Illi” had stabbed him and that some “punks” had been involved. [2] There is no dispute that the appellant stabbed the deceased to death. The appellant testified that he acted in self-defence. He said that he met the deceased to address a situation arising from an earlier drug transaction. The appellant testified that the deceased was under the impression that the appellant had paid him with a counterfeit bill. The appellant said that when they met, the deceased pulled a knife on him. He managed to disarm the deceased and pull him to the ground, but that the deceased got on top of him and started choking him. The appellant testified that, just before he was about to lose consciousness, he was able to retrieve the knife that was located on the ground, somewhere around his head, and stab the deceased several times in order to get the deceased off of him. He then got in his car and left the scene. [3] The deceased was stabbed 17 times in total, with 9 wounds to his abdomen, the fatal wound penetrating 9 cm into his chest cavity. The appellant also stabbed the deceased 5 times in his back, 2 times in his left thigh, and once in the area around his eye. The shape of the wound beside the deceased’s eye suggested that it may have been made by twisting the knife on his face. [4] While the appellant said that the entire incident occurred on the roadway, the Crown alleged that the stabbing took place in a motor vehicle close to the deceased’s home. The Crown maintained that there was a third person involved in the incident, someone who held the deceased while the appellant stabbed him. That theory was supported by the fact that the deceased’s body showed no signs of defensive wounds and that he told his mother that “punks” had stabbed him. As well, a witness who was walking close to the deceased’s home heard screaming coming from a car and then saw a young man crawl through the window. She reported that at least two men remained in the car. Within a very short time, that same witness saw the deceased’s mother comforting her dying son. [5] The Crown alleged that this was a first degree murder for two reasons: (a) planning and deliberation (s. 231(2) of the Criminal Code , R.S.C., 1985, c. C-46); and (b) unlawful confinement (s. 231(5)(e) of the Criminal Code ). The defence claimed that the appellant acted in self-defence when the deceased confronted him with a knife on the roadway. [6] The jury returned a verdict of second degree murder, meaning that the jury was not satisfied beyond a reasonable doubt that the appellant had either planned and deliberated upon the murder, or that the death had been caused while committing an unlawful confinement. The conviction also demonstrated that the jury was satisfied beyond a reasonable doubt that the appellant had not acted in self-defence. [7] Given that the appellant was 17 years old at the time of the murder, the sentencing provisions under the Youth Criminal Justice Act , S.C. 2002, c. 1, ( YCJA ) applied. A lengthy sentencing proceeding took place. The primary focus at the hearing was whether the appellant should receive a youth or adult sentence. Ultimately, the sentencing judge imposed an adult sentence of life imprisonment with parole eligibility after seven years: Criminal Code , s. 745.1(c) . That sentence was ordered to be served in a provincial reformatory, with specific recommendations about the location for classification. [8] This is an appeal from both conviction and sentence. The conviction appeal rests on three alleged errors made by the trial judge. The appellant contends that the trial judge erred in: (1) admitting the appellant’s statement, given to the police a couple of days following the murder; (2) excluding pictures taken from the deceased’s phone that the defence wished to elicit; and (3) instructions he gave the jury about the use of other evidence which showed bad character on the part of the deceased. [9] The sentence appeal rests on a claim that the trial judge erred in imposing an adult sentence. Fresh evidence has been filed to support that claim. [10] I would dismiss both the conviction and sentence appeals. ANALYSIS A. Conviction Appeal (1) The Appellant’s Statement Was Admissible (a) Overview [11] The 911 call reporting the stabbing was received at 9:18 p.m. on March 4, 2013. By 3:48 a.m. the next day, the police had obtained the deceased’s phone records and identified the phone numbers that he had been in contact with in the two hours before he was killed. Among others, the deceased’s phone had been in contact with a phone that was registered to the appellant’s mother. The deceased’s phone and the phone registered to the appellant’s mother had exchanged 29 text messages and connected on 4 calls in the time leading up to when the deceased was killed. The police did not know the content of those text messages until much later. [12] The police attended at the appellant’s mother’s home address the next day, still well less than 48 hours since the homicide. They spoke with the appellant’s mother, told her that they were investigating a homicide, and inquired about the phone. The appellant’s mother confirmed that the phone number was registered to her. She also told the police that her son, the appellant, was not at home. The police left a business card and asked the mother to have her son contact them. The police then proceeded to another address that corresponded to a different number with which the deceased’s phone had been in contact on the day of the homicide. [13] Shortly after they had left the appellant’s home, the officers got a call from the appellant. They asked him to come into the police station to speak with them and he agreed to do so. Not long after that discussion, the then 17-year-old appellant, who would turn eighteen less than three months later, arrived at the police station with his mother. While the record does not reveal how the appellant got to the police station, it is clear that it was without police assistance. [14] An officer met the appellant and his mother at the station and told the appellant that they were investigating a homicide and that they would like to speak with him about any information he may have. The appellant agreed to do so. His mother was present. [15] The interview lasted 26 minutes. During that time, the police made numerous inquiries, including about whether the appellant knew the deceased, what he knew about the deceased, if he knew whether the deceased had a girlfriend, who the deceased hung out with, whether he knew anyone by the name of “Elliott”, and whether he knew whether the deceased was part of a gang. [16] In addition, the police asked about the nature of the appellant and deceased’s relationship and when they had last had contact. While the appellant admitted that he had communicated with the deceased on March 4, 2013, and admitted to somewhere in the range of about four phone calls with the deceased, he vastly understated the number of text messages they had shared and the timing of those messages, particularly the ones closer to the time of the homicide. [17] The appellant objected to the admission of the statement on two bases: (a) the police failed to comply with s. 146(2) of the YCJA , a provision governing the admissibility of statements from young persons in certain defined situations; and (b) the statement was involuntary. The appellant maintains that the trial judge erred in how he analysed both of those issues. [18] I agree with the trial judge’s conclusion that the statements were admissible. I will first address the s. 146(2) YCJA issue and then move on to the voluntariness issue. (b) Section 146(2) of the YCJA Does Not Apply [19] The YCJA applies to young persons who are twelve years old or older, but less than eighteen years old: YCJA , s. 2. The appellant was 17 years old at the time that he gave his statement, bringing him within the statutory definition of a “young person”. Accordingly, the YCJA applies. [20] The YCJA supplements the common law relating to the admissibility of statements of young persons: YCJA , s. 146(1). In defined circumstances, s. 146(2) provides numerous additional protections, beyond those provided at common law, to young persons giving written or oral statements to persons in authority. The provision responds to and cares for the accepted vulnerabilities of young persons. As Cory J. observed in R. v. J.(J.T.) , [1990] 2 S.C.R. 755, at p. 767, when addressing the precursor to s. 146(2), (s. 56 of the Young Offenders Act , S.C. 1980 ‑ 81 ‑ 82 ‑ 83, c. 110): “[i]t was no doubt in recognition of the additional pressures and problems faced by young people that led Parliament to enact this code of procedure.” [21] Section 146(2) makes a young person’s statement presumptively inadmissible unless the Crown dislodges that presumption: R. v. N.B. , 2018 ONCA 556, 362 C.C.C. (3d) 302, at para. 86. To this end, the provision has been described as an admissibility rule that is “exclusionary by nature, but inclusionary by exception”: R. v. M.D. , 2012 ONCA 841, 293 C.C.C. (3d) 79, at para. 44. It places the onus on the Crown to demonstrate beyond a reasonable doubt one of two things: (a) why the provision does not apply; or, (b) if the provision applies, that its statutory requirements were met. [22] There are three statutory prerequisites to the operation of s. 146(2): (a) the youth is arrested ; (b) the youth is detained; or (c) the “peace officer or other person has reasonable grounds for believing that the young person has committed an offence”. [23] This case is not about whether the statutory criteria within s. 146(2) were met. Many of them were not. Rather, the case is about whether the statutory prerequisites to the operation of s. 146(2) were present such that the police were statutorily obliged to meet the criteria within that provision. [24] The appellant was not under arrest at the time that he gave his statement to the police. Accordingly, the first statutory prerequisite was not met. The appellant argues, though, that the other two prerequisites were operative, namely that, at the time that the statement was taken : (a) there were “reasonable grounds for believing that [the appellant had] committed an offence”; and (b) the appellant was detained. I disagree. (i) There were no reasonable grounds to believe the appellant had committed an offence [25] The trial judge concluded that the standard of “reasonable grounds for believing that the young person has committed an offence” in s. 146(2) of the YCJA is tantamount to the s. 495(1)(a) Criminal Code threshold for arrest without warrant. He ruled that the threshold test is one of “reasonable and probable grounds” to believe the appellant had committed the homicide or was “likely guilty”. He specifically rejected that “reasonable suspicion” or “possible guilt” would trigger the operation of s. 146(2). [26] The trial judge considered the evidence available to the police at the time that the interview took place and concluded that it did not meet the requisite threshold. At the time of the interview, the only information connecting the appellant to the deceased were phone records which revealed a good deal of contact between them on the day of the homicide, up to and including just before the killing. The trial judge concluded that the telephone contact alone did not give rise to reasonable grounds to believe that the appellant was involved in the homicide. While the information suggested that the appellant may have had relevant information about the deceased’s whereabouts, activities and plans in the time shortly before he was killed, the trial judge concluded that, standing on its own, the telephone contact did not even amount to a reasonable suspicion that the appellant was the perpetrator of the offence. [27] The appellant argues that the trial judge erred by relying on the subjective belief of the police that they did not have sufficient grounds to arrest the appellant at the time they conducted the interview. I do not accept this characterization of the trial judge’s reasons. [28] I agree with the trial judge that the reference to “reasonable grounds for believing that the young person has committed an offence” in s. 146(2) is synonymous with the threshold test for arrest without warrant: R. v. T.(M.) , 2009 CarswellOnt 8490 (S.C.), at paras. 53-55, aff’d 2014 ONCA 153, 306 C.C.C. (3d) 171, at paras. 18-20. [29] The s. 495(1)(a) threshold test for arrest without warrant is time worn and well understood. The officer must have a subjective belief that the individual committed (or is about to commit) an indictable offence and that belief must be objectively reasonable in the circumstances: R. v. Storrey , [1990] 1 S.C.R. 241, at pp. 250-51. In other words, the circumstances known to the police at the time of the arrest must be capable of permitting a reasonable person, “standing in the shoes of the police officer”, to believe that grounds for arrest exist: Storrey , at p. 250; R. v. Stevenson , 2014 ONCA 842, 317 C.C.C. (3d) 385, at para. 50, leave to appeal refused, [2015] S.C.C.A. No. 37. [30] The police did not subjectively believe that they had grounds to arrest the appellant either when he arrived for or left the interview. The evidence about the officers’ subjective states of mind, though, did not drive the result in this case. Rather, the trial judge correctly focused on the facts that would have objectively supported a belief that the appellant was arrestable at the time of the interview. Necessarily, those facts needed to be known by the police at the time that the interview took place and not at some later point in time. [31] The trial judge’s analysis was almost entirely informed by the objective reality of the situation as known by the officers less than 48 hours after the deceased had been killed. While the case against the appellant undoubtedly strengthened over time, including the discovery of the appellant’s and deceased’s DNA on a hat found close to the scene of the murder, the DNA results were not known at the time of the interview. I agree with the trial judge that at that time, there were simply insufficient grounds to believe that the appellant had “committed an offence” within the meaning of s. 146(2) of the YCJA . [32] To use police parlance, while the phone contact made the appellant a “person of interest” to them, it did not make him arrestable. There could have been any number of reasons why the appellant had contact with the deceased on the day of the homicide, many of which would not point toward him being a party to the homicide. While there was much to trigger a police desire to speak with the appellant (and, for that matter, the other individual who had clearly been in contact with the deceased’s phone on the day of the homicide), the phone contact alone did not furnish grounds to believe the appellant was culpable in the homicide. Phone contact – the content of which is unknown – with a person who is killed shortly after will undoubtedly attract police attention. Standing on its own, though, that contact does not give rise to a reasonable belief that the communicator killed the other person. [33] Accordingly, this was not a basis upon which to trigger the operation of s. 146(2). (ii) The appellant was not detained [34] The appellant also maintains that he was psychologically detained at the time of the interview and that the trial judge erred in failing to appreciate that fact. Importantly, the defence at the admissibility voir dire did not vigorously advance this theory. In fact, as properly noted by the trial judge, the “main argument on the voir dire concerned whether the police had ‘reasonable grounds’.” Even so, the trial judge addressed the issue of detention. In fairness, the alleged shortcomings in the reasoning process should be reviewed within that context. [35] The trial judge is said to have erred when he applied the standard test for determining whether someone is psychologically detained: R. v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 44. The appellant argues that when applying the test for psychological detention under s. 146(2) of the YCJA , courts must take into account the unique vulnerabilities of young people. According to the appellant, this is a more robust test for detention than exists outside of the YCJA context. [36] I do not accept this submission. There is no special test to be applied when determining whether a young person is detained under the YCJA . [37] Detention refers to a “suspension of the individual’s liberty interest by significant physical or psychological restraint”: Grant , at para. 44. Psychological detentions can develop where there is a legal obligation to comply with a request or demand, or from circumstances where a reasonable person would conclude that they have no choice but to comply: Grant , at paras. 30, 44. [38] The sole question was whether the appellant was psychologically detained in the sense that he reasonably believed that he had been deprived by the police of any choice but to speak with them at the police station. In determining the answer to that question, the trial judge correctly relied on the test for psychological detention set out in Grant , at para. 44. Notably, that test requires that the individual circumstances of the alleged detainee, including the age of the detainee, be taken into account in assessing whether she or he was detained: To determine whether a reasonable person in the individual’s circumstances would conclude that he or she has been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors: (a) The circumstances giving rise to the encounter (b) The nature of the police conduct (c) The particular characteristics or circumstances of the individual where relevant, including age ; physical stature; minority status; level of sophistication. [Emphasis added.] [39] This test for psychological detention already accounts for the alleged detainee’s specific individual circumstances, including her or his age. The test allows for the appellant’s youth to be taken into account when determining whether the youth perceived that he or she had no choice but to comply. Indeed, Mr. Grant’s “youth and inexperience” were specifically adverted to when determining that he was detained: Grant , at para. 50. That test for detention is directly transferrable to the s. 146(2) YCJA context: R. v. Todorovic , 2014 ONCA 153, 306 C.C.C. (3d) 171, at para. 12; N.B., at para. 112. [40] Approaching the test for detention differently in the s. 146(2) YCJA context would create unnecessary confusion in the law and inject uncertainty into on-the-ground policing . I see no reason why the Grant test for detention, one that specifically accounts for the age of the alleged detainee, is not equally appropriate in the YCJA context. Nothing more is required. [41] Having properly articulated the law of psychological detention, and quoting the exact passage from Grant , at para. 44, set out above, the trial judge went on to explain his conclusion that the appellant was not psychologically detained. In doing so, he made numerous factual findings that are owed deference by this court: Grant , at para. 43. Among other things, the trial judge highlighted the following findings of fact in determining that there was no detention: · the appellant called the police of his own free will; · the appellant attended at the police station of his own free will and left after the interview of his own free will; · the appellant had his mother in attendance with him the whole time; · the police questioning was entirely exploratory and of a general nature; and · when he inquired, the appellant was specifically told he did not have to answer specific questions and decided not to answer a question. [42] In addition to these facts, I would add the following observations. While the appellant was young, he was almost eighteen years of age. Contrary to the finding in Grant, at para. 50, there was nothing inherently intimidating about the interview process. Indeed, at one point the appellant took charge of the interview and told the officers to “skip” a certain line of questioning that he did not wish to answer. The interview was not adversarial in nature. While the interview room door was closed, there is no suggestion it was locked. The video recording that the trial judge viewed demonstrates a polite environment, where the police clearly informed the appellant that he did not have to answer any questions if he did not wish to do so. Although unnecessary, the appellant was repeatedly told he could speak with a lawyer if he wished to do so, but he chose not to do so. [43] None of this suggests the conduct of a person who believed he had no choice but to comply. (iii) Conclusion on YCJA [44] The trial judge’s approach to s. 146(2) of the YCJA was sound. At the time of the interview, there were no reasonable grounds for believing that the appellant had killed the deceased. Nor was he detained. Accordingly, the prerequisites for triggering the operation of s. 146(2) of the YCJA were not present and, therefore, the police did not have to comply with the statutory requirements of the provision. (c) The Statement was Voluntary [45] The trial judge concluded that the appellant’s statement was voluntary. He found that there was nothing that could constitute an inducement that would have overborne the appellant’s will. Nor was there anything in the interview to suggest an atmosphere of oppression, a lack of an operating mind, or any trickery involved in the taking of the statement. [46] The trial judge further concluded that the fact that the appellant was not given a caution about the right to counsel or the right to remain silent mattered not. [1] As the appellant was not detained or under arrest, the trial judge found that the police were under no obligation to afford those cautions. [47] The appellant argues that the trial judge erred in concluding that his statement was voluntary. The primary focus of the appellant’s argument rests on the suggestion that, at a minimum, the appellant was a suspect at the time that the interview commenced and certainly by the end of the interview. In light of his status as a “suspect”, the appellant contends that the police were under an obligation to caution him about his right to silence and right to counsel. He also maintains that the trial judge erred in concluding that there were no improper inducements made by the police. [48] I do not accept these arguments. (i) There is no requirement to caution a suspect who is not detained or arrested [49] I disagree with the proposition that the police are obliged to caution a suspect, simply because he or she is a suspect, and that the failure to do so will render a statement involuntary. [50] Section 10(b) of the Canadian Charter of Rights and Freedoms requires that an accused be informed of the right to counsel at the time of arrest or detention: R. v. Suberu , 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 20. Moreover, the residual constitutional protection afforded to the right to silence under s. 7 of the Charter also only arises after detention, when the superior power of the state is imposed upon the individual: R. v. Hebert , [1990] 2 S.C.R. 151, at p. 184. [51] For the reasons already discussed, the appellant was neither detained nor arrested at the time of the interview. Accordingly, even if he was a suspect at the time of the interview, a characterization that the trial judge specifically rejected, the police were under no constitutional obligation to caution him. [52] The appellant says, though, that even if the caution were not constitutionally required, the failure to caution him rendered his statement involuntary under the common law confessions rule because he did not know that he could refuse to speak with the police. [53] I reject the proposition that involuntariness flows directly from the absence of a caution, even where the interviewee is a youth. [54] The appellant points to R. v. Singh , 2007 SCC 48, [2007] 3 S.C.R. 405, at paras. 31-32, in support of the suggestion that a caution must be given to a suspect. I do not read the passages in Singh the same way. Charron J.’s comments about the actual requirement for a caution are clearly made in the context of detention. For instance, she says: After detention , the state authorities are in control and the detainee, who cannot simply walk away, is in a more vulnerable position. The fact of detention alone can have a significant impact on the suspect and cause him or her to feel compelled to give a statement. The importance of reaffirming the individual’s right to choose whether to speak to the authorities after he or she is detained is reflected in the jurisprudence concerning the timing of the police caution. [Emphasis added.] [55] While Charron J. goes on to quote from a text, suggesting that a caution should be given when there are reasonable grounds to suspect that the person has committed an offence, this is described by Charron J. as nothing more than sound advice: Singh , at paras. 32-33, citing René J. Marin, Admissibility of Statements , loose-leaf (2006-Rel. 11), 9th ed. (Aurora: Canada Law Book, 1996), at pp. 2-24.2-24.3. In other words, while a caution may assist someone with deciding whether to speak with the police, and therefore may inform a voluntariness analysis, the absence of a caution is only a factor to consider in determining the voluntariness of a statement. It is not a prerequisite to the voluntariness of that statement: R. v. Bottineau , 2011 ONCA 194, 269 C.C.C. (3d) 227, at para. 88, leave to appeal refused, [2011] S.C.C.A. No. 455; R. v. Pearson , 2017 ONCA 389, 348 C.C.C. (3d) 277, at para. 19, leave to appeal refused, [2017] S.C.C.A. No. 465. [56] As the appellant was neither detained, nor arrested, I agree with the trial judge that his statement was not rendered involuntary through the lack of a caution. [57] The question was whether, based on the factors set out in R. v. Oickle , 2000 SCC 38, [2000] 2 S.C.R. 3, the Crown met its burden of establishing voluntariness beyond a reasonable doubt. The trial judge’s ruling clearly identifies the relevant legal principles and explained why he found the statement voluntary. [58] While there was no s. 10(b) Charter compliant caution, the appellant was repeatedly told that he could speak with a lawyer if he wished to do so. He was also told that he did not have to answer questions if he did not wish to do so. These factors informed the voluntariness of the statement. [59] The appellant argues that the trial judge erroneously rejected the submission that he was improperly induced to give his statement. He argues that there were two such inducements, underlined in the following passage: [Appellant]: Uh, this is a – is this a statement I’m making? … me being a witness? [Officer]: You could – you could be a witness to something. It all depends on what you tell me today. [Appellant]: Okay. [Officer]: Right? [Appellant]: All right. [Officer]: You’re okay with that? [Appellant]: Yeah. [Officer]: Okay and you understand the importance of telling the truth right? [Appellant]: Yeah. [Officer]: Right and you know like you can’t lie to me? This is your one opportunity to tell the truth? [Appellant]: Yeah. [Officer]: And you understand that it’s against the law to make a false statement to the police? [Appellant]: Yeah. [Emphasis added.] [60] I disagree that these police comments constituted inducements, let alone inducements rising to the level of something that could render the appellant’s statement involuntary. [61] The first impugned statement – that depending on what he said, the appellant could be a witness – relates to an inquiry that was initiated by the appellant, not the police. In any event, it was an honest answer to the appellant’s question about whether he was a witness. At that stage, the police did not know whether he was a witness to something or not. As the officer said, it would depend on what he told the police. The second impugned statement – that it was the appellant’s one chance to tell the truth – could have been phrased better, but was made in the context of the officer informing the appellant that it is an offence to lie to the police. [62] Even if these police statements could be viewed as inducements, they were not improper in nature. There is nothing wrong with offering an interviewee an inducement to speak: Oickle , at para. 57. The voluntariness of a statement is not thrown into doubt simply because an accused is encouraged to speak, including through inducements. The question is whether such inducements cause the interviewee’s will to be overborne: R. v. Spencer , 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 18-19; Oickle , at para. 57. It is the “strength of the inducement”, the threat or promise – informed by all of the circumstances, that informs whether the will of the accused is overborne: Spencer , at para. 15; R. v. M.S.M. , 2014 ONCA 441, at para. 9; Oickle , at paras. 47, 57. [63] As reviewed previously, the interaction between the police and the appellant in this case demonstrates that the appellant’s will was never overborne. Even if the impugned police comments could be construed as inducements as the appellant suggests, he was in full control throughout the interview. This was clearly displayed at one point in the interview when the appellant queried whether he had to answer a particular question. He had already been told that he could not be forced to say anything. The police reinforced this fact, assuring the appellant that he did not have to answer anything he did not wish to answer. The appellant then told the police to “skip” that question. As noted by the trial judge, this is not the behaviour of someone whose will has been overcome. [64] Finally, the appellant argues that the police misled the appellant about the purpose of the recording because he was told that the videotape would be for police “records only”. That comment must be set in its proper context. It only came up when the appellant’s mother expressed concern that the video would make its way onto television and she did not want her “face to go on T.V.”. It was in response to that expression of concern by the mother that the officer said that the videotape was for police records only. She was also told that this was the way that the “Toronto Police do their interviews” and that they wished to have a “true version of a statement” so that there are no “questions down the road.” [65] I do not agree that the police misled the appellant about the purposes to which the recording could be put. The appellant was told shortly afterwards that he may be a witness in this matter, although it would all depend on what he had to say. Accordingly, at a minimum, he knew that the statement could be relevant to a criminal proceeding and that it was being recorded for accuracy so that there was no question as to what he said down the road. [66] Moreover, it is difficult to conceive of this impugned statement as an inducement to speak. Like the above impugned passages, there was no quid pro quo , let alone an overcoming of the appellant’s will. There is no suggestion that the comment constitutes a police trick that would undermine the integrity of the criminal justice system: Oickle , at para.  65. [67] The statement was voluntary. (2) The Exclusion of Pictures from the Deceased’s Phone [68] As part of the pre-trial applications, the appellant sought to elicit evidence from the deceased’s phone that he argued would substantiate his position that he acted in self-defence. There were a handful of digital photos contained on the memory card within the deceased’s phone that showed unknown individuals holding guns and currency and one where a person was pointing his finger like a gun. There were also photos of large amounts of money, what appeared to be marijuana, firearms, and knives. There were also a few images of slogans, including “Karma has no deadline” and “Money is the motive”. [69] The appellant argued that the images would show that the deceased was the aggressor in the altercation that led to his death, which would in turn support the appellant’s claim of self-defence. At the least, the images would have shown that the deceased had a habit of carrying a weapon and was armed on the night in question. [70] The trial judge dismissed the application. The appellant argues that the trial judge erred when he concluded that the photos had minimal probative value because they did not involve specific acts of violence by the appellant, they were remote in the sense that they were stored on the memory card long before the deceased was killed, and their admission would result in prejudice to the trial process. [71] I find no error in the trial judge’s conclusions. [72] The trial judge correctly reviewed the law. His decision to exclude the evidence is a discretionary one and is entitled to deference by this court: R. v. Pilon , 2009 ONCA 248, 243 C.C.C. (3d) 109, at paras. 54-55. [73] It is important to recall that at the core of a Scopelliti application lies an inquiry into previous acts of violence by a deceased that show his or her disposition for violence: R. v. Scopelliti (1982) , 34 O.R. (2d) 524 (C.A.) , at p. 535. While Martin J.A. observed in Scopelliti , at p. 537, that “previous specific acts of violence by a third person which have significant probative value to prove a disposition for violence are admissible where such disposition is relevant”, there were no prior acts of violence asserted here. The trial judge did not err in pointing out the fact that the pictures on the memory card did not involve the deceased. Nor did he err in pointing out that many of the photos were quite dated and of uncertain origin. These factors informed the degree of probity of the evidence. [74] The trial judge performed a careful weighing exercise. He concluded that the images had little probative value because, among other things, a good portion of them were of guns, while the weapon in this case was a knife. He reasonably concluded that the photos of guns could inflame the jury. Moreover, he concluded that the money and marijuana images were redundant, given that it was not in dispute that the deceased was trafficking in marijuana. [75] The trial judge was properly concerned with the prejudice to the trial that may arise from the admission of this evidence. [76] Moreover, the Crown had signalled that, if the defence evidence was admissible, the Crown would seek the admission of evidence underscoring the appellant’s disposition, including the fact that a knife was found in the appellant’s bedroom and his possible connection to a street gang. The Crown was also proposing to call an expert witness to explain the significance of some of that evidence. The trial judge found that admitting the evidence from the deceased’s phone would protract the proceedings and lead to a lengthy and only marginally relevant duelling of dispositions. [77] It was the trial judge’s obligation to manage the trial and keep it focused on the relevant issues for determination. Having considered all relevant circumstances within the context of the trial and the live issues to be determined, he decided that the probative value of the defence evidence was outstripped by the prejudice it would cause. It was open to the trial judge to come to this determination and I would defer to his assessment in that regard. (3) The Instructions to the Jury on Bad Character Evidence [78] The appellant maintains that the trial judge erred when he instructed the jury on bad character evidence. While the appellant acknowledges that the trial judge correctly instructed the jury to avoid propensity reasoning as it related to him, he suggests that the trial judge incorrectly placed him and the deceased as “equivalent[s]” when it came to that instruction. [79] The impugned instruction, placed within its proper context, follows. After instructing the jury to “steel” themselves against reasoning that, because the appellant has engaged in various bad conduct, he is the kind of person who would commit murder, the trial judge addressed the evidence about the deceased: It would also be improper to use this evidence to infer that [the deceased] was a drug dealer and a person of general bad character and therefore that he got what he deserved. So, don’t use it against the deceased either, that because he’s a bad person, he got what he deserved This kind of reasoning is equally improper and prohibited and it would deny            [the deceased] the protection of the rule of law. You can’t treat [the deceased] as simply collateral damage in the drug trade [Y]ou must be disciplined and use this body of evidence about drug deals and about counterfeit money for its legitimately relevant purposes, that is, in relation to the issues of motive, identity, and self-defence, which is why the parties put it in evidence and why they rely on it. You cannot use it to infer general bad character and therefore guilt against the accused or to infer general bad character and therefore some theory of just desserts against the deceased. [80] I see no error in this instruction. It was right. It was designed to bring home to the jury that they could not engage in improper propensity reasoning about the appellant’s guilt and, despite what they may have thought about the deceased’s lifestyle, that it was not a “defence to a murder charge to show that the deceased’s demise was a civic improvement”: R. v. Varga (2001), 159 C.C.C. (3d) 502 (Ont. C.A.), at para. 71, leave to appeal refused, [2002] S.C.C.A. No. 278. [81] If the appellant’s complaint is about what the trial judge did not say, the argument is equally flawed from a contextual perspective. There is no chance that the jury would have misunderstood what they were being asked to do with the evidence demonstrating the deceased’s drug-related activities. Those precise activities were what brought the deceased and appellant together on that fateful night. This was a central part of both the Crown and defence case. [82] Moreover, if the trial judge had highlighted for the jury that they could consider the deceased’s character flaws in determining whether he was more likely to be the aggressor, it could have worked a disservice to the appellant. After all, those same character flaws were shared by the appellant. [83] The trial judge specifically drew counsel’s attention to this very instruction that is now impugned on appeal. Counsel objected to much in the jury charge but did not object to this particular instruction. While a failure to object is not dispositive of a ground of appeal, the failure to do so will often provide insight into the strength of the complaint on appeal. Counsel in this case were best positioned to understand the instruction in the context of the case. The absence of any objection to the charge on this point is evidence that the defence thought that an instruction on this point may not have inured to the appellant’s benefit: R. v. Calnen , 2019 SCC 6, 430 D.L.R. (4th) 471, at paras. 38-41 . B. Sentence Appeal [84] The Crown made an application to have the appellant sentenced as an adult: YCJA , s. 64(1). Therefore, the main issue on the sentencing hearing was whether the appellant – who was fewer than three months shy of his eighteenth birthday at the time he committed the murder – should receive an adult or youth sentence. If sentenced as an adult, he would be subject to a mandatory life sentence with parole eligibility after seven years: Criminal Code , s. 745.1(c). If sentenced as a youth, he would be subject to a sentence not to exceed a total of seven years, of which a maximum of four years would be served in custody from the date of committal, with the balance to be served under conditional supervision in the community: YCJA , ss. 42(2)(q)(ii), 42(2)(r)(iii). The only difference between sentences imposed under those two YCJA provisions is that a sentence given under s. 42(2)(r)(iii) of the YCJA includes an intensive rehabilitative custody and supervision (IRCS) order. [85] At the time of sentencing, the appellant had already been in custody for over two years and eight months. Parole eligibility would run from the date he first entered custody: Criminal Code , s. 746(a). Therefore, under an adult sentence, the appellant would be parole eligible after four years and four months. He would then remain under the control and supervision of the parole board for life. If given a youth sentence, provided that no credit was given for pre-sentence custody, the appellant would have received four years in custody and then three years under conditional supervision in the community. [2] [86] The sentencing hearing was initially delayed because a pre-sentence report (“PSR”) suggested that the appellant has mental health issues. Therefore, the trial judge ordered a s. 34 YCJA assessment to assist with determining the correct disposition. When the report was returned to the court, it became clear that the appellant had provided the psychologist with a version of events that was inconsistent with aspects of the jury’s verdict. The trial judge then released a ruling setting out facts essential to the jury’s verdict and facts as found by the trial judge beyond a reasonable doubt. That ruling was then provided to the psychologist who had prepared the initial s. 34 report. She met with the appellant again, explored those facts with him and then provided an addendum to her initial report. [87] In addition, because the s. 34 report and a PSR suggested that the appellant may have some mental health related issues, an IRCS report was prepared to assist the court with making a determination as to whether an IRCS order should be made pursuant to s. 42(2)(r)(iii) of the YCJA , having regard to the statutory criteria set out in s. 42(7) . Ultimately, the authors of the PSR, s. 34 and IRCS reports, along with correctional witnesses, testified at the sentencing hearing. [88] The appellant has been diagnosed with generalized anxiety disorder and major depressive disorder. At the time that he was still in the community, he would also have met the criteria for cannabis use disorder. The trial judge heard evidence that the most effective treatment for these disorders would be a combination of psychotherapy and medications. [89] The trial judge concluded that, even if no credit were to be given for pre-sentence custody, the termination of all supervision and control of the appellant at the seven-year mark was not an appropriate disposition as it would provide inadequate protection to the public and would fail to meet the appellant’s rehabilitation and reintegration needs. [90] Accordingly, the trial judge imposed a life sentence with no parole eligibility for seven years: Criminal Code , s. 745.1(c). The sentence was ordered to be served in a provincial reformatory: YCJA , s. 76(1)(b). In light of his mental health difficulties, the trial judge also “recommend[ed]” that the appellant be classified to either the Algoma Treatment and Remand Centre and/or the Ontario Correctional Institute so that he could “receive the intensive treatment and training available at those institutions.” [91] The appellant raises a number of grounds of appeal relating to his sentence. He ultimately asks this court to convert the adult sentence to a youth one. I would decline to do so. (1) The Trial Judge Did Not Err in His Findings of Fact [92] The appellant takes issue with two of the facts as found by the trial judge: (a) that the murder took place in the appellant’s car; and (b) that the appellant was working with an accomplice. The appellant says that his acquittal on first degree murder arising from an unlawful confinement precluded the trial judge from making these findings of fact, given that it is implicit in the jury’s verdict that they had a reasonable doubt on each one. [93] It is uncontroversial that a sentencing judge is bound by the express and implied factual implications of a jury’s verdict: R. v. Brown , [1991] 2 S.C.R. 518, at p. 523; R. v. Ferguson , 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17. The trial judge “shall accept as proven all facts, express or implied, that are essential to the jury’s verdict”: Criminal Code , s. 724(2)(a) . Only where factual implications arising from a jury’s verdict are ambiguous, can a sentencing judge make factual findings to fill the void by coming to an independent determination of those relevant facts: Ferguson , at para. 18. [94] The trial judge understood and applied the law correctly. There is nothing about his findings that the murder occurred in the appellant’s car or with the assistance of an accomplice that stand in express or implied conflict with the jury’s reasonable doubt on unlawful confinement. As he explained, the fact that the murder did not occur “while committing a forcible confinement” in accordance with s. 231(5)(e) of the Criminal Code does not mean that there was no confinement in the vehicle or that someone else was not there assisting with that confinement. The acquittal may simply reflect that the jury was not satisfied beyond a reasonable doubt that the confinement and the killing were distinct criminal acts: R. v. Pritchard , 2008 SCC 59, [2008] 3 S.C.R. 195, at paras. 27-29. [95] Accordingly, it was open to the trial judge to come to these factual conclusions. He gave detailed reasons for doing so. I would defer to those conclusions. (2) The Trial Judge Did Not Conduct a “Blended Analysis” [96] Section 72(1) of the YCJA requires that an adult sentence be imposed where the judge is satisfied that: (a) the presumption of diminished moral blameworthiness or culpability of the young person is rebutted; and (b) a youth sentence imposed in accordance with the purpose and principles set out in subparagraph 3(1)(b)(ii) and section 38 would not be of sufficient length to hold the young person accountable for his or her offending behaviour. [97] The appellant argues that the trial judge erred by blending these two considerations together. By doing so, he is said to have overemphasized the seriousness of the offence and underestimated the fact that young people benefit from a presumption that they are less morally culpable than adults, even when it comes to serious offences. [98] This court has warned against merging the two inquiries – “the [p]resumption and the issue of accountability” – to avoid the risk that a factor that is only relevant to one of the inquiries could result in a finding in relation to the other: M.W. , at paras. 105-7. This does not mean, however, that there are not multiple factors relevant to both stages of the inquiry, such as: “(a) the seriousness and circumstances of the offence; (b) the age, maturity, character (including sophistication, intelligence and capacity for moral reasoning), background, and previous record of the young person; and (c) any other factors the court considers relevant” (citations omitted): M.W. at para. 105. [99] The respondent fairly observes that the trial judge did not technically follow the two-step approach this court has encouraged, but stresses that this is an unsurprising fact given that M.W. had not yet been decided. I agree. [100] Despite the failure to adhere to a strict two-step approach, the trial judge did not improperly blend the s. 72(1) factors. The reasons reflect that he appropriately grappled with each and came to separate and distinct conclusions on both prongs. He found as follows: Taking all of the above considerations into account, I am satisfied that the Crown has met its s. 72 burden. The combination of [the appellant’s] age, his maturity, and his relatively sophisticated conduct at the time of the offence and after the offence, all convince me that the “presumption of diminished moral blameworthiness” has been rebutted . The combination of the very serious offence, [the appellant’s] major role in that offence, his failure to undertake the recommended course of treatment for his underlying mental disorders in the past 2 1/2 years, and the uncertain length and prognosis for the required period of structured supervision and treatment of those disorders, all convince me that a 7 year “youth sentence” would not be “of sufficient length to hold [the appellant] accountable” for this offence or to achieve his “rehabilitation and reintegration into society .” [Emphasis added.] [101] I would not accede to this argument. Although the two-step approach was not followed, the trial judge’s reasons evince a careful consideration of each of the s. 72 YCJA factors and the reasons for finding that the Crown had met its burden of establishing each of the relevant statutory criteria. (3) The Trial Judge Did Not Misapprehend the Functioning of an IRCS Order [102] The appellant also argues that the trial judge erred in failing to understand the proper “functioning of the IRCS”. In particular, the appellant argues that, where an IRCS order is in place, there is no requirement that the IRCS guarantee resolution of an offender’s mental health issues. Accordingly, the appellant says that the trial judge erred when he concluded that the lack of a precise treatment plan that could meaningfully resolve his mental health issues within seven years precluded a youth sentence. [103] Had a youth sentence been appropriate, an IRCS order could have been made: s. 42(2)(r)(iii). The criteria for making such an order are enumerated within s. 42(7) of the YCJA , including that the young person suffer from a mental illness, a psychological disorder, or an emotional disturbance: YCJA : s. 42(7)(b). In addition, s. 42(7)(c) requires that before an IRCS order is made, the judge must be satisfied that: a plan of treatment and intensive supervision has been developed for the young person, and there are reasonable grounds to believe that the plan might reduce the risk of the young person repeating the offence or committing a serious violent offence. [104] The trial judge accepted that the appellant’s mental health conditions played a contributing role in the offence, and that treatment of the disorders would play an indirect role in reducing his risk of reoffending in the future. He exhaustively reviewed the evidence supporting an IRCS order, but came to the determination that the length of the youth sentence, and maximum corresponding period that the appellant would be governed by an IRCS order, was simply too short. [105] While rehabilitation is an important factor for consideration when sentencing a youth, there are other “important factors that are integral to the accountability inquiry mandated by ss. 72(1)(b) and 38(1) of the YCJA ”: R. v. A.O. , 2007 ONCA 144, 84 O.R. (3d) 561, at para. 57. As this court noted in M.W. , at para. 103, the concept of accountability in the YCJA context is “the equivalent to the adult sentencing principle of retribution”: see also, A.O. , at paras. 42-48. [106] Section 38(1) of the YCJA reads: The purpose of sentencing under section 42 (youth sentences) is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. [107] Section 38(2) sets out further principles that must be taken into account when imposing a youth sentence. Those principles were reviewed by this court in M.W. , at para. 102: The sentence: i) must not be greater than that imposed on an adult in similar circumstances; (ii) must be similar to sentences imposed on similar young persons in similar circumstances; (iii) must be proportionate to the seriousness of the offence and the degree of responsibility of the young person; (iv) subject to proportionality concerns, must be the least restrictive sentence capable of achieving accountability, the most likely to rehabilitate and reintegrate the young person into society, and promote a sense of responsibility in the young person and acknowledge the harm done to the victims and the community; and (v) subject to proportionality concerns, may serve the objectives of denunciation and specific deterrence. [108] The trial judge turned his mind to all appropriate sentencing principles, including accountability, proportionality, rehabilitation and reintegration. Having regard to all of the appropriate principles, against the factual backdrop of the offence and the personal circumstances of the appellant, the trial judge came to the conclusion that a finite seven year sentence was simply inadequate to protect the public and hold the appellant to account for the offence. [109] In coming to that determination, the trial judge relied on a number of factors, including: · the very serious nature of the offence committed, including the fact that, among the 17 stab wounds, there was a “stellate” cut on the deceased’s face, close to his eye, associated with “twisting the knife in the wound”; · the principal role played by the appellant in the murder; · the fact that an accomplice was involved; · the fact that the appellant had been described as being “mature” and “age appropriate”; · the fact that the appellant’s mental disorders may have contributed to the commission of the offence, yet the appellant refused to engage in meaningful treatment for those diagnosed disorders; · the fact that accepting responsibility for his actions and his role in the offence would be an aspect of a successful treatment program according to the author of the s. 34 report, yet the appellant had not accepted that responsibility, leaving the success and duration of any proposed treatment plan uncertain; · his uncertain prognosis; and · his conduct while in custody since the offence, including the fact that he had “fashioned a weapon” on one occasion. [110] These are only some of the factors that led the trial judge to conclude that the Crown had met its s. 72 burden and that a youth sentence would not be sufficient for the protection of the public or for the appellant’s rehabilitation and reintegration into society: Todorovic , at para. 42. I see no error in that approach. (4) The Trial Judge Did Not Err in How He Approached the Question of Placement [111] Finally, the appellant argues that the trial judge erred by essentially concluding that he could achieve the effect of an IRCS order through the provincial jail system. I do not read the trial judge’s reasons as supporting that suggestion. As pointed out by the respondent, the trial judge’s reasons clearly demonstrate that he only considered placement in the provincial reformatory system after he had already determined that an adult sentence was appropriate. Upon determining that an adult sentence would be imposed, the trial judge was statutorily obligated to consider the appellant’s placement pursuant to s. 76(1) of the YCJA . There is no error in that approach. (5) The Fresh Evidence [112] The appellant asks this court to admit fresh evidence on appeal. That evidence includes an expert report authored by Dr. Jeffrey Wong, a clinical and forensic psychologist, dated September 10, 2018. Dr. Wong’s report is said to update a report prepared by the expert who prepared the s. 34 assessment for the sentencing hearing. [113] Dr. Wong’s report largely repeats what was said by the author of the s. 34 YCJA report and concludes that an IRCS order is still an appropriate and, in fact, favoured disposition for the appellant over an adult sentence. The appellant points out that Dr. Wong has concluded that the appellant has a low to moderate risk of violence in the future. [114] In cross-examination, Dr. Wong admitted that he did not have any of the trial judge’s findings of fact when he conducted his assessment. He also acknowledged that he only met with the appellant for about 30 minutes and administered 3 other tests which lasted for 1 hour. He perceived his role as updating the earlier psychologist’s report. He was not concerned with comparing what the appellant testified to at trial with what the appellant had told him during their short interview. Dr. Wong was only interested in the appellant’s current perception of the offence. [115] Dr. Wong’s sole understanding of the offence came from that report and what the appellant told him. He seemed unaware of the fact that the earlier psychologist’s s. 34 report had not been that psychologist’s final view. Recall that the original report suffered in that it relied upon a set of facts that were inconsistent with the jury’s verdict, causing the trial judge to render a ruling setting out the facts implicit to the verdict and the facts that he found beyond a reasonable doubt. The original psychologist then provided an addendum to her report, one which addressed the actual facts, the appellant’s resistance in accepting those facts, and the psychologist’s acknowledgment that his refusal to do so created concern in terms of his treatment prospects. [116] Dr. Wong was not aware of any of those facts and, indeed, said that his real concern was with knowing what the appellant had to say. He did not know whether the earlier psychologist’s addendum to her s. 34 report would change his opinion around the appellant’s mental disorders. Importantly, he did not know that the victim had been stabbed 17 times, referred to the victim as the “drug supplier”, thought that the victim had lured the appellant to the scene, and did not know whether there were others present during the murder. [117] I would not admit Dr. Wong’s affidavit. In the context of this case it lacks cogency: R. v. Dudar , 2019 ONCA 115, 371 C.C.C. (3d) 323, at paras. 31-39. The expert report was authored against a factual backdrop that is entirely removed from the factual findings of the jury and trial judge. While relevant, Dr. Wong’s evidence suffers from serious deficiencies which significantly undermine its probity such that it could not reasonably have affected the result at trial: Dudar , at para. 31; R. v. Plein , 2018 ONCA 748, 365 C.C.C. (3d) 437, at para. 63. In any event, and at most, Dr. Wong’s evidence repeats what the trial judge already had available to him under the s. 34 report and its addendum. There is nothing fresh about his report, especially given its reliance on the original s. 34 report. [118] Nor would I admit the appellant’s affidavit evidence. He claims that he has completed all of the programs available to him and that there is nothing else for him to do. The respondent obtained the appellant’s institutional records demonstrating that he has joined one program and some educational classes but has not completed them. He was also provided with an application to Algoma Treatment Centre in 2016 but did not submit it for over a year. The circumstances of the appellant’s incarceration have no bearing on the sentence appeal given the trial judge’s conclusion that an adult sentence was necessary to hold the appellant accountable for the offence. [119] There is nothing in either Dr. Wong’s report or the appellant’s affidavit that would reasonably be expected to have affected the result in this case. CONCLUSION [120] I would dismiss the conviction appeal. I would grant leave to appeal sentence, but dismiss the sentence appeal. Released: “D.W.” January 31, 2020 “Fairburn J.A.” “I agree. David Watt J.A.” “I agree. B.W. Miller J.A.” [1] Although the appellant was repeatedly told that he could call a lawyer if he wished to do so, the full informational component of a s. 10(b) caution was not given: R. v. Bartle , [1994] 3 S.C.R. 173, at p. 198. [2] At the time of sentencing, the trial judge noted that there was uncertainty in the law regarding whether pre-sentence custody applied to the custodial portion of a youth sentence. To the extent there was any uncertainty, it has since been clarified by this court in R. v. M.W., 2017 ONCA 22, 134 O.R. (3d) 1, at para. 78, leave to appeal refused, [2017] S.C.C.A. No. 109. Although pre-sentence detention must be taken into account, the sentencing judge has the discretion not to assign credit for pre-sentence custody when designing an appropriate youth sentence: R. v. D.S. , 2008 ONCA 740, 93 O.R. (3d) 211, at para. 26.

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. Jones, 2020 ONCA 15 DATE: 20200108 DOCKET: C64969 Pardu, Roberts and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Wayne Jones Appellant Najma Jamaldin, for the appellant Ken R. Lockhart, for the respondent Heard and released orally: December 6, 2019 On appeal from the convictions entered on December 14, 2018 by Justice S.A.Q. Akhtar of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant argues that the trial judge erred in refusing to admit the expert evidence proffered by him at trial. As the trial judge indicated, Dr. Moore’s report “indicated that he would give opinion evidence on the length of time between the allegations and the reports, and on the question of: are these complainants ‘remembering’ sexual assaults or are they reinterpreting past interactions with the defendant as sexual assaults as a result of recent media coverage”. [2] His evidence was offered to suggest that it was possible that media coverage of the allegations by B caused X and Y to incorrectly recall what had happened to them over two decades earlier. [3] The trial judge concluded that the evidence was not necessary, relying on R. v. T.C. , [2004], 72 O.R. (3d) 623 and concluded that these matters were the stock and trade of what trial judges do day in and day out. [4] In any event, the trial judge expressly recognized in paras. 326 and 327 of his reasons that he accepted that false memories could be created because of external events occurring years later but rejected the submissions that this had occurred in this case: see para. 33 of R. v. T.C. [5] We see no error in the trial judge’s treatment of this issue nor any prejudice to the appellant. [6] Secondly, the appellant argues that the trial judge erred in his assessment of the credibility of X and Y because in the case of X, he did not expressly advert to prior inconsistent statements by X and in the case of Y, that he did not give sufficient weight to those inconsistencies, accepting that she was confused. [7] The trial judge gave thorough reasons explaining why he found X and Y credible with respect to their core allegations of sexual assault. He convicted on counts for which he found support for their testimony from other witnesses. Deference is owed to his assessment of credibility and we see no error in his weighing of the credibility and reliability of the evidence, particularly in light of the highly probative similar fact evidence. [8] The appellant suggests that there were problems with B’s evidence which should have attenuated the significance of the similar fact evidence in relation to X and Y. Again, the trial judge comprehensively analyzed the strengths and weaknesses in B’s evidence and accepted it as to the core allegations of sexual assault and the manner in which those assaults were committed. [9] The admissibility of the similar fact evidence is not in issue on appeal. [10] We see no basis to intervene. The appellant does not pursue other arguments made in the factum. The appeals from convictions are dismissed. “G. Pardu J.A.” “L.B. Roberts J.A.” “J.A. Thorburn J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the 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. K.R., 2020 ONCA 20 DATE: 20200114 DOCKET: C64036 Pardu, Brown and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and K.R. Appellant James Harbic and Robert Harbic, for the appellant Jennifer A.Y. Trehearne, for the respondent Heard: January 10, 2020 On appeal from the conviction entered on April 29, 2016 by Justice Ronald M. Laliberté of the Superior Court of Justice, sitting without a jury. REASONS FOR DECISION [1] The appellant was convicted of two counts of sexual interference against his step-daughter, M.T., who accused him of rubbing and penetrating her vagina with his fingers on several occasions when she was between 7 and 14 years of age. The appellant was acquitted of sexual abuse charges against his biological daughter, A.T. [2] The appellant raises the following arguments on appeal: 1. The trial judge engaged in impermissible speculative reasoning in rejecting the evidence of K.R. when he relied on hearsay evidence of the statements and behaviour of the complainants’ mother, J.T. 2. The trial judge placed undue weight on the demeanor of M.T. in assessing her credibility, while ignoring relevant inconsistencies in her testimony. 3. The verdict is unreasonable. [3] At the conclusion of the hearing we dismissed the appeal with reasons to follow. These are our reasons. The trial judge was entitled to reject the appellant’s evidence [4] M.T., and A.T. testified at trial, along with the appellant. The trial judge found that M.T. was credible, but rejected the evidence of A.T. and the appellant. [5] It was open to the trial judge to find that the appellant was not a reliable witness and that his evidence was not credible. As to reliability, the appellant acknowledged that his memory was harmed by two drug overdoses; that he sometimes has difficulty remembering things; and that he told the police that some of his memory had been “erased”. These memory problems undermined the appellant’s evidence that he was never alone with the children at any time, despite his insistence to the contrary. [6] The appellant testified that he did not bathe the children after they were no longer infants; that he was never left alone with the children when J.T. went shopping; that he never put the children to bed; and that he never played with them in their bedroom. He acknowledged skiing and skating alone with the children, but said that there were other people around when he went swimming with them. The appellant acknowledged only that he was “not basically alone” with the children while watching television in the living room, as J.T. would be in the kitchen cooking and would walk in and out of the living room. [7] The trial judge’s finding that it was highly improbable that the appellant would never have been alone with his daughters is supported by the evidence and is reasonable. The trial judge considered that the appellant’s evidence on this point was an attempt to exclude any opportunity for him to commit the offences. The same is true of the appellant’s evidence that he went onto the roof because it was leaking, and not to spy on M.T. while she was in the bathroom. It was open to the trial judge to conclude that the appellant was neither reliable nor credible and that his evidence did not raise a reasonable doubt. [8] The trial judge’s credibility findings do not depend on hearsay evidence or speculation concerning J.T.’s reaction when M.T. told her that the appellant had abused her. Nor does M.T.’s evidence that her mother was at home at the time of some of the abuse undermine the trial judge’s finding that the appellant was not credible. M.T.’s evidence was that the mother was elsewhere in the home at the time, occupied with watching television, having a cigarette or a coffee, or cooking. The trial judge’s credibility and reliability findings are entitled to deference and there is no basis for this court to interfere with them. The trial judge was entitled to accept MT’s evidence [9] The appellant submits that the trial judge erred by emphasizing the demeanour of M.T. in determining her credibility and reliability, despite the lack of details and inconsistencies in her testimony. [10] We disagree. [11] The trial judge found that M.T.’s evidence was both detailed and internally consistent, and highlighted several reasons for finding that she was reliable and credible. He found that M.T.’s evidence was confirmed in a number of ways by external evidence, including the appellant’s evidence. He acknowledged that M.T. was wrong in believing that the appellant had cut her door in half so as to deny her privacy, as the door was already cut when they moved into the home. But it was open to the trial judge to find that this was not a significant point in the context of her evidence as a whole. Although the trial judge remarked that M.T.’s demeanour was “appropriate”, her demeanour did not play a significant role in the trial judge’s findings. He specifically cautioned himself that demeanor is not, in and of itself, an appropriate means of measure for reliability and/or credibility. [12] In summary, there is no basis to interfere with the trial judge’s findings on reliability and credibility of M.T. The verdict is not unreasonable [13] It is well established that there is a high bar to meet to establish that a verdict is unreasonable. The appellant simply repeats what he regards as frailties in the evidence of the complainant and asserts a failure of the trial judge to understand or apply the evidence. This does not come close to establishing that the verdict was unreasonable. [14] The trial judge was alive to the burden of proof, as reflected in his decision to acquit the appellant on charges related to his daughter A.T. He properly applied the law as set out in R. v. W.(D.) , [1991] 1 SCR 742. Having rejected the evidence of the appellant and found that it did not raise a reasonable doubt, he was satisfied that the evidence established guilt beyond a reasonable doubt. There is no basis to interfere with his decision. Conclusion [15] The appeal is dismissed. “G. Pardu J.A.” “David Brown J.A.” “Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Kazman, 2020 ONCA 22 DATE: 20200116 DOCKET: C65212, C65224, C65322 & C65858 Doherty, van Rensburg and Hourigan JJ.A. BETWEEN Her Majesty the Queen Respondent and Marshall Kazman Appellant AND BETWEEN Her Majesty the Queen Respondent and Gad Levy Appellant AND BETWEEN Her Majesty the Queen Respondent and Madjid Vaez Tehrani Appellant AND BETWEEN Her Majesty the Queen Respondent and Ali Vaez Tehrani Appellant Richard Litkowski, for the appellant Marshall Kazman Adam Little, for the appellant Gad Levy Michael Dineen, for the appellant Madjid Vaez Tehrani Mark Halfyard and Chris Rudnicki, for the appellant Ali Vaez Tehrani John Patton, for the respondent Heard: December 16, 2019 On appeal from convictions entered by Justice Nancy J. Spies of the Superior Court of Justice on September 8, 2017, reported at 2017 ONSC 5300, and on appeal from sentences imposed by Justice Nancy J. Spies of the Superior Court of Justice on April 12, 2018, reported at 2018 ONSC 2332. Doherty J.A.: I Overview [1] The appellants and others were charged with multiple counts of fraud and related offences arising out of several bank loans fraudulently obtained by them under the auspices of the Government of Canada’s Small Business Financing Program. The program was intended to assist small businesses with loans, thereby improving the economy and creating jobs for Canadians. The loans were provided by banks but insured, to a large extent, by Industry Canada, [1] a department of the federal government. The banks and the taxpayer were all victims of the frauds. [2] The trial judge convicted the appellants, Kazman and Levy, on all charges. She convicted the appellant, M. Tehrani, of two counts of fraud and acquitted him on two counts. She convicted his brother, the appellant, A. Tehrani, on one count of fraud and acquitted him on two others. The trial judge acquitted three other accused on all counts. [3] All of the appellants appeal their convictions. None take issue with any part of the trial judge’s exhaustive analysis of the evidence, her findings of fact, or the verdicts she returned. In short, the appellants do not challenge their convictions on the merits. [4] The appellants do, however, argue that the trial judge erred in dismissing three motions brought at different stages of the trial for an order staying the proceedings on the basis of an alleged breach of s. 11(b) of the Charter . The appellants argue that the trial judge erred in dismissing s. 11(b) motions on each occasion without addressing the merits of the application. [5] Kazman and A. Tehrani also appeal their sentences. Kazman submits that the seven-year prison sentence imposed by the trial judge was manifestly excessive. He also argues that, in the circumstances, the trial judge should not have made a restitution order against him. A. Tehrani submits that the trial judge erred in imposing a custodial sentence. He contends that a conditional sentence, even if somewhat longer than the 14 months’ jail sentence imposed by the trial judge, is the appropriate sentence. [6] The court dismissed the conviction appeal with reasons to follow and reserved judgment on the sentence appeals. These reasons address both the conviction and sentence appeals. II The Nature of the Conviction Appeals [7] This was a lengthy and factually-dense prosecution. The evidence took five months to complete. Given that the appellants challenge only the rulings on the s. 11(b) motions, it is unnecessary to review the evidence or the findings of fact made by the trial judge. It is sufficient to observe that her reasons are meticulous and detailed. They lay bare a multi-layered fraudulent scheme perpetrated by the appellants on the banks and Industry Canada over a lengthy time period. The trial judge’s findings put Kazman, a disbarred lawyer, and Levy at the centre of this fraudulent scheme. On the trial judge’s unchallenged analysis of the evidence, there can be no doubt about the appellants’ guilt on the counts on which they were convicted. [8] The conviction appeals focus on three s. 11(b) rulings made by the trial judge in the course of the trial proceedings. The first s. 11(b) ruling was made in November 2016, just after the Crown closed its case at trial. All of the appellants joined in that motion. The trial judge summarily dismissed the motion without reaching the merits as it had not been perfected. [9] The second s. 11(b) motion came about a month later in December 2016. One of the non-appellant accused brought a motion to re-open the s. 11(b) motion. Counsel sought reconsideration on the basis that she could now put a perfected s. 11(b) motion before the trial judge. Only M. Tehrani joined in this motion. By the time this motion was brought, it was clear that the defence evidence at trial would continue into January, about a month longer than had been anticipated. The trial judge again summarily dismissed this motion without addressing the merits of the s. 11(b) claim. [10] The third s. 11(b) motion was brought some 15 months later in March 2018 by Levy, on the eve of his sentencing. None of the other appellants joined in this motion. Once again, the trial judge summarily dismissed the s. 11(b) motion. [11] The trial judge gave brief oral reasons for dismissing the motions in November and December of 2016. She later provided detailed written reasons: see R. v. Kazman , 2018 ONSC 1913, 408 C.R.R. (2d) 151 ( Kazman (2016 applications)). [2] The trial judge also gave written reasons for dismissing Levy’s motion in March 2018: see R. v. Kazman , 2018 ONSC 2196 ( Kazman (2018 application)). [12] The appellants raise several arguments. Most come down to the submission that the circumstances did not warrant the extreme remedy imposed by the trial judge. The appellants contend that a trial judge should decline to hear a motion on the merits only as a last resort, especially one based on a constitutional claim. They argue that despite non-compliance with various deadlines imposed by the trial judge, the s. 11(b) motions could have been heard on their merits within the timeframe of the ongoing trial and without prejudice to the Crown or to the conduct of the trial. They submit that the trial judge acted unreasonably in not affording them a further opportunity to perfect and argue their s. 11(b) motion. [13] In addition to the submissions which challenge the reasonableness of the trial judge’s exercise of her discretion, the appellants Kazman and Levy also allege that they were treated unfairly. They both argue that the trial judge did not afford them the assistance they were entitled to as unrepresented accused. Levy also argues that he was denied the opportunity to adequately address the Crown’s claim that his March 2018 motion should be summarily dismissed. The appellants submit that this unfairness rose to the level of a miscarriage of justice. III The Legal Principles [14] This appeal does not raise any jurisprudential questions, but instead, turns on the application of well-settled law to the particular circumstances of this case. There can be no doubt that a trial judge has the authority to summarily dismiss motions brought at trial, including s. 11(b) motions. That power is recognized in Rule 34.03 of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) (SI/2012-7). The case law from this court also acknowledges a trial judge’s power to summarily dismiss motions. Without that power, trial judges could not properly control the proceedings before them: see R. v. Imola , 2019 ONCA 556, at para. 17; R. v. Blom (2002), 61 O.R. (3d) 51, at paras. 28-30 (C.A.). [15] The power to dismiss motions summarily, especially motions involving constitutional claims, must be exercised cautiously. Motions that advance constitutional claims should be addressed on their merits unless the broader interests of justice clearly demand otherwise: R. v. Loveman (1992), 8 O.R. (3d) 51, at pp. 55-56 (C.A.). In deciding whether to dismiss a motion summarily, the trial judge must have regard to the interests of the accused. The trial judge’s focus cannot, however, be limited to the narrow specifics of the particular case. The trial judge must consider broader administration of justice concerns, including the need to conduct all litigation, including criminal litigation, in a fair, orderly, and efficient manner. It falls to trial judges to decide where the interests of justice lie in each specific case. [16] The broader administration of justice concerns were placed front and centre in the powerful reasons of the majority in R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 137-141. Speaking specifically about the constitutional right to a trial within a reasonable time and the litigation that claims based on that right have spawned, Moldaver J. for the majority stressed that all participants in criminal litigation have a joint obligation to work co-operatively to effectively use limited available resources in order to bring cases to completion within a reasonable time: see also R. v. Cody , 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 1. No one, including self-represented accused, can be allowed to ignore court orders and deadlines while the constitutional clock runs down and valuable court resources are consumed. After Jordan , trial judges must engage in proactive case management of criminal trials. Litigants must cooperate in those case management efforts. Appellate courts must support those proactive steps by showing strong deference to case management decisions: Jordan , at paras. 138-139. [17] The trial judge considered many of the leading authorities: see Kazman (2016 applications), at paras. 122-127. She was also mindful of the admonition in Jordan and Cody that the court must expect and demand that all participants in the criminal justice system work cooperatively toward eliminating unnecessary delays and inefficiencies in the trial process. IV The History of the Proceeding [18] Because the appellants’ submissions focus primarily on the reasonableness of the trial judge’s decisions, it is necessary to put those rulings in the context of the proceedings. Contrary to the approach taken by the appellants, that context includes all of the proceedings, especially the entirety of the proceedings in the Superior Court, and not just the few months leading up to the dismissal of the first s. 11(b) motion in November 2016. (i) The Pre-Trial Period: Prior to September 2016 [19] This prosecution arrived in the Superior Court by way of a direct indictment in late May 2015. There had been a prolonged preliminary inquiry featuring a 22-day cross-examination of one witness by Kazman, who was self-represented. Levy, who was also self-represented, had indicated that he also intended to cross-examine this same witness at length. Kazman’s multi-week cross-examination, spread over more than a year, was still ongoing when the Attorney General preferred the indictment and moved the matter to the Superior Court. [20] Very soon after the prosecution arrived in the Superior Court, a judge of that court began to case manage the trial. Kazman and Levy were unrepresented. Kazman indicated he proposed to bring several motions, including a s. 11(b) motion. Kazman and Levy both brought Rowbotham applications. The applications unrelated to s. 11(b) were eventually dismissed. [21] In June 2015, the case management judge set a trial date for January 2016. The parties anticipated a six-month long jury trial. The allocated trial time included three or four days for an anticipated s. 11(b) motion. Consequently, as of June 2015, all accused were aware that any s. 11(b) motion would be argued some seven months later during the time allocated for the trial. The accused knew they had to perfect those motions before the trial date so the Crown could respond. [22] The same judge continued to case manage the proceeding between July and November 2015. The progress of the proposed s. 11(b) motion came up at those case management hearings. None of the accused had ordered the necessary transcripts. It subsequently turned out that each was looking to the other to fund the acquisition of the transcripts. The case management judge reminded the accused of their obligations in respect of the s. 11(b) motion, which was still scheduled to be heard at trial in January 2016. [23] In November 2015, Kazman told the case management judge that he did not have the funds necessary to order the transcripts. In December, he requested an extension of the deadline for filing his s. 11(b) material to the actual trial date in January. He told the case management judge that he had ordered the transcripts about two weeks earlier. This was the first indication of anything that had been done by way of obtaining the material necessary to bring the s. 11(b) motion. None of the other accused had done anything to perfect the s. 11(b) motion. The case management judge rejected Kazman’s request. [24] Subsequently, Kazman, as well as both M. and A. Tehrani, applied for an adjournment of the trial date. In support of that request, Kazman advised the case management judge that he had not perfected the anticipated s. 11(b) motion, which was to have been brought at trial. It is unclear what, if anything, had been done to perfect that motion. [25] At a case management conference in early January, the court granted the requested adjournment. The parties re-elected trial by judge alone. A second trial date was scheduled for September 2016. Four months were set aside for this trial. [26] The parties discussed the proposed s. 11(b) motion at the January case management conference. Kazman told the case management judge that the necessary transcripts would be available in the next few weeks. He told the judge that he planned to bring other pre-trial motions. The trial judge advised Kazman that if he was bringing a s. 11(b) motion, he had to perfect that application by March 3, 2016. This was the second deadline imposed by the trial court in respect of s. 11(b) motions. [27] Two days later, Kazman was back before the case management judge regarding a separate application and requested a further extension of the deadline for the preparation of his s. 11(b) motion. The trial judge extended the deadline for filing the material to April 6, and fixed May 13 as the date for the hearing of the s. 11(b) motion. The case management judge cautioned Kazman that if the necessary materials were not filed by him, the s. 11(b) motion could be summarily dismissed. [28] By this time, the discussions concerning the preparation and argument of the s. 11(b) motions had been ongoing before the case management judge for about eight months. Deadlines for filing had been set and extended. The accused were well aware of their obligation to obtain all of the necessary transcripts. [29] Some time in April 2016, Kazman advised the Crown that he was abandoning his s. 11(b) motion. On the scheduled date for the hearing of that motion in May 2016, Kazman told the court that he was abandoning the application “without prejudice” to bringing it back on at some future date. The case management judge told Kazman that he did not necessarily have the right to bring an abandoned application back before the court at some later stage. [30] Although Kazman had assured the case management judge in November 2015 and January 2016 that all of the necessary transcripts would be available in the immediate future, it does not appear that any transcripts were ever provided to the Crown or filed with the court before Kazman abandoned his s. 11(b) motion in May 2016. [31] In July 2016, Kazman advised the case management judge that he was now planning to bring a s. 11(b) motion in light of the recently released decision in Jordan . The case management judge reminded Kazman that his trial had been set seven months earlier for September and that any s. 11(b) motion that might be brought, had to be brought and perfected bearing in mind that the trial would proceed in September. This was the same approach the case management judge had taken a year earlier when Kazman advised that he intended to bring a s. 11(b) motion. At that time, the case management judge had fixed the trial date and indicated that the s. 11(b) motion would be heard during the time set aside for the trial. [32] By the middle of August 2016, Kazman and Levy had filed notices of application and affidavits in support of their s. 11(b) motions. None of the other necessary supporting material had been filed. The other accused had not filed s. 11(b) motions or any supporting material. [33] At a case management meeting on August 29, 2016, the case management judge told Kazman and Levy that their s. 11(b) motions could not be scheduled for argument as they had not been perfected as required by the Rules. Kazman, contrary to what he had been repeatedly told at case management meetings, argued that he should only have to produce the transcripts that he deemed relevant to his s. 11(b) motion. In any event, no transcripts had been provided to the Crown or filed with the court as of the August 2016 case management hearing. Kazman and the other accused had been on notice for well over a year about the requirements in respect of any s. 11(b) motion. [34] At the August 29 case management meeting, the Crown asked the case management judge to dismiss the s. 11(b) motions for non-compliance with the Rules. The case management judge declined to do so but told Kazman and Levy that they must perfect their s. 11(b) motions, which included filing the necessary transcripts, 30 days before the motion could be heard. Kazman assured the case management judge that this was not a problem. (ii) The Trial: September 2016 – December 2016 [35] On September 12, 2016, the first day of the scheduled trial, Kazman and Levy once again sought an adjournment of the trial to allow them to bring their s. 11(b) motions. They requested 30 days to perfect the s. 11(b) motion. Kazman stated that he had all the transcripts and could have everything filed “within a couple days”. [36] The trial judge refused the adjournment request. After spending considerable time discussing what was and was not required on the s. 11(b) motions, the trial judge indicated that the trial would proceed, and that the s. 11(b) motion would be heard at or near the end of the trial in mid-December. She reminded the accused of their obligations in respect of perfecting the s. 11(b) motion. [37] As the trial progressed, considerable time was spent discussing the ongoing preparation of the s. 11(b) material. The trial judge was told from time-to-time that most of the material had been delivered and the material that had not yet been delivered would be available in the very near future. The trial judge continued to emphasize the need for counsel to produce material in an orderly way that would allow her to fully understand the history of the proceedings, and efficiently adjudicate the s. 11(b) so as to minimize interference with the trial proceedings. [38] In late-September 2016, the trial judge, at the Crown’s request, imposed a deadline for the perfection of the s. 11(b) motions. She ordered that anyone bringing a s. 11(b) motion must file the necessary material by October 28, 2016. That date was fixed in anticipation of the motion being heard in mid-December, at or near the end of the trial. The October 28 deadline gave the Crown an adequate opportunity to review the accused’s material and prepare and file responding material. [39] In early October, the Crown advised the trial judge that they had not received many of the transcripts necessary for a proper hearing on the s. 11(b) motion. Both Kazman and Levy, who were unrepresented, began making references to lawyers who may or may not be acting for them on the s. 11(b) motion. [40] On October 26, two days before the deadline set by the trial judge, a lawyer who had been retained by Kazman about 10 days earlier for the purposes of the s. 11(b) motion appeared before the trial judge. His submissions made two things clear. First, very little, if anything, had been done by any of the accused or their counsel to perfect the s. 11(b) motion. As he put it in an email to other counsel, no one was “serious” about the s. 11(b) motion before he was retained by Kazman in mid-October 2016. Second, he told the trial judge that in light of the recency of his retainer and the state of the preparation of the s. 11(b) motion, he could not possibly comply with the court’s deadline and could not give the court an informed assessment of when he might be able to perfect Kazman’s s. 11(b) motion. [41] Newly-retained counsel for Kazman also outlined to the trial judge the steps he was taking to try and obtain the necessary transcripts. Finally, he told the trial judge that he had other commitments, which limited his availability to argue any s. 11(b) motion. [42] Counsel for M. Tehrani and A. Tehrani advised the trial judge that many of the necessary transcripts had been ordered but were not yet available. [43] The Crown argued that the abject failure of the accused to comply with the October deadline warranted a dismissal of the s. 11(b) motions. The trial judge rejected this submission, and instead gave the accused a further opportunity to perfect the motions. She extended the deadline to November 18. This was at least the fourth deadline that had been set in respect of the s. 11(b) motions since the case had arrived in the Superior Court. [44] In granting this further extension, the trial judge made it clear that she expected counsel to cooperate in the perfection of the motions as Jordan had mandated. She reminded counsel that in addition to the necessary transcripts, she required proper factums and a compendium of transcripts to allow her to deal with the s. 11(b) motion expeditiously while minimizing interference with the ongoing trial. The accused were put on notice that the failure to comply with the November deadline would lead the Crown to request a summary dismissal of the s. 11(b) motion. [45] On November 2, 2016, a lawyer appeared for Levy, indicating that he may shortly be retained by Levy on the s. 11(b) motion. This lawyer apparently had no familiarity with the history or status of the s. 11(b) motion. Specifically, he did not know about any deadlines that had been set. This lawyer had been retained by November 18, 2016. [46] On the November 18 deadline, the s. 11(b) material remained deficient in many respects. Transcripts were still missing. Factums were either non-existent or inadequate. The trial judge had not received her requested transcript compendium, only having been provided with individual loose transcripts, none of which identified relevant passages. Nor had the transcripts of the appearances before the case management judge been properly redacted so that the trial judge could refer to that material insofar as it was relevant to the s. 11(b) motion. [47] Once again, the Crown submitted that the court should summarily dismiss the s. 11(b) motions for non-compliance with the Rules and the trial judge’s orders. This time, the trial judge accepted the Crown’s submission, and dismissed the motions. [48] In her oral reasons, the trial judge stressed the repeated non-compliance with deadlines and court orders in respect of the perfection of the motions. She observed that the repeated and ongoing discussions and negotiations over the s. 11(b) motion had been a significant distraction and time-waster during the trial. Finally, she found that the Crown’s ability to properly respond to the motions was compromised by the manner in which the material had been presented, and by the continued delay in the bringing of the motions. [49] After the trial judge dismissed the s. 11(b) motion for non-compliance with the Rules and the deadlines she had set, Kazman asked whether he could re-open the s. 11(b) motion as time continued to accrue. Although Kazman raised this issue personally with the trial judge, his s. 11(b) lawyer was present at the time. [50] The trial judge told Kazman that she did not see how any later s. 11(b) motion could be entertained, given that the prejudice suffered by the Crown through the delays in bringing the s. 11(b) motion would only be exacerbated if the motion was brought on at some later point in the trial. [51] The trial continued into December with the defence calling evidence. On December 14, 2016, the trial judge received a motion brought by counsel for an accused who was ultimately acquitted, seeking leave to re-open the s. 11(b) motion. The request was based on additional material relevant to the s. 11(b) motion that was now available but had not been available in November. Counsel for M. Tehrani filed material in support of the motion. The other accused did not file any material or formally join in the motion. [52] The trial judge initially indicated she was not inclined to review the material filed on the motion for reconsideration. Ultimately, however, she did accept and examine that material. [53] In dismissing the motion for reconsideration, the trial judge referred to some of the material that had been placed before her by counsel on that motion. In the trial judge’s view, that material shed considerable light on the reason the motions had not been perfected by the October or November deadlines set by her. The trial judge said, in Kazman (2016 applications), at para. 128: I was now aware of why the two deadlines had not been complied with and it was clear to me that it was not because of a failure of counsel to cooperate or the lack of cooperation from transcriptionists but rather a failure of counsel to take any steps to do the work needed to perfect their applications until after the First Deadline and to a large extent just before the Second Deadline. [Emphasis added.] [54] The trial judge was also satisfied that although there was significant additional material filed on the motion for reconsideration, the s. 11(b) motion material remained deficient in many respects. The inadequate state of the material both prejudiced the Crown and compromised the trial judge’s ability to properly deal with the motions while continuing to efficiently conduct the trial to verdict. The trial judge declined to reconsider her earlier ruling. The trial continued. (iii) The Trial: December 2016 – April 2018 [55] Although the Crown’s case had been completed slightly ahead of schedule in November 2016, the defence case lasted longer than had been anticipated. The defence evidence was completed on February 2, 2017, about a month behind schedule. [56] The parties filed written submissions in March 2017. The trial judge reserved judgment. She eventually released reasons totalling almost 400 pages in September 2017: see R. v. Kazman , 2017 ONSC 5300. [57] In early-October 2017, dates were set for sentencing submissions. By agreement, the accused would make sentencing submissions separately but the trial judge would impose all sentences at the same time. M. and A. Tehrani made sentencing submissions on November 25, 2017. On that date, Levy asked the trial judge to delay his sentencing submissions into January 2018 so that he could retain counsel for sentencing purposes. The trial judge reluctantly agreed, and adjourned Levy’s sentencing submissions to January 5, 2018. Counsel for Levy appeared on that day indicating he had just been retained. He requested a further adjournment so that he could prepare Levy’s sentencing submissions. The trial judge adjourned Levy’s sentencing submissions to March 9, 2018. [58] On March 8, 2018, the day before Levy’s newly-retained lawyer was scheduled to make sentencing submissions, Levy appeared before the trial judge with two different lawyers. Levy had retained these lawyers to bring an application for a reconsideration of the s. 11(b) motion. Levy’s s. 11(b) lawyers came to court armed with the application, several volumes of transcripts, a factum, and a book of authorities. None of the material had been served on the Crown. Contrary to the very clear instructions in Jordan , there had been no communication with the Crown by Levy’s s. 11(b) lawyers, and no attempt to work cooperatively with the Crown in bringing the motion forward. [59] Not surprisingly, Crown counsel was required to ask for an adjournment to examine the material filed by Levy’s two s. 11(b) lawyers on March 8. The trial judge adjourned the motion to re-open the s. 11(b) motion to March 27, 2018. [60] On March 9, 2018, sentencing submissions were heard. The trial judge indicated she was prepared to sentence the accused on March 19. She also advised counsel for Levy that Levy could not be sentenced on that day in the face of the outstanding motion he had brought to re-open the s. 11(b) motion. Since all of the accused wanted to be sentenced at the same time, sentencing was adjourned. [61] On March 27, 2018, the Crown and Levy’s lawyers appeared and made submissions on the s. 11(b) motion to re-open. The Crown argued, consistent with its position throughout, that the trial judge should not hear the motion on the merits but should dismiss the motion for non-compliance with various Rules and court orders. [62] During the lengthy submissions by both counsel on the issue of whether the motion should be summarily dismissed, it became clear that counsel did not agree on whether the material filed by Levy’s s. 11(b) lawyers on March 8th contained all of the relevant transcripts. The trial judge asked counsel to resolve the matter between them and report back to her by email no later than April 3. [63] Instead of the requested email, the trial judge received an “emergency motion” brought by Levy’s s. 11(b) lawyers. The material filed on the emergency motion sought to demonstrate that there were no missing transcripts in the material that had been filed on Levy’s behalf. [64] The trial judge concluded that there was no need to hear the emergency motion. She decided that Levy’s motion to re-open the s. 11(b) claim should be dismissed for reasons that did not turn on the completeness of the record eventually filed on his behalf on March 8, 2018. The trial judge determined that it was, therefore, unnecessary to further delay matters by hearing submissions on the state of the s. 11(b) record. [65] The trial judge released written reasons on April 5, 2018, dismissing Levy’s motion to re-open the s. 11(b) motion: see Kazman (2018 application). Reasons for sentence were delivered a week later on April 12, 2018: see R. v. Kazman , 2018 ONSC 2332 ( Kazman (sentence)). V Did the Trial Judge Err in Summarily Dismissing the s. 11(b) Motion in November 2016? [66] The appellants submit that the trial judge acted unreasonably in imposing the “drastic” remedy of summarily dismissing the s. 11(b) motion. They submit that the trial judge failed to consider several factors, including the steps actually taken to perfect the s. 11(b) motion, the complexity and amount of material needed to perfect the motion, the self-represented status of two of the accused (Kazman and Levy) through much of the proceeding, and the fact that, as it turned out, the trial went well beyond the anticipated completion date, thereby offering ample opportunity to argue the s. 11(b) motion without interfering with the trial or prejudicing the Crown. [67] I see no reason to interfere with the trial judge’s conclusion that it was not in the interests of justice to permit a further extension of the deadline for the filing of the required s. 11(b) material. The trial judge clearly appreciated that a summary dismissal was a drastic remedy. Her conclusion that the circumstances of this case called for that drastic remedy was not unreasonable. [68] The trial judge reviewed, as she was required to do, the entire history of the s. 11(b) motion in the proceeding. That history began almost immediately upon the case arriving in the Superior Court in mid-2015. The history showed repeated missed deadlines, repeated requests to adjourn the trial to properly perfect the s. 11(b) motion, little or no effort to perfect the motion until late October 2016, and serious misrepresentations as to the status of the s. 11(b) material by both Kazman and Levy. This prolonged pattern of conduct suggested that the accused had little, if any, real interest in actually bringing a s. 11(b) motion. [69] The appellants’ submissions ignore the accused’s failure to pay any attention to the October 2016 deadline until a few days before it expired. On the trial judge’s findings, there was also little attention paid to the November 2016 deadline. The trial judge was entitled to put considerable weight on the attitude of the accused as reflected in their approach to the deadlines she had set. As Kazman’s own lawyer told other counsel when he arrived on the scene in mid-October, no one was “serious” about the s. 11(b) motion until very shortly before the deadline. Counsel’s reference also applies to his own client. Kazman did little, if anything, until he retained counsel very shortly before the October 2016 deadline. [70] It is unreasonable to expect that deadlines set by a trial judge can simply be ignored by an accused confident that the trial judge will feel obliged to set new deadlines. To proceed on the premise that an accused is entitled to a new deadline whenever one is feasible in the circumstances is to accept and promote the “culture of complacency toward delay in the criminal justice system”, so clearly and emphatically rejected by the Supreme Court of Canada: Cody , at para. 1; Kazman (2016 applications), at paras. 93, 106-110. [71] The appellants’ submission that the trial judge should have taken into account that the motion was nearly perfected by the November deadline conflicts directly with the trial judge’s findings. The material was far from complete. Further, given the history of this matter, the trial judge quite reasonably had no confidence that the accused would comply with any further deadline she might set: see Kazman (2016 applications), at paras. 113-114, 118. [72] In refusing to grant a further extension beyond November 2016, the trial judge reasonably took into account the conduct of the accused, especially Kazman and Levy, in respect of the discussions concerning the s. 11(b) motion which had been ongoing since the trial started. Kazman appeared to be the prime mover on the s. 11(b) motion. Levy had filed an application in support of the motion. [73] On the trial judge’s findings, both Kazman and Levy had misrepresented the status of the s. 11(b) material in an unsuccessful attempt in September 2016 to convince the trial judge to adjourn the trial. Common sense dictates that trial judges take into account the reliability of any representations being made about the status of material needed to perfect a motion. Given the misrepresentations made to her by Kazman and Levy, it was hardly surprising that the trial judge would be most reluctant to act on representations made by them or on their behalf. [74] The appellants submit that the trial judge unreasonably mischaracterized the statements of Kazman and Levy as lies. They argue that the statements, while incorrect, were not deliberately false. In those statements, Levy and Kazman represented that things had been done or were about to occur which subsequent events demonstrated had not been done and were not about to occur. I do not see how it can be said that the trial judge acted unreasonably in characterizing the statements as deliberately false: see Kazman (2016 applications), at paras. 24-25, 104. [75] The trial judge also properly considered the negative impact on the trial and the administration of justice were she to grant yet further delays in the perfection of the s. 11(b) motion. As the trial judge pointed out, the evidence was supposed to end by late December. She had judicial duties elsewhere in January. The trial judge was concerned that valuable court time had been lost and would continue to be lost over ongoing discussions about material filed or not filed in respect of the s. 11(b) motion. These ongoing discussions, combined with the accused’s failure to file appropriate factums and the trial judge’s requested compendium, would cause additional disruptions in the trial process and additional delays in the completion of the trial. [76] The trial judge was also entitled to take into account the effect of the accused’s failure to meet the deadlines on the Crown. The trial judge was satisfied that if she extended the deadlines for filing the necessary material yet again, the s. 11(b) motion could be heard by the end of December (the anticipated end of the evidence at trial) only if the Crown was required to respond on short notice to the motion. The trial judge reasonably concluded that this would prejudice the Crown and impair the proper adjudication of the motion: Kazman (2016 applications), at paras. 118-119, 129. [77] The trial judge’s reasons display a full command of the tortured history of the s. 11(b) proceedings in this matter. They offer a full and cogent explanation for the order she made in November 2016. If the new mindset proclaimed by Jordan and reaffirmed in Cody is to become the reality in criminal courts, this court must affirm decisions like the one made by the trial judge in November. That decision was entirely reasonable. [78] Apart from the reasonableness of the trial judge’s decision, the appellants also argue that the trial judge made a processing error in those reasons. They contend that she failed to consider events which transpired between November 2016, when she summarily dismissed the s. 11(b) motion with oral reasons, and March 2018, when she released her written reasons for dismissing the motion in November 2016. [79] I confess that I do not understand this submission. The trial judge’s reasons, although released in March 2018, were offered to explain why she made the order she did in November 2016 (and December 2016). I think it would have been wrong for her to attempt to justify that decision based on subsequent events. Similarly, subsequent events cannot render unreasonable what was a reasonable decision at the time it was made. [80] If the appellants took the position that subsequent events warranted a further s. 11(b) motion, they could have brought the appropriate motion before the trial judge. No such motion based on unanticipated delay post-November 2016 was brought until March 2018. That motion was brought by Levy only. [81] The arguments advanced on behalf of Kazman and Levy that they were treated unfairly by the trial judge between September and November 2016 can be disposed of in short order. The appellants contend that they were not given adequate assistance by the trial judge in preparing their s. 11(b) motion, and that she should have given them more leeway in terms of compliance with her orders and the Rules because they were unrepresented. [82] This submission turns a blind eye to the realities as found by the trial judge. Kazman and Levy did not fail to perfect their s. 11(b) motion in a timely way because they did not know what was needed, or because the task was too complicated, or because they were missing some of the necessary minutiae. Kazman and Levy failed to perfect as required because, as Kazman’s own lawyer indicated, no one took the October deadline seriously until a few days before the deadline. Kazman did next to nothing to perfect the motion until he hired a lawyer a few days before the deadline. Levy did next to nothing before the October deadline, and continued to do next to nothing until about a year later in November 2017 when some transcripts were ordered on his behalf. [83] On the trial judge’s findings, Kazman and Levy not only did not pursue the preparation of the s. 11(b) material, they misrepresented the status of that material to the trial judge. I see no merit to the claim that the trial judge had a duty to be more helpful to Kazman and Levy in the preparation of their s. 11(b) motion when on the findings of fact, they were both lying to her about the status of their preparation and doing little, if anything, to prepare the necessary material. VI Did the Trial Judge Err in Dismissing the Motion to Re-Open the s. 11(b) Application in December 2016? [84] The onus was on the accused who sought leave to re-open the s. 11(b) motion to satisfy the trial judge that there were satisfactory grounds for doing so. As I understand the record, counsel argued that they should be allowed to re-open the s. 11(b) material as the additional material placed before the court since the motion was dismissed in November had overcome the many shortcomings in the s. 11(b) material. Counsel submitted that there was now a proper record before the trial judge for a determination of the s. 11(b) motion on the merits. [85] Once again, I am satisfied that the trial judge acted reasonably in declining to exercise her discretion in favour of re-opening the s. 11(b) motion. She relied on the following: · M. Tehrani and the other accused who sought to re-open the s. 11(b) motion had done virtually nothing to bring the motion forward according to the October and November deadlines previously set by the trial judge. M. Tehrani had not ordered any of the transcripts. · Many of the deficiencies in the material that had caused the trial judge to dismiss the motion summarily in November 2016 had not been remedied. Some of the necessary transcripts had still not been filed. · Allowing the accused to re-open the s. 11(b) motion in December would cause the same serious prejudice to the Crown, and the same interference with the orderly conduct of the trial, as would have occurred had the trial judge extended the deadline for perfection in November 2016. [86] The appellants submit that the trial judge acted unreasonably in refusing to allow counsel to re-open the s. 11(b) motion in December. They submit that the trial judge acted on a technical and strict application of a practice direction relating to s. 11(b) motions that had only been recently put into force: Provincial Practice Direction Regarding Applications under s. 11(b) of the Canadian Charter of Rights and Freedoms (Effective September 1, 2016) . [3] [87] I reject the appellants’ description of the basis upon which the trial judge refused to re-open the s. 11(b) motion. Certainly, the trial judge was concerned about the terms of the practice direction. She based her refusal, however, on other factors, including the failure to make even modest efforts to comply with earlier court-imposed deadlines, the continued inadequacy of the material, and the ongoing prejudice to the Crown and the trial process. VII Did the Trial Judge Err in Dismissing Levy’s Motion to Re-Open the s. 11(b) Motion in April 2018? [88] The trial judge gave extensive reasons for summarily dismissing Levy’s motion to re-open the s. 11(b) motion in April 2018. Those reasons not only cross the reasonableness threshold, they establish an overwhelming case for the summary dismissal of the motion. [89] The trial judge accepted the Crown’s submission that Levy had deliberately misled the court in the post-conviction phase of the trial proceedings. Levy, and later a lawyer retained by him, had secured adjournments of Levy’s sentencing proceedings, first, to allow Levy to hire a lawyer, and second, to allow the lawyer he hired at the last moment to prepare for sentencing. [90] At the same time that Levy was obtaining adjournments in respect of the sentencing, two different lawyers were compiling material for yet another s. 11(b) motion by Levy. While it is unclear exactly when Levy formally retained the two s. 11(b) lawyers, transcripts necessary for the s. 11(b) motion were ordered in November 2017, some five months before the motion was brought. Neither the Crown nor the court received any advance notice of the proposed s. 11(b) motion. [91] Levy could not bring a s. 11(b) motion after he was sentenced. The trial judge would have been functus officio . However, as long as the sentencing was adjourned and remained outstanding, Levy had the opportunity to bring a further s. 11(b) motion. The adjournments Levy obtained in the sentencing proceedings effectively ensured that those proceedings would remain alive until he decided to move on his s. 11(b) motion. Levy made no mention of any possible s. 11(b) motion when he sought the adjournments of his sentencing proceedings. [92] I regard Levy’s actions as an abuse of the process of the trial court. To allow him to proceed with the s. 11(b) motion would not only reward that misconduct, it would fly directly in the face of Jordan ’s command that all parties collaborate to use court resources efficiently. Not only was there no collaboration with the Crown or the court in respect of this proposed s. 11(b) motion, the trial judge aptly described the manner in which the motion was brought as a “blatant attempt to ambush the Crown and the court”: Kazman (2018 application), at paras. 72, 83. [93] Although I have no hesitation in concluding that the motion could be properly dismissed based on the conduct described above, there were other good reasons to summarily dismiss the motion. By bringing the motion without any notice or consultation with the Crown, counsel virtually assured that if the trial judge had allowed the motion to proceed, there would have been further lengthy delays while counsel wrangled over the adequacy and completeness of the record put forward unilaterally by Levy. The assumption that the s. 11(b) motion would have gone forward smoothly and without delay ignores the history of this proceeding and the tactics used in bringing the motion in March 2018. It is safe to assume that many months would have gone by before this motion could have been determined on its merits. [94] In refusing to consider the s. 11(b) motion on its merits in April 2018, the trial judge also took into account Levy’s conduct in respect of the s. 11(b) motion that had been dismissed in November 2016. Levy had done virtually nothing to pursue that motion. He had not ordered transcripts and had lied to the court as early as September 2016 about efforts to obtain the necessary transcripts: Kazman (2018 application), at para. 54. [95] In the absence of any genuine effort by Levy to bring a s. 11(b) motion forward according to the schedule set by the court, the trial judge correctly put the onus on Levy to show cause as to why the motion should be entertained on the eve of sentencing, especially when it would inevitably result in a further significant delay. The trial judge said, in Kazman (2018 application), at para. 84: The interests of justice would not be served by my giving Mr. Levy leave at this late date to finally get serious about bringing a s. 11(b) application. [96] In refusing to allow Levy to advance the s. 11(b) motion, the trial judge also considered whether the post-conviction proceedings could give rise to a tenable s. 11(b) claim that had not existed when the earlier motions were dismissed. The trial judge pointed out that the delay from the end of the evidence at trial (February 2017) to the anticipated sentencing in March 2018 resulted from several factors, including the time needed to allow for the preparation of written submissions, and five months required by the trial judge to prepare her several hundred pages of reasons for judgment. After the reasons were delivered, time was needed for sentencing submissions. Various dates were set on consent and with a view to accommodate the accused request that all of the accused be sentenced at the same time. The sentencing submissions were delayed by Levy’s request for adjournments so that he could retain counsel. [97] I see no error in the trial judge’s assessment that post-conviction events did not give cause to reconsider s. 11(b) based on the post-conviction events: Kazman (2018 application), at paras. 64-67. [98] There is no merit to Levy’s argument that he did not have an opportunity to respond to the Crown’s argument that his s. 11(b) motion should be summarily dismissed. That had been the Crown’s position in respect of s. 11(b) motions since August 2016. Counsel made full submissions in response to the Crown’s position. The trial judge’s determination that she did not have to hear further submissions on an issue which she had concluded was irrelevant to her decision did not work any unfairness on Levy. [99] The conviction appeals are dismissed. VIII The Sentence Appeals A. Kazman [100] Counsel for Kazman submits that the trial judge over-emphasized the principles of general deterrence and denunciation in imposing a seven-year jail sentence. He submits that the restitution order was inappropriate given Kazman’s dire financial circumstances and his inability to pay the order. [101] The trial judge determined that Kazman and Levy were at the centre of a scheme used to obtain funds through the Small Business Financing Program. The scheme was fraudulent from the outset. The trial judge said, in Kazman (sentence), at para. 393: certainly with respect to Messrs. Kazman and Levy, this was a pre-meditated, sophisticated, “large scale,” multi-million dollar complex fraud of the Government of Canada’s [Small Business Financing Program] and five major banks. It involved a high level of planning and orchestration, skill, deception and covert behaviour that took place over a lengthy period of time; many months and in some cases years. There were multiple victims, the principal ones being the Canadian taxpayers. [102] In addition to convictions on five fraud charges, Kazman was convicted of laundering the proceeds of that criminal activity and committing the frauds for the benefit of a criminal organization. The latter conviction required the imposition of a sentence consecutive to the sentence imposed on the fraud charges: Criminal Code , R.S.C. 1985, c. C-46, s. 467.14. [103] Kazman was a disbarred lawyer. The disbarment arose out of fraudulent mortgage transactions. Kazman perpetrated the frauds that are the subject of this appeal, while his appeal from his disbarment proceedings was underway. Kazman’s personal history offers little hope of rehabilitation. [104] The trial judge was alive to mitigating factors pertaining to Kazman, including his health and the negative impact of incarceration on his family: Kazman (sentence), at paras. 481-483. In my view, the total sentence imposed does take those factors into account. The period of incarceration was fit. [105] There is really no argument against the restitution order made. As counsel acknowledges, a person’s inability to pay a restitution order is not determinative of whether the order should be granted. It may be that the order will have very little ultimate value to the victims of Kazman’s crimes. That is no reason to refuse to make the order. B. A. tehrani [106] A. Tehrani argues that he should have received a conditional sentence of two years less a day, rather than the custodial sentence of 14 months imposed by the trial judge. In support of this submission, counsel relies on A. Tehrani’s limited involvement in the fraudulent scheme (he was involved in only a single loan in the amount of $188,190), his minimal, if any, profit from the scheme, his positive antecedents, and his ongoing medical and financial problems. [107] Counsel for A. Tehrani also invokes the parity principle. He notes that a co-accused who received a conditional discharge was similarly, or even somewhat more extensively involved in the scheme than A. Tehrani. That accused, however, pleaded guilty and made some restitution. [108] Finally, counsel submits that the trial judge mischaracterized A. Tehrani’s offence as involving a breach of trust and used that mischaracterization to require that A. Tehrani establish “exceptional circumstances” as a precondition to the imposition of a non-custodial sentence. [109] With the exception of the last argument, all of the arguments made on appeal were made and considered by the trial judge in her reasons for sentence: Kazman (sentence), at paras. 462-467. The trial judge considered the parity argument, but ultimately concluded that for sentencing purposes, A. Tehrani was best compared to his brother. Like his brother, A. Tehrani had gone to trial, made no restitution, and showed no remorse for his conduct. M. Tehrani was, however, involved in two fraudulent loans, as opposed to A. Tehrani’s one fraudulent loan. The trial judge gave M. Tehrani a custodial sentence of two years less a day: Kazman (sentence), at paras. 464-67. The shorter sentence imposed on A. Tehrani adequately reflects his lesser involvement in the fraudulent scheme. The trial judge correctly applied the parity principle. [110] I also cannot accept that the trial judge erred in referring to the offence as involving a kind of breach of trust. Further, she did not decline to impose a non-custodial sentence only because the offence involved a breach of trust. [111] The trial judge, in reviewing the relevant authorities, referred to cases from this court which have indicated that frauds targeting public funds engage trust-like considerations that are properly viewed as aggravating on sentence: see R. v. Gray (1995), 76 O.A.C. 387, at para. 32 (C.A.). The trial judge did not err in characterizing this fraud as involving public funds and an element of trust. Targeting entities funded by taxpayers is an aggravating factor when sentencing for fraud-related offences. [112] In concluding that a custodial sentence was necessary, the trial judge followed a long and unbroken line of authority from this court which accepts that deterrence and denunciation must be the dominant considerations in sentencing for large-scale sophisticated frauds. In most cases, those factors will require incarceration. The trial judge was satisfied that A. Tehrani’s circumstances did not justify a departure from that norm. I see no reason to interfere with the trial judge’s careful balancing of the various factors relevant on sentencing. The sentence imposed was fit. [113] I would grant leave to appeal the sentences, but would dismiss the appeals. Released: “DD”  JAN 16 2020 “Doherty J.A.” “I agree. K. van Rensburg J.A.” “I agree. C.W. Hourigan J.A.” [1] Now Innovation, Science and Economic Development Canada . [2] Although the trial judge’s written reasons were released in March 2018, long after the dismissal of the motions, the appellants do not argue that the written reasons cannot be relied on as accurately reflecting the trial judge’s reasons for dismissing the motions. [3] This practice direction was released shortly after Jordan as a standalone document but since the trial has been merged to become Part VI of the Provincial Practice Direction Regarding Criminal Proceedings .

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. M.R.M., 2020 ONCA 75 DATE: 20200131 DOCKET: M51178 (C67259) van Rensburg J.A. (Motions Judge) BETWEEN Her Majesty the Queen Respondent and M.R.M. Applicant Ricardo Golec, for the applicant Nicolas de Montigny, for the respondent Heard: January 23, 2020 REASONS FOR DECISION [1] The applicant is serving a sentence of five years’ imprisonment for incest. After serving one year, he applies for bail pending appeal as to sentence only. In accordance with s. 679(1)(b) of the Criminal Code , R.S.C. 1985, c. C-46, leave to appeal sentence is required before bail can be granted. In this case leave to appeal sentence is granted on consent of the Crown. [2] The criteria for bail pending appeal of sentence alone are set out in s. 679(4). The applicant must satisfy the court that: (a) the appeal has sufficient merit that, in the circumstances, it would cause unnecessary hardship if he were detained in custody; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. [3] The Crown opposes bail. There is no issue with respect to the second criterion. Rather, the Crown opposes release on the basis that the applicant has not demonstrated that his appeal has sufficient merit such that detention in custody pending the appeal would cause unnecessary hardship. The Crown says that there is no unnecessary hardship in serving an appropriate sentence, and that here the applicant’s sentence was fit given the existence of several aggravating factors. The Crown also opposes release on public interest grounds based on the seriousness of the offence, the impact on the victim, and the very low likelihood that the applicant’s five-year sentence will be disturbed on appeal. The Crown does not assert any public safety concern in relation to the public interest criterion. [4] The issue before the court is whether the applicant’s appeal is more likely than not to succeed to the extent that he will have served his sentence by the time the appeal is heard. As Justice Trotter notes in The Law of Bail in Canada , loose-leaf (2017-Rel.2), 3d ed. (Toronto: Thomson Reuters, 2010), at pp. 10-39 to 10-40: “The applicant must demonstrate that the appeal is sufficiently meritorious such that, if the accused is not released from custody, he/she will have already served the sentence as imposed, or what would have been a fit sentence, prior to the hearing of the appeal. It prevents the applicant from serving more time in custody than what is subsequently determined to be appropriate.” [5] The applicant pleaded guilty in the Superior Court to one charge of incest and one charge of sexual interference in relation to multiple incidents of sexual intercourse with his sister, T.D. There was an agreed statement of facts, and he was convicted of both offences. The sentencing judge, after considering the Crown’s opposition to doing so, stayed the conviction for sexual interference under Kienapple ( R. v. Kienapple , [1975] 1 S.C.R. 729). Following a Gardiner hearing ( R. v. Gardiner , [1982] 2 S.C.R. 368) at which both the applicant and T.D. testified, the sentencing judge found that the applicant and the complainant had sexual intercourse commencing when the complainant was 12 years old, on three to five occasions, including after the applicant was already involved with his current partner. T.D. gave birth to the applicant’s child when she was 14. The complainant and the applicant did not grow up together and first met when the applicant came to Canada from Haiti at the age of 18, in 2011 when T.D. was 11. He had difficulty adjusting to life in Canada and developed a close relationship with T.D. [6] The sentencing judge dismissed the applicant’s challenge to the five-year mandatory minimum sentence under s. 155(2) of the Criminal Code (for incest when the complainant is under 16 years). Applying the two-step test in R. v. Nur , 2015 SCC 15, [2015] 1 S.C.R. 773, he began by considering a just and proportionate sentence for the offence having regard to the sentencing criteria set out in s. 718 of the Code . [7] The sentencing judge considered the fact that the offence was serious, and committed against a child. He looked at the circumstances of the offence, the offender and the effect of the offence on the complainant. He took into consideration the mitigating circumstances: the applicant’s relative youth and immaturity, his guilty plea, the fact that he and T.D. had not grown up as brother and sister, the applicant’s difficult adjustment to Canada, and the support of his mother and partner (with whom he had a child). The sentencing judge also addressed the aggravating circumstances: the number of times sexual intercourse took place, over a prolonged period of time, the fact that the applicant fathered a child with T.D., T.D.’s age, the age difference, the fact that the applicant was more than 20 years old at the time of the last incident, the devastating impact on T.D., and the impact on the child, who has severe health issues and special needs. The sentencing judge observed that the primary sentencing objectives in such a case are deterrence and denunciation. [8] Finally, the sentencing judge referred to the various sentencing precedents provided by counsel for both sides. He concluded that, since this court’s decision in R. v. P.M. , 2012 ONCA 162, 282 C.C.C. (3d) 450, the appropriate range would be 4.5 to 6.5 years for incest, whether by a parent or a sibling of the victim, and that, after considering the mitigating and aggravating factors in this case, a fit sentence for the applicant would be five years. [9] The sentencing judge went on to consider the second part of the Nur test. The mandatory minimum sentence was not disproportionate to what he had determined to be a fit sentence for the applicant. As for whether it was grossly disproportionate to a reasonable hypothetical offender, the sentencing judge rejected the hypothetical proposed by the applicant’s counsel as lacking in detail and far-fetched (as it assumed the accused came from a place where incest was legal, without addressing whether incest with a minor would be legal). Instead, he considered a different hypothetical where the complainant and accused were close in age, and had not grown up together, with one incident of intercourse, and no pregnancy. The sentencing judge concluded that the mandatory minimum sentence of five years was not grossly disproportionate to a 3.5-year sentence that might be appropriate for such a reasonable hypothetical. [10] The applicant says that the sentence appeal has merit. First, he argues that the sentencing judge erred in his conclusion about the constitutionality of the mandatory minimum sentence. The applicant asserts that the sentencing judge instructed himself incorrectly with respect to the reasonable hypothetical. He refers to para. 62 from Nur and asserts that a passage in the French version (“Les hypoth è ses fantaisistes ou n’ayant qu’un faible rapport avec l’esp è ce doivent ê tre écarté es”), which was referred to by the sentencing judge here, has a different meaning in the English version (“Fanciful or remote situations must be excluded”). This gave rise to the sentencing judge’s error, which, according to the applicant, was to require the reasonable hypothetical to be related to the facts of the applicant’s case. The applicant points to the reasonable hypotheticals set out in the Court of Appeal of Quebec decision in Y.P. c. R. , 2019 QCCA 1506, at para. 21, as more appropriate and reasonable (although the court in that case considered the hypotheticals inadequate and refused to rule on the constitutional question where, under the first step in Nur , the sentence was fit: see paras. 29, 50-54). [11] The Crown asserts that para. 62 of Nur must be considered in the context of the entire reasons, and disagrees that there is any difference in the formulation of the test between the French and English versions. Moreover, the Crown asserts that there was no error in the trial judge’s interpretation and application of the second step in Nur . According to the Crown, the sentencing judge simply rejected the hypothetical offered by the defence as fanciful, and instead used a hypothetical that was consistent with the so-called “best offender” whose conduct might be caught by this section. [12] The constitutionality of the five-year mandatory minimum sentence at issue here has not yet been considered by this court. The applicant could succeed on this part of his appeal if this court accepted that the mandatory minimum sentence was grossly disproportionate to a reasonable hypothetical, or using terminology from R. v. Lloyd , 2016 SCC 13, [2016] 1 S.C.R. 130, the “reasonably foreseeable applications” of the mandatory minimum. In the circumstances I cannot say that the constitutional challenge is without merit. [13] However, even if the applicant were successful in persuading this court that the mandatory minimum sentence of five years is grossly disproportionate when applied to a reasonably foreseeable “best offender”, he would still need to demonstrate a legal error that would warrant interference with his sentence and then that a lesser sentence is warranted, before he will succeed in his appeal. [14] This brings us to the applicant’s second ground of appeal: that the sentencing judge erred in imposing a five-year sentence, and that a fit sentence in this case would be much lower (at the sentencing hearing defence counsel asked for a custodial sentence of less than six months because of the immigration consequences of the sentence; the applicant’s counsel in this court says that a fit sentence is one that the applicant will reasonably have served at the time his appeal is heard). [15] The applicant says that the error of the sentencing judge was in identifying 4.5 to 6.5 years as an appropriate range, in reliance on a number of cases that had little bearing on the facts of his case. He points to examples of cases where much lesser sentences were imposed, including R. c. Y.G. , 2016 QCCA 1075, where the Court of Appeal of Quebec, while upholding a sentence of 15 months, said in a short endorsement that a more appropriate sentence for a similar case would have been between 18 and 24 months (the case report gives very few details of the offence). [16] The Crown says that the sentencing judge committed no error in principle, that his determination of sentence is entitled to deference, and that in any event, having regard to the mitigating and aggravating circumstances, all of which were specifically mentioned and taken into consideration, the applicant’s sentence was fit. Moreover, the Crown says that, even if an error could be demonstrated, there is no reasonable prospect that the applicant, at the time of his appeal, will already have served any sentence that this court might impose. [17] I agree with the Crown’s position. First, while the applicant’s counsel referred to some reported incest cases attracting sentences of less than five years, the sentencing judge here acknowledged that there were such cases, and explained why, in his opinion, the aggravating and mitigating circumstances would warrant a sentence of five years. It is not suggested that the sentencing judge ignored any circumstance that was relevant to this case, although the applicant’s counsel argues that the circumstances ought to have been weighed differently. While the failure to give effect to a mitigating circumstance can be a reversible error, a judge’s weighing of aggravating and mitigating factors is typically entitled to deference: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 49; R. v. Mahmood , 2016 ONCA 75, 343 O.A.C. 380, at para. 18. The sentencing judge also pointed to this court’s decision in R. v. D.(D.) (2002), 58 O.R. (3d) 788 (C.A.), which signaled that the sexual abuse of a child will attract lengthy penitentiary sentences, and R. v. M. (P.) , 2012 ONCA 162, 282 C.C.C. (3d) 450, which cited this principle in sentencing for incest as recently as March 2012. In my view, the applicant has an uphill battle to demonstrate a reversible error in the sentencing judge’s approach to sentence or, even if there were an error, that the sentence is unfit. [18] In any event, the applicant has not persuaded me that it is more probable than not that a successful appeal would result in a significantly lower sentence than that imposed at trial. And I see no prospect at all that if the applicant is successful on appeal, he will already have completed any sentence this court might impose in substitution for the five-year sentence. There was no pre-sentence custody. The applicant has just now completed one year of his five-year sentence. It is anticipated by both counsel that the appeal can be perfected within weeks and the appeal will be scheduled for a hearing shortly thereafter. There is no undue hardship in serving a fit sentence, and it would not be in the public interest to release the applicant in these circumstances. [19] Accordingly, while leave to appeal sentence is granted, the application for bail pending appeal is dismissed. “K. van Rensburg 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. Mastenbroek, 2020 ONCA 76 DATE: 20200131 DOCKET: C66696 Watt, Tulloch and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Casey Mastenbroek Appellant Walter Fox and Sayeh Hassan, for the appellant Catherine Weiler, for the respondent Heard and released orally: January 22, 2020 On appeal from the conviction entered on November 23, 2018 by Justice Kenneth G. Hood of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of sexual assault after a trial before a judge of the Superior Court of Justice sitting without a jury. He was sentenced to a term of imprisonment of 20 months and ordered to comply with a probation order for a period of 2 years after his release from custody. [2] In this court, the appellant advanced three grounds of appeal against conviction. He says that the trial judge erred: i. in failing to deal with inconsistencies in the testimony of various Crown witnesses, in particular, the testimony of the complainant; ii. in engaging in stereotypical reasoning in assessing the testimony of two Crown witnesses and the appellant; and iii. in failing to appreciate the motive advanced by the appellant for the complainant’s claim that the acts of sexual intercourse were not consensual. [3] On the evidence adduced at trial, the trial judge found, as he was entitled to do, that the complainant did not consent to having sexual intercourse with the appellant. He also found, again as he was entitled to do, that she was incapable of consenting to that sexual activity. He rejected, as unworthy of belief, again as he was entitled to do, the testimony of the appellant. [4] The reasons of the trial judge well explain the factual conclusions he reached which led him to his finding that the appellant’s guilt of sexual assault had been established beyond a reasonable doubt. [5] In our view, the trial judge’s analysis of the issue of consent was sound. His assessments of credibility reveal no flaw and are entitled to deference in this court. We are not persuaded that he misapprehended any material evidence or that he misapprehended the position advanced by defence counsel on the appellant’s behalf. DISPOSITION [6] The appeal is dismissed. “David Watt J.A.” “M. Tulloch J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. McSweeney, 2020 ONCA 2 DATE: 20200107 DOCKET: C64881 Strathy C.J.O., Doherty and Tulloch JJ.A. BETWEEN Her Majesty the Queen Respondent and Peter James McSweeney Appellant Mark C. Halfyard, for the appellant Sarah Shaikh, for the respondent Heard: October 4, 2019 On appeal from the conviction entered by Justice Mary Teresa E. Devlin of the Ontario Court of Justice, on October 27, 2017. Strathy C.J.O.: [1] The appellant appeals his convictions for possession of child pornography and distribution of child pornography, contrary to ss. 163.1(4) and 163.1(3) of the Criminal Code , R.S.C. 1985, c. C-46. [2] His trial was conducted exclusively as a Charter application. He alleged that his rights under ss. 7 and 10(b) of the Charter were infringed with respect to statements he made to police before and after his arrest and that the statements should be excluded pursuant to s. 24(2). After the trial judge found those statements to be admissible, the defence conceded that the Crown could prove the charges based on his admissions and the court was invited to make a finding of guilt. [3] The appellant submits that the trial judge erred in finding that he was not detained when he made his first statement and in refusing to exclude both statements pursuant to s. 24(2). [4] For the reasons that follow, I would allow the appeal. I. BACKGROUND A. The search [5] As the circumstances of the appellant’s statements are central to the analysis of whether his Charter rights were breached, they require careful examination. [6] In May 2016, Detective Constable Lockwood of the Internet Child Exploitation Unit (ICE) of Durham Regional Police received a report that certain images, identified as child pornography, had been uploaded to the social networking site, Tumblr. Further investigation determined that the uploads originated from an internet account registered to a subscriber at an address in Whitby, Ontario. The appellant’s wife was the subscriber. The address was occupied by the appellant, his wife, and their two teenage children. [7] Police officers prepared a search warrant for the address to seize electronic storage devices, computers, and other devices capable of accessing the internet. The warrant was executed at approximately 6:03 a.m. on June 15, 2016. Nine police officers entered the house, including two from the Sexual Assault Unit; an Identification Officer; two officers from the E-Crimes Unit; three from the ICE Unit; and a patrol officer. Some of the officers were in police uniform and others wore vests identifying them as police. [8] The appellant’s wife admitted the officers in to the home after they knocked on the door. The appellant was upstairs in the shower and the children were still in bed. The appellant came downstairs shortly after police arrived. D.C. Lockwood showed him the warrant and let him read it. He then asked the appellant whether he knew why police were at his house. The appellant denied knowing anything about child pornography. [9] As the appellant continued to read through the warrant, D.C. Lockwood asked him whether he could direct him to a computer in the house that might have child pornography on it. The appellant replied, “I’m not saying anything until I get my thoughts together.” [10] D.C. Lockwood acknowledged that he did not address questions of this nature to the appellant’s wife. He admitted that he did not have a “good answer” for why he did not. [11] In response to defence counsel’s suggestions that both questions were designed to have the appellant incriminate himself, D.C. Lockwood acknowledged: “They can be very incriminating, yes.” [12] Within about 10 minutes of the police arriving, the family had been gathered in the living room. The operational plan for the search was to secure the scene to ensure that electronic equipment was no longer transmitting, and to make areas containing electronics “off-limits” to the family. Until that was done, the occupants would not be free to move about the home for fear that they would potentially interfere with the search or destroy evidence. D.C. Lockwood explained to the family what would be taking place during the search. They were told that they were not permitted to use their electronic devices, including cell phones. A police officer was stationed in the living room while this discussion took place and she remained there with the family throughout the search. The appellant’s wife wrote down the officers’ names and badge numbers. She asked whether she could go to the kitchen to use the land line to make a call and D.C. Lockwood told her that she could. [13] At approximately 6:29 a.m., D.C. Lockwood asked the appellant’s wife to come to the front porch of the home to give an audio statement. She agreed to do so. The officer testified that the purpose of the interview was to determine who had access to the computers in the home, but he acknowledged that most of the discussion was taken up with questions from the appellant’s wife. He described the interview as “light-hearted” and acknowledged in cross-examination that the appellant’s wife was “never a suspect”. At some point during the interview, the appellant’s wife asked whether she could get the children ready for school and the officer permitted her to tell the children to do so. The appellant remained in the living room while his wife was questioned on the porch. The interview lasted approximately 20 minutes. [14] At about 6:53 a.m., D.C. Lockwood asked the appellant to come to the porch to give a recorded statement. The officer acknowledged that he had not cautioned the appellant up to that point. Nor did he caution the appellant before he took the statement or inform him of his right to counsel. He admitted that his failure to do so was a mistake, because he considered the appellant a suspect. B. The first statement [15] After D.C. Lockwood explained the background leading up to the issuance of the warrant, and that experts would be examining the family computers for images of child pornography, the interview continued: Lockwood: So, you know, I talked with [the appellant’s wife] and we kinda debated back-and-forth who could be responsible for this. The Appellant: Ok. Lockwood: Is there anything you’d like to talk about? The Appellant: I’m not sure what to say, at this point. Lockwood: Well, Peter, I want to be, I’ll be honest, I think it was you, man . The Appellant: Ok. Lockwood: Because it wasn’t your kids. The Appellant: True. Lockwood: Ok, kids can stumble into The Appellant: [Inaudible] The Appellant: So, I don’t want to, uh, I don’t want to say anything until I talk to people that could either help me, or not help me . Lockwood: You’re talking about a lawyer . The Appellant: Sure. Um, but then you’re going to say, well, you’re not under arrest anyways, so [inaudible] Lockwood: Everything you have to say is voluntary. I’m not here to make you talk about anything you don’t want to talk about, ok? The Appellant: Um, so what’s the easiest course of action? Lockwood: I not [sic], I can’t even tell you what the easiest course of action is. I am here to give you a chance to tell me everything I should know. The Appellant: Yeah, ok. Lockwood: Um, anything you feel I should take into account, and you, if you think there’s someone in the house I should be questioning, I want you to tell me . The Appellant: No. Lockwood: Ok? The Appellant: I think we’re, I think we’re, uh, we’re, we both know … that … it’s … myself . Lockwood. Ok, so what I want to do. The Appellant: [Inaudible] you know. Lockwood: So what I want to do is this, ok? I appreciate that honesty. The Appellant: Right. Lockwood: Ok? I don’t want you to say anything else to incriminate yourself . [Emphasis added.] [16] Moments later, the officer said, “I do appreciate your honesty because I don’t want to drag your kids into this.” [17] After the interview, the appellant was arrested, cautioned, informed of his right to counsel, and taken to the police station. C. The second statement [18] After being processed at the station, the appellant was taken to an interview room at approximately 10:11 a.m. He indicated that he wished to speak to duty counsel and arrangements were made for him to do so. [19] After the appellant had spoken to duty counsel, the recorded interview continued at approximately 11:10 a.m. At the outset of the interview, D.C. Lockwood gave a secondary caution, followed by an awkward and inaccurate attempt to explain it: Lockwood: … [G]otta [inaudible] you now because, I haven’t been with you the whole time. If you spoke to a police officer or anyone with authority or any special persons spoken to you in connection with this case, I want it clearly understood that I do not want it to influence you in making any statements, do you understand that? The Appellant: Mm-hm. [Head nod, “Yes”]. Lockwood: So that means what another police officer told you, you better talk to Jeff Lockwood, uuh, they’re wrong, they’re not supposed to do that. Ok. Everything we say is voluntary, umm, sometimes we come in here and we have long chats, sometimes we come in here and just questions about where do we go from here and either way I’m fine with that, umm, I don’t play mind games and I don’t trick anybody, I’ve been around too long to do that now, and I’m just tired, ok? [20] Throughout most of the interview, the appellant maintained that he wished to remain silent. However, at one point in the interview, D.C. Lockwood asked the appellant whether there was “any chance that anybody else in the house is involved”, to which the appellant replied, “[a]bsolutely not.” II. REASONS ON CHARTER APPLICATION [21] The trial judge found that both statements were admissible. She found that the appellant was not detained during the search of his home. Her reasons on the issue of detention were contained almost exclusively in para. 8 of her reasons: In the case before me, there is no evidence that Mr. McSweeney was physically restrained. There was also no evidence of psychological detention . Not only was Mr. McSweeney free to come and go during the search, he was present when his wife asked to use the landline telephone and get the children ready for school and these requests were granted. In reaching the conclusion that Mr. McSweeney was not detained I have rejected the submission that because an officer remained in the living room with the family, Mr. McSweeney felt he was under police guard and not free to leave. There was no evidence to support this submission . Also, Mr. McSweeney never asked to leave the living room even though he saw his wife and children leave and go about their daily business. [Emphasis added.] [22] The trial judge observed that while D.C. Lockwood admitted that he should have cautioned the appellant before interviewing him on the porch, he was not legally obliged to do so, and the existence of a caution was only one of the factors to be considered in determining whether the statement was voluntary. Moreover, despite the absence of a caution, the appellant appeared to be well-aware of his right to remain silent. [23] The defence submitted that when the appellant made the comment about talking to “people that could either help me, or not help me” and D.C. Lockwood confirmed that he was referring to a lawyer, the officer was under a duty to inform him of his right to counsel and to facilitate his request. The trial judge rejected this submission, finding that (1) the appellant was not detained when he made the comment; (2) he did not actually ask to speak to a lawyer, but simply confirmed his wish to remain silent until he spoke to one; and (3) he did not further pursue the issue. [24] The trial judge thus found that the appellant’s 10(b) rights were not engaged, that the police did not improperly elicit his confession during the statement on the porch, and that the statement was both Charter compliant and admissible. [25] The trial judge also found that since the first statement was Charter -compliant and voluntary, there was no basis to find that it “tainted” the second statement. III. ISSUES [26] This appeal raises four issues: · First, whether the appellant was detained at the time of his first statement, thereby triggering his s. 10(b) right to be informed of his right to retain and instruct counsel without delay; · Second, whether the appellant’s second statement was obtained in a manner that infringed a s. 10(b) right; · Third, if either or both statements were obtained in a manner that infringed the appellant’s Charter rights, whether they should be excluded pursuant to s. 24(2); and · Fourth, if the s. 10(b) issue were decided in favour of the Crown, whether the appellant’s first statement should nevertheless have been excluded as being involuntary and infringing s. 7. IV. ANALYSIS A. Was the appellant detained at the time of the first statement? (1) Section 10(b) [27] Section 10(b) of the Charter provides that: Everyone has the right on arrest or detention: (b) to retain and instruct counsel without delay and to be informed of that right. [28] The s. 10(b) right attaches immediately on detention, subject to concerns for officer safety. It creates the right to retain and instruct counsel without delay and the right to be informed of that right, in order to effectively exercise it. A detained person who chooses to exercise their right must be given a reasonable opportunity to do so, and police must refrain from eliciting incriminating evidence from the detained person until he or she has had a reasonable opportunity to consult with counsel: see R. v. McGuffie , 2016 ONCA 365, 131 O.R. (3d) 643, at para. 41; R. v. Suberu , 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 38, 42; R. v. Taylor , 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 20-26. [29] In Suberu , at para. 40, the court explained: [T]he purpose of s. 10(b) is to ensure that individuals know of their right to counsel, and have access to it, in situations where they suffer a significant deprivation of liberty due to state coercion, which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically, the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination. [30] An individual’s s. 10(b) right is thus intimately connected to their control over their own person. While an individual confronted by the authority of the state ordinarily has the option to simply walk away, this choice can be removed by physical or psychological compulsion, resulting in detention. Once detained, however, “the individual’s choice whether to speak to the authorities remains, and is protected by the s. 10 informational requirements and the s. 7 right to silence”: R. v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353, at paras. 19-23. [31] The Supreme Court of Canada expanded on this interaction between ss. 7, 9, and 10 of the Charter , at para. 22 of Grant : “Detention” also identifies the point at which rights subsidiary to detention, such as the right to counsel, are triggered. These rights are engaged by the vulnerable position of the person who has been taken into the effective control of the state authorities. They are principally concerned with addressing the imbalance of power between the state and the person under its control. More specifically, they are designed to ensure that the person whose liberty has been curtailed retains an informed and effective choice whether to speak to state authorities, consistent with the overarching principle against self-incrimination. They also ensure that the person who is under the control of the state be afforded the opportunity to seek legal advice in order to assist in regaining his or her liberty. [Emphasis in original.] [32] The key task, therefore, in determining whether an individual’s s. 10(b) rights have been triggered, is to identify whether a detention has occurred. [33] Detention can by physical or psychological. Psychological detention occurs where a person has a legal obligation to comply with a police direction, or where “the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand”: Grant , at paras. 30-31. In determining whether someone has been psychologically detained, the inquiry is an objective one, having regard to how a reasonable person would perceive the state conduct in the circumstances. An objective inquiry recognizes the need for police themselves to appreciate when detention occurs, so they can fulfill their Charter obligations to detained persons: Grant , at paras. 31-32; Suberu , at para. 22. [34] The Supreme Court provided a helpful summary of the analysis of detention, at para. 44 of Grant : In summary, we conclude as follows: 1. Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual’s liberty interest by a significant physical or psychological restraint. Psychological detention is established 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. 2. In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia , the following factors: (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. [35] I accept the appellant’s submission that the trial judge erred in failing to apply the objective test mandated by Grant and Suberu , namely whether a reasonable person in the appellant’s circumstances would conclude by reason of the state conduct that he or she had no choice but to comply. While the trial judge referred to Grant and Suberu , her analysis reflects the error this court identified in R. v. Wong , 2015 ONCA 657, 127 O.R. (3d) 321: she treated the exercise largely as a subjective inquiry, asking whether there was evidence of the appellant’s state of mind. This was an error of law and this court is therefore required to apply the correct analysis. (2) Detention in the context of the execution of a search warrant in a home [36] This case was argued, in this court and in the court below, as one in which the appellant was detained, not as a result of a legal obligation to comply with a state request or demand, but as a case where a reasonable person would conclude that they had to comply. The Grant factors must therefore be applied. [37] Before doing so, however, it is necessary to consider the fact that the encounter occurred in the exercise of the state’s authority through the lawful execution of a search warrant. [38] There is no question that during the execution of a search warrant police are entitled to segregate the occupants of the premises to ensure officer safety, to prevent the loss or destruction of evidence, and to maintain the integrity of the search. They may give appropriate directions to that end: see R. v. Connor (2009), 202 C.R.R. (2d) 43 (Ont. S.C.), at para. 82; Ahmed et al. v. McCaskill et al. , 2015 MBQB 68, 317 Man. R. (2d) 42, at para. 70; Water v. Toronto (Police Services Board) , 2016 ONSC 7824. [39] However, there are limits to these powers. I accept as accurate the observation in R. v Owen , 2017 ONCJ 731, 397 C.R.R. (2d) 63, at para. 33: However, once the police have “cleared” the house and ensured that they have accounted for all the occupants, they must have a basis for any continued detention of any occupant(s). They are not permitted to simply keep the occupants in a room, incommunicado, while they go about their search of the house. Once police have ensured their safety, they are not justified in holding the occupants in a room unless the occupants are being arrested or otherwise be[ing] lawfully detained. Provided the occupants are not interfering with the search, they are permitted to stay in and move about the residence; or, they may leave. [40] Owen itself bears some similarity to this case. [41] Police arrived at the accused’s home just after 7:00 am. They knocked on the door and were greeted by his father. The police informed the father that they had a search warrant regarding child pornography and asked him to move into the living room. The accused was upstairs in his bedroom. The police brought him down to the living room. The accused and his father were seated in the living room for several minutes. An officer stayed with them. The police then called the accused into the kitchen for questioning. During the interview, the accused made several inculpatory statements and was arrested shortly afterward: at paras. 1-2, 5-8. [42] The accused argued that he was psychologically detained when he was escorted from his room and “sequestered” in the living room with his father and then directed to go into the kitchen to speak to an officer: at paras. 30-31. The trial judge agreed, holding that the accused “was subject to a psychological detention from the time the police escorted him downstairs and had him sit in the living room”: at para. 32. The judge held that any reasonable person in the circumstances of the accused would conclude that they were detained: at para. 35. Further, even if there was no detention while the accused was placed in the living room, there was a detention when he was asked to speak with an officer in the kitchen: at para. 36. [43] Other cases have followed a similar approach: R. v. Munkoh , 2010 ONSC 2253, 210 C.R.R. (2d) 87; Water; R. v. S.L. , 2019 ONCJ 101. [44] However, where police have acted solely to ensure the integrity of the search, where the interference with liberty was modest, and where any questioning was not focused on the person’s involvement in a crime, courts have found no detention: Munkoh , at paras. 31-40; Water , at paras. 72-83; R. v. S.L. , at paras. 72-84. (3) Application to this case [45] The first consideration under the Grant test is the circumstances giving rise to the encounter. As outlined above, in the context of the execution of the search warrant, a key consideration is whether the police were acting solely to ensure the integrity of the search, or whether they were engaged in a focused investigation. In this case, the appellant was clearly singled out for focused investigation. From the very outset of the encounter, D.C. Lockwood posed questions that were accusatory and invited self-incrimination. In substance, his questions amounted to: “Do you know why we are here?” and “can you tell us the location of computers in this house with child pornography on them?” Those questions would cause a reasonable person in the position of the appellant to conclude that they were a suspect, perhaps the prime suspect, in a police investigation into child pornography in their own home. As was the case in Owen , the police were not merely executing the search warrant, they were targeting and questioning a suspect. [46] The segregation of the family in one area of the home, without the use of phones and electronic devices, is also a circumstance to be taken into account. While the police were justified in clearing the house to ensure the integrity of the search, the prolonged sequestering of the family in the living room was unnecessary for that purpose. There was no suggestion that they attempted to interfere with the search or were anything other than co-operative. The fact that the appellant’s wife found it necessary to ask for permission to use the land line in the kitchen, speaks to a perception that she was not free to do so without permission. The same is true of her request to allow her children to get ready for school. [47] While his wife was being interviewed outside on the porch, the appellant was left sitting in the living room with his children, with a police officer continuing to stand guard over them. His isolation and separation from his wife (whom the police had treated more deferentially than he) would add to the perception of a reasonable person that an investigation was taking place and that they were a suspect. [48] D.C. Lockwood then asked the appellant to come out on the porch to speak to him and give a recorded statement. This would enhance the perception of a reasonable person, in the circumstances, that they were the focus of the investigation. [49] The second factor under Grant is 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. [50] Physical contact does not feature in the detention analysis in this case. However, as already identified, the language used by D.C. Lockwood after police entered the house was targeted and accusatory. [51] It is noteworthy that the warrant was executed at 6:03 a.m. when most people are just waking up and when working people with children are getting ready for their busy day. This element takes on particular flavour when one considers the presence of some nine police officers executing the warrant in what appears to have been a typical, middle-class home. This would cause a reasonable person to feel the weight of the state in their home, the most private of places. [52] The encounter itself, up to the time when the appellant was invited to give a statement on the porch, lasted approximately 40 minutes. It is not clear when the police had secured the areas they needed to secure, but there is no evidence of why it was necessary for the appellant to remain in the living room for that length of time. Nor is there evidence as to why police did not tell the appellant that he could leave or get ready for work, if he wished to do so. [53] The final Grant factor to be considered is the particular characteristics of the individual where relevant, including age, physical stature, minority status, and level of sophistication. [54] There are no characteristics of the appellant that are particularly germane to this inquiry. The appellant appears to have been a mature, educated, and articulate adult with some appreciation of his rights in the face of the officer’s inquiries. (4) Conclusion on detention and s. 10(b) [55] I conclude that the appellant was detained, at the very latest, at approximately 6:53 a.m. when D.C. Lockwood asked him to come to the porch to give a statement. Given all that had taken place during the preceding 50 minutes, including the focused and accusatory statements made to the appellant, the lengthy period of sequestration, under guard, and the officer’s request to come to another area of the home to make a recorded statement, a reasonable person in the appellant’s situation would conclude that they were obliged to comply. At no time before his arrest was the appellant informed of his right to counsel, even though D.C. Lockwood knew that he was required to do so. The appellant’s s. 10(b) right was infringed. [56] I now turn to the question of whether the appellant’s second statement should also be excluded as a result of having been tainted by the Charter breach in relation to the first. B. Was the appellant’s second statement, made after he had spoken to counsel and been cautioned, obtained in a manner that infringed a Charter right? [58] In determining whether a statement should be excluded under s. 24(2), a court must answer two questions. The first, referred to by Doherty J.A. in R. v. Plaha (2004), 188 C.C.C. (3d) 289 (Ont. C.A.), as a “threshold requirement”, asks whether the statement was “obtained in a manner” that infringed or denied a Charter right. Where this threshold requirement has been met, the court proceeds to the second question, the “evaluative component”, which asks whether the admission of the statement as evidence would bring the administration of justice into disrepute: Plaha , at para. 44. [57] As explained by the Supreme Court in R. v. Wittwer , 2008 SCC 33, [2008] 2 S.C.R. 235, at paras. 19-21, in order to determine whether a subsequent statement by an accused was obtained in a manner that infringed a Charter right, a court must assess whether the impugned statement is part of the same transaction or course of conduct as the earlier breach: In considering whether a statement is tainted by an earlier Charter breach, the courts have adopted a purposive and generous approach. It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement. The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct: [ R. v. Strachan , [1988] 2 S.C.R. 980, at p. 1005]. The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”: R. v. Plaha (2004), 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or “tenuous” will not suffice: R. v. Goldhart , [1996] 2 S.C.R. 463, at para. 40; Plaha , at para. 45. [58] In undertaking this analysis, the court must be alive to whether the police were able to “sever” the connection and establish a “fresh start”: Wittwer , at paras. 2-3; R. v. Manchulenko , 2013 ONCA 543, 116 O.R. (3d) 721, at para. 68; and R. v. Hamilton , 2017 ONCA 179, 347 C.C.C. (3d) 19, at para. 54. [59] The trial judge in this case did not apply this analysis, as she found there was no Charter breach in relation to the first statement. She also found that the two statements were unconnected to each other, as the second statement was made after a “fresh start” as described in Manchulenko . She accordingly held that the second statement was voluntary. [60] Having found a Charter breach in relation to the first statement, I would also find that there was a temporal, contextual, and causal nexus between the first and the second statements. [61] The statements were relatively close in time to each other. About four hours elapsed between the end of the first statement in the appellant’s home and the beginning of the second statement at the police station. In the meantime, the appellant went through what must have been a head-spinning and stressful process of arrest, transportation to the police station, parading and processing at the station, waiting, and consulting with duty counsel. In the context of this case, the passage of time was not sufficient to sever the link between the two statements. [62] The statements were also linked contextually. At the end of the first statement, D.C. Lockwood told the appellant that the questioning would continue at the station: “[W]hen I come back to the station, I’d like to sit down and chat with you, but that, talk to your lawyer first, ok?” While the appellant did speak to counsel, D.C. Lockwood was the only person present at the second interview. The officer’s presence served to connect the two statements. [63] This connection was confirmed by the officer’s own words. At the beginning of the recorded statement at the second interview, D.C. Lockwood stated, in the appellant’s presence: “Detective Constable Lockwood interviewing Peter McSweeney, a continuation of an earlier statement which was cut short because the accused wished to talk to duty counsel (emphasis added).” [64] The statements were also contextually linked by virtue of the officer's conduct. During the second interview, D.C. Lockwood continued to employ the same investigative techniques he had used in the first interview. One technique was to gain the appellant’s trust by being considerate of his well-being. For example, after taking the first statement, the officer told the appellant that he would not arrest him in front of his children, suggested he put on warm clothing because the cells were cold, and made sure he had his blood pressure pills with him: “I like to be prepared for the worst and hope for the best,” he said to the appellant. He re-assured the appellant by telling him that there were “a lot of reasons” why people view child pornography and that it did not make them pedophiles. [65] This concern for the appellant continued at the police station, where D.C. Lockwood asked whether he had been treated well and whether he had any injuries: “None from the handcuffs or anything? You were cuffed up front so it’s a lot more comfortable than sitting on those things trust me.” He also asked whether anyone had called the appellant’s workplace to let them know that he would not be in. The appellant said he had not called and D.C. Lockwood said, “Ok… we’ll just let that sit for a while then. ‘Cause I’m, I’m not gonna phone them and get them suspicious. Uhh, not saying they won’t find out, it just, it won’t be from me.” [66] While the officer’s solicitousness may have been genuine, and while he may have had legitimate reasons to ask about whether the appellant had received injuries at the jail, the officer’s statements had the effect of re-establishing the friendly and accommodating atmosphere he had created after obtaining the first statement. [67] There was, however, another more calculated aspect of the questioning that was common to both statements. In both interviews, the officer used the implicit threat that if the appellant was not forthright, he would have to interview his children. [68] During the first statement, a few moments before the appellant blurted out, “we both know… that… it’s… myself”, the officer said, “I’ll be honest. I think it was you, man. … because it wasn’t your kids.” The appellant replied, “[t]rue.” Moments later, the officer said “Ok, I do appreciate your honesty because I don’t want to drag your kids into this.” [69] The clear inference was, “If you don’t cooperate with me, I am going to have to interview your kids and tell them about the child pornography we found on the computers in your home.” [70] For most of the second interview, after he had spoken to duty counsel, the appellant was uncommunicative. His only inculpatory statement was made after D.C. Lockwood again asked whether his family might have been involved: Lockwood: “[I]s there, is there any chance that anybody else in the house is involved?” The Appellant: “Absolutely not.” [71] Officer Lockwood already had a confession from the appellant. He had never suspected the appellant’s wife and the appellant had said that it was him, not his children. The officer was plainly using the appellant’s desire to shield his children from the details of the offence to extract more information from him. In this sense, there was also a causal nexus between the first and the second statements. [72] In my view, informing the appellant of his rights and providing access to duty counsel did not serve to remove the taint of the initial Charter infringement or to sever the nexus between the two statements. The presence of the officer who was responsible for that breach, and who had taken the first statement a few hours earlier, the reference to the earlier statement and the use of the same interview techniques created a situation in which both interviews can reasonably be described as “all part of the same interrogation process.”: R. v. Lewis , 2007 ONCA 349, 86 O.R. (3d) 46, at para. 32. [73] For these reasons, the second statement was “obtained in a manner” that infringed the appellant’s Charter rights. C. Should the evidence be excluded under s. 24(2)? [74] Section 24(2) of the Charter provides: Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [75] As matters transpired in the court below, it was not necessary for the trial judge to conduct a s. 24(2) analysis, because she found there was no violation of the appellant’s Charter rights. As I have found there was such a violation, it is necessary to do that analysis: see R. v. Caputo (1997), 114 C.C.C. (3d) 1 (Ont. C.A.), at p. 13. [76] The s. 24(2) analysis looks at the effect of admitting the evidence on public confidence in the administration of justice in the long term, having regard to: (1) the seriousness of the Charter -infringing state conduct; (2) the impact of the breach on the Charter -protected interests of the accused; and (3) society’s interest in the adjudication of the case on the merits: Grant , at para. 71; R. v. Harrison , 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 2. [77] I turn now to these considerations. (1) The seriousness of the Charter -infringing state conduct [78] This stage of analysis requires that I situate the police conduct on a “continuum of misconduct”: R. v. Blake , 2010 ONCA 1, 251 C.C.C. (3d) 4, at para. 23; R. v. Rocha , 2012 ONCA 707, 112 O.R. (3d) 761, at para. 31. In Grant , at para. 74, the Supreme Court spoke of a spectrum between inadvertent or minor Charter violations, on the one hand, and violations involving the wilful or reckless disregard for Charter rights, on the other. The more serious the infringement by the state authorities, the more likely it is to “have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute”: at para. 74. [79] In my view, the Charter infringement in this case was serious and amounts to wilful disregard of the appellant’s Charter rights. The officer acknowledged that the appellant was a suspect from the outset and that he should have cautioned him. Instead, he pursued a tactical and focused interrogation. He ignored the appellant’s statement that he did not want to say anything and that he wanted to “talk to people that could either help [him], or not help [him].” The officer clearly understood that the appellant wanted to speak to a lawyer. As Gillese J.A. observed in Hamilton , at para. 71, “[t]he police obligation to ‘hold off’ questioning detainees who have requested a consultation with counsel is firmly established law of long-standing.” However, instead of holding off and allowing the appellant an opportunity to consult counsel, the officer persisted in his questioning. This wilful disregard of the appellant’s rights weighs heavily towards exclusion of the fruits of the interrogation. (2) The impact of the breach on the Charter -protected interests of the accused [80] The impact of the breach was serious. The appellant was detained and “at the mercy of state actors”: R. v. Nguyen , 2008 ONCA 49, 231 C.C.C. (3d) 541, at para. 21. Section 10(b) protects the detainee’s right to make an informed choice about whether to cooperate with the investigation by giving a statement: R. v. Sinclair , 2010 SCC 35, [2010] 2 S.C.R. 310, at paras. 24-28. The actions of the police deprived him of that right. (3) Society’s interest in the adjudication on the merits [81] This inquiry asks whether the truth-seeking function of the criminal trial process is better served by the admission of the evidence or by its exclusion: Grant , at paras. 79-84. It considers both the negative effect of the admission of the evidence on the repute of the administration of justice, and the impact of a failure to admit the evidence. In McGuffie , this court observed, at para. 62, that the pull toward the inclusion of the evidence is particularly strong where the evidence is reliable and critical to the Crown’s case. On the other hand, where the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility: McGuffie , at para. 63. [82] In this case, the evidence is reliable, but it is not critical to the Crown’s case. The Crown has circumstantial evidence regarding the possession and use of the computers. This may be enough to proceed with the charges: see e.g., R. v. Taylor , 2019 ONCJ 110; R. v. Erskine , 2017 ONSC 6782; R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000. (4) Conclusion on s. 24(2) [83] The state conduct was willful and in disregard of the appellant’s asserted Charter rights. It had a serious impact on those rights and on his attempt to exercise them. While society has a strong interest in the adjudication of the charges on their merits, the exclusion of the evidence will not preclude the Crown from proceeding with the charges, if it chooses to do so, relying on forensic evidence obtained from the computers themselves. This is not a case in which the Crown’s case will be gutted by the exclusion of the improperly-obtained evidence. It may be more challenging to prove, but it has not been suggested that it would be impossible. [84] For these reasons, the appellant’s statements should be excluded pursuant to s. 24(2). D. Voluntariness [85] As I have concluded that both statements resulted from breaches of s. 10(b) and should be excluded pursuant to s. 24(2), it is unnecessary to consider the trial judge’s conclusions on voluntariness. V. CONCLUSION [86] For these reasons, I would allow the appeal, quash the appellant’s convictions, and order a new trial. Released: “GS”   JAN 07 2020 “G.R. Strathy C.J.O.” “I agree. Doherty J.A.” “I agree. M. Tulloch J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Mould, 2020 ONCA 78 DATE: 20200131 DOCKET: C65581 Watt, Tulloch and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Russell Craig Mould Appellant Peter Lindsay and Hamna Anwar, for the appellants Vallery Bayly, for the respondent Heard and released orally: January 23, 2020 On appeal from the conviction entered on April 28, 2017 and the sentence imposed on July 4, 2018 by Justice Esther Rosenberg of the Ontario Court of Justice. REASONS FOR DECISION [1] After a trial before a judge of the Ontario Court of Justice conducted substantially on the basis of an Agreed Statement of Facts, the appellant was convicted of a single count of child luring under s. 172.1(1)(b) of the Criminal Code . He was sentenced to a term of imprisonment of 168 days to be followed by probation for a period of 1 year. He appeals both conviction and sentence. The Background Facts [2] Using the name “craig”, the appellant, who was then about 53 year old, posted an advertisement on the Casual Encounters section of Craigslist. He sought someone under age 28 or 22, a male. The content of the ad left no doubt about what “craig” sought. [3] A police officer browsing this section of Craigslist began an investigation by responding to the ad as “austin” and providing a cell phone number where text messages could be received. An exchange of texts began. Within about two weeks of the response by “craig”, police determined that the initial ad and response had originated from an internet protocol address registered to the appellant and to his business. [4] After several further electronic conversations, “craig” and “austin” agreed to meet at a coffee shop. When the appellant attended, he was arrested. A cell phone in his possession contained a text message exchange about the meeting. [5] The appellant testified at his trial. He denied any interest in sexual encounters with minors, preferring instead men between the ages of 20 and 30. He claimed that the content of his collocutor’s communications caused him to realize that he was not, in fact, communicating, as “austin” insisted, with a 14 year old. He concluded that he was being deceived or “played” by someone with an agenda. Annoyed, he agreed to the coffee shop meeting so that he could enjoy a “gotcha” moment. The Appeal from Conviction [6] On the appeal from conviction, the appellant contends that the trial judge erred: i. by reaching her conclusion that guilt had been proven beyond a reasonable doubt by illogical reasoning; ii. by reversing the burden of proof; and iii. by misapprehending aspects of the evidence. [7] Whether these grounds are considered individually or cumulatively, we are satisfied that the appeal from conviction fails. [8] First, we are not persuaded that the finding of guilt, in whole or in part, is grounded on illogical reasoning. [9] The trial judge drew a logical inference that was within the field of inferences open to her on the whole of the evidence adduced at trial. She was satisfied, as was her entitlement, that the context and contents of the text messages were inconsistent with the appellant’s claim of annoyance and desire for a “gotcha” moment. Further, the context and content of these messages also put the lie to the appellant’s claim that he did not actually believe that his collocutor was 14 years old, and that he was not interested in having sexual contact with someone of that age, in particular, his collocutor. [10] Second, when the Reasons for Judgment are taken as a whole, we are not persuaded that the trial judge’s words “I would simply have to take Mr. Mould’s word for it” amounted to an impermissible reversal of the burden of proof. We take it to be neither more nor less than an observation that the appellant’s claim stood on its own and was directly contradicted by other evidence, in particular, the context, content and prolonged nature of the appellant’s communications with “austin”. The trial judge expressly articulated the W.(D.) framework; examined the appellant’s evidence in the context of the rest of the evidence; rejected it and found that it did not raise a reasonable doubt about his guilt. [11] The final point concerns what is said to be a misapprehension of two aspects of the evidence: i. that, in another text exchange with another person, the appellant claimed no interest in sexual activity with persons under 18 years old; and ii. that on search of the appellant’s home and computers, police found no evidence of child pornography or other sexual conversations with minors. [12] In our view, the trial judge was entitled to give this evidence no weight in her analysis. In this respect, we observe that the preliminary crime of which the appellant was convicted was complete in advance of the exchange with the other collocutor. That other indicia which may have assisted in proof of the prosecution’s case were not found was assigned no weight was a conclusion reasonably open to the trial judge on this record. [13] For these reasons, the appeal from conviction is dismissed. The Appeal from Sentence [14] The appeal from sentence was not pursued in oral argument. The appellant relied on his written submissions in support of that appeal. We are satisfied that the sentence imposed was fit. Disposition [15] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed, except that the victim surcharge imposed by the trial judge is set aside. “David Watt J.A.” “M. Tulloch J.A.” “Gary Trotter J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. R.D., 2020 ONCA 23 DATE: 20200114 DOCKET: C64554, C64610 Doherty, van Rensburg and Hourigan JJ.A. DOCKET: C64554 BETWEEN Her Majesty the Queen Respondent and R.D. Appellant DOCKET: C64610 AND BETWEEN Her Majesty the Queen Appellant and R.D. Respondent Mark C. Halfyard and Lindsay Board, for R.D. Megan Petrie, for the Crown Heard: December 20, 2019 On appeal by R.D. from the conviction entered on March 28, 2017 by Justice Brian P. O’Marra of the Superior Court of Justice, sitting with a jury, and from the order of Justice Anne M. Molloy of the Superior Court of Justice, dated March 16, 2017, with reasons reported at 2017 ONSC 1770. On appeal by the Crown from the sentence entered on October 27, 2017 by Justice Brian P. O’Marra of the Superior Court of Justice, with reasons reported at 2017 ONSC 6375. REASONS FOR DECISION [1] R.D. was convicted by a court comprised of judge and jury of sexual interference, sexual assault and uttering threats to cause bodily harm. He was acquitted of incest. The complainant was his younger sister, S.D. R.D. was sentenced to three years in prison (30 months for sexual interference; 30 months concurrent for sexual assault; and six months consecutive for uttering threats). [2] The complainant alleged that over the course of eight years, commencing in 2001 until 2009, R.D. forced her to perform oral sex and digitally penetrated her, eventually having intercourse with her, and threatened to hurt her if she told anyone. According to the complainant, the abuse began when she was nine years old and R.D. was 18. She believed R.D. would hurt her, as there was a history of physical abuse. [3] R.D. testified and denied the allegations. He admitted to having a poor relationship with the complainant and that he had pleaded guilty to assaulting her in 2004, ten years before his arrest on the current charges. He blamed the physical abuse on anger and impulse control issues. He also testified that he had learning disabilities, anxiety and depression. [4] Z.B., the mother of the complainant and R.D., and J.D., the complainant’s ex-boyfriend, also testified as Crown witnesses at trial. [5] R.D. appealed his conviction on the basis that the trial judge’s charge to the jury was deficient. He also appealed the dismissal of his application for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms . The Crown sought to appeal sentence. [6] At the conclusion of oral argument, we dismissed the conviction appeal and the sentence appeal with reasons to follow. These are our reasons. A. Alleged Deficiencies in the Jury Charge [7] R.D. asserted that the charge was deficient in two material respects: (1) the trial judge neglected to review the defence evidence and the inconsistencies between the complainant’s evidence and that of other witnesses, and failed to relate these to the defence theory; and (2) the trial judge failed to instruct the jury adequately regarding the elements of each offence. (1) The treatment of the evidence [8] R.D. pointed to the failure of the charge to provide a separate summary of his evidence at trial. Instead, the trial judge summarized the complainant’s evidence, and he made reference to the evidence of the other Crown witnesses, while making only passing reference to R.D.’s testimony. R.D. submitted that the result was a charge that was unbalanced and unfair. [9] We disagree. [10] The standard required of a jury charge is adequacy, not perfection. The appellate court’s approach is functional, assessing the adequacy of the charge as a whole, in the context of the trial in which the instructions were given, and in light of its purpose: R. v. Jacquard , [1997] 1 S.C.R. 314, at paras. 32 to 41; R. v. Newton , 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 13. The charge must provide the jury with a sufficient understanding of the facts as they relate to the relevant issues from the trial : Jacquard , at para. 14. The trial judge has an obligation to review the substantial parts of the evidence and to relate the evidence to the issues to be decided. What is necessary are references to the evidence that are sufficient, in the context of the case and the entirety of the charge, to alert the jury to the specific parts of the evidence that are of significance to its decision on particular issues and to the positions of the parties on those issues. The role of the trial judge is to decant and to simplify: R. v. Huard , 2013 ONCA 650, 302 C.C.C. (3d) 469, at paras. 53 and 56. [11] In this case, the trial judge’s approach to the evidence in his jury charge was focused on the issues at trial. He did not simply review the evidence of each witness in a narrative way. Rather, he told the jury that he was going to review “some parts of the evidence of [S.D.]”, that she was a critical witness in the trial, and that their assessment and consideration of her evidence would “go a long way towards deciding this case, bearing in mind [the need] to consider all of the evidence”. He then summarized parts of the complainant’s evidence, identifying where her account was contradicted by or inconsistent with the evidence of the other witnesses, including R.D. For example: - After referring to S.D.’s evidence that she told Z.B. (her mother) about the first incident just after it happened and that Z.B. confronted R.D., the trial judge contrasted this account with Z.B.’s testimony denying that S.D. had reported this incident or any other sexual incident, and R.D.’s denial that this incident occurred. - After referring to S.D.’s testimony that R.D. tried to sexually attack her when she was taking a shower and that there were no locks on the bathroom doors, the trial judge referred to the testimony of Z.B. and R.D. that there were locks on the bathroom doors. - After referring to S.D.’s evidence that Z.B. had walked in on R.D. assaulting her “doggie style”, the trial judge referred to Z.B.’s evidence denying she had ever seen such an incident. The trial judge followed this with a reference to Z.B.’s account of seeing the two under a blanket, which he characterized as “somewhat equivocal”. [12] Contrary to R.D.’s submissions, in these and other references to the evidence, the trial judge pointed out the key discrepancies between the complainant’s account and those of the other witnesses that might have served to undermine her credibility. In the context of this trial, where the complainant’s credibility was a significant issue, this approach was likely more effective than simply providing a witness-by-witness summary of the evidence that the jury heard. [13] As for R.D.’s argument that the trial judge’s approach failed to relate the evidence to his defence, we disagree. The main defence, other than R.D.’s denial of any instance of sexual contact with his sister, was that the complainant had fabricated the allegations because she felt angry about the admitted physical assaults she had suffered over the years and she wanted to have him out of the house where she would be living with her mother and young daughter. The jury was reminded repeatedly that the incidents of sexual contact described by the complainant were denied by R.D. His own evidence did not advance the fabrication defence. In fact, there are parts of his testimony that, when recounted as a narrative, may not have assisted R.D. in this case: his recollection that on one occasion he was lying on his bed under a blanket with the complainant, and that he said “don’t have a dirty mind, mom” when confronted by his mother, and his admission that the complainant suddenly began keeping her young daughter from him. [14] Ultimately, the case largely turned on whether the jury believed the complainant. In his review of the evidence, the trial judge pointed out the main areas where her evidence was contradicted by or inconsistent with other evidence at trial. And, in reviewing the evidence, the trial judge repeated on several occasions the need for the jury to be satisfied beyond a reasonable doubt that the sexual acts had occurred. [15] Finally, we note that there was no objection to this part of the charge. While not determinative, the failure to object to the trial judge’s review of the evidence and how it related to the issues “may be indicative of the seriousness of what is later said to be error and a factor in appellate review”: R. v. Cudjoe , 2009 ONCA 543, 68 C.R. (6th) 86, at para. 155. (2) The review of the elements of the offences [16] At the outset of the trial, the trial judge provided a brief explanation of the charges with reference to what was alleged in the indictment. He told the jury that the complainant was the sister of the accused, and that sexual assault is the intentional touching of another person without their consent in circumstances of a sexual nature. He explained that the complainant could not consent to count 1, the charge of sexual interference. He explained that count 2 alleged sexual intercourse and that this is an offence often referred to as incest, and that again the Crown did not have to prove that the complainant did not consent. With respect to count 3, the charge of sexual assault, the trial judge stated that he would reserve his instructions about the law on that count until the end, and that he would do the same with respect to count 4, the charge of uttering a threat. [17] In his jury charge, the trial judge returned to the elements of the offences. He stated as follows with respect to the first three counts: I am now going to discuss with you the elements of the offences alleged in this case. Counts 1 to 3 on the indictment, and you will have a copy of that with you in your jury room, allege sexual offences that occurred within stated time periods. At the outset of the trial, and before evidence was presented I referred to some of the different elements of each of those offences that the Crown must prove beyond a reasonable doubt for there to be convictions on any of those charges. I referred to Count 1, which is sometimes referred to as sexual interference with a person less than 14 years old; and Count 2, which is incest, as not requiring proof that the complainant did not consent. Consent is not a factor if the person is under a certain age, or if it is alleged you had sexual intercourse with a certain, a family relationship. Now that the evidence is complete, my instructions to you as to what the essential elements to be proven by the Crown are, has become focused and clear in this case. [S.D.] has testified that she was the victim of ongoing sexual abuse by her brother that escalated from touching her private parts, digital penetration, forced fellatio, up to and including intercourse. She did not consent to any of those acts and was forced to submit by threats of force. [R.D.] has denied that any of the alleged sexual acts took place. You must return separate verdicts on each count in the indictment. If you are satisfied, in this case, if you are satisfied, based on all of the evidence and my instructions on the law, that the sexual acts as described by [S.D.], were committed by [R.D.], then Counts 1 to 3 are proven. As I will make clear to you, your decision must not be based on whose evidence you prefer over the other. There is no onus on [R.D.] to prove he is innocent. The Crown must satisfy you beyond a reasonable doubt that he is guilty of any of Counts 1, 2 or 3. [18] During their deliberations, the jury asked the following question: “Charge 3 – Question: (1) for the third charge, please clarify the term sexual assault; (2) Please clarify if consent is a factor; and (3) Does the age of the alleged victim matter?” [19] The trial judge invited submissions on the answer to the jury’s question. Defence counsel indicated that, in the context of the evidence, the only question for the jury was whether or not the alleged conduct occurred, that there was no evidence in respect of any kind of consent, and that if they believed the complainant, the offence would be made out. The trial judge answered the question in a manner consistent with these submissions. He stated: Sexual assault is defined in the Criminal Code as the intentional touching of someone else without their consent in circumstances of a sexual nature. Now in some cases of alleged sexual assaults, consent is the issue. You will have other cases, not this case, where the defence is…there was sexual contact up to and including intercourse, and the defence position in those other cases is, but it was with consent. And the Crown, in that case, must prove beyond a reasonable doubt that it was not consensual. Okay? Now in this case, there is no suggestion by anyone, Crown or defence or [R.D.]…that any of the alleged sexual events were consensual…the only evidence on the issue of consent is from the complainant, who indicated that none of the sexual acts were consensual. Okay? But the fundamental issue for you to decide is this, did the sexual acts as described by the complainant occur, because if you are not satisfied that there were these sexual acts as described by the complainant, then [R.D.] is entitled to be acquitted. If you are not satisfied beyond a reasonable doubt, this is the fundamental issue to deal with, beyond a reasonable doubt that the sexual acts as described by the complainant did occur, if there were, if you are satisfied that there were these sexual acts, the only evidence on consent is that there was no consent... [20] On appeal, R.D. argued that the trial judge erred by failing to set out the elements of the offences in his charge to the jury, with the result that the jury reached potentially inconsistent verdicts. The focus of this submission was on the sexual offences. We disagree. [21] Once again, this court’s review of the adequacy of the charge is functional. A proper jury instruction is one that arms the jurors with the information they need to reach a fair and proper verdict in the circumstances of the particular case. The trial judge’s explanation of the law must be tailored to those specific circumstances: R. v. Haughton (1993), 11 O.R. (3d) 621, at p. 625, affirmed [1994] 3 S.C.R. 516; R. v. Rowe , 2011 ONCA 753, 281 C.C.C. (3d) 42, at paras. 63-64. [22] In this case, when the instructions are looked at functionally, and considered together with the response to the jury question, which forms part of the charge, the trial judge provided instructions on the elements of each offence that were sufficient for the jury to perform its task. The kinds of touching that the complainant described were undoubtedly assaults of a sexual nature. Consent was not an issue. The trial judge and counsel were ad idem that the real issue in this trial was whether the jury was satisfied beyond a reasonable doubt that the sexual acts as described by the complainant had taken place. This was underscored by the trial judge in the passage set out above. And, not only was there no objection to the trial judge’s description of the elements of the offences charged, but defence counsel, in his submissions on the recharge following the jury’s question, specifically endorsed the trial judge’s approach. [23] Finally, we do not accept that the way the trial judge instructed the jury on the elements of the offences created the potential for inconsistent verdicts. The jury had the indictment which provided particulars of what was alleged. In respect of the charge of incest, it was clear that the charge was of having sexual intercourse. It is telling that the jury acquitted R.D. on the charge of incest, while finding him guilty of sexual interference and sexual assault. These verdicts, which are not inconsistent, suggest that the jury understood the elements of the offences and were not satisfied beyond a reasonable doubt that sexual intercourse, which was an essential element of the incest charge, had taken place. B. The 11(b) Ruling [24] R.D. argued that the application judge erred in dismissing his s. 11(b) application. He was arrested on September 23, 2014, and his trial in the Superior Court began on March 20, 2017 and ended on March 28, 2017. [25] The following timeline sets out the relevant court attendances and events: Sep. 23, 2014 Appellant is arrested. Sep. 26, 2014 Appellant is released on bail and speaks to Legal Aid, which advises him they need Crown disclosure and screening form to process his application. Oct. 30, 2014 Matter is traversed to 1000 Finch for November 27. No disclosure made. The Crown informs the Court that disclosure would be prepared at 1000 Finch. Nov. 27, 2014 Some disclosure is provided. Appellant advises that he had retained counsel Mr. Zoppi. Matter is remanded to January 8 at request of both Crown and defence. Jan. 8, 2015 Crown advises that further disclosure has been provided to R.D., and that the DVD containing the complainant interview was available, but would only be disclosed to R.D.’s lawyer given the nature of the charges. The Court is advised that R.D. wanted to retain Mr. Zoppi but had not made an application to Legal Aid as he had not received a charge screening form from the Crown. Matter is remanded to January 29 to allow R.D. to perfect his Legal Aid application. With the required materials, R.D. applies for and receives Legal Aid that day. Jan. 29, 2015 Articling student from R.D.’s lawyer’s office appears and DVD is provided. The matter is remanded to February 12, 2015. Feb. 12, 2015 Defence requests adjournment to March 5, 2015 to allow counsel to review DVD and to schedule a Crown pre-trial (CPT) with the assigned Crown. Mar. 5, 2015 Court is advised that a CPT has been scheduled for March 9. Matter is remanded to March 12 to schedule preliminary hearing. Mar. 12, 2015 Court is informed that CPT conducted and judicial pretrial (JPT) is scheduled for April 2 Apr. 2, 2015 JPT is conducted and November 23 and 24, 2015 are set for preliminary inquiry. Nov. 24, 2015 Appellant is committed to stand trial in Superior Court. Dec. 17, 2015 Appellant appears in Superior Court. Matter is adjourned to February 2, 2016 for a JPT. Feb. 2, 2016 JPT is conducted. October 25, 2016 set for a seven-day trial with a jury. Defence indicates intention to bring third-party records application. Sept. 2016 Defence delivers third party records application. Oct. 24, 2016 Trial scheduled to begin. No judge available. Trial adjourned. Oct. 26, 2016 Third party records application heard. Matter is remanded to November 28. Nov. 28, 2016 Trial scheduled to begin. No judge available. Trial adjourned. Nov. 30, 2016 New trial date of March 20, 2017 set. Mar. 16, 2017 Section 11(b) application argued and dismissed. Mar. 20, 2017 Trial begins. Mar. 28, 2017 Trial ends. [26] The application judge determined that the total delay was 30 months and six days, just over the presumptive ceiling prescribed by Jordan ( R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631) . There is no dispute about the calculation of the overall delay. R.D. asserted that the application judge erred in attributing part of the delay to the defence, which brought the net delay under the threshold. In the alternative, R.D. submitted that the application judge erred in her conclusion that the defence had not established unreasonable delay. [27] The application judge attributed two periods of delay to the defence. [28] The first was the delay caused by R.D.’s failure to complete his Legal Aid application in a timely way. R.D. had known since his first appearance on September 26, 2014 that he needed a Crown screening form to complete his Legal Aid application. He did not raise the matter in his next two appearances. On both occasions, he was assisted by duty counsel and had already consulted with the defence counsel that he wished to retain. When R.D. raised the issue on January 8, 2015, the form was immediately provided by the Crown and R.D. was approved the same day for Legal Aid. On that day the matter was put over to January 29, 2015. [29] The DVD recording of the complainant’s statement was available by January 8, 2015. The application judge attributed to R.D. part of the delay from January 8 to 29, 2015, when an articling student from the office of R.D.’s lawyer attended court, and on that day received the DVD. [30] The second period of delay attributed to the defence was part of the period from February 12 to March 5, 2015. The application judge acknowledged that it was reasonable on January 29 to adjourn to February 12, a date agreed to by defence counsel, so that defence counsel could prepare before setting a Crown pre-trial date. However, on February 12, defence counsel stated that “we have just recently received the complainant’s video statement” and that “we’re just going through it”, and requested a further adjournment to March 5, 2015, before setting the pre-trial date. The application judge noted that the total length of the DVD was under two hours and that the defence had it for two weeks before asking for another three weeks to review it and to arrange a pre-trial. [31] The application judge did not precisely define the amount of delay attributable to the defence, but she noted that the delay “considerably exceeded six days and therefore brought the delay beneath the 30-month ceiling”. [32] R.D. argued that the application judge erred in attributing any part of these two delays to the defence. With respect to the first period, he claimed that Legal Aid required a Crown screening form and disclosure to process the defence application, and that because no disclosure except the information and synopsis was actually ready until January 8, 2015, an adjournment would have resulted in any event. As for the second period, R.D. says that a period of six weeks was not unreasonable for counsel to review the complainant’s statement, to consider possible defences, and to hold a Crown pre-trial. In other words, the purpose of the adjournment was not simply to review the complainant’s statement. [33] We disagree. The characterization of the periods of delay and the ultimate decision on an application for a stay are reviewable on a standard of correctness whereas findings of fact are entitled to deference and reviewable on a standard of palpable and overriding error: R. v. Florence , 2014 ONCA 443, 312 C.C.C. (3d) 165, at para. 39. [34] The application judge did not attribute all of the delay in the two periods in question to the defence. She was aware of the fact that on each of the earlier dates no, or only minimal, Crown disclosure had been provided. The application judge did not attribute any of the delay between R.D.’s first appearance and January 8 to defence delay. However, she reasonably concluded that some of the delay between January 8 and 29 was attributable to the defence because R.D. did not advise that he needed a Crown screening form until January 8, which delayed his Legal Aid appointment of counsel. [35] By January 8, the Crown had provided more disclosure (in the form of police notes, etc.), and advised that a DVD of the complainant’s statement was available but would only be provided to counsel. Had R.D. retained a lawyer before the January 8 court attendance, counsel could have received disclosure of the DVD at that time. The application judge reasonably concluded that, accordingly, at least some part of the delay when the matter was adjourned for a further three weeks was attributable to the defence delay. There is no evidentiary basis for the assertion on appeal that, even if R.D. had asked for the Crown screening form on an earlier occasion, he would not have been able to proceed with his Legal Aid application in any event because full disclosure had not been made. [36] As for the second period of defence delay, on January 29 defence counsel had agreed to an adjournment to February 12 for the purpose of obtaining and reviewing the DVD and having a Crown pre-trial. Although the DVD was obtained on January 29, on February 12 defence counsel asked for an adjournment to March 5, and it was only on that date that a Crown pre-trial date was set and the matter remanded to March 12. The application judge specifically recognized that a reasonable period of time for defence counsel to prepare is not properly described as delay by the defence. However, after referring to the fact that the DVD was only two hours long and that the defence had received it more than two weeks earlier, she concluded that at least some portion of the time between February 12 and March 5 (when the defence was ready to set a Crown pre-trial date) was attributable to defence delay and must be subtracted from the total overall delay. We see no basis to interfere. [37] Accordingly, we see no error in the application judge’s allocation of at least six days to defence delay. As a result, there was no presumption of unreasonable delay and no onus on the Crown to rebut the presumption. [38] We also do not accept that the application judge erred in rejecting R.D.’s argument that the delay, in any event, was unreasonable. Where the net delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish both that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) that the case took markedly longer than it reasonably should have: Jordan , at para. 82. For cases that were in the system when Jordan was decided, these factors must be applied contextually and flexibly, sensitive to the parties’ reliance on the previous state of the law: Jordan , at para. 99; R. v. Coulter , 2016 ONCA 704, 340 C.C.C. (3d) 429, at paras. 58, 87-89. [39] The application judge concluded that R.D. had not met either branch of the test. She was not satisfied that the defence had shown initiative in moving the matter ahead, and the delay in getting the case to trial was not a marked departure from the reasonable time requirements of the case. She considered “a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings”: Jordan , at para. 87. It was in this context that she referred to the delays caused by the circumstances of the Superior Court in Toronto in the fall of 2016 as “local circumstances”. [40] R.D. asserted that the application judge made two errors: first, because this was a transitional case, she erred in unduly emphasizing defence initiative. Although the first prong of the test requires the defence to show a sustained effort to expedite the proceedings, “the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding [ Jordan ].” Second, R.D. argued that the application judge wrongly relied on the lack of available judges to hear his case as a “local consideration” that justified the delay. He submitted that “local considerations” cannot include the government’s failure to appoint sufficient judges, and that in this case, the reason for the delay was that his trial was adjourned twice because it could not be accommodated by the court, which added five months to the total period of delay and resulted in 15 months’ total time post-committal in the Superior Court. [41] We would not interfere with the application judge’s conclusion that R.D. did not establish unreasonable delay. Even taking into consideration that this was a transitional case, although defence counsel indicated his intention to bring a third-party records application at the judicial pre-trial on February 2, 2016, the application was only served in September 2016, two months after Jordan was released, and leaving insufficient time to have the application determined before the first scheduled trial date. The application judge reasonably concluded that the failure to bring the application well in advance so as not to jeopardize the trial date was not consistent with a “sustained effort to expedite the proceedings” as required under Jordan . [42] Moreover, there is no error in the application judge’s approach to and assessment of whether the time in this case markedly exceeded the reasonable time requirements of the case. She reasonably considered the circumstances that existed in the Superior Court in Toronto immediately post- Jordan , including the “dramatic decline in the number of cases that resolved prior to their trial dates”. We agree with her assessment that this was not a “clear case” of unreasonable delay. [43] Accordingly, we do not give effect to this ground of appeal. C. Sentence Appeal [44] The Crown sought to appeal the sentence, asserting that the trial judge did not give effect to an aggravating factor: that R.D. was in a position of trust in relation to the complainant. The Crown asked this court to find that the sentence was in error and to impose a higher sentence of six years in custody. [45] The Criminal Code provides for a number of statutory aggravating circumstances, including that the offender, in committing the offence, abused a position of trust or authority in relation to the victim: s. 718.2(a)(iii). The onus is on the Crown to establish the aggravating factor beyond a reasonable doubt. [46] Here, the trial judge concluded that, while R.D. as the older brother was in a position to exert physical and sexual domination of the complainant in the home and despite the age difference, this did not amount to a position of trust in the particular circumstances : at para. 28 . [47] On appeal, the Crown asserted that the evidence fully supported the aggravating factor of R.D.’s breach of trust in committing the offences on his much younger sister in the family home, and that the trial judge erred in law in concluding otherwise. [48] We do not agree that the trial judge’s decision reveals error. While R.D. was many years older than S.D., and much bigger than and physically stronger than S.D., he also had an intellectual disability. The evidence was that, until she was 12, S.D. and her younger brother went to a babysitter’s home while their mother was at work and that, after that, S.D. took care of her younger brother. There was no evidence of a caregiving relationship between R.D. and his younger siblings. The trial judge was not prepared to accept, in the circumstances of this case, that a position of trust followed from the age difference and R.D. and the complainant being alone in the home. In our view, the conclusion that, in the particular circumstances of this case, the aggravating factor had not been made out was available to the trial judge on the evidence. [49] For these reasons, although we granted leave to appeal sentence, we dismissed the sentence appeal. “Doherty J.A.” “K. van Rensburg J.A.” “C.W. Hourigan 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. Rancourt, 2020 ONCA 64 DATE: 20200131 DOCKET: C62735 Simmons, Watt and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and David Rancourt Appellant Megan Savard and Julia Kindrachuk, for the appellant Christine Tier, for the respondent Heard: October 21, 2019 On appeal from the conviction entered on June 30, 2016 and the sentence imposed on October 13, 2016 by Justice John M. Johnston of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant was the complainant’s high school teacher. He does not dispute that after the complainant turned 18 years old he participated in on-line sexual encounters with her, and that after she left high school this progressed to sexual intercourse. The complainant later moved in with the appellant and his wife and children, ostensibly to work as the children’s nanny, but in reality to facilitate sexual access. The appellant and the complainant kept their relationship secret. [2] Eventually, the complainant began a relationship with another man. Neither of the complainant’s partners were aware of the complainant’s relationship with the other. During a period of hospitalization for declining mental health, the complainant texted the appellant to end their relationship. When the appellant sent a text in reply, it was read by the complainant’s new partner, M.G., who thereby learned of the parallel relationships for the first time. The complainant maintained her relationship with M.G. Two months after the text incident, after the appellant persisted in trying to contact the complainant and her parents, the complainant went to the police. [3] The appellant admitted the adult sexual affair to the police, including the online sexual activity after the complainant had turned 18, but denied that he touched the complainant sexually while she was underage. [4] What was contested at trial was whether the appellant had engaged in various acts to groom the complainant sexually while she was still his student, and (in some instances) while she was also under the age of 18. In particular, the questions were: (1) whether the appellant had engaged in cybersexual activity with the complainant before she had turned 18, and (2) whether the appellant had engaged in sexual touching of the complainant while he was still the complainant’s teacher, both before and after she turned 18. [5] The appellant did not testify and the trial turned, primarily, on the credibility of the complainant. The trial judge convicted the appellant of sexual assault and sexual exploitation. He was sentenced to imprisonment for one year. [6] The appellant appeals against conviction on the basis that the trial judge committed various errors, including errors in assessing the complainant’s credibility. He also appeals against sentence. [7] For the reasons that follow, both appeals are dismissed. Background [8] As stated above, the appellant was the complainant’s teacher for four of her five years of high school. After the complainant turned 18, but while she was still a high school student receiving instruction from the appellant, the complainant and appellant engaged in sexually explicit messaging with each other using a variety of social media platforms. This progressed to the complainant masturbating, for the appellant’s benefit, in her bedroom while the appellant watched from his home via webcam, coaching and encouraging her. Although the complainant initially testified at the preliminary hearing that this cybersexual activity began before she had turned 18, her testimony at trial was that it began two months after she turned 18. This was significant as the complainant was therefore not a “young person” within the meaning of s. 153(1) of the Criminal Code during the cybersexual activity, and that activity could therefore not be the basis for a conviction for sexual exploitation under s. 153(1) of the Criminal Code . [9] That left allegations of multiple incidents of sexual touching by the appellant, starting when the complainant was in grade 9. Many of these allegations involved the appellant touching the complainant’s breasts over her clothing “accidentally on purpose”, as the trial judge characterized it, or the appellant brushing his semi-erect penis against her hand or arm as he walked past where she was seated in his classroom. The trial judge accepted the complainant’s evidence that these incidents happened as she attested. However, he was left with a reasonable doubt as to whether the appellant had touched her on these multiple occasions – such as brushing her breasts with his hand while reaching across his car to lock and unlock the passenger door after she was seated – with the requisite sexual intent. Accordingly, the trial judge found that these incidents could not ground a finding that the appellant had committed either sexual interference or sexual assault. [10] The only allegation which supported a finding of guilt was what the trial judge referred to as the “‘dirty girl’ game”. The complainant testified that, starting when she was in grade 9, the appellant would, in the classroom, rub his foot against her sock, leaving dirt on it. He would then rub the mark off with his hand. In reference to this, he called her a “dirty girl”. As the years progressed, the complainant testified, the touching progressed up her leg, under her kilt, and by grade 12 he was touching her near her pelvic area. [11] The trial judge found that the instances of the “‘dirty girl’ game” occurring before the complainant turned 18 constituted sexual exploitation and sexual assault. The instances after she turned 18, and while she was still his student, also constituted sexual assault, on the basis that her consent to the activity was vitiated by the position of trust that he held over her as his teacher. [12] The appellant was convicted of sexual exploitation and sexual assault, and sentenced to one year imprisonment. Issues [13] The appellant argues that the trial judge erred: 1. by misapplying the burden of proof; 2. in rejecting the evidence of the appellant’s wife; 3. by applying different standards of scrutiny to the defence and Crown evidence; and 4. imposing a harsh and excessive sentence. Analysis [14] Each of these issues are addressed in sequence. Misapplication of the burden of proof [15] The appellant alleges three errors with respect to the misapplication of the burden of proof by: (a) “bootstrapping” the complainant’s credibility by using her own evidence to confirm her story; (b) rejecting defence evidence on the basis that he accepted the complainant’s evidence; and (c) failing to resolve the complainant’s credibility problems. (a) Bootstrapping [16] First, the appellant argues that the trial judge “bootstrapped” the complainant’s credibility by finding her allegations to be credible because of his findings about the nature of her relationship with the appellant. But, he argues, the trial judge’s findings about the nature of the complainant’s relationship with the appellant during high school were based solely on the complainant’s unsupported testimony. These findings included that: (a) the appellant sent the complainant a text when she was 15, telling her that his wife was away, he was lonely, and that it would be nice if she came over; (b) the appellant texted the complainant constantly during a school trip to New York City, when the complainant was 15; (c) the appellant and complainant pre-arranged a webcam chat when the complainant was 16, so that the appellant could see her naked; (d) the complainant was 16 when the appellant first told her about a pornographic website called Red Tube; € the appellant texted the complainant constantly during a second school trip to New York City when she was 17, and distributed theatre tickets so that the complainant would be seated next to him; and (f) the complainant attended her grade 12 graduation with a platonic friend in order to appease the appellant, who texted her throughout the night. [17] We do not agree that the trial judge made this error. Each of these findings had some support in evidence that was independent of the complainant: (a) the appellant’s former spouse S.C. testified in cross-examination that she went away for part of the summer with the children, leaving the appellant alone; (b) M.N., a fellow student, testified to her observations of the complainant texting during the New York trip and the inferences she drew from her observations; (c) recovered text messages between the complainant and the appellant referenced an earlier incident when the complainant had shown herself naked to the appellant on a webcam; (d) the appellant admitted in his statement to police that he may have mentioned the Red Tube pornography site to the complainant while she was in high school, and that she may have looked at it; and € both M.N. and Mr. Lopes, a colleague of the appellant, testified about their observations of the complainant texting during her grad night. Further, Lopes testified about his observations of the appellant texting the complainant during a hockey game, and his concerns about the appropriateness of this behaviour. In short, there was an entire body of evidence – independent of the claimant – supporting the trial judge’s conclusions about the highly unusual nature of the appellant’s relationship with the complainant during high school. (b) Rejecting defence evidence [18] The appellant argues that the trial judge erred by rejecting the account given by the appellant in his police statement. The trial judge is said to have reversed the burden of proof – to have accepted the complainant’s account, and then rejected the appellant’s account because it did not agree with the complainant’s. [19] We do not agree. The trial judge gave reasons for independently rejecting the appellant’s exculpatory statements. First, the trial judge was entitled to draw a negative inference from the appellant’s stated memory problems. It strained credulity that the appellant could not remember how an unremarkable student-teacher relationship transformed, within two months of the complainant’s 18 th birthday, to the appellant texting the complainant to encourage her to shave her genitals and to masturbate for him while he watched via webcam. Additionally, S.C. testified in cross-examination that the appellant had told her, when he first confessed to the relationship, that he had memory blanks related to how this relationship began and how it ended. He later admitted to her, according to her testimony, that he had no such memory blanks. The trial judge was entitled to draw a negative inference about the appellant’s credibility. [20] Second, the trial judge was entitled to find that the appellant was not forthcoming in his statement to police. Even though the appellant admitted the adult affair to the police, he clearly distanced himself from, and minimized his involvement in, the cybersexual encounters he had with the complainant while she was his student. His characterization of events – “the only thing that did happen in high school is that she did the masturbation thing” – left out the role he played. The text of the Skype chats reveals a different picture – of the appellant encouraging and directing his 18-year-old student in how to perform sex acts in front of a camera to gratify him sexually. (c) Failing to recognize or resolve the complainant’s credibility problems [21] The appellant’s position at trial was that the complainant was chronically deceptive, not credible, and the story of her high school relationship with the appellant was simply one of many fabrications. Although the trial judge noted that the complainant had significant credibility problems, and dedicated 14 pages of the reasons for judgment to his assessment of the complainant’s credibility, the appellant argues that he nevertheless misunderstood the appellant’s submissions and failed to resolve the credibility problem. [22] We do not agree. [23] In her testimony, the complainant was candid about the many concocted stories she had told the appellant in the time period leading up to the termination of their relationship, including telling the appellant that she had a kidney tumour (and manufacturing an incision for added effect), that her father had a brain tumour, and that she had attempted suicide while in the hospital. The complainant was frank about her and the appellant having both lived dual lives, conspiring to have the complainant move in with the appellant and his wife and children under the pretext of working as the nanny in order to facilitate a sexual relationship without arousing S.C.’s suspicion. She also acknowledged carrying on simultaneous relationships with the appellant and M.G. for six months, keeping each a secret from the other. [24] The complainant admitted to these fabrications in examination in chief, explaining that she lied in order to get some time away from the appellant. The trial judge accepted the complainant’s rationale for her fabrications. Given the context of a controlling relationship, her pattern of lying to the appellant did not suggest to the trial judge that she was a person who is prone to dishonesty. Rather, these were deliberate falsehoods intended to facilitate temporary escape from the appellant’s control. This assessment was open to the trial judge on the evidence before him, and there is no basis upon which we would interfere with it. [25] The trial judge was also required, as part of his credibility analysis, to consider the appellant’s submission that the complainant had a motive to lie (first to M.G., then the police, then the court) about when the sexual relationship began and, specifically, how young the claimant was when the appellant first touched her for a sexual purpose. [26] The appellant argues that the trial judge made errors in how he analyzed this question. As we explain below, we agree that some of the trial judge’s remarks were infelicitous. Nevertheless, such errors are peripheral to the trial judge’s credibility analysis and, when read as a whole, the trial judge’s credibility analysis is sound. He conducted an exhaustive examination of the complainant’s credibility, fully alive to her frailties as a witness. We would not interfere with that assessment. [27] The appellant argues that the trial judge made two errors in rejecting the appellant’s argument that the complainant was motivated to invent the allegations of underage sexual contact in order to save her relationship with M.G. [28] First, the appellant argues that the trial judge asked the wrong question. Instead of asking whether the complainant subjectively believed it would help preserve her relationship with M.G. if she told him that sexual contact with the appellant began when she was 13 years old, the trial judge asked whether there would have been any objective benefit to such a fabrication. [29] There are passages in the reasons which can support the reading advanced by the appellant. It may have been clearer if instead of writing, for example, that the complainant “did not need to make up the additional component of the criminal allegations to achieve the result that she did achieve”, the trial judge had written that the complainant “ knew she did not need to make up the additional component”. Nevertheless, the formulation used by the trial judge is equally capable of supporting an objective or a subjective reading, and it is not necessary to read the reasons in the manner proposed by the appellant. [30] In any event, even if this court accepted the submission that the trial judge had applied an objective inquiry, it is not apparent that this would constitute an error. The appellant’s sole authority for the proposition advanced is R. v. Willier , 2013 BCCA 214, 338 B.C.A.C. 63, a decision dealing with Vetrovec witnesses. However, although the complainant’s credibility was the central issue at trial, she was not a Vetrovec witness. Unlike the witness in Willier , the complainant was in no criminal jeopardy. Vetrovec witnesses are those with “disreputable and untrustworthy backgrounds” with a “demonstrated moral lack”. The complainant does not fit either of these descriptors. [31] Furthermore, the defence made no submission at trial that, in this case, there would be any difference between a subjective and objective assessment of benefit. In these circumstances, the trial judge made no error in how he framed his analysis. [32] Second, the appellant argues that the trial judge erred in concluding as a matter of fact that the complainant had no motive to lie. The trial judge found that the text messages between the complainant and M.G. suggested that M.G. – who had been devastated by the revelation that the complainant had a long-standing sexual relationship with the appellant – was already mollified when he thought the sexual contact began when she was 18. For the trial judge, there was no reason for the complainant to exaggerate to win over M.G. [33] The appellant, however, argues that the complainant needed the allegation of underage sexual contact to preserve the relationship, and that the text messages show that M.G. remained somewhat hostile until the complainant told him that things began when she was only 13, at which point his attitude towards her became more sympathetic. [34] The trial judge reasoned that if M.G. had only been told the facts that were undisputed at trial – of the adult affair and the unusually close student-teacher bond – M.G. would have figured out on his own that there must have been a long sexualized history, regardless of whether there was any criminal wrongdoing. There was no need to invent the specific allegations of criminal touching to obtain the desired sympathy from him. Furthermore, the trial judge noted, M.G. urged her to lie and tell her family that she was 18 when the relationship began, so as to spare the appellant’s family from the fallout. He also urged her not to go to the police. Significantly, the complainant only went to the police two months later, and only then to address the appellant’s refusal to leave her and her family alone. [35] We do not agree that the trial judge made any palpable and overriding error in rejecting the theory that the complainant concocted the story of the sexual touching from age 13 in order to procure sympathy from M.G. and preserve her relationship. The trial judge did not believe that she had fabricated the allegations against the appellant. He gave his reasons for believing her. She testified for six days and, with the exception of her inability to recall dates and times, he was impressed with the consistency of her evidence. He accepted her rationale for her admitted fabrications and did not find that they undermined her credibility. He did not agree that she was prone to exaggeration on any material point. He agreed that her delay in going to the police was explained by the context of her relationship with the appellant, and was not a mark of fabrication. Rejecting the evidence of S.C. [36] S.C. testified to the effect that although the appellant and the complainant were close, the nature of their relationship was not any closer than the appellant’s relationship with any other student, and that contrary to the complainant’s evidence, students did not frequent the appellant’s classroom at the end of the school day. The trial judge rejected this evidence, chiefly because it was contradicted by the evidence of other witnesses. But he gave five additional reasons for disbelieving her. Of these five additional reasons, the appellant argues that one of them contained a fallacious inference by the trial judge: that S.C. had initiated, and then suspended, divorce proceedings, because “if he is found not guilty, she intends to resume a relationship, however, not necessarily if he is found guilty.” [37] The appellant rightly observes that there can be many reasons for suspending divorce proceedings, and there was no evidence that S.C. had reconciled with the appellant or intended to reconcile with him. The trial judge ought not to have speculated about this. Nevertheless, as the Crown argued, the evidence at trial established that S.C. remained financially interdependent with the appellant. S.C. had filed an application for child support from the appellant, and she believed that his future as a teacher – and therefore his financial viability – could turn on an acquittal. The trial judge was entitled to consider S.C.’s interdependence with the appellant. In any event, the status of S.C.’s relationship with the appellant was only one of several secondary reasons the trial judge had for rejecting her evidence. Applying different standards of scrutiny [38] It is an error of law to apply a different standard of scrutiny to Crown and defence evidence; to minimize problems with Crown evidence while highlighting similar or less serious problems with defence evidence. The appellant argues that the trial judge, in carrying out his credibility analysis, applied a relaxed degree of scrutiny of the Crown’s evidence when compared to the scrutiny given the defence evidence. He raises four points where there is said to be a divergence. [39] First, the appellant contrasts the trial judge’s rejection of the defence theory that the complainant had a motive to lie, with the finding that S.C. had a motive to lie based on her statement that her divorce was on hold. [40] We do not agree. The two different assessments were not driven by uneven scrutiny of evidence. As stated above, the trial judge gave careful scrutiny to the argument that the complainant had a motive to lie to M.G. With respect to the finding that S.C. had a motive to lie, it was of secondary importance in the trial judge’s credibility analysis, and the evidence was of marginal relevance to the allegations. [41] Second, the appellant argues that the trial judge drew inconsistent inferences from the fact that the appellant and the complainant each lied about their affairs to their other partners. Although the trial judge excused the complainant’s lies to M.G., he drew a negative inference from the fact that the appellant feigned memory loss when his wife demanded details of the affair. [42] Again, this does not constitute uneven scrutiny. The two contexts were entirely different. The appellant contrasts the complainant’s pretending to live with the appellant’s family as a nanny – a deception advanced by the complainant and appellant in concert – with the appellant’s lies to S.C. about memory loss after the fact. The trial judge was entitled to draw different inferences from the two contextually different deceptions. [43] Third, the appellant argues that the trial judge used ambiguities and minor inconsistencies in the evidence of S.C. and the police statement given by the appellant as evidence that they were downplaying unfavourable facts. This, the appellant argues, contrasts with the trial judge’s lenient attitude towards the complainant, whose evidence the trial judge characterized as largely consistent, despite inaccuracies and exaggerations. [44] Again, the context is vastly different. The appellant’s statement to the police was brief. He said little. The trial judge attributed great significance to the few statements that he made that were not simple denials. S.C. testified about peripheral matters only and, as stated above, the trial judge had reason to discount her testimony. The complainant, by contrast, testified for six days on the central matters in issue. In that vastly different context, the trial judge was impressed with her overall consistency. This is not uneven scrutiny. [45] Fourth, the appellant argues that the trial judge drew inconsistent inferences from different witnesses’ failures of memory. In particular, he contrasts the negative inference the trial judge drew from the appellant’s statement to police (that he did not remember how it was that he started to coach the complainant to masturbate over Skype), with the trial judge’s acceptance of the complainant’s vague evidence (that it was an “evolution kind of thing”). [46] This was not uneven scrutiny. The appellant’s position was that there was absolutely nothing unusual about his student-teacher relationship with the complainant prior to her turning 18. Within two months he was instructing her, via Skype, on how to masturbate while he watched. If things had been as the appellant and S.C. had stated, the sexual turn in the relationship must at some point have been a sharp and extraordinary change within a defined time period. It would have been so alien to the nature of the teacher-student relationship that the fact that the appellant could provide no account for how it happened was probative. By contrast, the complainant testified that it was an evolution – a gradual progression over many years. On her account, it was an increasingly sexual relationship that proceeded incrementally. It was not inconsistent, in light of the two different backstories, for the trial judge to accept a degree of vagueness in the complainant’s testimony but draw a negative inference from the appellant’s complete absence of memory. Sentence appeal [47] The appellant appeals against sentence based on the assertion that the sentence of one year is harsh and excessive, and that the trial judge engaged in double counting of the elements of the offence as aggravating factors. [48] The appellant characterizes the offence as repeated but brief, low-level, sexual touching by a person in authority. He argues that such offences attract a sentence between 14 days and six months. [49] We do not agree. The sentence is fit and appropriate and there is no basis to intervene. The trial judge committed no error in finding that “the extent of the manipulation and grooming in this case distinguishes it from other cases cited.” It is relevant that this was a lengthy course of conduct instrumental to grooming a student for increasingly intimate sexual activity and dependence. [50] The trial judge did not misuse the elements of the offence as aggravating factors. The abuse of a person under the age of 18 and the abuse of authority are both aggravating factors listed in s. 718.2(a) of the Criminal Code , and the sentencing judge is required to take them into account. Here, the trial judge did not use these as stand-alone aggravating factors, but mentioned them in the context of explaining the nature of the sexual grooming. Disposition [51] The appeal against conviction is dismissed. Leave to appeal sentence is granted but the sentence appeal is dismissed. “Janet Simmons J.A.” “David Watt J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Randhawa, 2020 ONCA 38 DATE: 20200122 DOCKET: C65708 Hoy A.C.J.O., Lauwers and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Prithvi Randhawa Appellant Owen Wigderson, for the appellant Michael S. Dunn, for the respondent Heard: December 13, 2019 On appeal from the sentence imposed by Justice James R. Chaffe of the Ontario Court of Justice on July 24, 2018. Nordheimer J.A.: A. Overview [1] Prithvi Randhawa appeals the sentence imposed on him by the sentencing judge of nine years (before credit for pre-sentence custody) concurrent on three counts of impaired driving causing death and five years concurrent on one count of impaired driving causing bodily harm. [2] The appellant advances two alleged errors made by the sentencing judge. First, he contends that the sentencing judge erred in his parity analysis in deciding on where he fit within the ranges of sentence for the offences involved. In particular, the appellant says that the sentencing judge omitted or mischaracterized certain facts from other cases to which he referred in deciding on the appropriate sentence. The appellant also says that the sentencing judge misapprehended a key submission made by the defence. Second, the appellant contends that the sentencing judge failed to consider a significant collateral consequence that the appellant will suffer arising from his conduct and this led him to impose a sentence that was unfit. [3] I would grant leave to appeal and allow the sentence appeal. The trial judge erred in his parity analysis based, at least in part, on an erroneous characterization of the appellant’s conduct relative to the conduct revealed in the comparative cases to which he referred. B. Background [4] The basic facts can be summarized briefly. After a night of drinking, the appellant drove his car, with four other occupants, at a high rate of speed through a residential neighbourhood. He had approximately twice the legal limit for alcohol in his system. Eventually, his car clipped another car, he lost control of the vehicle, the vehicle went airborne and crashed. All four passengers were ejected from the car. Three of them died and one was seriously injured. The appellant himself suffered a traumatic brain injury in the crash. The appellant was 22 years old and his passengers ranged in age from 19 to 24 years old. C. Analysis [5] I begin by noting the principle laid down in R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11: “[E]xcept where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit.” [6] Central to his conclusion on what was the appropriate sentence to impose on the appellant, was the sentencing judge’s view of the appellant’s conduct relative to the conduct revealed by three prior cases. On that central point, the sentencing judge said, at para. 53: “In terms of parity in sentencing, I find that his egregious conduct exceeds that of the drivers in the cases of Kummer , Luskin and Muzzo .” The sentencing judge repeated this finding at para. 57. The sentencing judge then imposed a sentence of nine years, one year more than the sentences in R. v. Kummer , 2011 ONCA 39, 103 O.R. (3d) 641 and R. v. Luskin , 2012 ONSC 1764, 282 C.C.C. (3d) 542, but one year less than the sentence in R. v. Muzzo , 2016 ONSC 2068, 353 C.C.C. (3d) 411. [7] The sentencing judge did not provide any reasons for this central finding. While he does review the aggravating and mitigating factors relating specifically to the appellant in his reasons, he does not explain how any of those factors would support a finding that the appellant’s conduct was more egregious than that of the offenders in those three other cases. [8] I have reviewed the facts in this case and the facts in Kummer , Luskin , and Muzzo , and I am unable to find a basis upon which the sentencing judge’s finding could be supported. This is of concern because, as I have said, it is this finding that clearly drove the sentencing judge to determine that a sentence of nine years was appropriate. [9] The mere failure to give reasons does not, by itself, amount to an error of law. As noted by McLachlin C.J.C. in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 37: As we have seen, the cases confirm that a trial judge's reasons should not be viewed on a stand-alone, self-contained basis. The sufficiency of reasons is judged not only by what the trial judge has stated, but by what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial . The question is whether, viewing the reasons in their entire context, the foundations for the trial judge's conclusions — the “why” for the verdict — are discernable. If so, the functions of reasons for judgment are met. [Emphasis in original.] [10] In this case, the “why” – the basis for the sentencing judge’s finding that the appellant’s “egregious conduct exceeds that of the drivers in the cases of Kummer , Luskin and Muzzo ” – is neither obvious nor discernable. It is also not supported in the context of the record. [11] That failing leads to the concern that the sentencing judge misapplied the parity principle and thus erred in his conclusion. It is an error that clearly impacted on the sentence because it was the sentencing judge’s comparative view of the actions of the appellant, in relation to the actions of the accused in those three other cases, that drove him to impose the sentence that he did. It thus falls within the first of the two categories of cases identified in Lacasse , at para. 44, that warrant appellate intervention, that is, “the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigating factor” that had an impact on the sentence. This is to be contrasted with the second category, noted at para. 52, where “[i]t is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it.” [12] As a consequence of the error in the application of the parity principle, it falls to this court to “inquire into the fitness of the sentence and replace it with the sentence it considers appropriate”: Lacasse at para. 43. In that regard, this court determined in R. v. Altiman , 2019 ONCA 511, 56 C.R. (7th) 83, that there was a range of four to six years for these offences where the offender does not have a prior criminal or driving record and a range of between seven and one-half to 12 years where the offender has a prior criminal or driving record: at para. 70. At the same time, I note that the decision in Lacasse holds that “sentencing ranges are primarily guidelines, and not hard and fast rules”: at para. 60. [13] In my view, the conduct of the appellant in this case is very similar to that of the offenders in Kummer and Luskin . In each case, the offender had a high blood alcohol content, drove at excessive speed, and caused multiple deaths. Two facts distinguish the appellant from those offenders though. First, his young age distinguishes him from the offender in Kummer . He was 22 years old at the time of the offence, similar to the age of Mr. Luskin. Second, and more importantly, unlike those other accused, the appellant suffered very serious injuries, including a traumatic brain injury that has left him without memory of the events. He is both physically and mentally vulnerable as a result. This is a serious mitigating factor to which the sentencing judge failed to give adequate consideration. [14] This latter fact would suggest that a sentence should be imposed on the appellant that is slightly below the ones that were imposed in Kummer and Luskin . In saying that, I recognize that making comparisons has its limits. No two cases are ever identical. The principles of parity and consistency are not to be tested against such a standard. As Lamer C.J.C. said in R. v. M. (C.A.), [1996] 1 S.C.R. 500, at para. 92: “Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.” Nevertheless, it remains a goal of the sentencing process to ensure that “similar sentences are imposed on similar offenders for similar offences committed in similar circumstances”: Lacasse , at para. 2. [15] In my view, the proper application of the parity principle would lead to a sentence of seven years being imposed on the appellant. [16] Before finishing, I should say that I have had the benefit of reviewing the dissenting reasons of my colleague. She outlines a possible basis by which the sentencing judge’s conclusion could be justified. I have two concerns with her approach, though. My first concern is that there is no way for this court to know whether the justification that my colleague has developed mirrors what the sentencing judge had in mind and thus permits meaningful appellate review. [17] My other concern is that many of the points upon which my colleague relies to justify the sentencing judge’s result involve very fine line distinctions for sentencing purposes. For example, comparing 122 km/h in a 70 km/h zone with 135 km/h in a 60 km/h zone when it comes to considering the impact of speeding, or whether an accused is 20 or 22 when it comes to a youthful offender, or the presence or absence of demerit points when a driving record is proven [1] , strike me as thin reeds upon which to rely to remove 12 additional months of a person’s liberty. [18] Finally, in light of my conclusion, it is unnecessary to address the other issues raised. Nevertheless, I would add that I do not accept the appellant’s contention regarding collateral consequences. On this point, the appellant said that he was subject to numerous lawsuits emanating from these events, lawsuits that would ultimately leave him subject to large judgments that he would be unable to honour. The appellant contended that this was a consequence that he would suffer arising from his conduct and that should militate against the sentence to be imposed. [19] The appellant complains that the sentencing judge did not mention this contention in his reasons. While true, that fact does not amount to an error. For one, a judge is not required to mention every argument that may be made. For another, it is not a consequence that I would see as having any significance to the determination of the ultimate penalty to be imposed. It is likely that there will often be lawsuits that will arise from such events. That reality fails to distinguish this case from any other of its type. D. Conclusion [20] I would grant leave to appeal sentence and I would allow the appeal. I would reduce the appellant’s sentence to seven years, leave the driving prohibition unchanged and set aside the victim impact surcharge. “I.V.B. Nordheimer J.A.” “I agree. P. Lauwers. J.A.” Hoy A.C.J.O. (Dissenting) [21] I am not persuaded that this court is justified in intervening with the sentence imposed by the sentencing judge. [22] Except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 11. The appellant does not argue that the sentence imposed is demonstrably unfit, and I am not satisfied that the sentencing judge made an error of law or principle. [23] I disagree with my colleague that the sentencing judge made an error in principle in finding that the appellant’s conduct was more egregious than that of the drivers in the cases of R. v. Kummer , 2011 ONCA 39, 103 O.R. (3d) 641, R. v. Luskin , 2012 ONSC 1764, 282 C.C.C. (3d) 542, and R. v. Muzzo , 2016 ONSC 2068, 353 C.C.C. (3d) 411 – other cases in which the offender caused multiple deaths. [24] The sentencing judge carefully considered, and reviewed the facts in, each of Kummer , Luskin , and Muzzo . On the record before him, it was open for the sentencing judge to conclude that the appellant’s conduct was more egregious than that of the drivers in these other cases. [25] The appellant was travelling at a faster speed in a zone with a lower speed limit than was the driver in Kummer . As the sentencing judge detailed, Mr. Kummer was travelling at 122 km/h in a 70 km/h zone, whereas, in the moments before impact, the appellant was travelling towards a stale red light at 135 km/h in a 60 km/h zone. [26] The appellant was slightly older, more intoxicated, and had a worse driving record than the driver in Luskin . Mr. Luskin was about 20 years of age at the time of the collision, whereas the appellant was 22 years of age. Mr. Luskin had a blood alcohol concentration (“BAC”) between 122 and 157 mg of alcohol in 100 mL of blood at the time of collision: Luskin , at para. 5. As the sentencing judge noted in this case, the appellant had a BAC at the time of driving between 178 and 204 mg of alcohol in 100 mL of blood. As the Crown highlighted in its sentencing submissions, at the time of sentencing, it was a statutorily mandated aggravating factor under s. 255.1 of the Criminal Code , R.S.C. 1985, c. C-46, to have a BAC above 160 mg in 100mL of blood. The appellant was above this threshold, while Mr. Luskin was below it. Moreover, Mr. Luskin’s driving record was “negligible”: Luskin , at para. 25. By contrast, the sentencing judge in this case noted that the appellant had amassed eight demerit points in two years of driving and described the appellant’s driving record in this way, at para. 27: In January of 2014, [the appellant] was convicted of driving a motor vehicle unaccompanied and had his licence suspended until March of 2014. In January of 2015, he disobeyed a traffic sign. In the same month he was found travelling 90 [km/h] in a 70 [km/h] zone. In March of 2016, he failed to stop at an intersection. Five days before the incident, in which he drove at a rate of no less than 135 [km/h] into the intersection of Jane and Sheppard Avenue West against a red light, he was found to have disobeyed a red light. [27] As to Muzzo , the appellant was driving faster in a busier area with a lower speed limit and had more demerit points than Mr. Muzzo. The appellant was travelling significantly faster than Mr. Muzzo was (135 km/h compared to 85km/h at time of impact) and in a zone with a lower speed limit (60 km/h, compared to 80 km/h): see Muzzo , at paras. 6, 23. The collision in Muzzo occurred in a “less developed area of York Region”: Muzzo , at para. 5; whereas the appellant’s collision took place at Jane Street and Sheppard Avenue West and other vehicles were in the appellant’s path. Additionally, while Mr. Muzzo had a “lengthy prior record for driving infractions, including ten convictions for speeding”, in contrast to the appellant, he did not have any demerit points at the time of the offence: Muzzo , at paras. 54, 71. In any event, the sentencing judge imposed a lesser sentence on the appellant than was imposed on Mr. Muzzo. [28] Moreover, the sentencing judge concluded that the appellant’s reckless driving in the moments leading up to the collision was an additional aggravating factor. In none of Kummer , Luskin , or Muzzo is there discussion of additional recklessness leading up to the collision that put others at risk beyond those tragically injured or killed in the collision. By contrast, in this case, the sentencing judge explicitly noted that the appellant’s reckless driving in the moments before the collision included “fleeing responsibility” for another accident, travelling at excessive speed, and weaving in and out of traffic: at para. 58. The sentencing judge described the appellant’s reckless driving in detail, at paras. 12-13: At 3:18 [the appellant] drove the Acura out of the parking lot onto Jane Street south travelling at a high rate of speed. He passed a Mercedes at speed north of Shoreham drive. The rear bumper of [the appellant’s vehicle] flew off striking the Mercedes. The two cars stopped at the light and the passenger of the Mercedes rolled down the window and the driver and passenger told [the appellant] that they should exchange information because of the accident. [The appellant] replied, “Have you ever seen a fucking V6?”, then sped off driving very quickly on Jane Street. [The appellant] sped, moving from lane to lane, straddling lanes and accelerated at an extremely high rate of speed while swerving and weaving between traffic. [The appellant] approached a stale red light at Sheppard Avenue West. A white Acura was stopped waiting for the light. [The appellant] approached at no less than 135 [km/h] in the posted 60 [km/h] zone, driving into the right rear portion of the stopped car, continued on through the intersection, mounted the southwest curb across the sidewalk colliding with a traffic signal pole. The trunk of his vehicle remained at the pole, the rest of the car shot into the air, rotating, striking trees and a fence lining the adjacent golf course landing on its roof in the grass west of the sidewalk, south of the intersection. [29] As I have stated, on this record, it was open to the sentencing judge to conclude that the appellant’s conduct was “more egregious” than that of the drivers in Kummer , Luskin , and Muzzo . [30] I also reject the appellant’s argument that the sentencing judge erred in principle in his parity analysis by failing to consider that the victims were passengers who had asked the appellant for a ride, after engaging in an evening of drinking, as opposed to innocent members of the public, lawfully using the highways. He submits that the sentencing judge misapprehended his submission. The sentencing judge stated that “the Court cannot appreciate any principled reason for the notion that those that kill their friends and family are less morally blameworthy or the lives of the deceased less valued, than when they take the lives of a stranger”: at para. 50. However, the appellant clarifies that he does not argue that his actions were less morally blameworthy because the victims had asked for a ride. Rather, the appellant argues his victims were less vulnerable than those in Kummer , Luskin , and Muzzo because they voluntarily assumed the risk of being in an accident and suffering death or bodily harm as a result. In effect, he argues that an aggravating factor that was present in those cases was absent here. [31] According to the appellant’s admissions pursuant to s. 655 of the Criminal Code , all the victims had been drinking. Ravina Budhooram’s BAC was 71 mg in 100 mL; Rivera Ramsahai’s BAC was 235 mg in 100 mL; Tej Gangoo’s BAC was 139 mg in 100 mL; and Atul Verma’s BAC was between 72 and 92 mg in 100 mL. Even if voluntary assumption of risk might, in certain circumstances, operate as distinguishing factor (and I do not decide that it could), it cannot do so in this case where the victims’ judgment and ability to assess risk, like that of the appellant, was impaired by alcohol. Further, innocent members of the public, lawfully using the roads, were at risk. The appellant’s bumper flew off and struck another vehicle he passed at speed before he hit another vehicle stopped at a red light, lost control of his own vehicle and crashed. [32] Finally, I agree with my colleague that the sentencing judge’s failure to address and accept the appellant’s argument that the fact that he is subject to numerous lawsuits as a result of these events is a mitigating factor, or at least a distinguishing factor, does not constitute an error in principle. [33] Accordingly, I would grant leave to appeal sentence, but dismiss the appeal. Released: “A.H” January 22, 2020 “Alexandra Hoy A.C.J.O.” [1] I note, for example, that if a person is convicted of certain offences and the penalty imposed by the court includes a period of licence suspension, no demerit points are recorded: Demerit Point System , O. Reg. 339/94, ss. 2-3, made under the Highway Traffic Act , R.S.O. 1990, c. H.8.

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. Sinclair, 2020 ONCA 61 DATE: 20200130 DOCKET: C64886 Pardu, Brown and Huscroft JJ.A. BETWEEN Her Majesty the Queen Respondent and Marcus Sinclair Appellant Andrea Vanderheyden, for the appellant Jeremy Tatum, for the respondent Heard: January 6, 2020 On appeal from the convictions entered on May 17, 2017 and the sentence imposed on October 12, 2017 by Justice Nancy Mossip of the Superior Court of Justice. Pardu J.A.: [1] The appellant appeals from convictions for trafficking in persons over the age of 18 years and theft. He submits that the trial judge erred in her charge to the jury in three respects and further by amending the indictment charging theft. Specifically, the appellant argues that the trial judge: (1) provided misleading instructions on the meaning of exploitation as defined in s. 279.04(1) of the Criminal Code , R.S.C., 1985, c. C-46; (2) did not adequately relate the Facebook messages from the complainant to the appellant to the principles governing prior inconsistent statements and explain more fully the significance those messages had for the complainant’s credibility; (3) did not adequately explain psychological safety as it relates to the definition of exploitation; and (4) inappropriately amended the indictment from an allegation that the appellant stole four cell phones and a tablet to theft of three cell phones and a tablet, to conform to the complainant’s evidence. [2] I do not accept these arguments and would dismiss the appeal from conviction. [3] The appellant also appeals from his sentence, alleging the trial judge erred in failing to consider his pretrial custody. The Crown concedes that the appellant should have been given this credit. I would allow the appeal from sentence and vary the sentence accordingly. A. BACKGROUND [4] The complainant was homeless and living in a shelter when she met the appellant. She was about 18 or 19 years old. She was working as a sex trade worker. Her two children were in custody of the Children’s Aid Society. The appellant offered her a place to live in his apartment. They were together for approximately seven years. [5] The complainant said the appellant led her to believe she could have a better life and he would adopt her children if she worked hard. She testified that he mentally abused and controlled her, saying that he: · kept most of the money she earned · took calls from clients, posted ads for her, told her what to charge clients, and devised a pseudonym for her · sometimes hid in the hotel room when she was with a customer, and · called her lazy for not wanting to work and not taking calls from clients. [6] She said she tolerated the way he treated her because she had nowhere to go, no money, no friends or family to turn to, and he was all she had. She also said that, despite not being in a romantic relationship with the appellant, she felt attached to and invested in him due to the time and money she had given him. [7] She had hundreds of clients over the years when she was with the appellant. During cross-examination, the complainant said that no one told her there would be consequences if she refused a client. Sometimes she left the appellant and went to other cities, although she still provided him with her earnings from Edmonton, for example. [8] The appellant did not testify. At trial, his defence was that he was the complainant’s friend who helped her with various aspects of her sex trade work, at the complainant’s request. The appellant also took the position that the complainant chose to work in the sex trade of her own free will and denied any coercion or violence on his part. B. STATUTORY PROVISIONS [9] The appellant was charged under section 279.01(1) of Criminal Code , which reads as follows: Every person who recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation is guilty of an indictable offence Exploitation is defined under section 279.04(1) of the Criminal Code : For the purposes of sections 279.01 to 279.03, a person exploits another person if they cause them to provide, or offer to provide, labour or a service by engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service. [10] The first element of the offence is an action by the accused, who must be a person who “recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person”. This court explained the meaning of “influence” in this context in R. v. Gallone , 2019 ONCA 663, 147 O.R. (3d) 225, at para. 47: Consistent with Perreault , I would define “exercises influence” over the movements of a person for the purposes of s. 279.01(1) as something less coercive than “exercises direction”. Exercising influence over a person’s movements means doing anything to affect the person’s movements. Influence can be exerted while still allowing scope for the person’s free will to operate. This would include anything done to induce, alter, sway, or affect the will of the complainant. Thus, if exercising control is like giving an order that the person has little choice but to obey, and exercising direction is like imposing a rule that the person should follow, then exercising influence is like proposing an idea and persuading the person to adopt it. [Footnote omitted.] [11] There was no substantial dispute as to this element of the offence at trial. There can be no doubt the appellant exercised influence over the complainant by persuading her to live with him, by telling her how much to charge customers, and by posting ads for her to work as a sex trade worker, among other things. [12] The second element is that the accused’s actions must be for the purpose of exploiting or facilitating the exploitation of the complainant. Actual exploitation is not required. The focus is on the accused’s state of mind. Where exploitation arises on the facts, “inferring that the accused’s purpose was to exploit the victim will usually be a relatively straightforward task”: Gallone , at para. 54; R. v. A.A. , 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 87. [13] The third element is met if the accused causes the complainant to provide or offer to provide a service. Again, there was no dispute that the complainant provided and offered to provide services as a sex trade worker. [14] The fourth element is that the accused so causes the complainant to provide or offer a service by “engaging in conduct that, in all the circumstances, could reasonably be expected to cause the other person to believe that their safety or the safety of a person known to them would be threatened if they failed to provide, or offer to provide, the labour or service”. Actual exploitation is not necessary. The fourth element is assessed on an objective basis. Safety includes protection from psychological harm: A.A. , at paras. 71-73; Gallone , at paras. 53-54. [15] Circumstances that might be relevant when assessing whether conduct could reasonably be expected to cause a complainant to fear for their safety might include: · the presence or absence of violence or threats · coercion, including physical, emotional or psychological · deception · abuse of trust, power, or authority · vulnerability due to age or personal circumstances, such as social or economic disadvantage and victimization from other sources · isolation of the complainant · the nature of the relationship between the accused and the complainant · directive behaviour · influence exercised over the nature and location services provided · control over advertising of services · limitations on the complainant’s movement · control of finances · financial benefit to the accused, and · use of social media to assert control or monitor communications with others. For an example in which some of these factors are applied, see R. v. Crosdale , 2018 ONCJ 800, at paras. 139, 144, and 148-169. C. ANALYSIS [16] I turn to a consideration of the specific errors alleged by the appellant. (1) The trial judge provided proper instructions on the meaning of exploitation as defined in s. 279.04(1) of the Criminal Code [17] The appellant points to the following section of the charge: Let us look at the definition of “exploitation”. We can take out the words “or the safety of a person known to them,” because there is no evidence that [the complainant] felt the safety of another person would be threatened. The labour or service [the complainant] said she provided was that of prostitution. It is not necessary for this offence that you find that prostitution occurred, though [the complainant] testified that it did. As well, if you accept [the complainant’s] testimony as to Mr. Sinclair advertising her sexual services on certain websites known for this purpose, or answered calls on her behalf, then that conduct would come with the definition of “offer to provide a service”. [18] The appellant says this instruction was unclear and conflated the activity of offering to provide services for a complainant with forcing a complainant to offer to provide services. He argues that the trial judge essentially told the jury that because the appellant advertised the complainant’s services and answered calls for the complainant, his behaviour fell within the definition of “offering to provide a service.” [19] I do not agree. In this portion of the charge, the trial judge was addressing the third element as described above, about which there was little controversy. This portion of the charge had nothing to do with the appellant’s purpose or whether the conduct was exploitive. (2) The trial judge provided proper instructions regarding the complainant’s Facebook messages and prior inconsistent statements [20] After the complainant spoke to police and the appellant was charged, the complainant sent a number of Facebook messages to the appellant, including the following: · “You never were the bad guy.” · “I want this to work I will fix it” · “They want to tap my phone delete the messages” · “You the realize nigga Ive ever met I miss you It ain't right without you” · “I have enough to help you Let me help you we was good Here everything I said to them was a lie I want this to work.” · “I only still wanna be your partner if you want me too” · “Can u put something up for me” [21] The trial judge gave the jury full and legally correct instructions on the use of prior inconsistent statements. She reminded the jury that the complainant had agreed that she had numerous communications with the appellant on Facebook, that they would have the written communications with them in the jury room, and that she was not going to go through them in her charge. [22] This was sufficient in the context of a three-day jury trial, given that the jury had the written communications with them during their deliberations. The jury acquitted the appellant of two counts of assault and one count of withholding documents, so it is clear the jury did not uncritically accept the complainant’s testimony. (3) The trial judge adequately explained “psychological safety” as it relates to the definition of exploitation [23] The trial judge instructed the jury on this issue as follows: The reference to safety in the above definition requires further elaboration. This definition does not require that [the complainant’s] safety actually be threatened, and safety includes a consideration of psychological safety. Based on all of the evidence, if you find either that it was reasonable that [the complainant] felt her safety was threatened, or simply that it could reasonably be expected that a person in [the complainant’s] situation would believe that her safety, either physical or psychological, was threatened, for example by any conduct that you find Mr. Sinclair said or did to her, that part of the definition would also be met. The test to be proved by the Crown is not whether [the complainant] was actually threatened. The test is whether you find the conduct of Mr. Sinclair in all the circumstances, could reasonably be expected to cause [the complainant] to believe that her safety was threatened. So the evidence related to this question is: [the complainant] testified that she felt she had to go to work as a prostitute, because she was afraid of Mr. Sinclair, in other words that her safety was threatened. She said he did punch her on one occasion and tipped her out of a chair on another occasion when he was angry. You will recall that she also said they had numerous arguments in which he insulted her. She said he threw the fact that her children were taken by the CAS in her face. Remember what I said about “safety” including “psychological safety” as well as “physical safety”. [The complainant] also testified that Mr. Sinclair kept most of the money she made as a prostitute. [The complainant] said she had no place to live; she had no friends or family. [The complainant] told you that she stayed because she was emotionally abused by Mr. Sinclair, and he was all she had. [24] I do not agree that the trial judge needed to import the notions of actual “serious bodily harm” or “subjective fear for safety” drawn from other statutory contexts. The use of the word “safety” in itself suggests more than a trivial interference with either physical or psychological well-being. The assessment here was an objective one: could the appellant’s conduct be reasonably expected “to cause [the complainant] to believe that her safety was threatened.” [25] In the circumstances of this case, no prejudice was occasioned by the trial judge’s failure to further define “safety” or “psychological”. On a functional review of the charge, the submissions of counsel, and the evidence adduced at trial, I am satisfied that the jury was “left with a sufficient understanding of the facts as they relate to the relevant issues”: R. v. Jacquard , [1997] 1 S.C.R. 314, at para. 14. Put another way, “the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues”: R. v. Cooper , [1993] 1 S.C.R. 146, at p. 163; R. v. Newton , 2017 ONCA 496, 349 C.C.C. (3d) 508, at para. 13. (4) The trial judge did not err in allowing the amendment to the indictment [26] Section 601(3)(b) of the Criminal Code provides that a court shall, at any stage of the proceedings, amend the indictment where it appears that the indictment fails to state or states defectively anything that is requisite to constitute the offence, or is in any way defective in substance, and the matters to be alleged in the proposed amendment are disclosed by the evidence taken on the trial. In deciding whether to grant the amendment, as per s. 601(4) of the Criminal Code , the court must consider the following: (a) the matters disclosed by the evidence taken on the preliminary inquiry (if relevant); (b) the evidence taken on the trial, if any; (c) the circumstances of the case; (d) whether the accused has been misled or prejudiced in his defence by any variance, error or omission; and (e) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done. [27] Here, the amendment changed the number of cellphones alleged to have been stolen from four to three. There was no dispute the property was valued at less than $5000. The appellant’s defence was that he did not steal any of the complainant’s property, and that the Crown did not prove the property belonged to the complainant. [28] I agree with the Crown that the appellant was not prejudiced by the amendment. The nature of the property alleged to have been stolen did not change and the offence remained the same. The jury had the complainant’s inconsistent statements about the number of cell phones. The jury could use those statements to assess her credibility regarding the theft allegation. [29] The trial judge did not err in permitting the amendment. (5) Sentence appeal [30] The appellant was sentenced to 30 months incarceration. Before release on bail, he spent 14 days in pretrial custody. The Crown concedes that the sentence should be varied to give 21 days credit for the pretrial custody. (6) Language used to describe the complainant [31] The complainant was a troubled, homeless, and vulnerable person when she met the appellant. The jury concluded that he exploited her, thereby victimizing her. I have chosen to refer to her in this decision as a “sex trade worker” rather than a “prostitute” because, in my view, the descriptor “prostitute” carries with it negative connotations that risk dehumanizing or demeaning a victim or complainant. Sex trade worker is a more neutral descriptor that lessens this risk. [32] As pointed out in R. v. Barton , 2019 SCC 33, 376 C.C.C. (3d) 1, at para. 230, per Abella and Karakatsanis JJ. (dissenting in part, but not on this point): Based on studies that found that “jurors were more likely to convict a defendant accused of raping a woman with a chaste reputation than an identical defendant charged with assaulting a prostitute”, this Court in Seaboyer expressly warned against the use of the word “prostitute” because the use of this term is intrinsically linked to “twin myths” reasoning and can lead to substantial prejudice in the way the jury assesses the evidence. [Citations omitted.] [33] The word “prostitute” is no longer used in current provisions of the Criminal Code . D. DISPOSITION [34] For the reasons above, I would dismiss the conviction appeal and would allow the sentence appeal by reducing the sentence to 29 months and 7 days to reflect the appellant’s pretrial custody credit. Released: January 30, 2020 “GP” “G. Pardu J.A.” “I agree David Brown J.A.” “I agree Grant Huscroft J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Tahmasebi, 2020 ONCA 47 DATE: 20200129 DOCKET: C65029 Hoy A.C.J.O., Doherty and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Ramin Tahmasebi Appellant Adam Little, for the appellant Davin Garg, for the respondent Heard: November 14, 2019 On appeal from the conviction entered by Justice Peter N. Bourque of the Ontario Court of Justice on November 28, 2017, and from the sentence imposed on February 20, 2018, with reasons reported at 2017 ONCJ 816 and 2018 ONCJ 112. Zarnett J.A.: I. INTRODUCTION [1] The appellant was convicted of impaired driving causing bodily harm and refusal to comply with a demand for a urine sample. He was sentenced to 90 days in custody and a two year driving prohibition. A victim surcharge was also imposed. The appellant appeals both his conviction and sentence. [2] On his conviction appeal, the appellant raises two grounds. First, he argues that his rights under s. 10(b) of the Canadian Charter of Rights and Freedom were violated when, subsequent to his arrest on charges of dangerous driving and impaired driving causing bodily harm and his initial consultation with duty counsel, he was denied the opportunity to re-consult with a lawyer when demands for a drug evaluation and then a urine sample were made. Second, he argues that the trial judge erred in his treatment of the causation requirement for the offence of impaired driving causing bodily harm. [3] On his sentence appeal, the appellant argues that a 90 day custodial sentence constituted an unfit sentence. The Crown concedes that the victim surcharge that was imposed must be vacated. [4] For the reasons which follow, I would dismiss the conviction appeal, grant leave to appeal sentence, vacate the victim surcharge, but otherwise dismiss the sentence appeal. II. FACTUAL BACKGROUND [5] On April 19, 2016, the appellant drove his car onto a stranger’s driveway, stopped there, and remained in the car. The homeowner called the police. Two officers attended the scene, one shortly after the other – P.C. Finley and P.C. Paolucci. [6] After P.C. Finley knocked on the driver side window of the appellant’s car several times, the appellant rolled it down. He appeared to be confused and drowsy. P.C. Finley asked the appellant where he was going; he answered that he lived close by and was just taking a nap. P.C. Finley returned to his cruiser, which was stopped behind the appellant’s car, intending to turn on its video camera to do an impaired driving investigation. The appellant’s car rolled backwards while P.C. Finley was behind it, pinning him against his cruiser and injuring him. [7] The appellant was arrested on the scene and charged with dangerous driving causing bodily harm. He was placed in the back of a police cruiser and read his rights, including his right to counsel under s. 10(b) of the Charter . At the time, as recorded on the cruiser’s in-car camera, the appellant said he understood his rights, asked to speak to a lawyer, and explained in his own words the meaning of the caution he had received. [8] At the police station, the appellant told the Staff Sergeant that he was taking an opioid analgesic. The appellant was charged with impaired driving causing bodily harm and re-read his rights to counsel. P.C. Paolucci then called duty counsel and told him the appellant faced dangerous driving and impaired driving charges. The appellant spoke to duty counsel for approximately 8 minutes. [9] A police drug recognition expert (“DRE Officer”) spoke to the appellant, made a drug evaluation demand (the “DRE demand”), and asked the appellant if he understood it. The appellant responded “[y]es, totally”. [10] The DRE Officer asked the appellant if he had spoken to counsel; when the appellant said no, the DRE Officer said he had observed the appellant on the phone speaking to duty counsel. The appellant responded “[o]h, that was a lawyer?” and then confirmed speaking to him. The DRE Officer then proceeded to conduct the drug evaluation. [11] After the DRE Officer determined that the appellant’s ability to drive was impaired by drugs, he demanded that the appellant provide a urine sample. The DRE Officer explained the demand to the appellant and warned him that failure to provide a urine sample would result in another charge. The appellant asked to speak to a lawyer again, but the DRE Officer responded that the appellant had already spoken to a lawyer, who had been advised that the appellant was being charged with impaired driving, and he was not required to provide him with another consultation. The appellant ultimately refused to comply with the urine sample demand. He was charged with refusal to provide a urine sample when he knew or ought to have known that his operation of a motor vehicle caused an accident that resulted in bodily harm to another person. III. THE TRIAL JUDGE’S DECISION [12] The trial judge found that the appellant’s ability to operate his car was impaired by drug, namely a combination of cannabis and a central nervous system depressant. And he found that that impairment caused bodily harm, expressing that conclusion as follows at para. 54: I find that the defendant was in control of the motor vehicle when it backed up and crushed Brian Finley. I find that some action on his part while he was impaired led to the vehicle moving backwards and pinning Brian Finley in between the defendant’s car and the police cruiser. To be so convinced, I do not need to know whether it was caused by a removal of his foot from the gas, or a placing of the vehicle in reverse, or any combination of his actions. I find he was in control of the vehicle when it moved. [13] The trial judge accordingly found the appellant guilty of the offence of impaired driving causing bodily harm under what was then s. 255(2) of the Criminal Code , R.S.C. 1985, c. C-46, as it existed on 28 November 2017. [1] [14] The trial judge dismissed the appellant’s argument that his s. 10(b) rights had been violated. He rejected the appellant’s evidence that he had not understood his rights when they were read to him. He found that the appellant’s “expressed words of comprehension at the roadside were true...[and] he did understand his rights to counsel at all times and indeed his right to remain silent”: at para. 60. The appellant consulted duty counsel pursuant to his rights. The trial judge also rejected the appellant’s argument that the demand for a urine sample gave rise to a right to a further consultation with a lawyer. [15] The trial judge was not convinced that the appellant knew or ought to have known P.C. Finley had suffered bodily harm at the time he refused to provide the urine sample, but convicted him of the included offence of refusal to comply with a demand for a urine sample under what was then s. 254(5) of the Code . [16] The trial judge imposed a 90 day global sentence: 60 days for impaired driving causing bodily harm and 30 days for refusal to comply with a demand for a urine sample. He also prohibited the appellant from driving for two years. In deciding that this was an appropriate sentence, the trial judge considered the level of the appellant’s impairment, which he felt had been significant, its role in causing bodily harm to P.C. Finley, even though it had not resulted in permanent injury, the fact that the appellant had a prior (albeit dated) conviction for refusing to provide a sample, as well as the fact that the appellant had otherwise led an exemplary life. IV. ANALYSIS A. THE S. 10(B) GROUND OF APPEAL (1) Introduction [17] The appellant argues that his s. 10(b) rights were breached because he was denied the opportunity to re-consult counsel. While at trial the appellant’s argument was that the right to re-consult arose when the demand for the urine sample was made, on appeal the appellant’s position is that the right to re-consult arose when the DRE demand was made. [18] Although the appellant’s argument in this court is broader than it was at trial, nothing turns on the variation in his position. The conceptual framework underlying the appellant’s argument and the Crown’s response concerning whether there was a right to re-consult counsel is essentially the same, regardless of whether the triggering event is viewed as the DRE demand or the urine sample demand. (2) When a s. 10(b) Right to a Second Consultation with Counsel Arises [19] Section 10(b) of the Charter states that upon arrest or detention, everyone has the right to “retain and instruct counsel without delay and to be informed of that right”. Its purpose is “to support the detainee’s right to choose whether to cooperate with the police investigation or not, by giving him access to legal advice on the situation he is facing. This is achieved by requiring that he be informed of the right to consult counsel and, if he so requests, be given an opportunity to consult counsel”: R. v. Sinclair , 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 32. [20] While “normally, s. 10(b) affords the detainee a single consultation with a lawyer…in some circumstances, a further opportunity to consult a lawyer may be constitutionally required”: at para. 43. A request to re-consult with counsel is not in itself sufficient. “What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not”: at para. 65. [21] In Sinclair , the majority described three situations in which a second consultation with counsel would be constitutionally required. The first is where, after the initial consultation, non-routine procedures are proposed by the police (such as participating in a line-up or submitting to a polygraph) that do not generally fall within the expectation of the advising lawyer at the time of the initial consultation: at para. 50. The second is where, after an initial consultation “tailored to the situation as the detainee and his lawyer then understand it” based on what they were told as to the reasons for the detention, “the investigation takes a new and more serious turn” making the advice inadequate in light of “the actual situation, or jeopardy, the detainee faces”: at para. 51. The third is where the circumstances indicate that the detainee did not understand his right to counsel, or if police undermined the legal advice received by the detainee “distorting or nullifying it”: at para. 52. In each such situation a further opportunity to consult with counsel is necessary to fulfill the purpose of s. 10(b): at para. 49. [22] As pointed out in Sinclair , these three situations do not exhaust the categories of circumstances in which a right to re-consult may arise. Additional categories may be developed where a change in circumstances makes a second consultation necessary to ensure that the purpose of s. 10(b) is achieved: at paras. 49 and 53-54. (3) No Right to a Second Consultation with Counsel Arose In This Case [23] The appellant argues that this case falls within each of the three categories referred to in Sinclair , or that a new category should be recognized here. I disagree. (i) The First Category in Sinclair Does Not Apply [24] The first category in Sinclair does not apply because what occurred after the appellant was charged with impaired driving causing bodily harm and had his initial consultation with duty counsel — namely the DRE demand and, based on the result of the drug evaluation, the urine sample demand – were procedures that were “within the expectation of the advising lawyer at the time of the initial consultation”: at para. 50. The procedures of a DRE demand and urine sample demand and the offence of impaired driving are integrally related. The procedures would be within the expectation of a lawyer advising a person charged with impairing driving. As the trial judge stated, “the advice given by counsel clearly should anticipate these probable outcomes”: at para. 71. [25] At the relevant time, the Code specified procedures for the investigation of whether the offence of impaired driving under s. 253(1)(a) of the Code had occurred and specified consequences to those procedures. [2] The police were entitled to demand that a person submit to an evaluation by a DRE Officer, if there were reasonable and probable grounds to believe the offence of impaired driving had been committed: s. 254(3.1). If, on completion of the evaluation, the DRE Officer had reasonable grounds to believe that the person’s ability to operate a motor vehicle was impaired by drug or alcohol, the DRE Officer could demand a sample of either oral fluid or urine: s. 254(3.4)(a). Failure to comply with either demand was an offence: s. 254(5). [26] The statutory relationship between the procedures of a DRE demand and a urine sample demand on the one hand, and the offence of impaired driving on the other, does not permit the conclusion that the procedures fall outside the expectation of a lawyer advising a person who has been arrested or detained on a charge of impaired driving. That such demands might be made, and their consequences, would fall directly within the expected topics of advice counsel would give a person charged with impaired driving. [27] In R. v. Fogarty, 2015 NSCA 6, 320 C.C.C. (3d) 348, the Nova Scotia Court of Appeal rejected an argument that a person who had spoken to counsel after receiving a DRE demand was entitled to re-consult counsel before deciding whether to comply with a fluids sample demand. The court stressed the relationship between the DRE demand and fluids sample demand procedures, inferring from that relationship that counsel would have been expected to advise about both in the consultation that did occur. At paras. 47-48, the court stated: Sinclair , para. 50 , says that “[n]on-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation”. In my view, a blood demand under s. 254(3.4) would occupy the expectation of the advising lawyer during the DRE consultation under s. 254(3.1). The point of the DRE is to determine whether to demand a fluids sample. That is clear from s. 254(3.4): “If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person’s ability to operate a motor vehicle … is impaired by a drug … the evaluating officer may … demand” a sample of saliva, urine or blood. The DRE and blood demand are not disjunctive investigative techniques. Rather, the DRE culminates in the fluids demand. That linear progression is apparent from the plain words of ss. 254(3.1) and (3.4), with which competent counsel would be familiar. During the DRE consultation with the client, competent counsel would expect that a failed DRE likely would trigger a demand for blood, urine or saliva, and would advise the client respecting that eventuality. [28] In R. v. Wilkinson , 2014 ONCJ 515, 319 C.R.R. (2d) 327, the accused was arrested on a charge of impaired driving, read a breath demand, and advised of her right to counsel. After she declined to speak to counsel, a breath test was conducted. The police then made a DRE demand and conducted a drug evaluation resulting in a request for a urine sample. The accused was not re-advised of a right to counsel before the DRE demand or drug evaluation. The trial judge rejected the argument that the accused should have been re-advised of s. 10(b) rights before the drug evaluation and that therefore her s. 10(b) rights were infringed, relying on the relationship between the offence of impaired driving and the procedures the Code enacted to investigate that offence. At para. 14, the court said: I do not regard the progress from alcohol-related breath testing to the DRE process within the same investigation for impaired driving as being a transition to a “non-routine procedure” as described in Sinclair . The issue as contemplated by the Supreme Court of Canada requires that the accused face a significantly changed set of circumstances then that which existed at the time of the initial advice of her right to consult counsel. [29] There is no issue in this case of any variance between legal advice competent counsel would be expected to provide to a person detained on a charge of impaired driving, and the actual advice the appellant received. In Sinclair , at para. 57, the majority stated: “It is assumed that the initial legal advice received was sufficient and correct in relation to how the detainee should exercise his or her rights in the context of the police investigation. The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct”. In this case, there was no evidence as to the content of the actual advice the appellant received. The appellant must accept the assumption that the legal advice he received was, in its context, sufficient and correct. [30] Thus, there is no basis here to reach the conclusion that the initial advice the appellant received, after being charged with impaired driving, was not sufficient and correct to address the foreseeable consequences of that charge, namely a DRE demand and depending upon its result, an oral fluid or urine sample demand. There was, to use the words of Fogarty , a “linear progression” from one to the other, a progression expressly contemplated by the Code . What occurred here, after the initial advice of counsel, was neither the result of changed circumstances or new developments. The procedures undertaken by the police were not, viewed in the context of an impaired driving investigation, non-routine such as to fall outside of what would be expected to be covered by the initial advice the appellant received. (ii) The Second Category in Sinclair Does Not Apply [31] For similar reasons, I reject the argument that the second circumstance in Sinclair , a change in jeopardy, applies. [32] The appellant argues that, unlike other investigative techniques, the procedures of a DRE demand and urine sample demand carry not only a self-incrimination risk if the demands are complied with, but the additional risk that non-compliance can constitute an offence. Thus, the making of either demand changes the jeopardy an accused faces beyond that in place under the impaired driving charge itself. [33] The change in jeopardy that Sinclair posits as giving rise to a right to re-consult occurs where, after the initial consultation, an investigation has taken “a new and more serious turn as events unfold”: at para. 51. Since the initial advice is expected to have been “tailored to the situation as the detainee and his lawyer then understand it”, such a “turn” must be one that takes matters beyond that situation and the expectations it gave rise to: at para. 51. [34] Determining whether such a “turn” has occurred requires a comparison between, on the one hand, the situation and jeopardy that counsel and the detainee would understand at the time of their initial consultation, and on the other hand, the  situation and jeopardy that has arisen as a result of subsequent events. A “change in jeopardy will require an accused to be provided an additional opportunity to consult counsel, where there is either ‘a discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence that that contemplated at the time of the warning.’”: R. v. Guthrie , 2016 ONCA 466 at para. 11 (internal citations omitted). [35] The consequences of foreseeable investigative procedures in an impaired driving investigation — the prospect that compliance with either a DRE demand or oral fluid or urine sample demand may yield evidence that incriminates the accused and that non-compliance may be an offence – is not a new jeopardy arising from a new and more serious turn of events. It is not a discrete change in the purpose of the impaired driving investigation to an offence not contemplated at the time the appellant exercised his right to counsel. Just as the procedures themselves are foreseeable at the time of the initial consultation, the jeopardy arising from them is also foreseeable and within the expected subject matter of the initial consultation. (iii) The Third Category in Sinclair Does Not Apply [36] Nor do I agree that the third category in Sinclair applies. This category   arises where an accused “may not have understood the initial s. 10(b) advice of his right to counsel”, or where the police “undermine the legal advice that the detainee has received”: at para. 52. [37] Here, there is no suggestion of the police having undermined any advice. As to the appellant’s understanding, the trial judge expressly found that the appellant “did understand his rights to counsel at all times and indeed his right to remain silent”: at para. 60. As I have mentioned above, there was no evidence of the content of the actual advice the appellant received, and the appellant did not give evidence that there was any aspect of it he did not understand. The trial judge did not find the appellant a credible witness; he was not obliged to find that the appellant’s reaction to the DRE Officer reminding him he had spoken to counsel, or his request to speak to counsel again in response to the demand for a urine sample, indicated the appellant’s failure to understand advice he had received. As the majority stated in Sinclair : “It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so: at para. 55. No such objective factors are present here. (iv) No New Category Should Be Created Here [38] Although Sinclair makes it clear that the categories of cases in which there is a right to re-consult counsel “are not closed”, a new category should only be developed where there is a change of circumstances that makes a second consultation necessary “to ensure that s. 10(b) has achieved its purpose”: at para. 49. Where the circumstances do not fall within one of the three previously recognized situations, the question is whether “a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)’s purpose of providing the detainee with advice in the new or emergent situation ” (emphasis added): at para. 54. [39] For the reasons above, neither a DRE demand under what was then s. 254(3.1), nor an oral fluid or urine sample demand under what was then s. 254(3.4), is a change of circumstances from those facing a person detained on a charge of impaired driving. A person who has received legal advice (assumed to be sufficient and correct) after such a charge does not face a new or emergent situation when either demand is made. Because the demands are foreseeable and the initial advice would be expected to address them and their consequences, it would not be appropriate to create a new category of cases in which there is an entitlement to a second consultation with counsel to cover the circumstances in the case at bar. (v) Conclusion on Right to Re-Consult [40] Accordingly, I conclude that no breach of the appellant’s s. 10(b) rights occurred and reject this ground of appeal. [41] In light of my conclusion that no infringement of the Charter took place, it is unnecessary for me to consider whether, if there had been a breach, evidence should have been excluded under s. 24(2) of the Charter , or whether a broader remedy of a new trial should be ordered under s. 24(1) of the Charter . B. THE CAUSATION GROUND OF APPEAL [42] The appellant’s complaint about the causation conclusion reached by the trial judge focuses on para. 54 of his reasons: I find that the defendant was in control of the motor vehicle when it backed up and crushed Brian Finley. I find that some action on his part while he was impaired led to the vehicle moving backwards and pinning Brian Finley in between the defendant’s car and the police cruiser. To be so convinced, I do not need to know whether it was caused by a removal of his foot from the gas, or a placing of the vehicle in reverse, or any combination of his actions. I find he was in control of the vehicle when it moved. [43] The appellant submits that these reasons are insufficient, and reverse the onus of proof. He argues that the trial judge was faced with conflicting evidence about the circumstances of the accident, and he did not resolve the inconsistencies. For example, the trial judge did not deal with the appellant’s evidence that prior to the car moving backwards, one of the officers had said to him: “Move the car forward. My colleague can’t pass through”. The appellant argues that it would have made a difference if the appellant was moving the car after a request by the police to do so, and the trial judge’s reasons simply do not deal with this. [44] I would not give effect to this argument. While it may have made a difference if the appellant had been asked to move the car backwards by the police and in doing so he had struck one of the officers, I fail to see how the appellant would have been assisted by a finding that he had been asked to move the car forward , given that he moved it backwards . In any event, the trial judge did not find the appellant to be a credible witness. He accepted the evidence of the police officers that the appellant was in control of the vehicle when it moved backwards and struck PC Finley. He found on the evidence that it was some action on the appellant’s part that caused the car to move backwards, a finding that was open to him on the record. [45] The causation issue in this case was not complex. The trial judge’s findings were sufficient in the circumstances, and do not involve any reversal of the onus of proof. C. THE SENTENCE APPEAL [46] The appellant argues that the trial judge’s imposition of a custodial sentence was unfit, and his reasons are insufficient to explain why he did so. I disagree. [47] The relatively short custodial sentence here does not fall outside the range for similar offences. The trial judge reviewed the need for the sentence to reflect denunciation and deterrence, and he adverted to and considered relevant aggravating and mitigating factors. [48] Sentencing decisions attract a high level of deference on appeal: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 39-41 and 43-44. In my view, no error of principle or law has been shown, nor is the sentence demonstrably unfit having regard to the seriousness of the offence and the blameworthiness of the offender. There is no basis for appellate intervention, except in respect to the victim surcharge, which must be set aside under R. v. Boudreault , 2018 SCC 58, 429 D.L.R. (4th) 583. V. CONCLUSION [49] I would dismiss the conviction appeal, grant leave to appeal sentence, set aside the victim surcharge, but otherwise dismiss the sentence appeal. Released: “A.H” January 29, 2020 “B. Zarnett J.A.” “I agree. Alexandra Hoy A.C.J.O.” “I agree. Doherty J.A.” [1] In 2018, ss. 253-255 of the Code were repealed and replaced with s. 320 of the Code . [2] The offence of impaired driving by drug causing bodily harm under what was then s. 255(2) of the Code included the commission of the offence of impairing driving under what was then s. 253(1)(a): “Everyone who commits an offence under paragraph 253(1)(a) and causes bodily harm to another person as a result is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Yusuf, 2020 ONCA 69 DATE: 20200130 DOCKET: C65516 Watt, Tulloch and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Mahad Yusuf Appellant Jessica Zita, for the appellant Nicolas de Montigny, for the respondent Heard and released orally: January 20, 2020 On appeal from the conviction entered on November 9, 2017 and the sentence imposed on April 13, 2018 by Justice Neil L. Kozloff of the Ontario Court of Justice. REASONS FOR DECISION [1] After a trial before a judge of the Ontario Court of Justice, the appellant was convicted of robbery; unlawful confinement; and breach of recognizance arising out of his participation in a home invasion robbery. The trial judge imposed a sentence of 4.5 years from which he deduced 21.5 months’ credit for pre-sentence custody. The net sentence imposed was 2 years, 10 months and 15 days. [2] The appellant appeals both conviction and sentence. The Appeal from Conviction [3] On the appeal from conviction, the appellant advances arguments which challenge the conviction of unlawful confinement only. [4] In our view, these arguments fail. The Background Facts [5] The offences arise out of a home invasion of an apartment occupied by three students at a local community college. The appellant, who was known to the principal victim, was the person who arranged to attend at the apartment on a pretext. When the victim answered the door and turned his back to it, the appellant and two others, who were masked, entered the premises. One was armed with what the trial judge found was an imitation firearm. The victims were confined within their home and several items of personal property, including cash and various items of electronic equipment, taken from them. The Grounds of Appeal [6] The appellant contends that the conviction of unlawful confinement cannot stand because: i. the offence did not amount to a separate delict discrete from the conduct that constituted the offence of robbery; ii. the trial judge erroneously applied the principles set down in Kienapple v. R ., [1975] 1 S.C.R. 729, to conclude that the offence of unlawful confinement had been made out; and iii. the trial judge ruled on the application of the Kienapple principle in giving his reasons for conviction when the issue had not been raised by either counsel, and did not afford counsel the opportunity to make submissions. [7] We reject these complaints of error. Discussion [8] The evidence adduced at trial, taken as a whole, amply supports the finding of guilt of unlawful confinement. This is not a case, in our view, in which it can be said that there was not a domination and coercive restraint of the principal victim of a sufficient length of time to attract liability for unlawful confinement discrete from the appellant’s liability for robbery. [9] In our view, it would have been better had the trial judge not dealt with the application of the principles in Kienapple until after he recorded his findings of guilt, or at the time of sentencing, and received submissions from counsel on the issue. However, the appellant suffered no tangible prejudice. Above all else, the ruling was correct. The Appeal from Sentence [10] As to sentence, the appellant says that the principal sentence imposed on him should have been four years, rather than four and one-half years. The appellant points to the principle of restraint and to the jump principle in support of this submission. [11] In our view, the sentence imposed reflects no error in principle. It sits within the range of sentence fit for this offence and the offender who committed it. There is no basis for our interference. DISPOSITION [12] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed, except to the extent that the victim surcharge imposed by the trial judge is set aside. “David Watt J.A.” “M. Tulloch J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Royal Canadian Mortgage Investment Corporation v. 1835923 Ontario Ltd., 2020 ONCA 55 DATE: 20200128 DOCKET: C66207 Hoy A.C.J.O., Doherty J.A. and Marrocco A.C.J. ( ad hoc ) BETWEEN Royal Canadian Mortgage Investment Corporation Plaintiff (Respondent) and 1835923 Ontario Ltd. and Dudett A. Kumar Defendants (Appellants) No one appearing for the appellants George Corsianos, for the respondent Heard and released orally: January 16, 2020 On appeal from the judgment of Justice Gisele M. Miller of the Superior Court of Justice, dated October 30, 2018. REASONS FOR DECISION [1] The appellants, 1835923 Ontario Limited (“183”) and Dudett A. Kumar, appeal the judgment of the motion judge in the respondent Royal Canadian Mortgage Investment Corporation’s mortgage enforcement action. The motion judge ordered the appellants to, among other things, pay the respondent $626,719.59 on account of principal money, fees and interest to October 30, 2018 under the mortgage and deliver possession of the mortgaged rental property to the respondent. [2] On January 13, 2020, the President of this panel denied the appellant 183’s request for an adjournment of this appeal and ordered that if on January 16, 2020 (the date the appeal was scheduled to be heard) Mr. Surinder Kumar or an agent did not appear for 183, and Mrs. Dudett Kumar did not appear, the panel would hear the appeal relying on the written materials that had been filed by the parties. To ensure that the respondent was not perceived as having an advantage over the appellants, counsel for the respondent would not be provided with an opportunity to make oral submissions. Counsel for the respondent was agreeable to this. The order ensured that the matter would be considered on its merits by the full panel. [3] This morning, Mr. Kumar sent a letter to this court again asking for an adjournment. No one attended for 183 and Mrs. Kumar did not attend. [4] The history of delay in this matter is set out in the reasons for denying the adjournment request on January 13, 2020: Royal Canadian Mortgage Investment Corporation v. 1835923 Ontario Ltd. , 2020 ONCA 45. We will not repeat it. [5] We have considered the further request for an adjournment and see no reason to depart from the order of January 13, 2020. [6] Accordingly, we considered the merits of the appeal relying on the written materials filed by the parties without oral submissions from counsel for the respondent. [7] The appellant 183 arranged a second mortgage on the property with the respondent. Mrs. Kumar guaranteed this mortgage. The first mortgage on the property had matured before 183 arranged the second mortgage and had not been paid. The respondent’s evidence on the summary judgment motion was that the respondent was unaware that the first mortgage had matured and was in default when 183 requested the second mortgage. Mr. Kumar’s evidence on the summary judgment motion was that he was unaware the first mortgage was in default and that the appellants continued to make payments under the first mortgage after securing the second mortgage. While Mr. Kumar made a bald allegation in a supplementary affidavit that the respondents were aware that the first mortgage had matured prior to arranging the second mortgage, there is nothing in the record to substantiate this. Indeed, it would appear to be inconsistent with Mr. Kumar’s own assertion that he thought the first mortgage had been renewed when he arranged the second mortgage. [8] Default under a prior charge constituted a default under the second mortgage. The respondent paid out the first mortgage and commenced power of sale proceedings. [9] On appeal, the appellants argue that the second mortgage was void ab initio because: (1) the respondent acted in a predatory manner by entering into the second mortgage knowing that the property was already under power of sale proceedings initiated by the first mortgagee and planning to take possession of the property; (2) in the alternative, the respondent failed to conduct due diligence and confirm that the first mortgage was in good standing before permitting the appellants to enter into the second mortgage; and (3) in the further alternative, because the first mortgage had matured before the second mortgage was issued, the appellant 183 was in default as soon as it granted the second mortgage. [10] There is no merit to these arguments. It was the appellants’ responsibility and not the respondent’s obligation to ensure that the first mortgage had been renewed and was in good standing. [11] Accordingly, the appeal is dismissed. [12] After orally releasing these reasons for dismissing the appeal, we permitted the respondent to make brief oral submissions as to costs. In accordance with the mortgage, the respondent is entitled to costs of the appeal in the amount of in the amount of $6,825. “Alexandra Hoy A.C.J.O.” “Doherty J.A.” “Marrocco A.C.J.S.C. ( ad hoc )”

COURT OF APPEAL FOR ONTARIO CITATION: Temedio v. Niagara North Condominium Corporation No. 6, 2020 ONCA 17 DATE: 20200110 DOCKET: M50995 (C66339) Paciocco, Harvison Young and Zarnett JJ.A. BETWEEN Jean Temedio Applicant (Appellant/Responding Party) and Niagara North Condominium Corporation No. 6 and Simpson Wigle Law LLP Respondents (Respondents/Moving Parties) Erik Savas, for the appellant Benjamin J. Rutherford, for the respondents Heard: In writing REASONS FOR DECISION [1] Before this panel, Niagara North Condominium Corporation No. 6 (“Niagara”) and Simpson Wigle Law LLP (together referred to as the “respondents/moving parties”) unsuccessfully defended an appeal brought by Jean Temedio ( Temedio v. Niagara North Condominium Corporation No. 6 , 2019 ONCA 762). In that appeal decision, this panel ordered that an application judge, McArthur J., erred by failing to find special circumstances entitling Ms. Temedio to conduct an otherwise out-of-time assessment of Simpson Wigle Law LLP’s accounts, which were incurred in the enforcement of by-law provisions that Ms. Temedio was allegedly violating. Although those legal accounts were incurred by Niagara, Niagara claims that Ms. Temedio is obliged to pay them pursuant to s. 134 of the Condominium Act, 1998 , S.O. 1998, c. 19 and the condominium by-laws governing Ms. Temedio’s ownership of a condominium in a building owned by Niagara. [2] The respondents/moving parties now ask this panel to exercise this court’s exceptional authority to reconsider its special circumstance finding, and hence the outcome of its decision. They contend that reconsideration is clearly in the interests of justice because this panel relied on a special circumstance that Ms. Temedio had not put before the application judge or the appeal panel, and that the respondents/moving parties could have answered conclusively had it known this circumstance was going to be considered. Specifically, in finding special circumstances, this panel relied upon the decision of an earlier application judge, Taylor J. The impugned passages from this court’s appeal decision read: [30] Similarly, a consideration of the length of time spent arguing the application, the number of pages of materials filed, or whether Ms. Temedio’s counsel correctly predicted how large the Corporation’s claim for legal fees would be, are not determinative of whether special circumstances exist for Ms. Temedio to assess the bills. This is especially so given that Taylor J. made a finding about why the Corporation’s legal bills may have risen to what they were, which raise questions about the fees charged. The application judge failed to take this into account. [31] Taylor J. voiced his disapproval of the conduct of the Corporation in seeking the extreme remedy of eviction (which the Corporation did not obtain) and observed that a less heavy-handed approach on its part might have avoided litigation altogether. Ms. Temedio was on the receiving end of that unsuccessful strategy and approach, yet to the extent the legal bills to the Corporation included time spent on it, Ms. Temedio is being asked to pay for it. The extent to which the fees charged may include amounts for pursuing the failed eviction strategy and the heavy-handed approach raise questions about the amount of the legal bills. So too does the fact that Taylor J. limited the Corporation to an award of $2,500 in costs for the compliance proceeding; this also raises a question about the total fees of $52,000 charged for that proceeding. [3] We deny the application for reconsideration. The appeal was from an application in which Ms. Temedio argued that special circumstances existed because the accounts she was being told to pay were excessive. In the appeal, Ms. Temedio pleaded and argued that the application judge erred in not finding special circumstances. The reasonableness of the accounts as a special consideration was therefore squarely before this court. [4] There is clear relevance between the findings made by an application judge relating to legal costs and the reasonableness of legal costs. Taylor J.’s decision on costs was referenced in the materials filed by both parties in this court and before the application judge. The respondents’/moving parties’ factum on appeal described Taylor J.’s decision in detail, including the costs decision he made. [5] Moreover, the decision of Taylor J. was but one of several factors relied upon by this panel and was offered in support of the more general conclusion that the time spent arguing an application and the number of pages of material filed cannot be determinative of whether special circumstances exist. Taylor J.’s ruling was not decisive in the appeal. [6] Even if it had been true that the respondents/moving parties were not reasonably alerted to the materiality of Taylor J.’s decision during the appeal, the information that the respondents/moving parties seek to rely on could not have affected the result. [7] First, the challenges the respondents/moving parties make to the propriety and reasonableness of the decision of Taylor J. represent an improper collateral attack on that decision, which was never appealed nor reviewed. Those submissions are not properly before this panel. [8] Second, proof that the respondents/moving parties made offers to settle the litigation that Ms. Temedio did not accept provides no answer to whether there were special circumstances to justify an assessment, whatever the relevance of the offers to settle might be on an ultimate assessment. Taylor J.’s point was that had the respondents/moving parties taken a less heavy-handed approach, the litigation that generated the bulk of the accounts could have been avoided. The fact that the respondents/moving parties offered to settle the litigation that Taylor J. considered to have been unnecessarily provoked by the respondents/moving parties cannot answer the material concern that costs incurred may not have been necessary. [9] The application for reconsideration is denied. The parties will have ten days following the release of this decision to provide costs submission not to exceed three pages, as well as bills of costs relating to the costs for of this motion. “David M. Paciocco J.A.” “Harvison Young J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Thompson v. Casey, 2020 ONCA 5 DATE: 20200107 DOCKET: C67032 Brown, Huscroft and Trotter JJ.A. BETWEEN Brian Thompson Applicant (Appellant) and Mary Eileen Casey, Ronald Albert Ornsby, Jennifer Matthews and 1007937 Ontario Inc. Respondents (Respondents) Christopher Salazar, for the appellant K. Jay Ralston, for the respondent Mary Eileen Casey Heard: December 17, 2019 On appeal from the order of Justice Mary E. Vallee of the Superior Court of Justice dated May 2, 2019, with reasons reported at 2019 ONSC 2760. REASONS FOR DECISION [1] The sale of a modest-sized business completed on September 20, 2010 has spawned three related proceedings that have not yet reached definitive, final determinations on their merits. [2] The vendor of the business, 1007937 Ontario Inc. (the “Corporation”), of which Ronald Ornsby is the principal, sold its Fendley’s Flowers operation to Jennifer Matthews for $165,000. In partial payment of the purchase price, Matthews executed a promissory note in the amount of $130,000 in favour of 1007937 Ontario. The Corporation, at the direction of Ornsby, immediately assigned the note to its accountant and Ornsby’s friend, the appellant Brian Thompson, who had lent money to Ornsby, but not to the Corporation. [3] The Corporation’s bank – and secured creditor to the tune of approximately $250,000 – had refused to provide a comfort letter requested by the Corporation to enable the sale transaction to proceed. Nevertheless, it appears that Ornsby sold, and Matthews bought, the business in the face of that refusal. When the bank found out what had happened, it called its loan and gave notice of its intention to realize on its security. [4] Ornsby’s common-law spouse for several years, the respondent Mary Eileen Casey, had guaranteed the Corporation’s debt. The bank looked to her for payment. She paid the bank and received an assignment of the bank’s security over the assets of the Corporation. [5] Three proceedings ensued: (i) On March 23, 2011, Casey sued the Corporation (Barrie Superior Court file 11-0291), seeking indemnity for the amount she paid to the bank in respect of the Corporation’s indebtedness; (ii) On June 21, 2012, Casey sued Ornsby and Matthews (Barrie Superior Court file 12-0720) seeking payment under the security agreement assigned to her by the bank and damages against Ornsby for oppressive conduct in respect of the Corporation’s indebtedness to the bank; and (iii) On October 4, 2018, the appellant, Thompson, commenced this application against Casey, Ornsby, the Corporation, and Matthews seeking various forms of relief that, taken together, would require Matthews to pay the balance due under the promissory note to Thompson. The application appears to have been prompted by two events: (i) Matthews had stopped making monthly payments to Thompson on the note, and (ii) Casey’s two proceedings had not yet gone to trial, despite the extensive passage of time. [6] The application judge dismissed Thompson’s application, but on a without-prejudice basis. [7] We see no error in the application judge’s conclusion that in order to determine the claim of priority asserted by Thompson to the proceeds of Matthew’s promissory note, Thompson first had to demonstrate the validity of the assignment of the note from the Corporation. At para. 41 of her reasons, the application judge explained why, on the evidence filed and legal submissions made before her, she was not able to determine the issue of the validity of the assignment of the promissory note. [8] Yet, the application judge went on to state that she was available to the parties to further consider the issue. In the result, although she dismissed Thompson’s application, she did so “without prejudice to Mr. Thompson’s bringing further proceedings to prove the validity of the assignment because he did not address that issue in this application. If he does bring further proceedings, given the complexity of this matter[,] I will remain seized”: at para. 42. [9] Thompson submits that the application judge erred in making that disposition because, on any view of the facts, Casey was out of time to challenge his claim to priority to the proceeds from the promissory note. In our view, that is far from clear given the matters put in issue by Casey in the pleadings in her two actions, which she started within two years of the sale transaction. [10] However, for other reasons we conclude that the application judge erred in her disposition of this proceeding. While an application judge has broad discretion under r. 38.10(1) of the Rules of Civil Procedure in deciding how to dispose of an application, to which this court must accord deference, the application judge erred in principle in making the specific disposition that she did. She identified an issue that required further consideration on the merits but dismissed the application on a without-prejudice basis, thereby deferring the determination of that issue to a new proceeding, of which she seized herself. By proceeding in that fashion, the application judge’s disposition ran counter to: (i) the principle expressed by s. 138 of the Courts of Justice Act , R.S.O. 1990, c. C.43, to avoid, as far as possible, the multiplicity of proceedings; and (ii) the related principle found in r. 1.04(1.1) that the court shall make orders that are proportionate to the importance and complexity of the issues. Instead of dismissing the application on a without-prejudice basis and putting the parties to the expense of yet another proceeding, the application judge should have directed the trial of an issue, or the whole application, pursuant to r. 38.10(1)(b) and remained seized of the matter. [11] We allow the appeal to the extent of setting aside the Order and remit the application to the Superior Court of Justice for further direction and determination. [12] When the legal expenses incurred to date just in this application are compared to the modest amounts in dispute in this proceeding and the two Casey actions, these cases cry out for combined management and disposition, preceded by a vigorous pre-trial conference in the very near future. Almost a decade has elapsed since the events that spawned these proceedings. The time has come to determine them on their merits. [13] We leave the issue of the costs incurred below up until the date of the Order to the final disposition of the application. Given the mixed success of the parties on this appeal, we make no order as to the costs of the appeal. “David Brown J.A.” “Grant Huscroft J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Wangdah Material Toronto Ltd. v. 1691530 Ontario Ltd., 2020 ONCA 28 DATE: 20200120 DOCKET: C66457 Gillese, Rouleau and Fairburn JJ.A. BETWEEN Wangdah Material Toronto Ltd. and Qing Chen Applicants (Appellants) and 1691530 Ontario Ltd. Respondent (Respondent) AND BETWEEN 1691530 Ontario Ltd. Applicant (Respondent) and Wangdah Material Toronto Ltd. and Qing Chen Respondents (Appellants) Qing Chen, acting in person Robert Wood, for the respondent Heard: January 13, 2020 On appeal from the judgment of Justice Thomas Lederer of the Superior Court of Justice, dated December 27, 2018, with reasons reported at 2018 ONSC 7714. REASONS FOR DECISION I. BACKGROUND [1] The parties were involved in purchasing vehicles and exporting them to China. The appellants would arrange to purchase vehicles and pay deposits for them. On a vehicle-by-vehicle basis, the respondent would agree with the appellants to take over the agreement of purchase and sale. Once the vehicles were sold in China, the respondent would pay the appellant, Mr. Chen, a commission based on the profits from the sale. [2] The appellants purchased two vehicles with the respondent’s money but refused to deliver those vehicles to the respondent for export. Instead, the appellants sold them to a third party and kept the proceeds. This resulted in the respondent refusing to do further business with the appellants. At the time that the respondent severed the relationship between the parties, the appellants had paid deposits on 63 vehicles which had not yet been delivered to the respondent. [3] The respondent brought an application seeking compensation for the conversion of the two vehicles sold by the appellants to a third party. The appellants commenced a counter-application alleging breach of contract and seeking to set off against the amounts claimed for conversion damages for, among other things, the unpaid deposits, unpaid commissions, and various allegedly improper deductions. [4] This matter was the subject of lengthy case management discussions. Ultimately, the parties agreed upon the amount of money that was subject to the claim of conversion arising from the improper sale of the two vehicles to the third parties. That amount was reduced by amounts that the respondent agreed it owed the appellants for commissions and HST. After these calculations, the respondent claimed it should recover $79,159.81 for the conversions. [5] The appellants maintained that this amount should be further reduced by the value of the deposits on the 63 vehicles, improperly deducted administrative fees, and improper capital interest deductions. [6] The applications were determined by way of summary trial pursuant to r. 38.10 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. II. THE DECISION BELOW [7] The trial judge found that there was no overarching contract governing a consistent and continuing business relationship between the parties. Rather, he concluded that there were a series of individual and independent contracts between the parties which were entered into on a vehicle-by-vehicle basis. The trial judge concluded that the parties had not yet entered into agreements in relation to the 63 vehicles at issue by the time the respondent refused to do any further business with the appellants. In the absence of an overarching contract, he held that there was no obligation on the respondent to take any of the vehicles on which the appellants had placed deposits. [8] The trial judge also concluded that the set-off claim relating to the administrative fees and capital interest payments could not succeed. Administrative fees of this type were commonplace in arrangements such as those existing here and the interest payments arose from the respondent’s need to obtain financing to cover costs of vehicles and shipping before the sales were complete. The appellants were aware of those costs and the need to contribute to administration costs and the interest payments arising from the financing. [9] Accordingly, the trial judge concluded that the appellants had no right to be reimbursed for the unpaid deposits or the administration fees and interest charges. Those amounts could not be set-off against the money realized by the appellants through the conversion of the two vehicles. The appellants were ordered to pay the respondent $79,159.81. III. ISSUES ON APPEAL [10] The appellants challenge the trial judge’s decision to dismiss their breach of contract claims and object to the factual findings made by the trial judge. The standard of review for factual findings and questions of contractual interpretation is one of palpable and overriding error. The appellants have shown no basis upon which to interfere with those findings. An appeal is not a second trial. There was evidence supporting each one of the trial judge’s factual conclusions and we defer to them. [11] The appellants also claim that the respondent falsified the agreements which formed the basis of the conversion claim. They argue that the trial judge inappropriately stopped him from exploring that matter during the cross-examination of the respondent. We see no error on the part of the trial judge. The documents in question were irrelevant to the issues to be decided at trial. The conversion claim had already been determined during the case management phase of the proceedings. Liability for conversion had been admitted by the appellants, as reflected in the case management judge’s endorsements. [12] The appellants also suggest that there is a reasonable apprehension of bias on the part of the trial judge. We see nothing to support this suggestion. To the contrary, the record reveals that the trial judge presided over this matter in a patient and fair way, one that ensured meaningful access to justice for a self-represented litigant. IV. DISPOSITION [13] The appeal is dismissed. The appellants shall pay costs fixed in the amount of $14,000 all inclusive to the respondent. “Eileen E. Gillese J.A.” “Paul Rouleau J.A.” “Fairburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: York (Regional Municipality) v. Irwin, 2020 ONCA 44 DATE: 20200124 DOCKET: M50990 van Rensburg J.A. (Motions Judge) BETWEEN Her Majesty the Queen ex Rel. The Regional Municipality of York Applicant (Responding Party) and Robert Irwin Respondent (Moving Party) Gerard C. Borean, for the moving party Chris G. Bendick, for the responding party Heard and released orally: January 21, 2020 REASONS FOR DECISION [1] This is a motion for leave to appeal under s. 131 of the Provincial Offences Act , R.S.O. 1990, c. P.33 (the “POA”). [2] The moving party Robert Irwin was charged in 2013 with various offences under Part III of the POA, for failure to comply with six building inspector’s orders issued that year under the Building Code Act , 1992, S.O. 1992, c. 23, in connection with construction at his commercial property. The orders required in each case that he “obtain the required building permit or remove the unauthorized construction and restore the building/property to its former use.” In his defence, Mr. Irwin testified that he had confronted essentially the same building inspector’s orders and charges in 1996, 17 years earlier, and that the charges had been withdrawn after he had applied for and obtained the building permits. [3] Mr. Irwin was acquitted at first instance by a Justice of the Peace who provided detailed reasons for her decision. Among other things, she rejected the Regional Municipality’s argument that Mr. Irwin’s defence amounted to a collateral attack on the building inspector’s orders which had not been appealed under s. 25 of the Building Code Act . The Justice of the Peace made findings in Mr. Irwin’s favour with respect to other defences, including estoppel and officially-induced error. She concluded her reasons by stating that, based on the evidence, the prosecution had not proven its case beyond a reasonable doubt that Mr. Irwin was not issued the building permits. [4] The Regional Municipality appealed the acquittal to a justice of the Ontario Court of Justice. The OCJ justice, among other things, accepted the collateral attack argument and substituted a conviction on all the charges, fining Mr. Irwin $600. [5] Mr. Irwin seeks leave to appeal to this court. [6] At the centre of the proposed appeal is the interpretation and application of the doctrine of collateral attack. [7] Mr. Irwin says that he was not challenging the 2013 orders in his defence to the prosecution but was raising the fact of the previous orders and stating that there was nothing further to be done. Moreover, he says that the conclusion of the Justice of the Peace that the prosecution had not proven that he had failed to obtain the orders was fully supported by the evidence, and there was no basis at law for the OCJ justice to interfere. [8] Mr. Irwin’s evidence at trial was that his copies of the building permits were in the possession of his lawyer whose office was destroyed in a fire that took the lawyer’s life. The Regional Municipality had no record of the building permits, although there was evidence that Mr. Irwin applied for permits, and that building permit file numbers may have been assigned. A 1998 internal memo from the City of Vaughan confirmed that a site plan submitted for approval had gone missing. [9] I am satisfied that the test for leave to appeal under s. 131 of the POA is met. [10] The appeal raises a question of law respecting the interpretation and application of the doctrine of collateral attack. While a second appeal is exceptional in provincial offences matters, in this case, the first appeal substituted a conviction for an acquittal. Mr. Irwin seeks to restore the acquittal, relying on alleged errors of law. There are special grounds, and in the particular circumstances of this case, it is essential for the due administration of justice that leave to appeal be granted. Despite Mr. Bendick’s able argument, I do not accept that the implications of the conviction are not significant to Mr. Irwin, or that there is no broader public interest. While Mr. Irwin was fined $600, the effect of the decision on the last appeal is that he remains out of compliance with the 2013 orders and may face further potential prosecution or enforcement actions because of his continuing breach. As for the broader public interest, there is the precedential value of the OCJ justice’s decision holding, in effect, that the doctrine of collateral attack applies where a party’s defence is that they have complied with an order that they have not appealed. [11] Leave to appeal is therefore granted. [12] Mr. Irwin seeks costs of his successful motion. The Regional Municipality questions the authority of the court to award costs in these proceedings, and in any event opposes an award of costs. The issue of costs of this motion is best reserved to the panel hearing the appeal and I so order. “K. van Rensburg J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: York Region Standard Condominium Corporation No. 1206 v. 520 Steeles Developments Inc., 2020 ONCA 63 DATE: 20200131 DOCKET: C67084 MacPherson, Rouleau, Roberts, Nordheimer and Harvison Young JJ.A. BETWEEN York Region Standard Condominium Corporation No. 1206 Plaintiff (Respondent/Appellant by way of cross-appeal) and 520 Steeles Developments Inc., 7 Brighton Place Inc., Kantium Development & Construction Inc., Liberty Development Corporation, Darcon Inc., Mondconsult Limited, York Region Common Element Condominium 1210, Affinity Aluminium Systems Ltd., JIT Professional Services Inc., Siu Hong (Ernie) Leung, P. Eng., Quest Window Systems Inc., Rouslan Tcholii, P. Eng., Ya Ping (Tom) Zhang, P. Eng., Tom’s Structural Steel Detailing, Ya Ping (Tom) Zhang Structural Engineers & Solution Developers, Nasser Heidari, P. Eng., NCN Engineering Services Ltd., NCN Engineering Services Inc., Torsteel Company Co. Limited, Vorstadt Incorporated, Vorstadt Superior Roof, Vorstadt’s Superior Sheet Metal Ltd., Duron Ontario Ltd., C&A Tedesco Waterproofing Inc., Saverino General Contractors Ltd., Advanced Precast Inc., Mukesh Patel, P.Eng., MRP Design Services, Delgant (Civil) Ltd., Delgant Construction Ltd., Delgant Limited, Resform Construction Ltd., Green Valley Inc., Global Plumbing & Heating Inc., System Drywall & Acoustics, Mayfair Electric Limited, York Sheet Metal Limited, Adjeleian Allen Rubeli Limited, Sigmund Soudack & Associates Inc., Schaeffer & Associates Ltd., United Engineering Inc., A&G Engineering Ltd., Disano Sprinkler Design Limited, EXP Services Inc./Les Services EXP Inc., Building Sciences Inc., Rafael & Bigauskas Architects, Sedun + Kanerva Architects Inc., Strybos Barron King Ltd., Strybos Associates Ltd., Simerra Property Management Inc., Simerra Property Management Ltd., 360 Community Management Ltd. , Blandford Construction Services Inc., Marnick Fire Protection Inc., and Defendants #1, #2, #3, #4, #5, #6, #7, #8, #9, #10, #11, #12, #13, #14, #15, #16, #17, #18, #19, and #20 Defendants ( Appellant/Respondent by way of cross-appeal ) Elizabeth Bowker and Christian Breukelman, for the appellant/respondent by way of cross-appeal R. Leigh Youd, Adam Wygodny, Tim Gleason and Mathieu Bélanger, for the respondent/appellant by way of cross-appeal Heard: November 12, 2019 On appeal from the order of Justice Mario D. Faieta of the Superior Court of Justice, dated May 31, 2019, with reasons reported at 2019 ONSC 2991. Harvison Young J.A.: A. Overview [1] This matter arose out of alleged defects in the construction of a large condominium in Thornhill, Ontario. The respondent condominium corporation brought an action against many persons, including the appellant, 360 Community Management Ltd. (“360”). 360 had been the building’s property manager. It brought a motion for summary judgment, arguing that because the condominium corporation had failed to comply with the notice provision in s. 23(2) of the Condominium Act, 1998, S.O. 1998, c. 19, the action should be dismissed as a nullity. The motion judge found that the notice provisions were inapplicable or, if they were applicable, they had been satisfied. He dismissed the summary judgment motion. [2] The condominium corporation did not provide the unit owners with sufficient notice before the notice of action was issued on March 11, 2016. It did, however, provide the owners with detailed notice, including a draft statement of claim, shortly thereafter, and before the statement of claim was filed on April 8, 2016. The parties disagree, in these circumstances, about whether notice was required, whether it was given, and the consequence of non-compliance. The latter issue is the central issue in this case: does a condominium corporation’s failure to comply with the notice provision in s. 23(2) render the action a nullity? [3] According to a strict reading of this court’s decision in York Condominium Corp. No. 46 v. Medhurst, Hogg & Associates Ltd. et al. (1983), 41 O.R. (2d) 800 (C.A.) , the answer to this question is “yes”. I have concluded, however, that this court’s decision in Medhurst has been attenuated by subsequent Supreme Court of Canada jurisprudence. It has also generated unnecessarily harsh effects which, as I will explain below, are inconsistent with the purpose of the notice provision pursuant to the principles of modern statutory interpretation. In my view, we should overrule Medhurst and hold that non-compliance with the notice provision does not render an action a nullity. This conclusion determines the appellant’s summary judgment motion below and I would therefore dismiss the appeal. B. Background [4] Subsection 23(1) of the Act provides that a condominium corporation may, on its own behalf and on behalf of an owner, commence an action for, among other things, damages in respect of damage to the condominium or in respect of a contract involving the condominium. Section 23(2) requires notice be given to the condominium owners before commencing such an action: Before commencing an action mentioned in subsection (1), the corporation shall give written notice of the general nature of the action to all persons whose names appear in the record of the corporation required by section 46.1 or are required by that section to appear in that record except if, (a) the action is to enforce a lien of the corporation under section 85 or to fulfill its duty under subsection 17(3); or (b) the action is commenced in the Small Claims Court. [Emphasis added.] [5] The condominium corporation authorized its counsel to issue a notice of action claiming relief against various persons, including its former property manager 360, for damages related to deficient construction of the residential condominium building. The notice of action was issued on March 11, 2016. [6] The allegations against 360 were based in breach of contract, negligence and breach of fiduciary duty arising out of alleged failures to properly manage the building’s common elements, to properly manage a Tarion warranty claim and to notify the condominium corporation of health and safety issues. [7] On March 18, 2016, the condominium corporation circulated a package of documents to condominium owners which, among other things, outlined the general nature of the action. It explained to condominium owners that the notice of action was filed out of concern for an expiring limitation period. It also included a draft statement of claim. [8] The documents sent to the condominium owners also provided notice of the annual general meeting to be held on April 4, 2016. While the Act does not require condominium owners to authorize the filing of a statement of claim, one agenda item at the annual general meeting was the approval of the draft pleading. At this meeting, the members voted in favour of filing the statement of claim and it was filed on April 8, 2016. [9] 360 brought a motion for summary judgment, arguing that the action, having been commenced in contravention of the s. 23(2) notice requirement, was a nullity. C. Decision Below [10] The motion judge first held that the notice provision at s. 23(2) of the Act did not apply to a claim by a condominium corporation arising from a contract that it had entered into with another person. The action against 360 arose out of the contractual responsibilities it had to the condominium corporation and therefore, in the motion judge’s view, fell outside the scope of s. 23 of the Act. [11] In any event, the motion judge found that the condominium corporation had, in fact, complied with the notice requirement in s. 23(2) on the basis that the action had not been commenced when the notice of action was issued on March 11, 2016, but rather when the statement of claim was filed on April 8, 2016. Notice had been provided prior to the issuance of the statement of claim which the motion judge found sufficient to comply with s. 23(2). [12] Given these conclusions, the motion judge dismissed the summary judgment motion. He concluded that the notice requirement at s. 23(2) was not applicable to this case. Even if it applied, the motion judge would have found that the condominium corporation had complied with it. [13] The motion judge observed, however, that failure to comply with the notice requirement renders an action a nullity, if s. 23 applies. He noted that despite concerns about the harshness of this result, this court’s decision in Medhurst is binding authority for the proposition that non-compliance with s. 23(2) results in the proceeding being a nullity. D. Issues [14] The parties raise three central issues: 1. Did the motion judge err in holding that non-compliance with s. 23(2) renders an action a nullity? 2. Did the motion judge err in holding that an action is “commenced” for the purposes of s. 23(2) by the issuance of the statement of claim, rather than the notice of action? 3. Did the motion judge err in finding that the notice provision in s. 23(2) of the Act did not apply to this action? [15] To dispose of the appeal, however, it is only necessary to address the first issue. If non-compliance with s. 23(2) does not render an action a nullity, then the summary judgment motion was properly dismissed regardless of whether s. 23(2) applies or was complied with. Given that I agree with the condominium corporation that non-compliance should not render the action a nullity, my analysis focuses on the first issue and this is sufficient to dispose of this matter. Nevertheless, I offer a brief comment on the second issue. I decline to address the third issue. E. Analysis (1) The Action is Not a Nullity [16] I conclude that this action is not a nullity. This court’s decision in Medhurst should be overruled as it has been attenuated by subsequent jurisprudence and generates harsh effects unconnected to the purposes underlying the Act. An application of the proper principles leads me to conclude that regardless of whether or not the condominium corporation complied with s. 23(2) of the Act, this action is not a nullity. (a) The Decision in Medhurst [17] My analysis begins with a consideration of this court’s decision in Medhurst , which stands as a leading authority on the nullity issue in the context of s. 23 of the Act. [18] At first instance in that case, Gray J. of the Ontario High Court of Justice was asked to dismiss an action on the grounds that notice was not given pursuant to s. 14 of The Condominium Act, 1978 , S.O. 1978, c. 84, which is the precursor to s. 23 of the current Act. In brief oral reasons, he dismissed the action on the basis that a failure to comply with the notice requirement resulted in the proceeding being a nullity: York Condominium Corp. No. 46 v. Medhurst, Hogg & Associates Ltd. et al. (1982), 39 O.R. (2d) 389 (H.C.), aff’d 41 O.R. (2d) 800 (C.A.). The rationale for this conclusion was the absence of any explicit statutory power to stay an action in the text of the Act. Given this fact, Gray J. concluded that there was no indication that the legislator intended courts to relieve parties from non-compliance, leaving nullity as the consequence: [I]f the legislature had intended judges to have the power to stay the action, quite apart from any inherent power to stay itself, … such a staying procedure would have been set forth in the clear language of the Condominium Act which has engaged the attention of the legislature now for some time in the past few years. In the result, I have reached the conclusion that the proceeding is a nullity by reason of the absence of notice and an order will therefore go dismissing the action without prejudice to the right of the plaintiff to launch a new action if so advised presumably with compliance with the procedural requirements. [19] In still briefer reasons, this court upheld Gray J.’s decision. The appeal reasons, in their entirety, read: The causes of action in this case appear to fall within s. 14(1) of the Condominium Act , R.S.O. 1980, c. 84, and Gray J. was right, therefore, in requiring that notice be given in accordance with the subsection. We agree with the reasons of Gray J. for dismissing the action. The appeal is dismissed with costs. Since we have heard this appeal together with Appeal No. 827/82, there will only be one set of costs. [20] However brief, these reasons are unequivocal in endorsing the holding of Gray J. that non-compliance with the notice provision results in a nullity. As the motion judge in this case observed, it is thus “ settled law that an action by a condominium corporation of the type that comes within the scope of s. 23 of the Act is a nullity in the absence of prior notice to the owners”: at para. 55, citing Beckett Elevator Ltd. v. York Condominium Corp. No. 42 (1984), 45 O.R. (2d) 699 (H.C.); TSCC 2130 v. York Bremner Developments Limited , 2016 ONSC 5393, 75 R.P.R. (5th) 243 . (b) Medhurst Should be Overruled [21] Generally, this court will follow its previous decisions in order to ensure the certainty and predictability of the law in Ontario. However, this is not an absolute. Where the advantages of departing from the precedent outweigh the disadvantages, taking into account the effect on the parties, future litigants and on the administration of justice, this court may exceptionally decline to follow a past decision: David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co . (2005), 76 O.R. (3d) 161 (C.A.), at para. 127, leave to appeal refused, [2005] S.C.C.A. No. 388-95. A decision to overrule precedent is rare because the values of certainty and predictability weigh heavily in favour of adherence to precedent. The circumstances in this case, however, warrant overruling Medhurst . [22] In particular, Medhurst is inconsistent with intervening decisions of the Supreme Court of Canada which bind this court with respect to the modern approach to statutory interpretation. As a result, its jurisprudential value has been greatly attenuated in the years since it was decided. [23] To demonstrate how Medhurst is inconsistent with the prevailing approach to determining whether non-compliance results in a nullity, I first outline this prevailing approach. [24] Where a legislator imposes an imperative obligation on a person, and that person does not fulfill this obligation, it is not always immediately clear from the text of the legislation what the consequence of this failure will be. In some cases, the consequence will be that actions taken in contravention of the obligation are a nullity, and therefore that the failure cannot be cured or overlooked by the court: Montreal Street R. Co. v. Normandin (1914), 33 D.L.R. 195 (P.C.), at p. 198; Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. (Toronto: LexisNexis, 2014), at para. 4.82. [25] To determine the consequence of non-compliance with a given statutory obligation, the court engages in statutory interpretation: British Columbia (Attorney General) v. Canada (Attorney General); An Act respecting the Vancouver Island Railway (Re) , [1994] 2 S.C.R. 41, at p. 123. The words of the Act must be read in context and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act, and the intention of the legislator: Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27, at para. 21. A core element of this modern approach to statutory interpretation is that the meaning of legislation cannot be divined from the wording of the legislation alone, but rather must be determined purposively and in context: Sullivan, at para. 2.2. When determining whether nullity will result from non-compliance, the object of the statute and the effects of ruling one way or another may be particularly important: Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development) , [1995] 4 S.C.R. 344, at para. 42, per McLachlin J. (concurring). [26] Medhurst was decided in 1983, before Rizzo , and the subsequent jurisprudence that has emphasized the role of legislative purpose in the interpretation of statutes. The reasons endorsed in Medhurst were premised on the absence of explicit language indicating the availability of a stay, with no consideration given to the provision’s intended purpose. Further, in determining the consequence of statutory non-compliance, Blueberry River now directs us to put significant weight on the purpose of the obligation and the effects of holding one way or another: at para. 42. Again, this contrasts with the reasoning in Medhurst . [27] If Medhurst is disregarded and the requisite principles of statutory interpretation are properly applied, it seems clear that non-compliance with s. 23(2) should not render an action a nullity. There is nothing in the text of the Act that suggests that breach of the notice requirement carried the consequence of a nullity. Some legislative schemes specify within the text of the legislation that non-compliance will result in a nullity, see e.g. Environmental Protection Act , R.S.O. 1990, c. E.19, s. 101(12), but in the absence of clear direction from the legislator, courts will generally favour an interpretation that allows procedural irregularities to be cured: Lawrence v. International Brotherhood of Electrical Workers (IBEW), Local 773 , 2017 ONCA 321, 138 O.R. (3d) 129, at para. 21, aff’d 2018 SCC 11, [2018] 1 S.C.R. 267. The fact that the Act is silent on the consequence of a failure to comply with s. 23(2) does not support a consequence of nullity. [28] Further, it would be inconsistent with the purpose of the provision and the Act to find that non-compliance results in a nullity. This court has defined this Act as consumer protection legislation: Harvey v. Talon International Inc. , 2017 ONCA 267, 137 O.R. (3d) 184, at para. 62. Section 23 in particular was enacted to ensure that condominium owners could bring an action as a collective to recover for construction deficiencies in respect of common elements: 1420041 Ontario Inc. v. 1 King West Inc. , 2012 ONCA 249, 110 O.R. (3d) 241 , at para. 16, leave to appeal refused, [2012] S.C.C.A. No. 272. As Myers J. found in York Bremner , the purpose of the notice requirement specifically is to ensure that the condominium owners know that their corporation is about to sue on their collective behalf: at para. 175. In other words, the purpose of s. 23(2) is to protect the condominium owners from their condominium corporation by ensuring they are aware before it acts. [29] Finding that non-compliance with s. 23(2) results in a nullity would undermine rather than support the purpose of this legislation. The section is meant to regulate the relationship between the condominium corporation and the condominium owners, not the relationship between the condominium corporation and third parties. Third parties should not be able to escape liability to the condominium owners because of a failure of the condominium corporation, acting on their behalf, to properly notify the owners. Nullity leads to this perverse result by allowing third parties to raise the procedural defect for their own benefit. It is perverse to allow the provision to be used to the prejudice of the condominium owners it was meant to protect. [30] This is especially so given that the Act as a whole is consumer protection legislation directed at protecting condominium owners and that s. 23 was enacted to facilitate actions against third parties by condominium owners as a collective to vindicate their rights. Therefore, an interpretation of the Act informed by its purpose does not support a finding of nullity. [31] Finally, finding that non-compliance results in a nullity would lead to unnecessarily harsh effects and serve no intended purpose. When determining the result of non-compliance, courts should be particularly aware of the potential for adverse effects: Blueberry River , at para. 42. [32] For example, at issue in Blueberry River were provisions which required a vote by the band to surrender land to be certified by oath of a commissioner and submitted to the Governor-in-Council for approval. The band in that case had technically not complied because the chiefs did not personally certify the surrender on oath. McLachlin J. declined to find that this resulted in nullity, noting that it would “work serious inconvenience” as surrendering bands would be forced to go through the surrender process all over again as a result of technical non-compliance: at para. 43. [33] Here, nullity would not just “work serious inconvenience”; it could result in significant injustice. At the very least, it would require the commencement of a new action. At worst, due to the expiration of a limitation period, it could operate to defeat an otherwise meritorious action. This is particularly unjust because the rights of condominium owners are in jeopardy even though the notice requirement was enacted for the benefit and protection of these owners. Permitting a defendant to take advantage of the notice provision to invalidate otherwise meritorious claims for breach of the notice requirement serves no intended purpose. [34] This is not a merely theoretical concern. In York Bremner , Myers J. reluctantly applied Medhurst and found that the action at issue was a nullity, despite noting, at paras. 173-74, that it made little practical sense to do so: I see no purpose in holding the first claim a nullity. TSCC 2130 acted when it did and the limitation period should be measured against that act in my view. I see no reasons why YBDL should be able to take advantage of a notice provision in favour of owners. In my view, I am not entitled to ignore the clear holding of the Court of Appeal in Medhurst that is binding on me. … If an interpretation is to be found to save the first action, it will have to be by the Court of Appeal or the Supreme Court of Canada. [35] The motion judge below echoed these same concerns, at paras. 54-56: A finding that this action is a nullity for failure to comply with the notice requirement found in s. 23 in these circumstances is a harsh result and has the unintended consequence of resulting in a hardship to the owners and a benefit to a defendant. [D]espite the above concerns this court is not entitled to ignore the Ontario Court of Appeal’s brief but clear decision in Medhurst given the constraints of vertical stare decisis . [36] This is not a case like The Owners, Strata Plan LMS 888 v. The City of Coquitlam et al , 2003 BCSC 941, 15 B.C.L.R. (4th) 154, because pursuant to the statute considered there, the right to commence an action was premised on obtaining a vote of three quarters of the owners. By contrast, the Act contains no such approval requirement. Rather, the condominium corporation is empowered to commence an action subject only to the procedural requirement that notice be given. [37] Even if non-compliance with s. 23(2) does not result in a nullity, this does not mean that there is no possible consequence to such non-compliance. Non-compliance with a statutory provision creates a procedural defect. The court has discretion to determine the effect, if any, of such a procedural defect. Two key factors that a court will consider are the extent of the non-compliance and the extent of any prejudice suffered as a result of it: Sullivan, at para. 4.90. I also note that in considering how to address non-compliance with s. 23(2), courts have the discretion to fashion appropriate remedies that accord with the object and purpose of the Act, in accordance with ss. 134, 135 and 136 of that Act. [38] In short, holding that non-compliance with s. 23(2) results in a nullity is not called for by the text of this provision, is wholly inconsistent with its purpose and can lead to substantial injustice. In so holding, Medhurst is inconsistent with binding Supreme Court jurisprudence regarding the modern approach to statutory interpretation and the concept of a statutory nullity. [39] Accordingly, Medhurst has been attenuated and this weighs in favour of overruling it. The administration of justice would hardly be served by upholding the precedent in Medhurst simply because it predates the modern emphasis on a purposive interpretation of statutes. Rather, by overruling Medhurst the notice provision in the Act can be properly interpreted in accordance with relevant jurisprudence and by consequence ensure the coherence of the law in this respect. [40] Further, Medhurst is not simply a case which, with the benefit of the subsequent jurisprudence, would likely have been decided differently by this court, but is a decision which has the potential to cause injustice. As noted above, holding that nullity must result from non-compliance can lead to inconvenience and injustice to the very constituency – condominium owners – that the provision was intended to protect. Automatically invalidating otherwise meritorious claims for breach of the notice requirement serves no intended purpose. The fact that adhering to Medhurst would impose harsh unintended results on precisely those the Act was enacted to protect, both the condominium owners in this litigation and condominium owners who may be litigants in the future, weighs against following it. [41] On balance, I find this is one of the rare circumstances in which the advantages of not following an earlier decision rendered by this court outweigh the disadvantages. For that reason, I would overrule Medhurst . (c) Conclusion on Nullity [42] Applying the relevant principles to an analysis of s. 23 of the Act, and contrary to the conclusion of the motion judge, even if this action is subject to s. 23 and even if notice was not properly given in accordance with s. 23(2), the underlying action is not a nullity. [43] In the particular circumstances of this case, I conclude that even if the condominium corporation has failed to comply with this provision, it is only a procedural irregularity that was cured. This non-compliance does not entitle the appellant to summary judgment. In this case, it is not the condominium owners themselves who assert non-compliance with the notice requirement. Further, the condominium owners were provided with a synopsis of the lawsuit that outlined the general nature of the action shortly after the notice of action had been issued. It also included a draft statement of claim. Although not required by the Act, the condominium owners subsequently authorized the filing of the statement of claim. In the circumstances, no perceptible prejudice resulted from the purported failure. [44] Accordingly, it is not necessary to decide the other issues. The motion below was properly dismissed. (2) The Action was Commenced by Notice of Action [45] While it is not necessary to address the question of when the action was commenced in order to dispose of the appeal, I nevertheless address the issue. In my view, the motion judge erred in his conclusion that this action was only “commenced” for the purposes of s. 23 when the statement of claim was filed. Rather, as is clear from the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, the action was commenced when the notice of action was issued. [46] The motion judge correctly held that an action is commenced for the purposes of the Rules by the issuance of either a statement of claim or a notice of action. He was also correct to point out that the definitions in the Rules cannot control the meaning of terms used in the Act. The motion judge, however, relied heavily on his view that, as there were no significant costs consequences to filing a notice of action, interpreting an action to be commenced by a notice of action did not advance the “sole purpose” of the notice requirement. [47] I do not agree. First, the purpose of the notice requirement under the Act involves more than costs consequences. Further, the Rules are clear on this point. While normally the issuance of a statement of claim commences the proceeding, in those instances where a notice of action is issued, the latter then serves as the commencement of the proceeding. While a statute might change that result, there is nothing in the wording of the Act that does so in this case. It was not open to the motion judge to choose the commencement date for the reasons that he did. [48] Therefore, the action in this case was commenced with the filing of the notice of action, not the statement of claim. F. The Cross-appeal [49] Before concluding, I must deal with one procedural point. [50] In the event the appeal was allowed, the respondent brought a cross-appeal seeking the dismissal of 360’s motion for summary judgment on the basis that the motion judge erred in concluding that non-compliance with s. 23(2) of the Act would have rendered the action a nullity. The cross-appeal, in effect, sought to offer an alternative basis for upholding the motion judge’s order dismissing the motion for summary judgment. The respondent did not seek to set aside or vary the motion judge’s order or to obtain a different disposition than that order. [51] This is not a proper cross-appeal as defined by r. 61.07(1). It is, in essence, the respondent’s argument on the appeal dressed up in different language. [52] The question as to the condominium corporation’s capacity to commence or maintain the action absent compliance with the notice requirement in s. 23(2) was clearly put in issue in the notice of appeal. The submissions from both parties on the cross-appeal amount to arguments about whether the appeal should be allowed or dismissed. Accordingly, I have treated all submissions in relation to the cross-appeal as made in relation to the appeal. [53] Given that I would dismiss the appeal and given that the cross-appeal was only pursued in the event that the appeal was allowed, the cross-appeal is also dismissed. G. Conclusion [54] I would accordingly dismiss the appeal and the cross-appeal. [55] At the hearing, the parties advised the court that they had agreed that costs of $15,000 would follow the event in each of the appeal and the cross-appeal. As discussed above, the issues from the cross-appeal were subsumed in the appeal in which the respondent was successful. I would order costs to the respondent in the amount of $30,000. Released: January 31, 2020 “JCM” “A. Harvison Young J.A.” “I agree J.C. MacPherson J.A.” “I agree Paul Rouleau J.A.” “I agree L.B. Roberts J.A.” “I agree I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: All-Terrain Track Sales and Services Ltd. v. 798839 Ontario Limited, 2020 ONCA 129 DATE: 20200219 DOCKET: C66985 Pepall, Pardu and Paciocco JJ.A. BETWEEN All-Terrain Track Sales and Services Ltd. and Andre Boudreau Plaintiffs (Appellants) and 798839 Ontario Limited, Jacobus Hanemaayer, 153078 Canada Inc., Community Expansion Inc., Great Lakes Nickel Limited , Robin Lowe and Rio Tinto Exploration Canada Inc. Defendants ( Respondent ) Donald Rollo and Marc Chaput, for appellants Steve Gearing, for the respondent Heard: January 31, 2020 On appeal from the judgment of Justice Shaun O’Brien of the Superior Court of Justice, dated May 16, 2019, with reasons reported at 2019 ONSC 2998. REASONS FOR DECISION [1] The appellants are judgment creditors of 798839 Ontario Limited (39). The appellants sued the respondent, asserting that 39 had successfully exercised an option contained in a joint venture agreement with the respondent to acquire an interest in the Pardee Mining Development. The appellants hoped to obtain part of a revenue stream originating from that development, in satisfaction of the judgment against 39. [2] The summary judgment motion judge concluded that 39 had not satisfied the contractual prerequisites necessary to acquire an interest in the mining development. The appellants argue that the motion judge erred in failing to have regard to the factual matrix surrounding the formation of the contract and erred in her interpretation of the contract. [3] We do not agree and dismiss the appeal. I. DECISION BELOW [4] The contract at issue was dated December 5, 1988, more than 30 years before the motion judge’s decision. None of the affiants in the summary judgment motion had any involvement in the contract formation and there were no such witnesses available. [5] The motion judge began her analysis by examining the text of the contract. [6] The agreement recites that the respondent is the owner of the property and that it has agreed to grant to 39 an exclusive option to earn an undivided 80 percent interest in the property upon the terms set out in the agreement. [7] 39 could incur “Expenditures” in respect of the property of no more than two million dollars. Paragraph 3.2 provided that for each separate block of Expenditure of $250,000, 39 shall be deemed to have acquired an undivided ten percent right to the property, subject to the provisions of paragraph 3.1, which provided the right and option to acquire an undivided 80% interest in the property. [8] Paragraph 3.3 provided that the option granted to 39 would terminate if 39 failed to expend two million dollars in the aggregate. Specifically, the option would terminate: (a) On November 30, 1989, unless on or before that date Ontario [39] has incurred $750,000 in Expenditures; (b) On November 30, 1990, unless on or before that date Ontario [39] has incurred a further $750,000 in Expenditures in the aggregate; (c) On November 30, 1991, unless on or before that date Ontario [39] has incurred a further $500,00 in Expenditures in the aggregate; or (d)   if Ontario [39] gives notice in accordance with paragraph 3.7. [9] Paragraph 3.7 provided, amongst other things, that if 39 failed to make the requisite Expenditures under paragraph 3.3, the agreement would be of no further force or effect and 39 would have no interest in the property. [10] Paragraph 3.9 defined the Participation Date for the joint venture as the date on which 39 had exercised its option by incurring two million in Expenditures in the aggregate, according to the above timetable in paragraph 3.3. [11] Paragraph 3.10 stipulated that on the Participation Date, 39 would be deemed to have earned an undivided 80 percent interest in the property and the joint venture would be formed to develop the property and operate it as a mine. [12] Paragraph 5.2 set out a formula to calculate 39’s interest in the joint venture if 39 made subsequent contributions to Expenditures beyond the two million, using the two million dollar amount as a starting point. [13] Expenditures were defined in the agreement as follows: (e) “Expenditures” means all cash, expenses, obligations and liabilities of whatever kind or nature, spent or incurred by the parties hereto prior to a Production Programme in connection with the exploration and development of the Property including, without limiting the generality of the foregoing: (i) moneys expended in maintaining the Property in good standing by doing and filing assessment work; (ii) moneys expended in doing geophysical, geochemical and geological surveys, drilling, assaying and metallurgical testing; (iii) moneys expended in acquiring Facilities; (iv) moneys expended in paying the fees, wages, salaries, travelling expenses, plus fringe benefits in an amount not in excess of thirty percent (30%) of salaries (whether or not required by law) of all persons engaged in work with respect to and for the benefit of the Property; (v) moneys expended in paying for the food, lodging and other reasonable needs of the persons referred to in clause (iv) hereof; (vii) a charge equal to ten percent (10%) of all Expenditures other than the charge refered to in this clause (vi) for unallocable overhead and head office expenses and all other expenses relating to supervision and management of all work done with respect to and for the benefit of the Property; and (vii) all costs and expenses related to the preparation of a Feasibility Report; but does not include any amount incurred in respect of Production Programme Costs. [14] 39 entered into a management contract with James Bay Company Mineral Resources Inc. (JBC) to manage the exploration and development of the Pardee claims. JBC had the necessary expertise, experience, and ability to carry out the exploration and testing program. The management contact provided that JBC would incur expenditures on the Pardee mining claims as mutually agreed upon with 39, from time to time. The respondent was not a party to this agreement. [15] All parties agreed for the purposes of the motion that, while 39 may have advanced two million to JBC, $360,687 of that two million advancement was not used on the Pardee project. Instead, it was diverted to another project, called the Kipling project. 39 had contracted with another development company, James Bay Kaolin Corporation (JBK), to develop the Kipling project. JBK and JBC were related corporations controlled by the same person. [16] Before the motion judge, the appellants argued that 39 had validly exercised the option because 39 had advanced two million to JBC, even if $360,687 was diverted to another project. In the alternative, the appellants argued that 39 had acquired a 60 percent interest in the property. [17] The motion judge concluded that the plain language of the agreement meant that 39 had to make the full two million in expenditures on the specified Pardee property. Otherwise, 39’s option would terminate according to paragraphs 3.3, 3.7, 3.9 and 3.10 of the agreement. She concluded that the joint venture agreement did not give 39 the right to a smaller stake in the joint venture proportionate to lesser expenditures. [18] The motion judge attached little importance to subsequent documents —such as financial statements, correspondence, management information circulars, memoranda and legal opinions — as these were conflicting and based on uncertain provenance. None of these undermined her plain reading of the joint venture agreement. II. ANALYSIS (1) Did the motion judge err by failing to have regard to the factual context surrounding the formation of the contract? [19] The appellants focus on the factual findings made in other litigation between 39, JBK, and others in relation to the Kipling project. [1] The motion judge accepted the parties’ agreement as to the amounts 39 advanced to JBC and the amounts expended on the Pardee claims, mirrored in the other litigation’s findings. However, the appellants argue that the motion judge somehow failed to have sufficient regard to other findings made in that litigation. [20] We do not agree. The respondent was only peripherally involved in the other litigation and was not a party to the four contracts interpreted in that litigation. The Pardee joint venture agreement with 39 was not interpreted in that litigation. [21] There is no indication that the contracts in the other litigation formed part of a composite whole with the Pardee joint venture agreement. [22] As pointed out by Blair J.A. in the appeal from the other litigation, the appeal was confined to the issue of ownership of the Kipling claims, a matter in which the respondent had no interest: 798839 Ontario Ltd. v. Platt , 2016 ONCA 488, 351, 350 O.A.C. 226, at para. 7. [23] The starting point for contractual interpretation is the language of the agreement. As indicated in Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 57: While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement…While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement. [Citations omitted.] [24] Further, the factual matrix 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): Sattva , at para. 58. [25] We are at a loss to know what other aspect of the factual matrix as expressed in the other litigation should have been considered by the motion judge but was not. (2) Did the motion judge misinterpret the Pardee Joint Venture Agreement? [26] The key issue to determine in contractual interpretation is  the “intent of the parties and the scope of their understanding”: Sattva , at para. 47. [27] As summarized in Richcraft Homes Ltd. v. Urbandale Corporation, 2016 ONCA 622, 352 O.A.C. 186, at para. 58, this court reiterated that a commercial contract is to be interpreted: (a) as a whole, in a manner that gives meaning to all of its terms and avoids an interpretation that would render one or more of its terms ineffective; (b) by determining the intention of the parties in accordance with the language they have used in the written document and based upon the "cardinal presumption" that they have intended what they have said; (c) with regard to objective evidence of the factual matrix underlying the negotiation of the contract, but without reference to the subjective intention of the parties; and (to the extent there is any ambiguity in the contract), (d) in a fashion that accords with sound commercial principles and good business sense, and that avoids a commercial absurdity. [28] The motion judge analyzed the language used by the parties as a whole and gave the words their plain meaning. There was little evidence of the surrounding circumstances known to the parties at the time they entered the agreement. According to JBC’s management contract with 39, JBC required 39’s consent before incurring expenditures. Presumably, 39 had good reasons related to its own self-interest to agree to divert $360,687 to the Kipling project, rather than expend it on the Pardee project. [29] The motion judge’s interpretation of the contract was rational, rooted in the language of the contract and the evidence before her. There is no basis to depart from the deference owed to her interpretation. III. CONCLUSION [30] Accordingly, the appeal is dismissed, with costs to the respondent in the agreed amount of $20,000 inclusive of disbursements and taxes. The cross-appeal is dismissed as abandoned. “S.E. Pepall J.A.” “G. Pardu J.A. ” “David M. Paciocco J.A. ” [1] 798839 Ontario Limited v. Robert Platt; and Robert Platt v. Community Expansion Inc., 2013 ONSC 6879, aff’d 2016 ONCA 488, 350 O.A.C. 226.

COURT OF APPEAL FOR ONTARIO CITATION: Amorosi v. Barker, 2020 ONCA 144 DATE: 20200220 DOCKET: C67396 Doherty, Brown and Thorburn JJ.A. BETWEEN Mark Amorosi Plaintiff (Respondent) and Gerry Barker Defendant (Appellant) Jordan Goldblatt, for the appellant Iain A.C. MacKinnon, for the respondent Heard and released orally: February 10, 2020 On appeal from the order Justice Petersen of the Superior Court of Justice, dated August 9, 2019. REASONS FOR DECISION [1] The necessary factual background is set out in the reasons of the motion judge: see Amorosi v. Barker , 2019 ONSC 4717. [2] There are two grounds of appeal: 1. Did the motion judge err in granting an adjournment of the motion to allow for cross-examination of the appellant (plaintiff) on his affidavit filed on the motion? 2. Did the motion judge err in the balancing of the competing interests required under s. 137.1(4)(b) of the Courts of Justice Act ? The Adjournment Issue [3] The appellant argues that the adjournment should not have been granted because it effectively deprived the motion judge of jurisdiction to hear the motion by extending the hearing of the motion beyond the 60-day time limit referred to in s. 137.2(2). [4] Read with s. 137.2(3), the requirement in s. 137.2(2), that the motion “shall be heard” within 60 days, requires that the date on which the motion is heard, that is commenced, must be within 60 days of the filing of the motion. [5] The language of the subsection permits the interpretation that 60 days refers to the commencement of the motion. The practicalities of litigation in the province demand that interpretation. Clearly, the legislation intended that these motions should be heard expeditiously. Equally clearly, the legislature did not intend to impose an arbitrary and unbending limit on the time needed to hear and determine the motion. It does not take much imagination to think of fact situations in which a 60-day hard cap would lead to wasting of important resources and unfair results. [6] The purpose animating s. 137.1 is fully served by interpreting the section as requiring that the motion be returnable before the motion judge within 60 days of the filing of the motion. The motion judge is then in a position to ensure that the motion proceeds expeditiously and fairly to all concerned. [7] The second issue, that is the balancing of the competing interests under s. 137.1(4)(b), engages a motion judge’s discretion. There are clearly competing interests which must be examined. The motion judge did that. This court has addressed the exercise of the discretion under that provision in a series of cases. In doing so, the court has recognized that different judges may well exercise their discretion differently in given cases. This court shows deference to those determinations. [8] The appellant argues that the motion judge erred in concluding there was evidence supporting the respondent’s alleged damages flowing from the alleged defamation. The appellant submits that, on the record, the alleged damages were attributable to an entirely independent event which led to the respondent’s dismissal. [9] We see no error in the motion judge’s consideration of this evidence. The  evidence offered by the plaintiff (respondent) suggests a causal connection between the defamation and damages suffered by the respondent. The appellant’s (defendant) material puts forward a separate cause for the damages. In exercising her discretion under s. 137.1(4)(b), the motion judge was entitled to consider that there was evidence of a causal connection between the defamation and the alleged damages. The respondent (plaintiff) was not required to prove his damages in the context of his response to the s. 137.1 motion. [10] Counsel for the appellant in oral argument also referred to two alleged factual errors, which he said constituted clear and palpable errors, warranting the intervention of the court. We are not satisfied that the motion judge made either error and, in our view, neither error, if made, was sufficiently material to warrant the intervention of this court. [11] Finally, we note that, in considering the plaintiff’s potential damages for the purposes of the balancing under s. 137.1(4)(b), the motion judge observed, at para. 55 and again at para. 70, that the plaintiff’s damages “might well be significant”. In our view, it was open to her to reach that assessment and to take that assessment into account in the balancing required under the provision. We see no basis upon which we should interfere with the motion judge’s determination. [12] The appeal is dismissed. Costs of the appeal awarded to the respondent in the amount of $10,000, inclusive of disbursements and all relevant taxes. “Doherty J.A.” “David Brown J.A.” “Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Atkinson (Re), 2020 ONCA 152 DATE: 20200226 DOCKET: C66678 Simmons, Watt and Miller JJ.A. IN THE MATTER OF:  Sharon Atkinson AN APPEAL UNDER PART XX.1 OF THE CODE Mercedes Perez, for the appellant Sean Horgan, for the Attorney General of Ontario Michele Warner, for the Person in Charge of the Centre for Addiction and Mental Heath Heard: October 25, 2019 On appeal against the disposition of the Ontario Review Board, dated January 10, 2019. REASONS FOR DECISION [1] On May 2, 2000 Sharon Atkinson (the appellant) was found not criminally responsible on account of mental disorder (NCRMD) on a single count of arson. She set her bed on fire and left the home in which she lived. No one was injured. The fire caused property damage of about $5,000. [2] During the first decade of her supervision by the Ontario Review Board, the appellant was detained at CAMH. From the outset, she was found treatment incapable. Her mother has served and continues to serve as her substitute decision-maker (SDM). [3] In early 2010, the appellant was discharged from CAMH to reside at Christian Horizons Group Home (CH), a locked facility with 24-hour supervision. To this day the appellant remains a resident of that facility. The Background Facts [4] For our purposes, the essential background may be recounted briefly. The Pre-Board History [5] The appellant's mental health issues became apparent in her behaviour as she progressed through elementary school. There were incidents of self-harm, theft and property damage. Her behaviour was impulsive. At times, she was physically and verbally abusive towards her parents. In school, the appellant had problems in all academic areas. She was at least two years below age expectation. Her impairments compromised her ability to assimilate non-verbal social cues and the other information needed for good social judgment. [6] At age 15, the appellant was diagnosed with Prader-Willi syndrome. Behavioural problems associated with this syndrome include impulsivity, stubbornness and temper tantrums. Those afflicted are often manipulative, perseverative, egocentric and demanding. The appellant's behavioural problems escalated at age 16. She frequently ran away from her parents' home. Out of fear, her parents locked their bedroom door at night. [7] In 1997, at age 17, the appellant was placed in a group home. The CAMH Years [8] After she was found NCRMD, the appellant was placed in a group home. Shortly after this placement, she stole a van, tried to leave the group home and crashed the van into a tree. She was then transferred to CAMH where she remained until her discharge to CH in 2010. [9] In her early years at CAMH, the appellant was a management problem. She set fires. She harassed and stalked male co-patients. Her conduct was oppositional, her behaviour, sexually inappropriate. She was assaultive, abusive, manipulative and threatening with staff and co-patients. The Discharge to Supervised Housing [10] On January 12, 2010 the appellant was discharged from CAMH to reside at CH in Brampton. This is a secure residence with 24-hour supervision and 12 hours of daily programming. The CH Residency [11] In the early years at CH, behavioural problems persisted. Elopements, sometimes requiring police assistance. Physical altercations with staff and other patients. Overnight visits with her parents terminated prematurely because the appellant became unmanageable. [12] As her tenure at CH continued, the appellant's conduct fluctuated between adherence to the behavioural plan put in place for her and disobedience of it. Aggressive and assaultive behaviour occurred, usually when the appellant felt that her needs had not been met. From time to time, the appellant expressed her desire for an absolute discharge. Her proposals included living with her family or moving elsewhere, perhaps to Ireland. None of these proposals were viable. The Diagnosis and Risk Assessment [13] To understand and evaluate the appellant's current and future risk, it is important to understand the condition or conditions that contribute to that risk. [14] Although actuarial testing has not been carried out with respect to the appellant because it is considered inapplicable to her situation, her score on an instrument designed to assess the likelihood of violent recidivism disclosed that she is a moderate-high risk of violent recidivism. She scored full points for historical items like previous violence, personality disorder and prior supervision failure. Clinical items included impulsivity and risk items, plans lacking feasibility and exposure to destabilizers. [15] Behavioural difficulties and emotional lability are characteristics of Prader-Willi syndrome. The appellant is stubborn, impulsive and prone to temper tantrums. [16] The appellant suffers from a mild intellectual disability which makes it difficult for her to learn new skills, and access appropriate social judgment. She also suffers from certain maladaptive personality characteristics of the borderline, narcissistic and antisocial personality spectrum. She displays a pervasive pattern of having little regard for the rights of others and little empathy or remorse for her actions. In her interactions with others, she is self-serving and egocentric. The Current Disposition [17] The current disposition issued by the Board about 13 months ago is a conditional discharge including residency and reporting conditions. The Grounds of Appeal [18] The appellant seeks an absolute discharge, in the alternative, a new hearing before a differently constituted Board. She advances two grounds of appeal, contending that the Board erred: i. in finding that the appellant was a significant threat to the safety of the public; and ii. in finding the civil mechanisms available, together with an absolute discharge, inadequate to control the risk to public safety. [19] In our view, this appeal fails. Ground #1: The Significant Threat Finding [20] The appellant challenges the Board's finding of “significant threat" as unreasonable and unsupported by the evidence. According to the appellant, the Board failed to focus on the fundamental issue – “significant threat" – instead rested their conclusion on their concern about the consequences of an absolute discharge. In the result, the Board failed to consider the core question of whether there was a serious likelihood that the appellant would commit an offence involving serious harm. The conclusion of “significant threat" was speculative, not the product of reasonable inference drawn from the evidence adduced before the Board. [21] The appellant says that the evidence adduced, considered as a whole, cannot support a reasoned conclusion that the appellant remained a significant threat to the safety of the public almost 20 years after her index offence. In two decades, the appellant has not been involved in any assaultive behaviour resulting in serious physical or psychological harm. In the year under review, the appellant had made significant improvements clinically, in particular, in the areas of self-regulation and de-escalation. She has not been returned to a psychiatric facility since her discharge in 2010. Any problematic behaviour is associated with the Prader-Willi syndrome and did not reach the level of significant threat. She made no attempt to elope from her residence permanently. [22] Satisfied that the finding of significant threat was within the range of reasonable outcomes available on the evidence adduced at the hearing, we reject this ground of appeal. [23] In its assessment of whether the “significant threat" threshold had been established, the Board was entitled to examine a range of evidence. The circumstances of the index offence. The past and expected course of the appellant's treatment. The appellant's current condition and future plans. The availability of support services in the community. And, perhaps most importantly, the recommendations of those who have examined the appellant: Winko v. British Columbia (Forensic Psychiatric Institute) , [1999] 1 S.C.R. 625, at paras. 57, 61, 69. [24] In this case, the Board was considering a person who had a genetic condition – Prader-Willi syndrome – that will never change and causes her to be impulsive, stubborn and subject to emotional dysregulation. In addition, she suffers from a significant mental disorder – personality disorder not otherwise specified – and a mild intellectual disability that results in her functioning at the level of an elementary school child. Her personality disorder involves a pervasive pattern that includes little regard for the rights of others, little empathy or remorse for her conduct and a self-serving and egocentric approach to her interactions with others. She has a robust history of elopement and of violence, threats and inappropriate behaviour when her needs are not met. [25] The Board also had evidence that the appellant was a moderate-high risk to recidivate. She has an extensive history of violence, albeit not severe violence, more likely than not to occur when her demands are not met immediately. Absent the significant support and supervision provided under her current disposition, the appellant would most likely revert quickly to inappropriate behaviour which would place not only herself, but also the community at risk. [26] Beyond the fervent hope for an absolute discharge, the record before the Board reveals no realistic plan for the appellant were an absolute discharge ordered. Her tenure at CH would be over, so too its supervision and the administration of vital medication. Left to her own devices and unmedicated, recidivism would be likely to occur. Not only did the evidence before the Board satisfy the “significant threat" threshold, it put paid to any claim of an absolute discharge as a necessary and appropriate disposition. Ground #2: The Sufficiency of Civil Mechanisms [27] The appellant also argues that the Board misapprehended the sufficiency of civil mechanisms, available together with an absolute discharge, to reduce the risk of recidivism below the “significant threat" threshold. This error, the appellant says, is linked to the Board’s antecedent finding of substantial threat. [28] In large measure, this argument fails once the Board's core finding of “significant threat" is sustained. For a finding of “significant threat” excludes any prospect of an absolute discharge under s. 672.54(a) of the Criminal Code . In any event, we are not persuaded that any such error appears in the reasons of the Board. [29] The record before the Board is barren of any evidence that would give an air of reality to the submission that civil mechanisms available under provincial legislation, coupled with an absolute discharge, would reduce the risk of recidivism below the significant threat threshold. [30] The appellant conceptualizes an absolute discharge as removing legal barriers to doing as she wishes to do. None of her plans for accommodation have any basis in reality. She made it clear by interjections at the hearing that she would not return to CAMH. She was not eligible for a Community Treatment Order. Even if she were to become eligible, her SDM, her mother, would not consent to such an order. Once out of CH, thus the supervision of the Board, the mechanisms available under provincial legislation would not assist in alleviating the risk. Disposition [31] The appeal is dismissed. “Janet Simmons J.A.” “David Watt J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Austin v. Bell Canada, 2020 ONCA 142 DATE: 20200221 DOCKET: C67404 MacPherson, Sharpe and Jamal JJ.A. BETWEEN Leslie Austin Plaintiff (Appellant) and Bell Canada, Bell Media Inc., Expertech Network Installation Inc., and Bell Mobility Inc. Defendants (Respondents) Mark Zigler, Jonathan Ptak, and Garth Myers, for the appellant Dana Peebles, for the respondents Heard: February 5, 2020 On appeal from the judgment of Justice E.M. Morgan of the Superior Court of Justice, dated August 12, 2019, with reasons reported at 2019 ONSC 4757, 147 O.R. (3d) 198. By the Court: [1] The appellant is the representative plaintiff in a class action brought on behalf of retirees who are beneficiaries of the respondents’ (“Bell”) Pension Plan. [2] The sole issue for this court to decide is the proper calculation of the cost-of-living adjustment under the Plan for 2017. That turns on the interpretation of the Plan’s definition of the “Pension Index” and how that definition works together with the provisions in the plan governing the calculation of the amount of the cost-of-living adjustment. The appellant argues that the motion judge erred by finding that Bell was entitled to round up the annual percentage increase in the Consumer Price Index, mathematically calculated as 1.49371%, to two decimal points, or 1.49%. The appellant says that, properly interpreted, the Plan requires Bell to follow Statistics Canada’s policy of rounding to only one decimal point, or 1.5%. The difference is significant. Another provision in the Plan provides that to determine the annual pension increase for the appellant and most other Bell Pensioners, the Pension Index is to be rounded to the nearest whole number. If the appellant is right, 1.5% is rounded to 2%. If Bell is right, 1.49% is rounded to 1%. The difference to the class members between a 2% and a 1% increase in the 2017 pension is over $10 million for the first year and, over the long-term, over $100 million. Background [3] The appellant, a longtime Bell Canada employee, brings this class proceeding on behalf of approximately 35,000 pensioners who are all beneficiaries of the common Pension Plan administered by the respondents which are all part of the Bell corporate family. [4] The motion judge certified the proceeding under the Class Proceedings Act , 1992, S.O. 1992, c. 6 . It was common ground that the matter was suitable for summary judgment. As we explain below, the motion judge concluded that Bell was entitled to round the Pension Index to two decimal points and accordingly granted summary judgment dismissing the action. The Bell Pension Plan [5] The motion judge’s ruling and this appeal turn on two provisions in the plan dealing with the annual indexing of benefits. [6] The first is the definition of Pension Index in s. 1.29 of the Plan: 1.29 “Pension Index” means the annual percentage increase of the Consumer Price Index, as determined by Statistics Canada, during the period of November 1 to October 31 immediately preceding the date of the pension increase; [7] The second key provision is s. 8.7, which governs the calculation of the annual indexation increase. The case turns on how s. 1.29 and the determination of the Pension Index works in conjunction with the rounding provision in s. 8.7(iv): 8.7 On every first day of January, the retirement benefits payable to a Member, the surviving Spouse or the Beneficiary under the DB Provisions shall be augmented by a percentage determined as follows: (i) If, on the date of the increase, the Member has not reached 65 years of age, or would not have reached 65 years of age in the case of a surviving Spouse or Beneficiary, the Pension Index, limited to a maximum of 2% and calculated on a compounded basis. (ii) If, on the date of the increase, the Member has reached 65 years of age, or would have reached 65 years of age in the case of a surviving Spouse or Beneficiary, the percentage shall be the greater of: (a) 60% of the Pension Index, limited to a maximum of 4% and calculated on a compounded basis; or (b) the percentage determined under paragraph (i) above. (iii) For the purpose of any increase applicable to a Member, the surviving Spouse or the Beneficiary within the first year of retirement, the applicable percentage shall be prorated, taking into account the number of full calendar months of retirement in the calendar year preceding the date of the increase. (vi) All percentage increases shall be rounded to the nearest 2 decimal points, except for the percentage increase under paragraph (i) above which shall be rounded to the nearest whole number. [8] It is common ground that for the relevant period, the Consumer Price Index rose from 127.2 to 129.1 and, as a matter of simple mathematics, that represented a 1.49371 % increase. It is also undisputed that Statistics Canada has a policy of rounding the annual percentage increase to one decimal point. Accordingly, Statistics Canada published the annual percentage increase for the relevant period as 1.5%. Section 8.7(iv) provides that percentage increase for all pensioners other than those who are in their first year of retirement (s. 8.7(iii)), is to be rounded to the nearest whole number. Accordingly, if, as the appellant argues, the Statistics Canada policy governs, the Pension index of 1.5% should be rounded to 2%. On the other hand, Bell asserts that the words of s. 8.7(iv) apply: “All percentage increases shall be rounded to the nearest 2 decimal points”. If s. 8.7(iv) does apply to s. 1.29, the Pension Index is 1.49% which, when rounded to the nearest whole number, becomes 1%. The Motion Judge’s Reasons [9] The motion judge turned first to s. 1.29. He held that the proper interpretation of that provision depended upon the importance to be ascribed to the comma after the words “Consumer Price Index”. He reviewed in some detail case law and academic writing, both Canadian and American, dealing with the significance to be attached to commas that follow a sequence of items. Ordinarily, if there is no comma, the “last antecedent rule” states that the phrase at the end of the list will modify only the last item. If there is a comma, the “series qualifying rule” states that the phrase will modify all items on the list: Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. (Markham: LexisNexis Canada, 2014), at p. 470. Here, there is not a list but there are two items: (1) the “annual percentage increase”, and (2) the “Consumer Price Index”. Accordingly, the comma after “Consumer Price Index” suggests that the phrase “as determined by Statistics Canada” modifies both items. [10] The motion judge appears to have accepted that interpretation but found that it was rebutted by the need to read the Plan as a whole. He focused on the s. 8.7(iv) provision that “[a] ll percentage increases shall be rounded to the nearest 2 decimal points”. There was uncontradicted expert evidence that the calculation required under s. 8.7(ii)(a) for pensioners aged 65 or older – 60% of the Pension Index – will never yield more than a two-decimal place figure if the Statistics Canada one-decimal place increase is used. The motion judge found, at para. 61, that as using Statistics Canada’s one-decimal rounding of the Pension Index “would eliminate the need for any further rounding as set out in s. 8.7(ii),” it would “render meaningless the provision in s. 8.7(iv) that all rounding be to two decimal places”. He added that the expert evidence indicated that following Bell’s policy of rounding the Pension Index to two decimal places would often yield a three-decimal place figure in the s. 8.7(ii)(a) calculation. The Bell two-decimal point rounding of the Pension Index would therefore give s. 8.7(iv) meaning. [11] The motion judge concluded that while Statistics Canada uses the one-decimal place approach to rounding for its own purposes, that method did not govern the Plan when read as a whole. The key passage in his reasons is para. 65: Section 8.7 of the Plan is a precisely drafted, mathematically crafted section that is dependent on rounding being part and parcel of the calculations it prescribes. It is not possible to surmise that the drafters of the Plan went to all of that trouble and detail only to have the entire exercise rendered meaningless by a deferral to Statistics Canada’s method of rounding when doing the initial Pension Index calculation under s. 1.29 of the Plan. [12] At para. 64, the motion judge referred to the contra proferentem rule that would favour the pensioners as the non-drafting party, but stated that “there is no rule of interpretation that would implement a version of the Plan that renders it partly meaningless” or “effectively gut” a key aspect of the method of calculation. ANALYSIS [13] The appellant accepts that as the issue in this appeal turns upon the interpretation of a contract, the standard of review is that laid down by Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633 and Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235 . To succeed, the appellant must establish either a palpable and overriding error of fact or an extricable error of law. [14] The appellant argues that this appeal turns on the plain and ordinary meaning of s. 1.29. The appellant accepts that s. 1.29 must be read in the light of the Plan as a whole. The appellant argues, however, that the definition in s. 1.29 is unaffected by s. 8.7(iv) which deals only with percentage increase in pensions under s. 8.7. The appellant submits that the motion judge made a “foundational error” by finding that unless s. 8.7(iv) applies to the definition of Pension Index, s. 8.7(iv) would be meaningless. The motion judge failed to take into account the uncontradicted evidence regarding the calculation under s. 8.7(iii) of the annual percentage increase of pensioners who retired during the current year. Those pensioners are not entitled to the full year’s cost-of-living increase and their annual percentage increase is prorated according to the number of months of retirement. The expert evidence established that by reason of the prorating, using a Pension Index rounded to one decimal place will often yield an annual percentage increase with three or more decimal places. Therefore, resort must be had to the s. 8.7(iv) two-decimal place rounding rule. That, in turn, means that using the Statistics Canada one-decimal point rounding to determine the Pension Index does not render s. 8.7(iv) “meaningless” and the whole foundation for the motion judge’s interpretation collapses. [15] Bell argues that the motion judge did not err. The evidence regarding the calculations and need to round or not round was uncontradicted and the argument that the motion judge made a palpable and overriding error of fact should be rejected. Bell has used the two-decimal rounding policy since 1998 with no complaint from the pensioners. The motion judge did not err by finding that the Statistics Canada one-decimal policy would render s. 8.7(iv) meaningless in relation to s. 8.7(ii) which governs the annual percentage increase for all but a very small number of pensioners. [16] For the following reasons, we conclude that the appeal should be allowed. [17] Our starting point is the language of s. 1.29. We agree with the appellant and the motion judge that, on its face, s. 1.29 states that both the annual percentage increase and the Consumer Price Index are to be determined by Statistics Canada. That conclusion is supported by the comma following the phrase “Consumer Price Index” and the “series qualifying rule” referred to by the motion judge. [18] We add here that the appellant led evidence to explain the reason for the Statistics Canada one-decimal point rounding policy. An expert testified that the Consumer Price Index cannot be accurately measured to two decimal points and “to publish more than one decimal point would convey a message about the precision and accuracy of the index that would not be justified.” The one-decimal point rounding is also the convention among most statistical agencies. [19] We do not accept Bell’s submission that adhering to the one-decimal rounding policy is undermined by the expert’s admission on cross-examination that Statistics Canada follows the one-decimal rounding policy “for its own purposes” and “is not in the business of telling people how to use [its] data.” As the expert explained, the policy Bell adopts for the Plan is matter for negotiation between Bell and its employees. In our view this simply states the obvious. Statistics Canada determines and publishes the annual percentage increase in the Consumer Price Index using what it regards as sound statistical practices. Statistics Canada has no authority to dictate how pensions are to be adjusted for inflation and parties are free to adopt whatever method they wish. However, the question before the motion judge and before us is whether the words in the Plan require the parties to adopt the Statistics Canada approach. [20] We agree with the motion judge that the language the parties have adopted in s. 1.29 points in the direction of applying Statistics Canada’s calculation of the annual percentage increase of the Consumer Price Index. That interpretation is supported by use of the comma indicating that the phrase “as determined by Statistics Canada” modifies both the phrases “ Consumer Price Index” and “annual percentage increase”. It is also supported by the evidence of sound statistical methodology supporting the one-decimal rounding policy. [21] In our view, having regard to the grammatical meaning of s. 1.29 and the evidence regarding accepted statistical conventions for rounding, a strained interpretation of s. 1.29 would be required to make it mean that Statistics Canada determines only the increase in the Consumer Price Index and leaves it to Bell to adopt a different rounding policy to determine the Pension Index. [22] This brings us to the next stage, namely reading s. 1.29 in the context of the Plan as a whole. We agree with the motion judge that this is an important part of the interpretive exercise. We also agree that when a pension scheme should be interpreted as a whole and that the meaning of a particular clause should be considered in conjunction with other relevant clauses: Dinney v. Great-West Life Assurance Co. , 2009 MBCA 29, 236 Man. R., 299, at paras. 61-2; Geoff R. Hall, Canadian Contractual Interpretation Law (3rd ed.) (Toronto: LexisNexis Canada, 2016), at p. 256. There can be no doubt that the crucial point for the motion judge was his conclusion that accepting the Statistics Canada one-decimal rounding policy would render s. 8.7(iv) “meaningless” or “partly meaningless”. In our view, that conclusion rests on either (or both) a palpable and overriding error of fact or an extricable error of law. [23] The palpable and overriding error of fact is that the motion judge’s conclusion ignores the uncontradicted evidence that using the Statistics Canada one-decimal rounding policy will frequently produce a three-decimal figure in the calculation of the annual percentage increase for recently retired pensioners under s. 8.7(iii), and that the two-decimal rounding provision on s. 8.7(iv) applies and therefore has meaning. [24] Bell argues that as the evidence was uncontradicted, the motion judge could not have misunderstood or mistaken its effect. However, even if the motion judge understood and did not mistake the effect of the evidence, we have no explanation for why he failed to take it into account in reaching the conclusion that s. 8.7(iv) would be rendered “meaningless”. In our respectful view, the motions judge’s failure to apply the evidence to the interpretation of the Plan amounts to a palpable and overriding error of fact. In the words of Waxman v. Waxman (2004) , 186 O.A.C. 201, at paras. 296-7, his finding was “made in conflict with accepted evidence” and is “plain to see” and therefore “palpable”. The error is also “overriding” as it determined the result. [25] If we were to accept Bell’s submission that the motion judge only meant “meaningless” in relation to s. 8.7(ii), we are left with his conclusion that s. 8.7(iv) would be rendered “partly meaningless”. In our view, that reflects an extricable error of law. [26] It is not apparent what “partly meaningless” means. A contractual provision either has a meaning or it does not. Courts will strive to give all provisions in a contract meaning and to avoid an interpretation of one provision that would render another provision meaningless or redundant. The redundancy rule relied upon by the motion judge was explained by this court in Scanlon v. Castlepoint Development Corp . (1992), O.R. (3d) 744, at para. 88 (leave to appeal refused, [1993] S.C.C.A. No. 62). To the extent that it is possible to do so, [a contact] should be construed as a whole and effect should be given to all of its provisions. The provisions should be read, not as standing alone, but in light of the agreement as a whole and the other provisions thereof: Hillis Oil & Sales Ltd. v. Wynn's Canada Ltd ., [1986] 1 S.C.R. 57 at p. 66, 25 D.L.R. (4th) 649 at p. 655. The court should strive to give meaning to the agreement and "reject an interpretation that would render one of its terms ineffective": National Trust Co. v. Mead , [1990] 2 S.C.R. 410 at p. 425, 71 D.L.R. (4th) 488 at p. 499. [27] In this case, as we have explained, the rounding provision in s. 8.7(iv) would not be rendered ineffective by giving s. 1.29 its plain grammatical meaning. It will be frequently necessary to round to two decimal points to determine the annual percentage increase for recently retired pensioners. [28] Bell asks us to ignore that fact as the recently retired pensioners represent only between 4% and 5% of the class. That number amounts to hundreds of pensioners each year. We fail to see why that category of pensioners should be ignored in the interpretation of the Plan. [29] Adhering to the Statistics Canada one-decimal rounding policy for the purpose of determining the Pension Index pursuant to s. 1.29 does not strip s. 8.7(iv) of meaning. The plain grammatical reading of s. 1.29 is readily reconcilable with the rounding method specified by s. 8.7(iv) with respect to the other provisions of s. 8.7 and it follows that the plain grammatical meaning should be followed. [30] Alternatively, the motion judge made an extricable error of law by failing to consider the contra proferentem rule. The motion judge found the wording of the Plan to be “awkward” (para. 69). He referred briefly to the appellant’s contra proferentem argument but did not explain why the doctrine should not apply. [31] The Plan was drafted by Bell without meaningful participation by the pensioners who are a vulnerable group in relation to Bell. The contra proferentem rule of interpretation “applies to contracts … on the simple theory that any ambiguity … must be resolve against the author if the choice is between him and the other party to the contract who did not participate in its drafting”: McClelland & Stewart Ltd. v. Mutual Life , [1981] 2 S.C.R. 6, at p. 15. Contra proferentem is regularly applied to resolve ambiguities in pension documents in favour of pensioners: see O’Neill v. General Motors of Canada Ltd ., 2013 ONSC 4654, 6 C.C.P.B. (2nd) 257, at paras. 21-2. [32] In our view, the Plan is not ambiguous and, for the reasons above, the appellant’s interpretation is the correct one. We therefore do not find it necessary to resort to contra proferentem . However, it is a very short step to take from the motion judge’s observation that the wording of the Plan is “awkward” to finding that the wording is ambiguous. Having found the wording to be “awkward”, the motion judge should have taken that step, applied the contra proferentem doctrine, and ruled that given the ambiguity, the interpretation favouring the pensioners should prevail. His failure to do so represents an extricable error of law reviewable by this court under the Saatva standard of review. DISPOSITION [33] Accordingly, we allow the appeal, set aside the summary judgment dismissing the action and in its place award summary judgment in favour of the appellant. The matter is remitted to the motion judge for any ancillary or consequential matters that may arise from our judgment. [34] The appellant is entitled to costs fixed in the amount agreed to by the parties, namely $22,500 inclusive of taxes and disbursements. Released: February 21, 2020 “JCM” “J.C. MacPherson J.A.” “Robert J. Sharpe J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Champion Products Corp. v. Intact Insurance Company, 2020 ONCA 111 DATE: 20200212 DOCKET: C63947 Simmons, Pardu and Nordheimer JJ.A. BETWEEN Champion Products Corp., Walkerville Commercial Centre Inc., formerly 1206738 Ontario Limited, and 19298446 Ontario Inc., carrying on business as “The Party Warehouse” Plaintiffs (Respondents/ Appellants by way of cross-appeal) and Intact Insurance Company, formerly AXA Insurance (Canada), and AXA Insurance (Canada) Defendants (Appellants/ Respondents by way of cross-appeal ) Paul J. Pape and Brodie Noga, for the appellants/respondents by way of cross-appeal Myron W. Shulgan, Q.C. and Donald Leschied, for the respondents/appellants by way of cross-appeal Heard: November 5, 2019 On appeal from the order of Justice George W. King of the Superior Court of Justice, dated May 18, 2017, with reasons reported at 2017 ONSC 1740. Simmons J.A.: I. introduction [1] The respondents, collectively “Champion”, are related companies that owned or occupied a commercial building in Windsor, Ontario. Much of the building was destroyed by fire on February 15, 2011. [2] The appellants, collectively “Intact”, insured the destroyed building under a multi-peril commercial insurance policy. [3] The main issue on appeal is whether, on a summary judgment motion, the motion judge erred in holding Intact must indemnify Champion for recoverable depreciation (essentially, the difference between the destroyed building’s actual cash value at the time of the fire, and the cost to replace it). [4] Under a rider to the policy, Champion was entitled to replace the destroyed building at the same or a different site and be indemnified for recoverable depreciation provided it effected replacement with “due diligence and dispatch” and a building of “like kind and quality”. [5] Nearly two years after the fire, Champion had not replaced the destroyed building. On February 6, 2013 it issued a statement of claim seeking indemnity under its policy and damages. [6] On May 6, 2013 the parties entered into an agreement (the “May 6, 2013 settlement agreement”) under which they settled some of the claims in the pending action. They agreed on the actual cash value and replacement cost of the destroyed building; a formula for determining the recoverable depreciation payable if Champion replaced it; and a requirement that Champion account for land acquisition costs if it effected replacement at a different site. They also agreed that Champion would have 24 months from May 6, 2013 to proceed with replacement of the destroyed building, failing which it would be “deemed to have forever waived and forfeited” any claim for recoverable depreciation. [7] Champion subsequently entered into two agreements to purchase replacement properties prior to the expiry of the 24-month deadline. It terminated the first agreement in April 2014. On February 17, 2015, Champion entered into an agreement to purchase a Scarborough property to replace the destroyed building. [8] Shortly before the expiry of the 24-month deadline, on April 29, 2015, Intact confirmed the Scarborough property met the “like kind and quality” requirement. [9] On May 1, 2015 the parties exchanged correspondence confirming they had “reached settlement of the outstanding issues regarding the building loss claim on the basis of a further payment of $3 million” (the “May 1, 2015 agreement”). However, the May 1, 2015 agreement was subject to various conditions, including Champion closing the February 17, 2015 agreement to purchase the Scarborough property. [10] On May 12, 2015, Champion entered into a revised agreement to purchase the Scarborough property. The revised agreement required the vendor to complete certain roof repairs prior to closing. [11] Without advising Intact, on November 9, 2015 Champion entered into an agreement to purchase a different replacement property, this time in Pickering. Shortly thereafter, in mid-November 2015, Champion terminated its agreement to purchase the Scarborough property. [12] Intact learned of these developments on November 27, 2015. Almost three months later, on February 16, 2016, Intact informed Champion that as a result of Champion failing to close the purchase of the Scarborough property Champion had forfeited its entitlement to recoverable depreciation under the policy and the May 6, 2013 settlement agreement as quantified in the May 1, 2015 agreement. [13] During the intervening period, however, Intact had taken steps to assess the suitability of the Pickering property as a replacement for the destroyed building. [14] Champion subsequently moved for summary judgment, seeking a declaration that Intact had waived Champion’s obligation to replace the destroyed building within 24 months of May 6, 2013. In the alternative, Champion claimed relief from forfeiture. [15] The motion judge found that the May 6, 2013 settlement agreement required Champion to complete the purchase of another building of like kind and quality within the stipulated 24-month replacement deadline. However, he concluded the May 1, 2015 agreement effectively amended the May 6, 2013 settlement agreement through a qualified waiver of the 24-month replacement deadline, which instead required Champion to complete the purchase of the Scarborough property. [16] Further, the motion judge held that, by its conduct after November 27, 2015, Intact had waived Champion’s failure to complete the purchase of the Scarborough property and its right to deem that Champion had forfeited any claim for recoverable depreciation. He concluded that Champion was therefore entitled to be indemnified for recoverable depreciation. However, he also found that Intact’s waiver was limited. All that was waived was the condition that Champion had to close the Scarborough purchase to receive $3,000,000; the waiver did not extinguish the policy or subsequent agreements under which the replacement property issue was settled. [17] Having made those findings, the motion judge granted partial summary judgment to Champion for $3,000,000. He did not reach the issue of relief from forfeiture. [18] On appeal, Intact argues the motion judge’s findings were premised on an erroneous conclusion that Intact had to give notice to Champion that by failing to close the Scarborough transaction, it had forfeited its entitlement to recoverable depreciation under the policies and the subsequent agreements. Intact asserts the policies and agreements were forfeited in accordance with their terms when Champion failed to complete the Scarborough purchase. By its subsequent conduct Intact did no more than fulfill its good faith obligations as an insurer. [19] Champion responds that the motion judge’s finding that Intact’s conduct in May and June 2015 was a qualified waiver of its entitlement to deem Champion had forfeited its right to replace its destroyed building was an error. Rather, Intact’s conduct was a complete waiver of its right to rely on the 24-month deadline. In any event, the motion judge’s finding that Intact waived Champion’s failure to close the Scarborough transaction is entitled to deference. [20] By way of cross-appeal, Champion seeks a declaration that on May 1, 2015 and thereafter Intact waived the 24-month deadline in the May 6, 2013 settlement agreement. In the alternative, Champion seeks an order that it is entitled to relief from forfeiture. [21] At the request of the panel, in post-hearing submissions the parties confirmed that Champion never completed the Pickering transaction. The panel also requested that Champion clarify the appropriate remedy for its relief from forfeiture claim. Champion responded that “the remedy should remain a monetary award of damages … of $3,000,000”. In the alternative, Champion requested a trial of the issue of the amount Intact should have paid as recoverable depreciation to fund the purchase of the Pickering property. In support of its position, Champion asserted that to simply find that Champion still had the right to purchase a replacement property would be unjust because of the dramatic rise in the cost of commercial real estate in the Greater Toronto Area. [22] Intact asserts that Champion’s original failure and current refusal to replace the destroyed building disentitle it to relief from forfeiture . [23] For the reasons that follow, I would allow the appeal, set aside the summary judgment, and substitute a declaration that Intact did not waive Champion’s failure to replace its destroyed building as required under the policies and agreements of the parties. I would dismiss Champion’s cross-appeal. II. background (1) The Policies [24] The destroyed building was insured under a commercial insurance policy and a Megaproperty Rider. The commercial insurance policy required payment of the actual cash value of the building in the event of a loss. The Megaproperty Rider provided replacement cost coverage. [25] Clause 18, paragraph f, of the Megaproperty Rider provided for an actual cash value valuation. Paragraph 4 ac. of the Rider set out the replacement cost coverage extension and the requirements for the insured to effect replacement with “due diligence and dispatch” and to complete replacement prior to settlement being made: 4 ac. Replacement cost: the basis of valuation described in paragraph f. of clause 18. is changed to the following: All other insured property for which no more specific conditions have been set out: the “replacement cost” at the time and place of loss or damage, but not exceeding the amount actually and necessarily expended to complete the “replacement”, provided: 1) “Replacement” shall be effected by the insured with due diligence and dispatch. 2) Settlement on a “replacement cost” basis shall be made only when “replacement” has been completed by the Insured. If the Insured does not comply with requirements (1) and (2) above, settlement shall be made as if this extension was not in effect. [Emphasis in original.] [26] “Replacement” and “Replacement cost” are both defined in clause 22 of the Rider: 22. DEFINITIONS Wherever used in this rider or its endorsements: u. “Replacement” includes repair, construction or re-construction with new property of like kind and quality. If new property of like kind and quality is unobtainable, new property as similar as possible to that lost or damaged and which is capable of performing the same function shall be considered to be new property of like kind and quality for the purpose of this definition. v. “Replacement cost” means whichever is the least of the cost of replacing, repairing, constructing or re-constructing the property on the same site with new property of like kind and quality and for like occupancy without deduction for depreciation. (2) The May 6, 2013 Settlement Agreement [27] By May 6, 2013, more than two years had elapsed from the fire and Champion had sued Intact for indemnity and damages. One major issue between the parties was the building loss claim. On May 6, 2013 the parties entered into a settlement agreement to resolve aspects of that claim as well as other claims. [1] [28] As part of the May 6, 2013 settlement agreement, the parties agreed that the actual cash value of the building claim was $2,850,000. After deducting advance payments of $1,860,000, Intact paid a further $990,000 under the May 6, 2013 settlement agreement to fully indemnify Champion for the actual cash value of the destroyed building. [29] The parties also agreed on the Replacement cost of the destroyed building: a total of $7,600,000. Champion would only be entitled to Replacement cost if the new property was of “like kind and quality and for similar occupancy” as the destroyed building. The amount payable upon replacement would be the lesser of $7,600,000 minus $2,850,000 and the actual replacement cost minus $2,850,000. If Champion replaced the property at a different site, Champion would have to account to Intact for land acquisition costs to determine the recoverable depreciation amount. If the parties could not reach an agreement on land value, it was to be determined through the appraisal process as provided for in the policy and under the Insurance Act , R.S.O. 1990, c. I.8. [30] The 24-month deadline for replacement of the destroyed building was stipulated under paragraph 2 j. of the May 6, 2013 settlement agreement, which provided, in part: The insured/Plaintiff will have 24 months from the date of settlement to proceed with replacement in accordance with the policy and claim and the recoverable depreciation entitlements under this settlement failing which the insured/plaintiff will be deemed to have forever waived and forfeited any claim on the policies or under this settlement for recoverable depreciation . [Emphasis added.] (3) The Vaughan Agreement of Purchase and Sale [31] Champion’s first attempt at obtaining a replacement for the destroyed building involved a March 7, 2014 agreement of purchase and sale for a warehouse property located in Vaughan. [32] Champion and the vendor of the Vaughan property set the value of the land at $2,400,000, whereas Intact’s appraiser valued the land at $4,600,000. Ultimately, Champion could not secure the additional financing required to complete the purchase and did not close the transaction. Champion communicated this to Intact on April 29, 2014. (4) The February 17, 2015 Scarborough Agreement of Purchase and Sale [33] On February 17, 2015 Champion entered into an agreement to purchase a building located in Scarborough. The original closing date was April 29, 2015. [34] However, as noted by the motion judge, there were “numerous complications and considerations” related to whether this property would meet the “like kind and quality for similar occupancy” requirement. Eventually, on April 29, 2015 Intact indicated the Scarborough property met that requirement. (5) The May 1, 2015 Settlement Agreement [35] The parties reached an agreement on April 30, 2015 concerning replacement cost. The agreement was confirmed by correspondence between counsel on May 1, 2015. [36] On May 1, 2015 counsel for Intact wrote, in part: I write to confirm that we have reached settlement of the outstanding issues regarding the building loss claim on the basis of a further payment of $3 million. The settlement is subject to: 1. The closing of the purchase of the [Scarborough property] in accordance with the Agreement of Purchase and Sale dated February 17, 2015 reflecting a purchase price of $7,450,000.00, subject to the usual adjustments on closing. 4. … Should the purchase price turn out to be less than represented then the amount payable by the Defendant/Insurer will be reduced by the amount to which the purchase price is less than $7,450,000.00. [2] [37] Counsel for Champion responded by email the same day: “We will comply with the terms of the closing of the Scarborough property, as you spelled out.” (6) The May 12, 2015 Scarborough Agreement of Purchase and Sale [38] The February 17, 2015 Scarborough agreement of purchase and sale allowed Champion the right to inspect the property before closing. On doing so, Champion discovered that the roof of the Scarborough property required repairs and declined to complete the original agreement of purchase and sale. [39] On May 12, 2015 Champion entered into a second agreement to purchase the Scarborough property, which superseded the February 17, 2015 agreement of purchase and sale. This agreement required the vendor to effect roof repairs prior to closing. [40] Closing was scheduled for June 29, 2015. By letter dated June 25, 2015, in which Intact’s counsel acknowledged reviewing the May 12, 2015 Scarborough agreement of purchase and sale, counsel for Intact forwarded a cheque payable to counsel for Champion, in the amount of $3,000,000 to be held in trust in accordance with the May 6, 2013 settlement agreement. Subject to any agreed-upon extension of the closing date, counsel for Intact requested that the cheque be returned if the transaction did not close as scheduled. Counsel for Intact also requested, in accordance with his May 1, 2015 correspondence, that a cheque for the amount of any reduction in the purchase price be sent to him if the final purchase price was less than $7,450,000. (7) Termination of the Scarborough Agreement of Purchase and Sale and Subsequent Events [41] The closing date of the Scarborough agreement of purchase and sale was ultimately extended to November 17, 2015. [3] On November 16, 2015 Champion cancelled the Scarborough agreement of purchase and sale and demanded the return of its deposit as the required roof repairs had not been completed. [42] In the meantime, on November 9, 2015, Champion had entered into an agreement to purchase a Pickering property through a related company, Dynamic Holdings, for $7,400,000. The closing date was March 31, 2016. [43] Intact learned of these developments on November 27, 2015 at an examination for discovery concerning Champion’s business interruption loss claim . By letter dated December 4, 2015 Champion’s counsel requested that the Pickering property be treated as a replacement property. Following further correspondence from Champion’s counsel, on January 5, 2016 Intact’s counsel responded: I do not currently have instructions. In fact my instructions are to request return of the money. I am seeking clarification and hope to have a further response before your deadline. In the meantime what is the closing date and is the deal likely to close on that date, assuming financing. [44] On January 13, 2016 Intact’s counsel wrote again to Champion’s counsel. In his letter, counsel confirmed that he did not have instructions to consent to the substitution of the Pickering property for the Scarborough property and allow the $3,000,000 settlement funds to be retained and used for that purpose. However, he confirmed Intact was looking further at the issue. [45] In his January 13, 2016 letter, Intact’s counsel also asserted that Champion’s failure to replace the building within the 24-month timeline stipulated in the May 6, 2013 settlement agreement resulted in Champion having forfeited the right to recoverable depreciation. He acknowledged, at least implicitly, that Intact would have permitted the completion of the Scarborough purchase. However, as that transaction was not completed “technically” Champion was required to return the $3,000,000 cheque. Nonetheless, as the matter remained under review, Champion’s counsel could retain the $3,000,000 cheque in trust pending further direction from Intact’s counsel. [46] Following the January 13, 2016 letter, Intact’s counsel sought further information concerning the demise of the Scarborough transaction and the Pickering purchase. Intact also obtained an appraisal of the Pickering property together with confirmation from the appraiser that it would meet the “like kind and quality” requirement. Although Intact learned in late January 2016 that the latter requirement was satisfied, its appraiser valued the land at significantly less than the Champion appraisal. Intact’s appraisal resulted in a recoverable depreciation amount of $2,600,000; whereas Champion’s resulted in $3,225,000. [47] While Intact’s decision regarding the Pickering property remained under consideration, Champion obtained extensions to the financing condition to keep the purchase agreement alive. To obtain an extension to February 15, 2016, Champion paid the vendor a $20,000 non-refundable additional deposit. [48] As I have said, on February 16, 2016 Intact notified Champion through counsel that as a result of Champion not closing the purchase of the Scarborough property Champion had forfeited its entitlement to recoverable depreciation under the policies and the May 6, 2013 settlement agreement as quantified in the May 1, 2015 agreement. Further, Intact rejected Champion’s request to treat the Pickering property as a replacement, pointing primarily to the fact that it was being asked to pay $400,000 more than it would have had to pay had Champion proceeded in accordance with the parties’ agreements. [49] Intact therefore demanded the return of its $3,000,000 cheque. III. the motion judge’s reasons [50] The motion judge made several key findings that led to his conclusion that Intact was required to pay Champion $3,000,000 as recoverable depreciation for the destroyed building. [51] First, he concluded that the May 6, 2013 settlement agreement resolved the outstanding replacement property issues between the parties. Under the policy, replacement could occur in various ways. The motion judge found that the 24-month deadline specified in the May 6, 2013 settlement agreement applied to all forms of replacement. If Champion failed to replace as permitted within that timeframe, it would be deemed to have forever waived and forfeited any claim for recoverable depreciation under the policies or the settlement. These findings are not challenged on appeal. [52] Second, the motion judge concluded that, in the May 1, 2015 agreement, the parties effectively amended the May 6, 2013 settlement agreement. They did so through a qualified waiver of the 24-month deadline such that Champion would still be entitled to the $3,000,000 recoverable depreciation payment if it effected replacement after that date, provided it completed the February 17, 2015 agreement to purchase the Scarborough property. [53] Third, the motion judge found that Intact was in a position as of November 27, 2015 (the date Intact learned that Champion had terminated the Scarborough purchase agreement), or within a reasonable time thereafter, to notify Champion that by aborting the Scarborough purchase it had forever waived and forfeited any claim on the policies or under the settlement for recoverable depreciation. [54] Fourth, the motion judge found that by its conduct after November 27, 2015, Intact demonstrated “a clear and unequivocal intention to calculate the recoverable depreciation owing pursuant to the policy utilizing the Pickering property in substitution for the Scarborough property.” Intact had therefore waived Champion’s failure to close the Scarborough transaction and its right to deem that Champion had waived and forfeited any claim for recoverable depreciation. [55] Finally, the motion judge concluded that Intact’s waiver was of limited scope and effect. All Intact had waived was the condition that, to receive the agreed upon $3,000,000, Champion had to close the Scarborough purchase – the waiver did not extinguish the policy or subsequent agreements under which the replacement property issue was settled. [56] The motion judge therefore granted partial summary judgment to Champion and ordered Intact to pay Champion the $3,000,000 agreed upon as recoverable depreciation. IV. analysis [57] The main issue on appeal and the first issue raised by Champion on its cross-appeal are interrelated. I will therefore consider them together. (a) Did the motion judge err in finding Intact waived Champion’s failure to complete the purchase of the Scarborough property by which Champion itself forever forfeited any claim to recoverable depreciation? [58] Intact argues that the motion judge erred in finding it waived Champion’s failure to complete the purchase of the Scarborough property because he concluded, erroneously, that Intact had to give Champion notice of forfeiture for forfeiture to occur. This error, says Intact, tainted the motion judge’s reasoning concerning whether Intact waived the forfeiture that occurred because of Champion’s failure to close. [59] Champion responds with two arguments. First, it says the motion judge erred in failing to find that, by its conduct in May and June 2015, Intact waived the 24-month deadline in the May 6, 2013 settlement agreement. The failure to close the Scarborough purchase is therefore irrelevant because by that time, there was no longer a 24-month deadline for completing the purchase of a replacement building. This is also Champion’s first request by way of cross-appeal. Second, and in any event, Intact’s failure to give notice of forfeiture was but one factor the motion judge considered in concluding Intact waived Champion’s failure to close the Scarborough purchase. His finding in that regard is entitled to deference. [60] As it is first chronologically, I will begin with Champion’s first argument. (i) Did the motion judge err in failing to find that, by its conduct in May and June 2015, Intact waived the 24-month deadline in the May 6, 2013 settlement agreement? [61] The motion judge referred to the May 1, 2015 agreement and the parties’ conduct as both amending the May 6, 2013 settlement agreement (by extending the 24-month replacement deadline) and as constituting a qualified waiver of that deadline. [62] Champion argues that the May 1, 2015 agreement and the parties’ conduct did neither. Rather, Intact’s conduct in May and June 2015 amounted to a complete waiver of the 24-month replacement deadline. [63] Champion points out that the May 1, 2015 agreement does not refer to the May 6, 2013 settlement agreement at all – let alone express any intention to amend it. Importantly, it does not identify any date to which the 24-month replacement deadline could be extended. Contrary to the motion judge’s conclusions, on its face, the sole effect of the May 1, 2015 agreement was to resolve the amount of the recoverable depreciation payable by Intact. [64] Significantly, says Champion, on May 12, 2015 – six days after the expiration of the 24-month replacement deadline – it entered into a new agreement to purchase the Scarborough property that included different terms than those contained in the original February 17, 2015 agreement of purchase and sale. Nonetheless, on June 29, 2015 Intact advanced $3,000,000 to Champion’s counsel to complete the purchase of the Scarborough property. Intact advanced these funds at a time when it knew: · the 24-month replacement deadline in the May 6, 2013 settlement agreement had expired; · replacement had not been effected within the 24-month replacement deadline; · no agreement had been made specifying a new replacement deadline; and · the pending purchase of the Scarborough property was to be completed under an agreement of purchase and sale made after the 24-month replacement deadline specified in the May 6, 2013 settlement agreement. [65] Given these circumstances, Champion submits that Intact’s conduct in May and June 2015 can only properly be interpreted as a complete waiver of the 24-month replacement deadline specified in the May 6, 2013 settlement agreement. Intact’s agreement to indemnify Champion based on an agreement of purchase and sale made after the expiry of the 24-month replacement deadline specified in the May 6, 2013 settlement agreement can reflect no other intention. [66] I would not accept these submissions. [67] Although Champion is correct that the May 1, 2015 agreement does not refer specifically to the May 6, 2013 settlement agreement or identify a specific date to which the 24-month replacement deadline was extended, I see no error in the motion judge’s conclusion that the May 1, 2015 agreement effected what I would refer to as a conditional waiver of that deadline. [68] The motion judge observed that the May 1, 2015 agreement was made just days before the expiration of the deadline specified in the May 6, 2013 settlement agreement. Further, he found “there was clear recognition that the then current agreement of purchase and sale of the Scarborough property … was not going to close by May 6, 2015”. [69] Under the May 1, 2015 agreement, the $3,000,000 settlement on account of recoverable depreciation was subject to closing the purchase of the Scarborough property in accordance with the February 17, 2015 agreement of purchase and sale. Although the correspondence did not explicitly refer to the May 6, 2013 settlement agreement, the only sensible interpretation of the term that the settlement was subject to closing the Scarborough transaction was that the 24-month replacement deadline was waived conditional on the February 17, 2015 agreement being completed. [70] The motion judge made no explicit finding concerning the impact of the May 12, 2015 Scarborough agreement of purchase and sale. In my view, Intact’s counsel’s June 25, 2015 letter made it clear that Intact accepted the May 12, 2015 agreement of purchase and sale as a substitute for the February 17, 2015 agreement and, to the extent Intact was thereby waiving the 24-month replacement deadline in the May 6, 2013 settlement agreement, it was again doing so only conditionally – but now conditional on completion of the May 12, 2015 agreement. [71] In his June 25, 2015 letter, Intact’s counsel acknowledged reviewing the May 12, 2015 agreement. Examination of the February 17, 2015 agreement of purchase and sale and the May 12, 2015 agreement reveals that the terms related to the recoverable depreciation issue had not changed. Both the property and the purchase price remained the same. The June 25, 2015 letter specified that Intact was proceeding on the assumption the transaction would close; enclosed a cheque for $3,000,000, the amount agreed upon in the May 1, 2015 agreement; and included the following requirements: · if the $7,450,000 purchase price, which was the premise of the May 1, 2015 agreement, was adjusted below that figure, Champion was to repay the difference to Intact; and · if the transaction did not close on June 29, 2015 for reasons other than a straightforward extension of the closing date, the $3,000,000 cheque was to be returned to Intact. [72] Particularly in light of the latter requirement, I would reject the argument that Intact waived absolutely the 24-month replacement deadline by accepting this substitution. For these reasons, I would also reject the first ground of Champion’s cross-appeal. (ii) Did the motion judge err in holding that Intact had to give notice to Champion that Champion had forfeited its entitlement to recoverable depreciation and in finding that Intact waived Champion’s failure to close the Scarborough transaction? [73] I turn now to Intact’s argument that the motion judge erred in holding that Intact had to give notice to Champion that it had forfeited its entitlement to recoverable depreciation by failing to close the Scarborough transaction and further erred in finding Intact waived the obligation to close that transaction. [74] Champion responds that the motion judge’s decision was not premised on a finding that Intact was required to provide Champion with notice of forfeiture. Instead, Intact’s failure to provide notice was simply one of many factors the motion judge properly considered in concluding that Intact had waived Champion’s obligation to complete the Scarborough purchase. The motion judge’s reasons and his finding of waiver are entitled to deference. [75] I would accept Intact’s argument. I would set aside the motion judge’s finding that Intact waived Champion’s failure to close the Scarborough purchase and substitute a finding that Intact did not waive that obligation. [76] The trial judge addressed three main issues before concluding that Intact waived Champion’s failure to complete the Scarborough purchase: i) Did the parties negotiate an agreement that required Champion to replace the destroyed building on specific terms and conditions or else permanently forfeit its right to claim indemnity for a replacement property pursuant to the insurance policy? ii) Did Champion fail to effect replacement in accordance with the insurance policy and subsequent agreements of the parties? iii) If Champion did not replace the [destroyed building] pursuant to the specific terms and conditions of the insurance policy as amended by the agreements, did Intact waive Champion’s obligation in that respect? [77] The motion judge answered the first question in the affirmative. Regarding the second question he concluded that by terminating the Scarborough transaction, Champion clearly failed to replace the destroyed building in accordance with the policy and the agreements of the parties. However, at para. 124 of his reasons, the motion judge stated: “Accordingly, I find that as of November 27, 2015 (or within a reasonable time thereafter) Intact was in a legal position to notify Champion that by aborting the Scarborough purchase Champion had forever waived and forfeited any claim on the policies or under the settlement for recoverable depreciation ” (emphasis added). [78] Subsequently, in addressing the issue of waiver of the failure to close the Scarborough transaction, the motion judge noted at para. 201 that upon learning of Champion’s actions Intact “ had the ability to ‘deem Champion to have forever waived and forfeited any claim for recoverable depreciation ’” (emphasis added). [79] Further, at para. 202, the motion judge observed that Intact “ failed to give clear and unambiguous notice to Champion that it had forfeited entitlement to recoverable depreciation … on November 27, 2015, or within a reasonable time thereafter” (emphasis added). [80] In addition, at paras. 205 and 206, the motion judge stated: In fact, other than occasionally appearing to be obtusely preserving its right to treat Champion as having forfeited entitlement to recoverable depreciation at an unspecified later date , the actions of Intact actually demonstrate an intention on its part to demonstrate whether the Pickering property qualified as a proper substitution of the Scarborough property. I conclude that the following actions taken by Intact had no relevance to the forfeiture issue, but were such that a reasonable person would conclude that Intact intended to assess the Pickering property and intended to waive the forfeiture of Champion … . In these circumstances, Intact simply declaring that “a decision was pending” could not and did not have the legal effect of unilaterally giving Intact the right to take almost three months to make a decision as to whether to deem Champion to have forfeited recovery . [Emphasis added.] [81] Finally, at paras. 207 to 209, the motion judge stated: There is no evidence before the court that Intact reasonably needed any additional information in order to claim forfeiture and that such essential information was not otherwise available until February 2016. In and of itself, that delay justifies a finding that Intact waived the right to act upon the breach committed by Champion in November 2017. That conclusion is … buttressed by the extensive evidence … of the numerous and significant steps taken by Intact that cannot reasonably be interpreted … as required to determine whether to assert forfeiture. [82] Reading the motion judge’s reasons as a whole, I can only conclude that he proceeded on the basis that Intact was required to give notice of forfeiture for forfeiture to occur and that further, Intact had to give such notice within some reasonable length of time after Champion defaulted. [83] In doing so, the motion judge erred. None of the agreements or correspondence – the insurance policy, the May 6, 2013 settlement agreement, the May 1, 2015 agreement or counsel’s June 25, 2015 letter – require notice of forfeiture. On the contrary, under the May 6, 2013 settlement agreement forfeiture was automatic in the event of default. [84] The Megaproperty Rider required simply that replacement be effected with due diligence and dispatch. [85] The May 6, 2013 settlement agreement imposed the 24-month replacement deadline and stipulated that absent compliance “[Champion] will be deemed to have forever waived and forfeited any claim on the policies or under this settlement for recoverable depreciation”. Neither the May 1, 2015 agreement nor counsel’s June 25, 2015 letter amended the forfeiture provision in the May 6, 2013 settlement agreement. On its face, that provision created an automatic forfeiture. [86] As I read the motion judge’s reasons, his conclusion that Intact waived Champion’s failure to complete the Scarborough transaction was tainted by his erroneous view that Intact was required to give notice of forfeiture. The motion judge therefore analyzed Intact’s actions on the assumption that Intact had to decide whether to forfeit Champion’s entitlement to recoverable depreciation. In doing so, he failed to recognize that, under the May 6, 2013 settlement agreement, Champion had forfeited its right to recoverable depreciation by its default. [87] These errors led the motion judge to misinterpret the effect of Intact’s statements about the status of its obligations, the effect of its investigations of the Pickering property and the effect of the time it took to complete those investigations. The motion judge’s statements set out at paras. 79 and 80 above illustrate these points. [88] As I read the motion judge’s reasons, he analyzed Intact’s actions through the lens of whether they related to either a decision to forfeit Champion’s entitlement to recoverable depreciation under the policy and agreements or a decision to waive Champion’s failure to close the Scarborough transaction. [89] However, this reasoning ignores the reality that forfeiture was automatic and had already occurred. Therefore, the issue for Intact was not deciding whether to forfeit Champion’s right or whether to waive Champion’s breach, but solely whether to choose to accept the Pickering property as a replacement for the Scarborough despite the fact that forfeiture had already occurred. Put another way, Intact was effectively considering whether it should grant relief from forfeiture. In this latter context, Intact’s actions were necessarily directed solely at that question – and the fact that it was considering whether to accept the Pickering property did not evidence an intention to do so. [90] On my review of the record, Intact’s post-November 27, 2015 conduct indicated – at most – a willingness to consider accepting the Pickering property as a substitute for the Scarborough property. Intact never indicated, either expressly or by its conduct, that it would do so. In particular, on January 5, 2016 Intact’s counsel informed Champion that he had “instructions … to request return of the money”. In another letter sent the following week, Intact’s counsel confirmed that Champion had forfeited its right to recoverable depreciation. [91] At no point did Intact express or otherwise communicate an “unequivocal and conscious intention” to unconditionally waive Champion’s default and resulting forfeiture of its right to receive recoverable depreciation: Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co ., [1942] 2 S.C.R. 490, at p. 500. [92] In the result, I would accept Intact’s argument that the motion judge erred in finding that Intact waived Champion’s failure to close the Scarborough transaction. Further, in the absence of evidence that Intact intended to or communicated an intention to waive Champion’s failure to comply with the 24-month deadline in the May 6, 2013 settlement agreement, I conclude there was no waiver. I therefore conclude Champion forfeited its right to recoverable depreciation when it failed to close the Scarborough transaction and that Intact never waived the forfeiture. (b) Is Champion entitled to relief from forfeiture? [4] [93] Although the motion judge did not address relief from forfeiture, both parties requested that we address the issue on appeal. Champion claims the equitable remedy of relief from forfeiture under both s. 129 of the Insurance Act and s. 98 of the Courts of Justice Act , R.S.O. 1990, c. C.43 . It argues that it had a justifiable reason not to close the Scarborough transaction and was unable to close the Pickering transaction because Intact refused to fund it. Moreover, Intact has already allocated funds for the recoverable depreciation and would therefore suffer no prejudice if relief from forfeiture was granted. [94] I would not grant Champion’s request. It seeks indemnity for recoverable depreciation in relation to the destroyed building. However, it asserts that requiring it to proceed with replacement now would be unjust, advances no plan for permitting it to do so and purports to claim damages for Intact’s failure to fund the Pickering transaction. [95] Champion’s argument ignores the reality that Intact has indemnified Champion for the actual cash value of the destroyed building and that under the terms of the policies, absent replacement, Champion is not entitled to recoverable depreciation. I see no basis on which to grant relief from forfeiture when Champion has neither replaced its destroyed building nor proposed terms on which it should be permitted to do so now. [96] As for a remedy in damages, Intact did not waive Champion’s forfeiture of its right under the policies and agreements to recoverable depreciation. Intact was not contractually obliged to fund the Pickering transaction. I therefore see no basis on which to award damages. V. Disposition [97] Based on the foregoing reasons, I would allow the appeal, set aside the summary judgment, substitute a declaration that Intact did not waive Champion’s failure to replace its destroyed building as required under the policies and agreements of the parties and dismiss the cross-appeal. [98] Costs of the appeal are to Intact, on a partial indemnity scale fixed in the amount of $50,000, inclusive of disbursements and HST. If desired, the parties may file brief submissions not to exceed five pages concerning costs of the proceeding below. Intact should file any such submissions within 7 days of the release of these reasons, Champion may respond within 7 days thereafter. In the absence of submissions, the fees and HST awarded below shall be reversed, the parties may agree on disbursements and the order that Intact pay Champion $20,000 on account of the non-refundable deposit shall be set aside. Released: “G.P.” February 12, 2020 “Janet Simmons J.A.” “I agree. G. Pardu J.A.” “I agree. I.V.B. Nordheimer J.A.” Appendix A May 6, 2013 Settlement Agreement WHEREAS Champion Products Corp., Walkerville Commercial Centre Inc., formerly 1206738 Ontario Limited and 1298446 Ontario Inc. cob “The Party Warehouse" (hereinafter “the insured/plaintiff”) experienced losses following a fire on February 15, 2011; and WHEREAS Intact Insurance Company, formerly AXA Insurance (Canada) and AXA Insurance (Canada) (hereinafter “the insurer/defendant”) Insured the Insured/plaintiff pursuant to various policies (hereinafter “the policy”) of Insurance at the time of the fire; and WHEREAS the insured/plaintiff has made claims from the insurer/defendant on the policy; and WHEREAS the insured/plaintiff has commenced legal action against the insurer/defendant in the Ontario Superior Court of Justice Identified by court file no. CV-13·18990 issued at Windsor, Ontario; and WHEREAS the insured/plaintiff and insurer/defendant have reached partial settlement of claims on the policies and forming the subject of the legal action as hereinafter set out. TERMS OF SETTLEMENT 1. IN CONSIDERATION of the insurer/defendant making further payments in the amount or ONE MILLION, TWO HUNDRED AND NINETY THOUSAND DOLLARS AND ZERO CENTS ($1,290,000.00) to the Insured/plaintiff over and above monies already advanced by the insurer/defendant to the lnsured/plaintiff, the sufficiency of which is hereby acknowledged, the Insured/plaintiff agrees as follows: (a) The Insured/plaintiff agrees to settle all claims on the policy and forming the subject of the legal action, Including any claims past, present and future for bad faith, punitive, aggravated damages, damages for mental distress or any other extra contractual damages. This settlement does not include the claims for business interruption loss and the following “mega property extensions” of the policy (hereinafter “the miscellaneous claim”) nor to interest and costs: • Accounts receivable; • Extra expense; • Professional fees; • Proof of Loss preparation costs; • Valuable papers and business records; and • Catchall coverage, as stated in the policy, as it relates to any of the categories of unsettled claims. The business interruption and miscellaneous claim specifically remain unsettled and pan of the ongoing litigation claim, including interest and costs; (b) The insured/plaintiff agrees to abandon and not hereafter pursue any claims for bad faith, punitive, aggravated, mental distress damages or any other extra contractual claims; (c) The insured/plaintiff agrees to execute a Proof of Loss reflecting the payments hereinafter of $1,290,000.00; FURTHER PARTICULARS OF THE SETTLEMENT 2. As part of the consideration for the payment of $1,290,000.00 the Insured/plaintiff agrees as follows: a. Of the $1,290,000.00 referred to in paragraph 1 herein, $300,000.00 represents a final payment against the claim of contents, including actual cash value and all replacement cost entitlements, b. Actual cash value of the building claim is agreed to at $2,850,000.00. Advance payments have already been made against this claim in the amount of $1,860,000.00. Payment in the amount of $990,000.00 of the $1,290,000.00 referred to in paragraph 1 herein represents a top up payment to fully fund the actual cash value settlement of the buildings; c. Replacement cost of the building is agreed to as follows: i. $6,900,000.00 for the replacement cost of the destroyed north portion of the building and; ii. $700,000.00 for the replacement cost of the repairs to the damaged south portion of the building; d. The insured/plaintiff shall only be entitled to recover the difference between the actual cash value payments made and the total replacement cost agreement by complying with the policy provisions dealing with replacement. The recoverable depreciation entitlement will be the lesser of the amount actually incurred for replacement and the agreed upon settlement of replacement cost value with credit being given for the actual cash value payments made; e. The actual cash value (ACV) amount of $2,850,000.00 referred to in paragraph 2(b) and the amounts of recoverable depreciation entitlement ($4,750,000.00) are further broken down as follows: i. Partial loss (south) section of the building $282,894.74 represents the ACV amount with recoverable depreciation entitlement being $417,105.26 ($700,000.00 – $282,894.74). ii. The total loss (north) section of the building $2,567,105.02 represents the ACV of the loss with recoverable depreciation entitlement being $4,332,894.80 ($6,900,000.00 – $2,567,105.20). f. Should the insured/plaintiff proceed to replace the building at a different site, the insured/plaintiff shall account to the insurer/defendant for the land acquisition costs of the replaced building. For greater clarity and by way of example, if the Insured/plaintiff purchased an existing building for $10,000,000.00 and the value of the land was $4,000,000.00 the replacement cost expended for the purpose of claiming replacement cost benefits pursuant to this settlement would be $6,000,000.00. Also by way of example, If the insured/plaintiff bought vacant un-serviced land for $1,000,000.00 and then expended $2,000,000.00 servicing the land and $7,000,000.00 constructing the building, the replacement cost expenditure would be $9,000,000.00. These examples are not intended to be exhaustive, but only illustrative of the spirit and intent of the settlement; g. In the event that there is no agreement with respect to the land value, such value shall be determined through the appraisal process as provided for in the policy and Insurance Act ; h. In order for the insured/Plaintiff to be entitled to recoverable depreciation under this settlement such replacement must be completed with like kind and quality and for similar occupancy as the insured buildings. The insured/Plaintiff agrees to submit their proposal for replacement to the Insurer/Defendant for agreement as to whether the proposed replacement falls within the requirements of the policy; i. In repairing or replacing the building the recoverable depreciation entitlement will not be based on a line by line comparison between the repair estimates used in calculating the replacement cost amounts set out in paragraph 2(c) and the replaced/repaired building, but shall be based upon how much the insured/Plaintiff is spending on a global basis to repair/replace the building(s) (subject to the replacement cost provision outlined in this agreement) and whether the proposed repair/replacement is of like kind and quality and for similar occupancy as the insured buildings; and j. The insured/Plaintiff will have 24 months from the date of settlement to proceed with replacement in accordance with the policy and claim and the recoverable depreciation entitlements under this settlement failing which the insured/plaintiff will be deemed to have forever waived and forfeited any claim on the policies or under this settlement for recoverable depreciation. Proceeding with replacement shall be deemed to have occurred when the Insured/Plaintiff has entered into a legally binding construction contract for a building qualifying as replacement and has commenced construction; k. In the event the Insured/Plaintiff elects to replace, the insurer/defendant shall reasonably cooperate with the retained general contractor for reasonable construction draws in order to facilitate the financing of the replacement; l. Should the Insured/Plaintiff elect to replace by purchasing another building qualifying as replacement under the policy, the recoverable depreciation entitlement shall be released to the Plaintiff’s solicitors upon the insurer/Defendant being served with the executed purchase agreement. Such funds will be held by the insured’s/Plaintiff’s solicitor pending closing of the real estate purchase. Should the real estate purchase not close the recoverable depreciation advanced shall be returned to the Insurer/Defendant; Appendix B May 1, 2015 Letter from Intact’s Counsel to Champion’s Counsel I write to confirm that we have reached settlement of the outstanding issues regarding the building loss claim on the basis of a further payment of $3 million. The settlement is subject to: 1. The closing of the purchase of the properties at 88 - 90 Dynamic Drive in accordance with the Agreement of Purchase and Sale dated February 17, 2015 reflecting a purchase price of $7,450,000.00, subject to the usual adjustments on closing. 2. The Plaintiff/Insured will be expected to sign a Full and Final Release in usual form releasing the Defendant/Insurer from all building loss claims. (This settlement does not impact the outstanding business interruption claim as per the Settlement Agreement.) 3. The Plaintiff/Insured together with yourself will be required to execute a sworn Declaration confirming that the purchase price represents the amount paid to complete the purchase and there are no side deals, oral or written, trusts or any other type of agreement which could in any way constitute a reversion or reduction of the amount represented by you and the Plaintiff/Insured as the purchase price. 4. The Plaintiff/Insured will be obligated to provide to the Defendant/Insurer a copy of the closing documentation confirming closing of the transaction and indicating the exact amount paid for the purchase. Should the purchase price turn out to be less than represented then the amount payable by the Defendant/Insurer will be reduced by the amount to which the purchase price is less than $7,450,000.00. Can you please advise who the settlement draft should be payable to. As you are aware, the Public Adjuster is asserting a claim on this money and has notified us accordingly. If the Public Adjuster is not going to be named on the settlement draft I will need either a Release from them or their signature on a payment Direction. I know you are aware of this issue and have been dealing with it. I will forward to you early next week a draft Release. [1] The May 6, 2013 settlement is reproduced in full in Appendix ‘A’. [2] The body of this May 1, 2015 letter is reproduced in Appendix ‘B’. [3] The appeal record reveals that Champion and the vendor entered into a third agreement for the purchase of the Scarborough property dated June 26, 2015. Neither the parties nor the motion judge have treated that agreement as significant. [4] This is the second issue raised in Champion’s cross-appeal.

COURT OF APPEAL FOR ONTARIO CITATION: Dupuis v. Waterloo (City), 2020 ONCA 96 DATE: 20200206 DOCKET: M51237 (C66082) Paciocco J.A. (Motions Judge) BETWEEN Jody Elena Dupuis and Stephen Jones Plaintiffs (Respondents/ Responding parties) and The Corporation of the City of Waterloo , Kelly Beth Schleuter and Jacob Harold Thomas Defendants ( Appellant/ Moving party ) Filipe A. Mendes, for the moving party Matthew Reid, for the responding parties Heard and released orally: February 4, 2020 REASONS FOR DECISION [1] The appellant, The Corporation of the City of Waterloo [“Waterloo”], seeks an extension of time to perfect an appeal that should have been perfected on May 14, 2019, some seven and a half months ago. The appellant did not take steps to perfect the appeal until after counsel for the respondents took the initiative of inquiring whether the appeal would be proceeding, and after the registrar served notice of intention to dismiss the appeal. Waterloo finally attempted to perfect the appeal on the designated dismissal date, December 17, 2019, but did not do so successfully because of multiple technical deficiencies with its materials. On December 20, 2019, the respondents agreed to extend the deadline to January 10, 2020. [2] On January 8, 2020, the appellant again attempted to perfect the appeal but again, there were multiple errors in the materials and so the required documents were not accepted by the registrar. Waterloo now seeks a further extension to perfect to February 21, 2020. [3] I must decide this motion based on the justice of the case, in all the circumstances. The respondents take no issue with the intention of the appellant to appeal, and do not rely on the merits of the case in opposing this motion. They contend that they have been prejudiced by the seven and a half months of accumulated delay and point out that the respondents have been waiting since October 12, 2018, to receive payment of the damages and costs award that was received. No explanation was offered by the appellant for the delays, other than that their efforts were deficient. No explanation was offered for why no steps were taken after the transcripts were ready, or why efforts to file were inadequate. [4] In response, the appellant argues that the material delay that is now being addressed is only a few more weeks, and that the case should be decided on its merits, not based on technicalities. [5] I accept that, ideally, cases should be disposed of on their merits. However, the appellant is an experienced litigant, fully represented in this action. Despite this, to the prejudice of the respondents, inadequate efforts were made to ensure that this appeal was prosecuted with diligence and reasonable attention to the timelines and filing requirements imposed by this court. Those timelines and rules of the court exist to facilitate the orderly and proper disposition of appeals without unreasonable delay. In all the circumstances of this case, notwithstanding the preference for dealing with appeals on their merits, the justice of this case would not be served if I disregard the repeated failure by the appellant to comply with those rules and procedures. The motion is therefore dismissed. [6] Costs of $5,000 inclusive of applicable taxes and disbursements are awarded to the respondents. “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: The Energy Credit Union Limited v. Radwan, 2020 ONCA 136 DATE: 20200219 DOCKET: C67291 Doherty, Brown and Thorburn JJ.A. BETWEEN The Energy Credit Union Limited Plaintiff (Respondent) and Pamella Radwan and Gregory Radwan Defendants (Appellants) David Conn, for the appellants Oren Chaimovitch, for the respondent Heard and released orally: February 13, 2020 On appeal from the judgment of Justice Michael Gibson of the Superior Court of Justice, dated July 15, 2019. REASONS FOR DECISION [1] The appellant, Gregory Radwan, is the former CEO of a credit union. He and his wife, the appellant Pamella Radwan, own a home in Oakville (the “Property”). [2] In December 2015, the Radwans granted the respondent, The Energy Credit Union Limited (“Energy Credit”), a mortgage on their Property in the amount of $664,000. The mortgage stipulated that it was “ON DEMAND” and “[s]ubject to MeritLine Home Equity LOC”. The evidence before the motion judge was that “MeritLine” is a trademarked equity line of credit product offered by the Canadian Credit Union Association. [3] The Radwans refinanced their mortgage with Energy Credit in January 2017. They increased the amount of their equity line of credit to $736,000. The Meritline – Home Equity Line of Credit Agreement they signed states that all advances “under the MeritLine are repayable upon demand”. The new mortgage on the Property stipulates that it is “On Demand”. An Acknowledgement and Direction signed by the Radwans also states that the loan facility is “ON DEMAND”. [4] The Radwans failed to meet their payment obligations under the equity line of credit, resulting in Energy Credit making demand for payment in full. The Radwans did not pay the balance due or refinance the mortgage. Energy Credit commenced this action for judgment on the amount due under the mortgage and possession of the Property. The motion judge granted Energy Credit summary judgment. [5] On appeal, the Radwans advance three main arguments. First, they submit the motion judge’s reasons failed to address (i) the appellants’ evidence that they did not sign a set of standard charge terms and (ii) Pamella Radwan’s level of sophistication as a borrower. Second, the Radwans argue that the motion judge’s reasons were inadequate and did not provide insight into how the legal conclusion was reached. Third, they contend that the motion judge failed to consider important issues of credibility. [6] We are not persuaded by any of these submissions. [7] The reasons of the motion judge clearly disclose the basis for his decision.  He wrote: The Defendants signed a valid agreement. They benefited from the advance of funds under the mortgage. They have defaulted on their payment obligations. It was not incumbent upon the lender in these circumstances to insist that the borrowers obtain legal advice. It is not credible that these borrowers did not understand what “on demand” meant. [8] We see no palpable and overriding error in those findings. They are amply supported by the evidentiary record before the motion judge, specifically: · The terms of the 2017 credit facility and mortgage were not novel ones for either Gregory or Pamela Radwan. Both had previous experience with an “on demand” mortgage. They had entered into an “on demand” credit facility, secured by a $664,000 on demand mortgage, with Energy Credit in 2015; · Mr. Radwan acknowledged that at the time they entered into the 2017 credit facility, he was a senior executive at another credit union; · There was no suggestion of undue influence or fraud that could impose upon the credit union an obligation to ensure a borrower received independent legal advice: Bank of Montreal v. Featherstone (1989), 68 O.R. (2d) 541 (C.A.); · None of the documents signed by the Radwans support their assertion that they thought they were entering into a one-year, interest-only mortgage; · There was no dispute that the Radwans signed documents in which they agreed to an “on demand” credit facility: specifically, the Meritline – Home Equity Line of Credit Agreement and the Acknowledgement and Direction, which included their acknowledgement of the receipt of the standard charge terms; · The Radwans do not dispute the amount of debt they owe Energy Credit; · The Radwans admit that the mortgage fell into arrears in late 2018; and · In any event, on the Radwan’s contention that the credit facility was secured by a mortgage with a 12-month term, they were in default of the mortgage at the time Energy Credit demanded payment in full. [9] The adequacy of the reasons is measured in the context of the evidence adduced. Reading the motion judge’s reasons in the context of the evidence, they adequately explain the basis for his decision. [10] For these reasons, the appeal is dismissed. [11] The appellants shall pay Energy Credit its costs of the appeal fixed in the amount of $6,500, inclusive of disbursements and applicable taxes. “Doherty J.A.” “David Brown J.A.” “Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Fotiou (Re), 2020 ONCA 153 DATE: 20200226 DOCKET: C67102 Benotto, Huscroft and Jamal JJ.A. IN THE MATTER OF: Theophilos Fotiou AN APPEAL UNDER PART XX.1 OF THE CODE Anita Szigeti, for the appellant Megan Petrie, for the respondent, Attorney General of Ontario Janice E. Blackburn, for the respondent, Person in Charge of St. Joseph’s Healthcare Hamilton Heard: February 21, 2020 On appeal against the disposition of the Ontario Review Board dated May 23, 2019, with reasons dated June 10, 2019. REASONS FOR DECISION Introduction [1] On March 6, 2019, the appellant was found not criminally responsible on account of mental disorder (“NCR”) on charges of assault causing bodily harm and assaulting a peace officer. The appellant had attacked police officers who responded to a 911 call when the appellant threatened to kill one of his housemates. The police had attended at the same house a few nights earlier when the appellant had allegedly thrown a kitchen knife at another housemate. While being arrested the appellant punched two officers in the face, breaking one officer’s nose. He then made more death threats while receiving medical attention at the St. Joseph’s Healthcare Hamilton (“St. Joseph’s”). His bail pending trial was revoked for threatening another police officer. His threatening and aggressive behavior continued while he was in hospital. [2] The appellant’s current diagnoses are schizoaffective disorder and substance abuse disorder. He has a long history of mental illness and hospitalizations, often on an involuntary basis, related to being undermedicated and engaging in bizarre and aggressive behaviour. [3] The appellant now appeals his initial disposition by the Ontario Review Board (the “Board”) dated May 23, 2019. The Board concluded that the appellant posed a significant threat to the safety of the public and ordered him detained at St. Joseph’s, with privileges up to and including living in the community in approved accommodation. Issues [4] The appellant raises two issues. First, he asserts that the Board’s finding that he posed a “significant threat to the safety of the public” under s. 672.54(a) of the Criminal Code , R.S.C. 1985, c. C-46, is unreasonable under s. 672.78(1)(a) of the Criminal Code. Second, in the alternative, he asserts that the Board should have granted him a conditional discharge. Discussion (i) Did the Board err in concluding that the appellant posed a “significant threat to the safety of the public”? [5] The appellant asserts that he lived in the community without incident for more than three years while on bail between the index offence and the NCR verdict and that it was purely speculative for the Board to conclude that he posed a greater risk at the time of the disposition than he did when he lived in the community. He also claims that the Board relied on circular logic in finding that the fact that he lived in the community without incident while on bail “speaks to his level of wellness at the time,” when the Board had no information about his mental condition at that time. Finally, he asserts that his risk has been escalating progressively while he has been in hospital and that the Board should have found that his enforced detention is worsening his mental state. [6] We reject this submission. [7] Absent a wrong decision on a question of law or a miscarriage of justice, this court may allow an appeal against a disposition of the Board only where it is of the opinion that the Board’s disposition is “unreasonable or cannot be supported by the evidence”: Criminal Code , s. 672.78(1); R. v. Owen , 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 31-32; Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, at para. 34. In our view, the Board’s decision was entirely reasonable having regard to its “reasoning process and the outcome” and properly reflected “an internally coherent and rational chain of analysis” that was “justified in relation to the facts and law”: Vavilov , at paras. 83, 85. [8] The Board’s finding that the appellant posed a “significant threat to the safety of the public” was amply supported by the evidence cited at paras. 50-51 of the Board’s decision, including the expert evidence that the appellant “would now be deemed a high risk for repeated violent behaviour”, his history of violent criminal conduct and record of police involvement associated with the numerous lapses in his mental disorder, his lack of insight into his mental condition, his refusal to consent to a medication increase recommended by his treatment team, and his history of “falling away from treatment” leading to assaultive behaviour. [9] The Board was also aware that the appellant had lived in the community while on bail and was entitled to find on the evidence that his condition had worsened to the point that he posed a significant threat. As the Board found: “The assessment of risk is a dynamic process and, at the present time, the expert evidence before this Board assessed [the appellant’s] risk as falling within the ‘ high ’ range” (emphasis in original). Further, contrary to the appellant’s allegation, the Board did have information about his mental condition while he was on bail, which showed that he was taking a higher dose of his antipsychotic medication at that time and that there was a likelihood he would deteriorate further and become aggressive again if he were to stop taking his medication. Both doctors who testified at the hearing also expressly rejected the suggestion that the appellant’s risk level and aggression were caused by being hospitalized, and instead concluded that they stemmed from his acute psychosis. [10] In sum, there was nothing unreasonable about the Board’s reasoning process or its conclusion in finding that the appellant posed a significant threat to the safety of the public. (ii) Did the Board err in imposing a detention order rather than granting a conditional discharge? [11] The appellant’s second ground of appeal asserts that the Board should have granted him a conditional discharge. He claims that the reasons given by the Board for a detention order were “pro forma” and unconnected to his unique situation, including that he had been living in the community on bail without incident for more than three years. [12] We also reject this submission. The Board explained its rationale for imposing a detention order with community living privileges as being necessary to safeguard public protection for the following reasons, at para. 56: In our opinion, the evidence presented indicates that the hospital requires the authority of a Detention Order for two critical risk management purposes. The first is to provide the hospital with the authority to approve Mr. Fotiou’s community residence should he become a candidate for discharge to ensure that he is provided with the requisite level of support, monitoring and supervision. The second is to ensure that the hospital has the authority to promptly readmit Mr. Fotiou in the event that he relapses to substance use or otherwise suffers a significant deterioration in his mental status. A Conditional Discharge Disposition (even one containing a treatment condition) would not offer adequate safeguards for public protection. [13] It is well established that the Board’s need to supervise housing justifies a detention order rather than a discharge: see Munezero (Re) , 2017 ONCA 585, at para. 9; R. v. Simpson , 2010 ONCA 302, at para. 4; and Brockville Psychiatric Hospital v. McGillis (1996), 93 O.A.C. 226 (C.A.), at para. 4. In our view, given that the appellant had threatened his housemates at the time of the index offence, the Board reasonably found its need to supervise his housing to be a “critical risk management purpose” that warranted a detention order. [14] We therefore see no basis to impugn the Board’s reasoning process or its conclusion. The crafting of the specific terms of a disposition is properly left to the Board’s specialized knowledge and expertise in assessing the NCR accused’s level of risk and how best to manage that risk: Winko v. British Columbia (Forensic Psychiatric Institute) , [1999] 2 S.C.R. 625, at paras. 59-61; Pinet v. St. Thomas Psychiatric Hospital , 2004 SCC 21, [2004] 1 S.C.R. 528, at para. 22; see also Vavilov , at para. 93. In the circumstances, the Board’s decision to impose a detention order with community living privileges is entitled to deference. Disposition [15] The appeal is dismissed. “M.L. Benotto J.A.” “Grant Huscroft J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Gagnon (Re), 2020 ONCA 126 DATE: 20200214 DOCKET: C67155 Doherty, Brown and Thorburn JJ.A. In the Matter of the Bankruptcy of Pierre Gagnon a.k.a. Pierre Gaston Gagnon of the Town of Oakville, in the Province of Ontario Colby Linthwaite, for the appellant, Pierre Gagnon Miranda Spence, for the respondent, Royal Bank of Canada Heard: February 12, 2020 On appeal from the order of Justice Penny of the Superior Court of Justice, dated May 28, 2019. APPEAL BOOK ENDORSEMENT [1] Counsel for the respondent has confirmed that there will be no attempt to cross-examine Mr. Gagnon on his affidavit before the disposition of the bankruptcy trial. The appeal is moot. [2] Although this court can exercise its discretion in favour of hearing a moot appeal having regard to the circumstances, including the well reasoned analysis of the issue provided by Penny J, we see no reason to exercise our discretion in favour of hearing the appeal. [3] The appeal is dismissed. Costs to the respondent in the amount of $2,500.

COURT OF APPEAL FOR ONTARIO CITATION: Hannora (Re), 2020 ONCA 161 DATE: 20200228 DOCKET: C67176 Watt, Pardu and Roberts JJ.A. IN THE MATTER OF:  Mwafak Hannora AN APPEAL UNDER PART XX.1 OF THE CODE Andrew Menchynski, for the appellant Gavin MacDonald, for the respondent, Attorney General of Ontario No one appearing for the respondent, the Person in Charge of Ontario Shores Centre for Mental Health Sciences Heard and released orally: February 25, 2020 On appeal against the disposition of the Ontario Review Board, dated April 17, 2019. REASONS FOR DECISION [1] In our view, the reasons of the Board are manifestly insufficient to permit meaningful appellate review. [2] The reasons do not reveal that the Board engaged in any meaningful way with the issues of conditional discharge or expansion of the community passes to up to 72 hours. [3] In the result, we remit the matter to the Board, differently constituted, to conduct a new hearing to consider, among other issues, whether a conditional discharge or expanded community privileges should be imposed or included in the disposition. This new hearing should be held as expeditiously as possible, preferably in advance of the next scheduled annual review. The current disposition shall remain in effect until that time. “David Watt J.A.” “G. Pardu J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Ingarra v. 301099 Ontario Limited (Previn Court Homes), 2020 ONCA 103 DATE: 20200211 DOCKET: C67092 Simmons, Lauwers and Nordheimer JJ.A. BETWEEN Anthony John Ingarra Applicant (Respondent) and 301099 Ontario Limited o/a Previn Court Homes Respondent (Appellant) Ian P. Katchin, for the appellant Nicholas J. Cartel and Glenn Brandys, for the respondent Heard: January 24, 2020 On appeal from the judgment of Justice Jessica Kimmel of the Superior Court of Justice, dated May 30, 2019, with reasons reported at 2019 ONSC 3347. Lauwers J.A.: [1] Anthony John Ingarra bought a home from Previn Homes in a new residential subdivision. The transaction did not close. On March 20, 2018 Mr. Ingarra brought an application seeking the interpretation of the agreement of purchase and sale between the parties and an order for specific performance. The house was later sold by Previn Homes to another buyer. [2] The application judge dealt with the interpretation issue but not the remedy. She found that Previn Homes breached the agreement, not Mr. Ingarra and granted declarations to that effect. She also found that Mr. Ingarra was entitled to a remedy to be determined in later proceedings. [3] For the reasons set out below, I would allow the appeal and dismiss Mr. Ingarra’s application. Factual Context [4] The agreement of purchase and sale was dated March 26, 2016. Because it was for a new home, it included a “Tarion Addendum,” which governs the relations between the parties, in part. The Tarion Addendum derives from the Ontario New Home Warranties Plan Act , R.S.O. 1990, c. O.31, as amended. [5] Under the terms of the agreement and the Tarion Addendum, the parties fixed what the Tarion Addendum called a “Firm Closing Date” for January 11, 2017. [6] Previn Homes was required to provide an occupancy permit to Mr. Ingarra on or before the closing. The occupancy permit was not provided until January 12, 2018. Previn Homes was therefore not in a position to close on the Firm Closing Date. [7] For his part, Mr. Ingarra was also not in a position to close on the Firm Closing Date because he was not yet in funds. His lender needed five days from its appraisal to complete the process and approve the loan. However, when the appraiser attended on January 8, 2018, the home  was not complete because the exterior bricks and soffits/fascia had not been installed. Mr. Ingarra’s counsel sent a letter to Previn Homes’ counsel, dated January 11, 2018. It stated: Our client’s lender B2B Bank completed their appraisal of the subject property and advised that the exterior of the property is not complete as required by them in order to advance. Accordingly an extension is required until their advance criteria can be met. [8] Although the Tarion Addendum prescribes a framework for changing dates the parties did not follow that framework. Instead by agreement between the lawyers, the closing date was extended to January 15, 2018. By letter dated January 15, 2018, Mr. Ingarra’s counsel wrote to counsel for Previn Homes requesting an additional extension: Our client requires an extension to tomorrow (January 16, 2018) as his lender has not completed the Appraisal. Kindly contact your client and advise. [9] Counsel for Previn Homes agreed in correspondence on January 15, 2018: Further to your request, my client agrees to extend the closing of the above-noted transaction to no later than Wednesday January 17, 2018 with adjustments remaining as at January 11, 2017 [sic]. All other terms of the Agreement of Purchase and Sale are to remain the same and time is to remain of the essence. [10] Mr. Ingarra was not in funds on January 17, 2018 and was unable to close. By letter that day, his counsel requested an additional extension to January 18, 2018, but counsel for Previn Homes refused, stating in his responding letter: Unfortunately, my client which has been more than reasonable in granting extensions without requiring the payment of an extension fee, has lost its confidence in your client’s ability to close this transaction, and is simply not prepared to grant any further extensions. Under the circumstances, my client hereby declares your client in breach of the Agreement of Purchase and Sale, considers the Agreement of Purchase and Sale to be at an end and deems the deposit paid as forfeited. It is the intention of my client to now relist the property for sale. The Issue [11] The application judge correctly identified the issue at para. 46 of her reasons: The decision in this case comes down to whether the agreement between the lawyers (made orally and through the exchange of faxes and emails) to extend the agreed upon Firm Closing Date to the Interim Closing Dates (with adjustments remaining as at January 11, 2018) superseded the operation and effect of the provisions of the Tarion Addendum. The Decision Under Appeal [12] The application judge found that the parties did not have the contractual freedom to set a closing date outside of the confines of the Tarion Addendum. She stated, at para. 46: Their agreement did not comply with the requirements prescribed by section 4 of the Tarion Addendum, which the parties were clearly familiar with having adhered to them when the Amending Agreement was entered into on August 3, 2017. Their failed efforts to retroactively preserve the January 11, 2018 Firm Closing Date through the agreement to Interim Closing Dates have no legal effect. [13] Previn Homes had options regarding the setting of a new closing date under the Tarion Addendum. However, it took no steps on January 11, 2018 to set a new closing date under the Tarion Addendum framework. As a result, the application judge found that, s. 3(c) of the Tarion Addendum operated to set a new “Delayed Closing Date” 90 days after the Firm Closing Date, on April 11, 2018: at para. 56. The provision states: If notice of a new Delayed Closing Date is not given by the Vendor before the Firm Closing Date, the new Delayed Closing Date shall be deemed to be the date which is 90 days after the Firm Closing Date. [14] The application judge held that s. 4 of the Tarion Addendum limited the contractual freedom of the parties to set a new closing date and that s. 13 gave the Addendum precedence: at paras. 47-48. The application judge, at para. 41, rooted this effect in the “consumer protection objectives” of the legislation, citing the trial decision in Sirisena v. Oakdale Village Homes Inc. , 2010 ONSC 2996 , 100 R.P.R. (4th) 94 , at paras. 11 and 45-53, aff’d 2013 ONSC 1051 , 30 R.P.R. (5th) 31 (Div. Ct.). [15] The application judge considered the requirements prescribed by s. 4 and concluded, at para. 51: The purported amendments to the Firm Closing Date that were reflected in the agreement between the lawyers were voidable by the Purchaser by virtue of section 4(a) of the Tarion Addendum and were voided by the Purchaser's continued efforts to complete the APS notwithstanding the Vendor's purported (and invalid) termination of it on January 17, 2018. [16] In consequence, the application judge found, at para. 54: “ The Vendor's purported termination of the APS on January 17, 2018 was invalid.” She did this on the basis that: “None of the permitted grounds for termination under section 10 of the Tarion Addendum were available to the Vendor.” Analysis [17] I agree with the application judge that s. 3(c) of the Tarion Addendum operated to set a new “Delayed Closing Date” 90 days after the Firm Closing Date, on April 11, 2018: at para. 56. However, she erred in finding that the parties were not free to set a new advanced closing date before the Delayed Closing Date, outside of the confines of the Tarion Addendum. [18] It is not surprising that the lawyers did not use the cumbersome, paper-intensive and therefore expensive process set out in s. 4 of the Tarion Addendum, part of which is reproduced in the appendix to these reasons, to set new closing dates. Were they free to set new closing dates in the manner they did? In my view they were, for two reasons. [19] First, s. 4 of the Tarion Addendum does not render unenforceable non-compliant amendments. Despite stating that the Addendum sets out “a framework” for altering the Critical dates “which cannot be altered contractually except as set out in this section 4”, the last sentence in s. 4(a) provides: “Any amendment not in accordance with this section is voidable at the option of the Purchaser” (emphasis added). A non-compliant amendment altering the closing date is not “invalid” as the application judge found. It is only voidable. [20] The failure to close on the Firm Closing Date of January 11, 2018 had the effect of leaving either party free to specify a new closing date on reasonable notice and restore the force of the “time of the essence” provision: see Domicile Developments Inc. v. MacTavish (1999), 45 O.R. (3d) 302 (C.A.) and King v. Urban & Country Transport Ltd. (1973), 1 O.R. (2d) 449 (C.A.). This was the effect of the letter from counsel for Previn Homes, who gave an extension one day longer than Mr. Ingarra’s counsel requested. It was not argued before the application judge nor before this court that notice of the new closing date was unreasonable, nor was it unreasonable under the circumstances. [21] Second, s. 10 of the Tarion Addendum addresses “Termination of the Purchase Agreement”. Section 10(e) provides: “Nothing in this Addendum derogates from any right of termination that either the Purchaser or the Vendor may have at law or in equity on the basis of, for example, frustration of contract or fundamental breach of contract.” Since Mr. Ingarra was not in funds to close on the new agreed closing date, it was open to Previn Homes to terminate the agreement of purchase and sale. Doing so was not prohibited by the Tarion Addendum. [22] In my view the application judge was correct in her conclusion, at para. 51, that: “ The purported amendments to the Firm Closing Date that were reflected in the agreement between the lawyers were voidable by the Purchaser by virtue of section 4(a) of the Tarion Addendum”. But she erred in finding that the amended closing date was “voided by the Purchaser's continued efforts to complete the APS notwithstanding the Vendor's purported (and invalid) termination of it on January 17, 2018.” To the contrary, as the Purchaser had not by then exercised his right to void the lawyer’s agreement, Previn Homes’ termination was valid under s. 10(e) of the Tarion Addendum. [23] I reach this conclusion without satisfaction. The Tarion Addendum is not “consumer protective” by any stretch of the imagination. The current document is only marginally better drafted than its predecessor, which I described in the trial decision in Sirasena, at para. 11, as containing “consumer-unfriendly language”. It is consistent with Lord Devlin’s sardonic remark: “This sort of document is not meant to be read, still less to be understood”: McCutcheon v. David MacBrayne Ltd. , [1964] 1 W.L.R. 125 (U.K. H.L.). [24] The Tarion Addendum is a small-font, single spaced, convoluted and confusingly long and obscure document, as s. 4 in the appendix to these reasons amply shows. It is a trap for the unwary, particularly the unwary lay person. Before Previn Homes terminated the agreement of purchase and sale on January 17, 2018, Mr. Ingarra had the option to void the newly set closing date, because the alteration was not compliant with s. 4 of the Addendum. The deemed Delayed Closing Date on April 11, 2018 would then have been effective. However, he did not expressly do so. The Addendum is the territory of real estate lawyers, and any lawyer practising residential real estate involving new homes must be familiar with its terms, as we assume the lawyers were in this case. Disposition [25] I would allow the appeal with costs to the appellant in the amount of $15,000 all-inclusive and reverse the costs payable in the court below. Released: “P.L.” February 11, 2020 “P. Lauwers J.A.” “I agree. Janet Simmons J.A.” “I agree. I.V.B. Nordheimer J.A.” Appendix Section 4 provides, in part: 4. Changing Critical Dates – By Mutual Agreement (a) This Addendum sets out a framework for setting, extending and/or accelerating Critical dates, which cannot be altered contractually except as set out in this section 4. Any amendment not in accordance with this section is voidable at the option of the Purchaser. (b) The Vendor and Purchaser may at any time, after signing the Purchase Agreement, mutually agree in writing to accelerate or extend any of the Critical Dates. Any amendment which accelerates or extends any of the Critical Dates must include the following provisions: (i) the Purchaser and Vendor agree that the amendment is entirely voluntary – the Purchaser has no obligation to sign the amendment and each understands that this purchase transaction will still be valid if the Purchaser does not sign this amendment; (ii) the amendment includes a revised Statement of Critical Dates which replaces the previous Statement of Critical Dates; (iii) the Purchaser acknowledges that the amendment may affect delayed closing compensation payable; and (iv) if the change involves extending either the Firm Closing Date or the Delayed Closing Date, then the amending agreement shall: i. disclose to the Purchaser that the signing of the amendment may result in the loss of delaying closing compensation as described in section 7; ii. unless there is an express waiver of compensation, describe in reasonable detail the cash amount, goods, services, or other consideration which the Purchaser accepts as compensation; and iii. contain a statement by the Purchaser that the Purchaser waives compensation or accepts the compensation referred to in clause ii above, in either case, in full satisfaction of any delayed closing compensation payable by the Vendor for the period up to the new Firm Closing Date or Delayed Closing Date. If the Purchaser for his or her own purposes requests a change of the Firm Closing Date or the Delayed Closing Date, then subparagraphs (b)(i), (iii) and (iv) above shall not apply.

COURT OF APPEAL FOR ONTARIO CITATION: Jaffrey (Re), 2020 ONCA 113 DATE: 20200211 DOCKET: C67112 Rouleau, Benotto and Harvison Young JJ.A. IN THE MATTER OF:  Syed Jaffrey AN APPEAL UNDER PART XX.1 OF THE CODE Anita Szigeti, for the appellant Andrew Cappell, for the Crown Michele Warner, for the Centre for Addiction and Mental Health Heard: February 7, 2020 On appeal against the disposition of the Ontario Review Board dated, April 11, 2019. APPEAL BOOK ENDORSEMENT [1] The parties agree that, in light of the later board disposition, this appeal is moot. [2] As a result, it is dismissed as being moot.

COURT OF APPEAL FOR ONTARIO CITATION: Kraemer v. Kraemer, 2020 ONCA 91 DATE: 20200205 DOCKET: C67284 MacPherson, Sharpe and Jamal JJ.A. BETWEEN Stacey Kraemer Applicant (Respondent) and Lawrence Kraemer Respondent (Appellant) and Gus Stahlmann Respondent (Respondent) Patrick J. Kraemer, for the appellant Terrah Smith, for the respondent Gus Stahlmann Stacey Kraemer, acting in person Heard: February 4, 2020 On appeal from the judgment of Justice Nancy M. Mossip of the Superior Court of Justice, dated July 8, 2019. REASONS FOR DECISION [1] Larry and Stacey Kraemer were married in 2001. They separated in 2015 and are involved in matrimonial proceedings. [2] Larry and Stacey jointly own a home in Elora. In 2007, Stacey’s parents, Gus and Jan Stahlmann, paid just over $216,000 for improvements to the property, including the construction of a ‘granny suite’ where they came to live. Jan died in 2013 and Gus continued to live in the granny suite. [3] After Gus and Jan moved into the home, the parties entered into a Licence Agreement with the assistance of legal counsel (the “Agreement”). The Agreement provides: WHEREAS: 1. Lawrence and Stacey (hereinafter collectively referred to as the “Licensors”) are the registered owners of the premises municipally known as 7577 Sixth Line, RR #2, Elora … and are spouses of one another; 2. Gus and Janice (hereinafter collectively referred to as the “Licensees”) are the biological parents of Stacey and are spouses of one another; 3. In consideration of the sum of ONE HUNDRED SIXTY-FIVE THOUSAND DOLLARS ($165,000.00), which sum is secured by a demand mortgage agreement attached hereto as Schedule “B” … the Licensors wish to grant to the Licensees a licence to occupy a portion of the Primary Residence … together with two (2) outdoor parking spaces. . 9. Licensee Covenants The Licensees covenant (e) not to register the Mortgage Agreement on title to the Primary Residence unless the Licensee has provided 14 business days’ notice of demand for payment thereunder and the Licensor has failed to pay the amount so demanded on or before the expiration of such 14 business days. [4] After Larry’s and Stacey’s marriage collapsed, Gus sought, unsuccessfully, to register the mortgage. Both Gus and Stacey commenced legal proceedings. Gus withdrew his and joined Stacey’s proceedings. The matter came before Mossip J., with all three parties agreeing that a summary judgment motion was the appropriate route for resolution. The effect of the potential resolution was, as explained by the motion judge: If Gus is entitled to the mortgage, or other relief which recognizes that the parties owe Gus the amount set out in the Agreement and the mortgage, that amount will be included in the Net Family Property calculation of the parties as a debt owed equally by them to Gus. [5] At the motion hearing, the core of Larry’s submission was that the $165,000 secured by the Agreement was a gift. The motion judge rejected this submission: I am satisfied based on the jurisprudence applied to the evidence in this case, that there was a clear demonstration that the money advanced to complete the granny flat, secured by a demand mortgage, was a loan and not a gift. There was no evidence that the money advanced was a gift, except Larry’s personal belief that it was. [6] The motion judge concluded that “there is a valid and enforceable Agreement and demand mortgage” and “Gus is legally entitled to register the demand mortgage for $165,000. He can make demand on this mortgage for the principal amount owing, pursuant to the Agreement.” [7] Larry raises three issues on this appeal. [8] First, Larry submits that the motion judge erred in determining that the Agreement is a valid licence. According to Larry, the Agreement is a lease of property, not a licence. [9] We do not accept this submission. The parties were represented by lawyers as they worked together to draw up the Agreement. The entire Agreement, starting with the title and continuing through its provisions, is a licence, not a lease. Accordingly, it is not surprising that the motion judge’s conclusion on this issue, with which we agree, was expressed in relatively blunt language: The submission that the Agreement is really a lease, is simply put forward as a proposition by Larry without any legal basis to do so. Accordingly, I am satisfied that the Agreement was in fact exactly what it said it was, and what the parties intended it to be. It was an agreement for Larry and Stacey to license a certain part of their home to Gus, in consideration of the sum of $165,000, which was secured by a demand mortgage agreement. [10] In light of this conclusion, it is not necessary to consider the second component of Larry’s argument on this issue, namely, that if the Agreement is a lease, it is invalid because it does not contain some of the key features of a lease (e.g. a rent provision). [11] Second, Larry contends that the motion judge erred by determining that the money paid for the construction of the granny suite was not a gift. [12] We disagree. We start with an obvious point. If Gus and Jan, Stacey’s parents, intended to give $165,000 to Stacey and Larry, they hardly needed to engage separate lawyers to negotiate and ultimately finalize a 12-page, 12 section formal document with the title “Licence Agreement” and a Schedule titled “Mortgage Agreement”. There is nothing in these documents to even remotely suggest that Gus and Jan were making a $165,000 gift to Stacey and Larry. We agree with the motion judge: “If the advance was a gift, the drafting and execution of the Agreement makes no sense.” [13] Third, and in the alternative, if the Agreement is a licence/demand mortgage, Larry asserts that the face value of the mortgage, $165,000, should be discounted by the portion of time that Gus has lived in the granny suite. The discount Larry proposes is that portion of the 21-year duration of the licence in which Gus has lived there (i.e., $165,000 – ($165,000 x 12 ½/21 years) = $66,785.70). [14] We are not persuaded by this submission. It ignores s. 4 of the Agreement whereby Gus waives any interest on the $165,000 while he lives in the granny suite. We agree with the motion judge: Given … the clear language in the Agreement, there is no legal basis to make this submission. There is no basis to discount the principal amount secured by the mortgage. Such an assertion creates a term in the Agreement that is simply not there. There is no evidence that the parties intended such a discount to be applied. [15] The appeal is dismissed. Gus and Stacey are entitled to their costs of the appeal fixed at $15,000 and $6,000 respectively, inclusive of disbursements and HST. “J.C. MacPherson J.A.” “Robert J. Sharpe J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Labourers’ International Union of North America, Local 183 v. Castellano, 2020 ONCA 71 DATE: 20200203 DOCKET: C66642 Rouleau, Roberts and Harvison Young JJ.A. BETWEEN Labourers’ International Union of North America, Local 183, Nelson Melo, John Evans, Patrick Sheridan, Paul Giovinazzo, Carlee Horner and Ricardo Teixeira Plaintiffs (Respondents) and Daniel Joseph Castellano Defendant (App ella nt) Andrew Ostrom, for the appellant Andrew Faith and Brookelyn Kirkham, for the respondents Heard: November 14, 2019 On appeal from the judgment of Justice Bernadette Dietrich of the Superior Court of Justice, dated January 30, 2019, with reasons reported at 2019 ONSC 506. By the Court: A. OVERVIEW [1] The appellant appeals from the motion judge’s dismissal of his motion under s. 137.1 of the Courts of Justice Act , R.S.O. 1990, c. C.43 (commonly referred to as “the anti-SLAPP provision”), as well as the judgment allowing the respondents’ action for defamation on a motion for summary judgment and granting injunctive relief. [2] The respondents brought a defamation action against the appellant, a former member of the respondent union, Local 183, based on Internet posts that the appellant had made. They brought a motion for summary judgment and the appellant, by cross-motion, brought a s. 137.1 motion seeking the dismissal of the respondents’ action. The motion judge dismissed the appellant’s s. 137.1 motion, granted the respondents’ motion for summary judgment on their defamation claim against the appellant, and granted broad injunctive relief. [3] The appellant concedes that the impugned posts were defamatory and does not appeal from the motion judge’s findings of defamation on the summary judgment motion. However, he submits that the motion judge erred in her application of the weighing test to be carried out on the s. 137.1 motion in that: first, any evidence of harm to the respondents was insufficient to outweigh the public interest in the appellant’s free expression; second, she understated the public interest value of the expressive content of the appellant’s posts. [4] The appellant also argues that, in any event, the injunctive relief prohibiting him from making any statements about the respondents was overly broad and that there was no finding of wrongdoing or evidentiary basis to justify restraining his movements in relation to the respondents. [5] The respondents maintain the position that the appellant should not have been permitted to bring the s. 137.1 motion after the summary judgment motion was ready to be heard, because a s. 137.1 motion is intended to serve as a screening procedure at the early stages of the litigation. They further submit that, in any case, there is no utility in appealing the motion judge’s findings on the s. 137.1 motion, as she found that the full record substantiated the appellant’s liability in defamation. The respondents submit that there was no error in the injunctive relief ordered by the motion judge; it was amply supported by the evidence and is entitled to deference by this court. [6] For the reasons that follow, we dismiss the appeal in relation to the s. 137.1 motion but allow the appeal in part with respect to the injunctive relief ordered by the motion judge. B. ANALYSIS (1) Section 137.1 motion [7] Starting with the appellant’s s. 137.1 motion, we agree with the appellant’s position that the motion judge made no error in hearing the s. 137.1 motion at the same time as the summary judgment motion. There is no statutory or other prohibition against proceeding in this manner and it was within the discretion of the motion judge to determine the order in which the motions would be addressed. [8] Moreover, the purpose of s. 137.1 could be undercut if the bringing of a summary judgment motion precluded a defendant from bringing a s. 137.1 motion. While mindful that the efficacy of s. 137.1 could be undermined if the motion is not brought on a timely basis, there is no statutory timeline for its hearing. [9] There should be no hard and fast rule dictating when such a motion should be brought; otherwise, the inherent discretion of a motion judge to manage the proceedings before him or her would be fettered. We do not read para. 50 of Zoutman v. Graham , 2019 ONSC 2834, appeal as of right to the Court of Appeal filed, as purporting to set down as general principle anything to the contrary. [10] We do not, however, see any error in the motion judge’s dismissal of the appellant’s s. 137.1 motion. She correctly articulated and applied the appropriate test, as set out in para. 7 of this court’s decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, 142 O.R. (3d) 161, leave to appeal granted and appeal heard and reserved November 12, 2019, [2018] S.C.C.A. No. 467: Stripped to its essentials, s. 137.1 allows a defendant to move any time after a claim is commenced for an order dismissing that claim. The defendant must demonstrate that the litigation arises out of the defendant’s expression on a matter relating to the public interest. If the defendant meets that onus, the onus shifts to the plaintiff to demonstrate that its lawsuit clears the merits-based hurdle in s. 137.1(4)(a) and the public interest hurdle in s. 137.1(4)(b). [11] The motion judge’s weighing of the competing interests under s. 137.1 is entitled to deference on appeal, absent an identifiable legal error, or a palpable and overriding factual error: 1704604 Ontario Ltd. , at para. 97. As this court noted in 1704604 Ontario Ltd. , at para. 97, “[d]eference is important, as there is no reason to think that a simple recalibration of the competing interests by an appeal court will provide a more accurate assessment.” [12] In this case, we see no error in the motion judge’s balancing of the competing interests that would permit appellate intervention. [13] The motion judge properly considered the issue of the reputational damage to the respondents. In particular, she found that the appellant’s expression had cast “serious aspersions upon their individual characters”. The motion judge found the respondents’ general damages, as exacerbated by the appellant’s malice, to have been more than nominal, partly in the light of the positions held by the individual plaintiffs. It was not necessary for her to find monetary damages because “a serious libel does not always manifest itself in financial losses”: Montour v. Beacon Publishing Inc. , 2019 ONCA 246, at para. 31, leave to appeal refused, [2019] S.C.C.A. No. 154. [14] Similarly, the motion judge carefully considered the public interest in the expressive content of the appellant’s posts, including the videos. She did not, as the appellant submits, limit her analysis to the added commentary to the videos. She found that the posts involved gratuitous personal attacks, as well as vulgar and offensive language, and did not address any governance or leadership issues in any constructive or cogent way. She therefore found that the public interest in the appellant’s expression was low. Her conclusion that the harm suffered by the respondents outweighed the public interest in protecting the appellant’s expression was well-grounded in the evidence and free from error. (2) Scope of injunctive relief [15] With respect to the injunctive relief granted, the appellant submits that the injunction prohibiting any statements or posts about any of the respondents and restricting his attendance was overly broad and that the motion judge erred in failing to consider whether a more restricted injunction would have sufficed. Given the motion judge’s determination of the summary judgment motion, the appellant concedes that an injunction prohibiting defamatory posts was appropriate. [16] The motion judge ordered the following injunctive relief in subparas. 2 to 8 of her judgment: 2.  THIS COURT ORDERS that the Defendant shall take all necessary steps to remove all audio and video recordings, and written statements, of or about any and all of the Plaintiffs, from the internet or any other location in which they are accessible to the public and to destroy all such audio and video recordings and written statements within seven days of the release of these reasons. 3.  THIS COURT ORDERS that immediately following those seven days, the Defendant shall provide, in writing, to counsel for the plaintiffs, proof of all steps taken to remove and destroy all such material, and shall confirm, in writing, that no such material remains publicly accessible or within his possession or control, or, to the best of his knowledge, remains in the possession or control of a third party. 4. THIS COURT ORDERS that the defendant shall not make or publish, or cause any other person to make or publish any video or audio recording, or written statement, of or about any of the Plaintiffs. 5.  THIS COURT ORDERS that the Defendant shall not make, ratify, endorse, publish or re-publish, post or re-post, or cause anyone else to do so, on the internet or elsewhere, any statement about any of the Plaintiffs. 6.  THIS COURT ORDERS that the Defendant shall have no further contact with any of the Plaintiffs, either directly or indirectly, but shall deal directly with the Plaintiffs’ counsel. 7.  THIS COURT ORDERS that the Defendant shall not knowingly attend or be present within 500 meters of the individual Plaintiffs or their families, their personal residences, their places of employment, or any other location where he knows them to be present, unless such conduct occurs as a consequence of the defendant encountering any of the Plaintiffs on a jobsite where the Defendant is, at that time, employed to work. 8.  THIS COURT ORDERS that the Defendant shall not, without the written consent of the president of Labourers’ International Union of North America, Local 183, attend within 500 meters of any office, property or training centre of Local 183 including the Local 183 offices located at 1263 Wilson Avenue #200, North York, Ontario M3M 3G3, and 560 Dodge St., P.O. Box 156, Cobourg, Ontario K9A 4K5. The defendant shall not attend at any jobsite where Local 183 holds bargaining rights unless the Defendant is employed to work at such jobsite and his attendance there is directly related to such employment. [17] In support of the motion judge’s conclusions and order, the respondents seek to introduce fresh evidence consisting of the reasons of the trial judge in relation to the appellant’s criminal trial on unrelated charges to demonstrate the appellant’s continuing animus against the respondents. The appellant takes no position respecting the respondents’ fresh evidence motion. Since the proposed fresh evidence could not have been obtained with diligence before the hearing of the motions, is credible and potentially relevant to the scope of the injunctive relief ordered and could therefore affect the outcome of an issue on appeal, we admit it: Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.). However, as the evidence concerning ongoing animus is dated, we give it little weight. (a) Publication injunction [18] In considering whether the injunction against the publication of any commentary concerning the respondents was overly broad, we start with some well-established general principles. As this court stated in St. Lewis v. Rancourt , 2015 ONCA 513, 337 O.A.C. 15, at para. 16, leave to appeal refused, [2015] S.C.C.A. No. 407: “A broad ongoing injunction is an extraordinary remedy which should be used sparingly. However, where there has been a campaign of defamation and a likelihood that it will continue, there is authority for such an order.” The injunctive relief must be broad enough to be effective but no broader than reasonably necessary to effect compliance: Cambie Surgeries Corp. v. British Columbia (Medical Services Commission) , 2010 BCCA 396, 9 B.C.L.R. (5th) 299 , at para. 39. [19] While the evidentiary record supports a permanent injunction prohibiting the appellant from posting defamatory comments about the respondents, it does not justify a permanent blanket injunction enjoining him from making or publishing any comments about the respondents. [20] The motion judge concluded that the appellant would likely continue to post defamatory comments about the respondents if not enjoined from doing so. Her finding is grounded in the evidence and entitled to deference on appeal. However, she made no finding that the appellant was incapable of discerning between defamatory comments and legitimate criticism, such that a blanket injunction was required. Nor is there any evidence from which such a conclusion could be inferred. Absent evidence that prohibiting the appellant from making non-defamatory statements is reasonably necessary to address the identified likelihood of future defamation, the injunction should not have been cast so broadly that it captured non-defamatory statements. [21] Accordingly, we amend subparas. 4 and 5 of the judgment to specify that the appellant is enjoined from making or publishing any defamatory communications, including video or audio recordings, about the respondents, as follows: 4.  THIS COURT ORDERS that the Defendant shall not make or publish, or cause any other person to make or publish, any defamatory video or audio recording, or defamatory written statement, of or about any of the Plaintiffs. 5.  THIS COURT ORDERS that the Defendant shall not make, ratify, endorse, publish or re-publish, post or re-post, or cause anyone else to do so, on the Internet or elsewhere, any defamatory statement about any of the Plaintiffs. [22] With respect to subparas. 2 and 3 of the judgment, the appellant has complied with them. However, he may need the remaining copy of the videos filed with this court for the purposes of his ongoing human rights complaint. We therefore amend those subparagraphs to permit the use of those materials in any court or administrative proceeding, as follows: 2. THIS COURT ORDERS that the Defendant shall take all necessary steps to remove all audio and video recordings, and written statements, of or about any and all of the Plaintiffs, from the Internet or any other location in which they are accessible to the public and to destroy all such audio and video recordings and written statements within seven days of the release of these reasons. The Defendant is permitted to keep and use a copy of these recordings or statements for the sole purpose of using or producing them as required in a court or administrative proceeding related to his ongoing human rights complaint, following which they are to be destroyed. 3. THIS COURT ORDERS that immediately following those seven days, the Defendant shall provide, in writing, to counsel for the Plaintiffs, proof of all steps taken to remove and destroy all such material, and shall confirm, in writing, that no such material remains publicly accessible or within his possession or control, or, to the best of his knowledge, remains in the possession or control of a third party. The Defendant is permitted to keep and use a copy of this material for the sole purpose of using or producing it as required in a court or administrative proceeding related to his ongoing human rights complaint, following which they are to be destroyed. (b) Injunction restraining the appellant’s attendance and communications [23] Finally, we consider the provisions of the judgment that permanently restrict the appellant’s attendance near the respondents “and their families” and prohibit any communications directly with the respondents. [24] We reiterate that permanent injunctions constitute extraordinary relief that must be granted sparingly. A different test applies for a permanent injunction than for an interlocutory injunction. A different test is required because, in considering an application for a permanent injunction, the court has the ability to finally determine the merits of the case and fully evaluate the legal rights of the parties. See 1711811 Ontario Ltd. (AdLine) v. Buckley Insurance Brokers Ltd. , 2014 ONCA 125, 371 D.L.R. (4th) 643, at paras. 76-80; Cambie Surgeries Corp. , at paras. 27-28. [25] As referenced in Robert J. Sharpe, Injunctions and Specific Performance , loose-leaf, (Toronto: Canada Law Book, 2019), at para. 1.45, in NunatuKavut Community Council Inc. v. Nalcor Energy , 2014 NLCA 46, 358 Nfld. & P.I.E.R. 123, at para. 72, the Court of Appeal of Newfoundland and Labrador summarized the approach to be applied in deciding whether to grant a permanent injunction: (i) Has the claimant proven that all the elements of a cause of action have been established or threatened ? (If not, the claimant's suit should be dismissed); (ii) Has the claimant established to the satisfaction of the court that the wrong(s) that have been proven are sufficiently likely to occur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? (If not, the injunction claim should be dismissed); (iii) Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong? (If yes, the claimant should be left to reliance on that alternate remedy); (iv) If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship) affecting the claimant's prima facie entitlement to an injunction that would justify nevertheless denying that remedy? (If yes, those considerations, if more than one, should be weighed against one another to inform the court's discretion as to whether to deny the injunctive remedy.); (v) If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms that should be imposed on the claimant as a condition of being granted the injunction? (vi) In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to effect compliance with its intent? [Emphasis added.] [26] Given their potentially broad and restrictive scope, permanent injunctions must be particularly tailored to the specific circumstances of the case in which they are ordered. It is therefore incumbent on the court asked to consider such relief to conduct a careful analysis and to limit the breadth of any permanent injunction to only what is reasonably necessary to remedy the specific wrong committed and prevent further harm to the claimant. See Cambie Surgeries Corp. , at para. 39; NunatuKavut Community Council Inc. , at para. 71. [27] In their statement of claim, in addition to damages for defamation, the respondents claimed damages for intrusion upon seclusion and harassment. However, the respondents only pursued the defamation claim on summary judgment. The motion judge sets out clear reasons for her findings of defamation, which are not disputed on appeal. But she makes no determinations concerning the respondents’ claims in relation to intrusion upon seclusion or harassment. [28] Moreover, the motion judge makes no reference to nor carries out any discernible analysis of the rationale applied to impose the restriction of the appellant’s movements and communications, as ordered in subparas. 6 to 8 of her judgment. While she adverts, in para. 99 of her reasons, to the circumstances in which permanent injunctions against the publication of defamatory statements may be warranted, the motion judge does not reference any criteria respecting the advisability of granting a permanent injunction restraining the appellant’s movements or communications. [29] In the following excerpt from para. 100 of her reasons, the motion judge highlights aspects of the appellant’s conduct that she says, “go to continue his campaign of harassment of the plaintiffs”: The fact that Mr. Castellano fabricated a reason to attend at Mr. Evans’ personal residence, when he had no legitimate purpose to go there, is further evidence of the lengths that Mr. Castellano is prepared to go to continue his campaign of harassment of the plaintiffs. At a Trial Board hearing regarding Mr. Castellano’s conduct, the Trial Board found that Local 183’s staff feared for their safety. The Trial Board expressed concern that Mr. Castellano’s conduct would only escalate. [30] The motion judge’s above-noted observations about harassment are sandwiched between her conclusions in para. 100 about the prospect of the appellant continuing to make defamatory comments. Specifically, the first two and concluding two sentences of para. 100 focus on the question of the likelihood of the appellant continuing his defamatory postings. [31] Recall that a permanent injunction is a remedy that may be granted once a legal right or a cause of action has been finally adjudicated and proven on a balance of probabilities. Since defamation was the only tort that the motion judge found to have been established, the remedy sought and granted should have been only in relation to and for the purpose of preventing a continuation of that tort. As such, to justify the granting of a permanent injunction restricting the appellant’s movements or communications, the motion judge would have had to conclude that a permanent injunction restricting the appellant’s movements or communications with the respondents was reasonably necessary to remedy the defamation and to prevent the defamation campaign from continuing. She did not do so. [32] The motion judge erred in failing to carry out the required analysis and make the appropriate findings to determine whether such a broad permanent injunction, which severely restricts the appellant’s movements and communications, was necessary to put an end to the appellant’s defamation campaign. [33] Restrictions on a person’s communications and expressions of opinion are extraordinary; court-ordered restraints on a person’s physical freedom imposed in a civil dispute, outside certain statutorily prescribed circumstances, should be even more exceptional. The reasons for the latter caution are evident: they limit a person’s freedom and breaches of such ordered limitations could result in penal sanctions, including imprisonment. [34] The motion judge’s findings regarding the likelihood that the appellant would continue his defamation campaign do not justify the broad restraining order enjoining the appellant from contacting, or communicating with, all the respondents. There is nothing in the evidence to suggest that restricting the appellant’s movements and communications is reasonably necessary to prevent the appellant from continuing his defamation campaign. [35] However, the respondents are not without recourse. If necessary, other remedies are available to restrain the appellant’s behaviour, such as issuing a trespass notice under the Trespass to Property Act , R.S.O. 1990, c. T.21, which Local 183 already did, or pursuing a peace bond under the Criminal Code , R.S.C. 1985, c. C-46: Rainy River (Town) v. Olsen , 2017 ONCA 605, 64 M.P.L.R. (5th) 76, at para. 9. [36] In consequence, we set aside subparas. 6 to 8 of the motion judge’s judgment. C. Disposition [37] Accordingly, we admit the fresh evidence, allow the appeal in part, and set aside and amend the motion judge’s judgment as indicated above. [38] The appeal is otherwise dismissed. [39] The success on this appeal was mixed. We therefore make no order as to the costs of this appeal. Since the motion below was mostly devoted to the defamation and s. 137.1 motion issues on which the appellant was and remains unsuccessful, we do not disturb the costs order made below. Released: February 3, 2020 (“P.R.”) “Paul Rouleau J.A.” “L.B. Roberts J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134 DATE: 20200218 DOCKET: M51177, M51186 (C67632) Paciocco J.A. (Motions Judge) BETWEEN M & M Homes Inc. Plaintiff (Respondent) and 2088556 Ontario Inc ., Royal Lepage Real Estate Services Ltd., John Redvers, 697350 Ontario Limited, 1375051 Ontario Limited, Dorothy Kushner, Sam Goldman, Frank Goodman, Lillian Goodman, Dinapet Holdings Limited, 614921 Ontario Limited, Maria Traina, Howard Brian Goldman, Joseph Burdi, Doris Miller, Carole Greenspan, Community Trust Company, 2178875 Ontario Inc., Jong Suk Im, Sung Ran Lee, Yeon Hee Huh and In Hee Woo Defendants ( Appellant ) Robert S. Choi and Gina Rhodes for the appellant, responding party on M51177, and moving party on M51186 Elliot Birnboim, for the respondent, moving party on M51177, and responding party on M51186 Heard: February 5, 2020 REASONS FOR DECISION OVERVIEW [1] The appellant, 2088556 Ontario Inc. (“208 Ontario”), as vendor, and the respondent, M & M Homes Inc. (“M & M Homes”), as purchaser, entered into an agreement of purchase and sale (APS) relating to development land. The sale did not close, and litigation ensued. In the trial decision appealed from, the respondent purchaser, M & M Homes, prevailed, receiving an order for specific performance to be enforced through a vesting order (the “vesting order”), and costs on a substantial indemnity basis. 208 Ontario is appealing both the vesting order and the costs order. [2] There are now two interconnected motions before me, arising out of that appeal. [3] In motion M51177, M & M Homes moves to “set aside” a certificate of stay relating to the costs order that was issued by the registrar of this court, pursuant to r. 63.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. [4] In motion M51186, 208 Ontario moves for a stay of the vesting order and the costs order pending appeal. [5] I address both motions in this decision after setting out the material facts, most of which are common to the two motions. For the reasons below, I find that the costs order was automatically stayed under r. 63.01 and do not set aside the certificate of stay issued by the registrar. I also find that it is in the interests of justice to stay the vesting order. MATERIAL FACTS [6] The respondent, 208 Ontario, under the directing mind of Mr. Lam, severed land for development purposes. 208 Ontario initially retained one part of that land for residential development (the “residential property”). On September 14, 2012, 208 Ontario entered an APS to sell the other part of that land to M & M Homes (the “commercial property”), for a purchase price of $2,150,000. [7] Under the APS, 208 Ontario was obliged to bring municipal services to the land and obtain written confirmation from the municipality relating to those services. This was not accomplished by the initial closing date, leading to closing extensions being mutually granted. [8] Ultimately, litigation ensued, with M & M Homes seeking specific performance of the APS and an abatement relating to the costs of bringing the required services to the land. M & M Homes filed a Certificate of Pending Litigation (the “CPL”) on title. [9] After the CPL was filed, 208 Ontario transferred the property to CRC Sutton Inc. (“CRC”), another corporation controlled by, and under the directing mind of, Mr. Lam. In addition, collateral mortgages were placed on the commercial property as additional security for loans on the residential property. [10] M & M Homes prevailed at trial, securing an order for specific performance and two abatements (a “services abatement” and a “management fee abatement”) together amounting to close to two-thirds of the agreed purchase price. The trial judge provided for enforcement of the specific performance order by specifying that upon payment into court of an adjusted purchase price and other adjustments that may be ordered on motion in writing brought before her, the commercial property would vest in M & M Homes. [11] Although the relief requested in the litigation would affect CRC and CRC was not a party to the litigation, the trial judge found that CRC had adequate notice through Mr. Lam to protect its interests, had it wished to do so. [12] In her judgment, the trial judge specified the amount of the adjusted purchase price, $713,979.05, that M & M Homes would have to pay into court to secure its vesting order. That adjusted purchase price was arrived at after itemizing the services abatement and the management fee abatement. [13] In para. 129 of her judgment the trial judge wrote: [M & M Homes] also seeks its costs in this action, and submits that any costs awarded should be payable, in the first instance, as an abatement of the purchase price. [Trial counsel for 208 Ontario] has not responded to this submission. Costs will be determined after review of the written submissions. Absent a r. 49 offer from the defendant that could trigger r. 49.10(2), the plaintiff will have its costs in this action. I agree that these costs should be deducted from the adjusted purchase price prior to payment into court. [14] The parties could not agree on costs. In a separate Reasons for Decision on Costs, the trial judge awarded M & M Homes $210,000 in substantial indemnity costs based on her finding that 208 Ontario had misconducted itself in its dealing with the land despite the CPL having been registered on the property, and again repeatedly misconducted itself during the trial proceedings. The Reasons for Decision on Costs makes no mention of the costs being deducted from the adjusted purchase price, as referenced in para. 129 of the judgment, above. [15] 208 Ontario now appeals the specific performance order (C67632). As part of that appeal, 208 Ontario has also appealed the costs decision, but it has not sought leave to appeal the costs order. [16] After filing its notice of appeal, 208 Ontario requisitioned a certificate of stay from the registrar of this court relating to the costs order, which was granted. [17] In response, M & M Homes moves in motion M51177 to have that certificate of stay set aside. [18] In response to that motion, 208 Ontario has applied for a stay of the vesting order and the costs order. A stay of the vesting order would forestall the risk of M & M Homes seeking to enforce the vesting order pending appeal by paying the full $713,979.05 adjusted purchase price set out in the judgment and taking its chance on collecting the costs award without the benefit of the abatement referred to by the trial judge in para. 129 of the judgment, reproduced above. MOTION M51177 FOR AN ORDER STRIKING THE CERTIFICATE OF STAY [19] The primary argument M & M Homes offers in support of an order setting aside the registrar’s certificate of stay is its contention that a certificate of stay can only properly be issued, absent an order for a stay pending appeal, if an automatic stay is in place. It argues that r. 63.01, the relevant rule, does not automatically stay the costs award in this case because the trial judge did not make an “order for the payment of money” within the meaning of r. 63.01. Instead, M & M Homes contends that the trial costs are ordered to be collected through an abatement from the money required to be paid into court when M & M Homes triggers the vesting order. In its view, the registrar’s certificate of stay was therefore improperly issued. [20] 208 Ontario disputes M & M Homes’ contention that the trial judge ordered the costs abatement. 208 Ontario points out that when the trial judge set out the adjusted purchase price in her judgment, she did not include a deduction for the costs order, and she made no mention of such a deduction in the Reasons for Decision on Costs she provided. Neither party has taken out a formal order that can be consulted to resolve this dispute. [21] In my view, it does not matter whether the trial judge ordered an abatement from the adjusted purchase price for the costs order she made. The costs order itself is an order for the payment of money and is automatically stayed under r. 63.01, even if provision was made to deduct the costs award from the adjusted purchase price. [22] Rule 63.01 provides as follows: 63.01(1) The delivery of a notice of appeal from an interlocutory or final order stays, until the disposition of the appeal, any provision of the order for the payment of money, except a provision that awards support or enforces a support order. [23] There is authority supporting the notion that a costs order is an order for the payment of money within the meaning of r. 63.01(1): see City Commercial Realty (Canada) Ltd. v. Backich , [2005] O.J. No. 6443 (C.A.) (In Chambers). I agree with this, and it remains true even where a trial judge orders the costs awarded to be collected through an abatement. M & M Homes conceded during the hearing that a proper formal order in this case would have to specify the costs order of $210,000, even if an abatement relating to the costs order had been ordered. That concession was correct, since it is through the costs order that the debt obligation that permits the abatement would arise. It necessarily follows that the costs order is a provision for the payment of money, even where a short-cut mechanism such as an abatement is provided for in a judgment to ensure the payment of this debt obligation. [24] For this reason, I also reject M & M Homes’ ancillary argument, that it was misleading for 208 Ontario not to disclose the abatement in its requisition. In my view, because r. 63.01 automatically stayed the costs order, mention that the costs order was enforceable by way of abatement was immaterial to the requisition request. There was nothing misleading on the part of 208 Ontario in failing to mention this unimportant detail to the registrar when seeking the certificate of stay relating to the costs order. [25] It is evident that I reject, as well, M & M Homes’ alternative argument that the automatic stay of a costs order under r. 63.01 operates only if the substantive order under appeal is itself automatically stayed by r. 63.01. In Backich the substantive order did not provide for the payment of money. The appeal was from an order dismissing a claim for unpaid commission, yet Lang J.A. said: “By rule 63.01, the trial judgment, insofar as it awards costs to the moving party, is automatically stayed pending the outcome of the appeal”, at para. 4. [26] Finally, I will not entertain M & M Homes’ oral submissions relating to whether the certificate of stay should be removed after consideration of factors analogous to those in RJR-MacDonald Inc. v. Canada (Attorney General) , [1994] 1 S.C.R. 311. When M & M Homes made these submissions, I understood it to be responding to Ontario 208’s argument that M & M Homes was advancing the wrong test when challenging the propriety of the certificate of stay, and that a similar standard to that used in RJR-MacDonald Inc. should apply. I do not decide this motion on the basis that M & M Homes used the wrong test and should have used the RJR-MacDonald Inc. test, and so I need not consider this further. Moreover, M & M Homes did not plead this theory as an alternative basis for setting aside or removing the certificate of a stay. [27] The motion to set aside the certificate of say is therefore denied. MOTION M51186 FOR A STAY PENDING APPEAL [28] 208 Ontario brings a motion for a stay of both the vesting order and the costs order pending appeal. I would stay the vesting order. [29] The overarching consideration in whether to grant a stay is the interests of justice: Zafar v. Saiyid , 2017 ONCA 919, at para. 18. This is determined by a holistic consideration of the factors identified in the RJR-MacDonald Inc ., at p. 334, for assessing whether an interlocutory injunction should be granted, namely: (1) A preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried; (2) It must be determined whether the applicant would suffer irreparable harm if the application were refused; and (3) An assessment of the balance of convenience must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision of the merits. [30] Although M & M Homes concedes for the purpose of this motion that the first factor has been satisfied given its low standard, it urges that 208 Ontario has not met its burden of showing that it would suffer irreparable harm if its application were refused, and that the balance of convenience lies with M & M Homes, rather than 208 Ontario. [31] M & M Homes also asks that 208 Ontario’s motion be denied because 208 Ontario does not come forward with clean hands: see Morguard Residential v. Mandel , 2017 ONCA 177, at paras. 26-28. M & M Homes relies on the findings of the trial judge that 208 Ontario misconducted itself by dealing with the commercial property in ways designed to complicate M & M Homes’ recovery in the face of a CPL, and by being “spectacularly inattentive” to its litigation obligations both before and at trial. Counsel for M & M Homes also relies upon allegations it makes that 208 Ontario misled the registrar in seeking the certificate of stay, and by presenting the registrar with a false affidavit of service. [32] I will begin by noting that I have considered but am not materially influenced by clean hands considerations in resolving this motion. [33] I have already rejected the claim that 208 Ontario misled the registrar through non-disclosure when requisitioning the certificate of a stay. Nor am I persuaded that the evidentiary foundation supports the allegation that counsel for 208 Ontario filed a false affidavit of service. [34] Moreover, the most central findings relied upon by the trial judge to impose substantial indemnity costs against 208 Ontario are going to be before this court during the appeal, including whether the post-CPL transactions were improper. This court will have to consider whether the trial judge misapprehended the evidence and argument in finding that 208 Ontario attempted to “hoodwink” the court relating to the status of the servicing to the commercial property. Since these findings are the subject of the appeal, they should not be held against 208 Ontario in deciding an interlocutory issue relating to that appeal. [35] Finally, the conduct of counsel for M & M Homes itself has been questioned. As indicated, on M & M Home’s behalf, unproven allegations of misrepresentation against opposing counsel were made, and such allegations were communicated to the registrar of this court in email exchanges. There may also have been a lapse in expected standards of civility that occurred when counsel for M & M Homes called Mr. Lam an egregious liar at the end of his cross-examination on this motion. [36] In my view, this motion therefore turns on the traditional RJR-MacDonald Inc. factors, and the holistic assessment of the interests of justice. [37] As indicated, M & M Homes concedes that there are serious issues to be tried in this appeal. That concession was well-taken. The appeal is not frivolous and warrants consideration on its merits. [38] I do agree with M & M Homes that some of 208 Ontario’s “irreparable harm” submissions are unimpressive, and there are complications in finding that 208 Ontario, itself, would be prejudiced if a stay is not ordered. [39] Specifically, 208 Ontario’s main claim relating to the harm it would experience is that if the vesting order is triggered, the encumbrancers who registered their mortgages after the CPL could lose their mortgage security on the commercial property, and those mortgagees would immediately enforce their debts against 208 Ontario, causing the insolvency of 208 Ontario. I need not decide whether the evidentiary foundation for this risk has effectively been established before me because were this to happen, 208 Ontario would be the author of its own misfortune. When the litigation began, it was not exposed to the risks these mortgages may present. Knowing that it could lose the commercial land in litigation, it made a conscious choice to encumber that land, thereby courting the risk of defaulting on its financial obligations if that commercial land was lost in the pending litigation. It does not lie in the mouth of a litigant who did not face the risk of irreparable harm from the enforcement of a pending claim, to voluntarily assume such risk after the litigation is pending, and then rely upon that risk to impede the enforcement of that claim after it succeeds. [40] Nor am I impressed by the risks to the post-CPL mortgagees themselves. They too chose to run the risk that 208 Ontario or its assignees could lose the land in this litigation. The materialization of that accepted risk does not qualify as irreparable harm. In any event, the vesting order cannot be triggered without the competing priorities being determined. Those holding encumbrances on the land are entitled to participate and protect their legitimate interests in a priority hearing. [41] I do accept, however, that there is a material risk that irreparable harm will be caused by now enforcing a vesting order remedy that may be overturned in the future. By its very nature, the enforcement of that vesting order will deprive the owners of the land, which M & M Homes itself contends is unique enough to warrant a specific performance remedy. There is no assurance that should 208 Ontario prevail on appeal, it will be possible to reverse the enforcement of a vesting order pending appeal. If the vesting order is enforced pending appeal, M & M Homes will be entitled to transfer the land, putting it out reach of restoration. Or, a party holding title after the vesting order could make changes to the land that diminish its value, or that may require costly reinstatement. Or, improvements could be made to the land that could require settlement negotiations or litigation that ensnares the owners of the land. Or, liens could be placed on the land, impeding effective restoration. [42] I appreciate that there is an impediment to 208 Ontario relying on the risks of prejudice that I have described. As counsel for M & M Homes stresses, technically, such harm will not be caused to 208 Ontario, the moving party, or applicant, because 208 Ontario no longer owns the land. CRC does. If the second RJR-MacDonald Inc. factor – relating to irreparable harm to the applicant - was a strict precondition to staying an appeal, this would prove fatal to the current motion. However, irreparable harm to the applicant is not a strict precondition to a stay. The ultimate test for granting the stay is the interests of justice, and the RJR-MacDonald considerations are factors, not prerequisites. In the unusual circumstances of this case, the absence of irreparable harm to the applicant does not undercut this motion. [43] First, as a matter of law, the risk of irreparable harm that I describe does not evaporate simply because 208 Ontario no longer owns the land. Those risks obtain, and are faced by the current owner, CRC. [44] Second, substance cannot be ignored. CRC currently owns the land as a legal vehicle to facilitate a development plan involving several parties. The enforcement of the vesting order and the loss of the control of the land that this would entail would pose risk of prejudice not only to CRC but to the principals of CRC and the participants in the development project. [45] Finally, M & M Homes cannot have it both ways. It obtained an order of specific performance against 208 Ontario even though 208 Ontario is not the owner, on the clear premise that, in substance, 208 Ontario is sufficiently connected to the land that such order is just. It is not equitable for M & M Homes to now resist a stay of that remedy on the premise that 208 Ontario is not sufficiently connected to the land for material prejudice to arise. [46] I am therefore persuaded that there is a risk of irremediable harm, if not to 208 Ontario, then to CRC and others associated with the development project. Regardless of whether the irreparable harm to these third parties is to be considered under RJR-MacDonald Inc. ’s irreparable harm head, or under the balance of convenience inquiry, these interests warrant consideration. [47] Of importance, M & M Homes has not presented evidence that it would be prejudiced by delaying the enforcement of the vesting order until the appeal can be resolved on its merits. Its sole claim is that a stay will obstruct or scuttle the priorities hearing that is scheduled. This is not material prejudice. If the vesting order is reversed on appeal, that hearing will prove to have been moot. The priorities hearing can wait. [48] Any other inherent prejudice there may be can adequately be remedied by an order expediting the appeal, which both parties agree to do. [49] Given the balance of convenience and the irreparable harm that may arise, I am persuaded that it is in the interests of justice to stay the vesting order. I have already found that the costs order is automatically stayed pending appeal, but I would also have stayed the costs order pending appeal, in any event, had that not been so. [50] I therefore allow 208 Ontario’s motion and stay the vesting order made by the trial judge, pending determination of the appeal. However, I order that this appeal be expedited. As suggested by counsel for M & M Homes, the appellant must perfect its appeal within 45 days of receipt of notice that the required transcripts have been transcribed. The respondent must serve and file the respondent’s factum and compendium within 30 days of service of the appeal book, compendium, exhibit book, transcript and appellant’s factum. COSTS [51] I am reserving a decision on the costs of these motions. The parties may file written costs submissions, not to exceed 5 pages, along with supporting bills of costs, on the following deadline: ten business days after the release of this decision for the appellant, 208 Ontario, and five business days after the receipt of the appellant’s written costs submission by the respondent, M & M Homes. [52] I direct that this decision be filed in both motion records, M51177 and M51186. “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: MacQuarie Equipment Finance Ltd. v. 2326695 Ontario Ltd. (Durham Drug Store), 2020 ONCA 139 DATE: 20200220 DOCKET: C67478 MacPherson, Sharpe and Jamal JJ.A. BETWEEN MacQuarie Equipment Finance (Canada) Limited Plaintiff (Respondent) and 2326695 Ontario Ltd. operating as Durham Drug Store Defendant (Appellant) and MedviewMD Inc., Leasecorp Capital Inc. , and Daniel Nead Third Parties ( Respondent ) Amer Mushtaq, for the appellant Ron Aisenberg, for the respondent, MacQuarie Equipment Finance (Canada) Limited No one appearing for the respondent, Leasecorp Capital Inc. Heard: February 3, 2020 On appeal from the judgment of Justice Lorne Sossin of the Superior Court of Justice, dated August 28, 2019, with reasons reported at 2019 ONSC 5019. By the Court: Introduction [1] The appellant, 2326695 Ontario Limited operating as Durham Drug Store (“Durham Drug Store”), appeals from the motion judge’s decision granting summary judgment to the respondent, Macquarie Equipment Finance (Canada) Limited (“Macquarie”), for $90,057.13 under a lease financing agreement dated February 19, 2016 (the “Lease”). [2] Macquarie cross-appeals the motion judge’s decision to award pre- and post-judgment interest at the rates prescribed under the Courts of Justice Act , R.S.O. 1990, c. C.43, rather than at the contractual rate under the Lease of “up to 2.0% per month (24% per annum)”. [3] For the reasons that follow, the appeal is allowed. In the unusual circumstances of this case, Durham Drug Store had a right to terminate the Lease and return the leased equipment to Macquarie upon the default of the respondent, MedviewMD Inc. (“Medview”). The cross-appeal is dismissed as moot. Background facts [4] Durham Drug Store operates a pharmacy in Pickering, Ontario, run by its principal, Ms. Zeinab Abdulaziz, a pharmacist. [5] In late 2015, Mr. Daniel Nead met with Ms. Abdulaziz to propose a business arrangement between Medview, of which he was a representative, and Durham Drug Store. Based on that proposal, Durham Drug Store engaged Medview to supply a telemedicine studio in the pharmacy to provide remote medical services to the public. [6] Medview then contacted Mr. Barry Johnston, a representative of the respondent, Leasecorp Capital Inc. (“Leasecorp”), an equipment lease broker, to lease Durham Drug Store the necessary telemedicine equipment. [7] Mr. Johnston met with Ms. Abdulaziz at Durham Drug Store on February 8, 2016, where they completed a credit application. It was approved the next day. [8] Ms. Abdulaziz’s evidence was that she thought Mr. Johnston was a Medview representative and that he said he was “sent by Nead/Medview.” Mr. Johnston’s evidence was that he identified Macquarie as the equipment lessor. [9] On February 11, 2016, Medview emailed Ms. Abdulaziz a copy of the written Master Service Agreement (“Medview MSA”) between Medview and Durham Drug Store, which set out the terms of Medview’s proposed telemedicine services, “for review and signing.” Medview’s cover email, copied to Mr. Johnston, stated: “I believe Barry [i.e., Mr. Johnston] will be visiting you tomorrow for signing.” [10] The Medview MSA emailed to Ms. Abdulaziz was to have the same termination date as the equipment lease. The Medview MSA also contained a broad early termination provision, which reads in relevant part: 10. Early Termination . A Party shall be entitled, at its option, to terminate this Agreement immediately upon notice in writing to the other Party (g) if the other Party shall be in breach of or default under any of the terms, conditions, covenants or agreements contained in this Agreement (other than a breach default [sic] of its payment obligations to the other Party under this Agreement) and shall fail to cure such breach or default within fifteen (15) calendar days after delivery to the other Party of written notice to that effect. [11] On February 19, 2016, Mr. Johnston visited Ms. Abdulaziz, but did not come with a copy of the proposed Medview MSA. Instead, he came with a proposed Lease between Macquarie and Durham Drug Store. [12] Ms. Abdulaziz’s evidence was that she was busy in the pharmacy with customers and did not review the Lease in detail, believing it to be a version of the Medview MSA. Although she noticed Macquarie’s name on the document, she believed it was another business name for Medview. Ms. Abdulaziz’s evidence was that Mr. Johnston asked her to sign the paperwork so that Medview could deliver the equipment to Durham Drug Store. She signed it and initialed each page. The whole meeting lasted just a few minutes. [13] Durham Drug Store then took possession of the telemedicine equipment. Under the Lease, Ms. Abdulaziz was to pay a total of $98,522.31, with monthly payments of $50 for the first three months, and then $1,725.83 plus tax per month for the rest of the lease term. This tracked exactly the Equipment Fee she owed Medview under the Medview MSA, both in total amount and in payment instalments. [14] Durham Drug Store paid Macquarie under the Lease for almost a year, but then stopped in February 2017 because it learned that Medview had failed to disclose that its telemedicine services lacked the necessary regulatory approvals. As a result, Durham Drug Store ceased offering telemedicine services. [15] Macquarie then contacted Durham Drug Store. Ms. Abdulaziz advised Macquarie that she had contacted Medview and it had advised her that the telemedicine equipment would be picked up. Macquarie responded that it had nothing to do with any arrangement she had with Medview, and Durham Drug Store would be responsible for any shortfall if she sold the equipment to Medview. [16] At this point, Ms. Abdulaziz queried how she had become involved with Macquarie, separate and apart from Medview. She told Macquarie that it could pick up the equipment and sort out the issue with Medview and Mr. Nead. [17] It was not until then, as the motion judge found, that Macquarie provided Ms. Abdulaziz with a signed copy of the Lease. [18] Macquarie then sued Durham Drug Store, claiming $90,057.14 under the Lease and for possession of the leased equipment. [19] Durham Drug Store defended on the basis that it believed that its contract was with Medview and Mr. Nead, not Macquarie, and that it was the victim of a scam perpetrated by Medview and Mr. Nead. It claimed it was never advised that it was contracting with anyone other than Medview and Mr. Nead. [20] Durham Drug Store issued a third party claim against Leasecorp, Mr. Nead, and Medview. Mr. Nead and Medview did not defend and were noted in default. [21] On Macquarie’s motion for summary judgment to enforce the terms of the Lease, the motion judge found that although Ms. Abdulaziz “appears to have been the victim of the fraud perpetrated by Medview and Nead, there is no evidence that either Macquarie or Leasecorp participated in or knew about the fraud”. He concluded that because the Lease was signed by Ms. Abdulaziz, it was enforceable against Durham Drug Store: The failure to provide Abdulaziz with a copy of the lease, and the apparent failure of communication between Johnston and Abdulaziz with respect to the various parties involved in the transaction, and their roles, led to Abdulaziz’s understandable confusion and consternation when eventually contacted by Macquarie in relation to the default under the lease agreement, but this confusion and consternation does not vitiate the enforceability of the agreement. [22] Durham Drug Store now appeals this determination to this court. [23] In advance of the oral hearing, the court wrote to the parties asking them to be prepared to address the potential application of Tilden Rent-A-Car Co. v. Clendenning (1976), 18 O.R. (2d) 601 (C.A.), and Forest Hill Homes v. Ou , 2019 ONSC 4332. These cases address how extremely onerous or unfair contract terms may be unenforceable if inadequate notice of those terms was provided to the other contracting party at the time of contract formation. [24] In response to the court’s letter, the parties filed supplementary authorities and made oral submissions addressing the principles in these decisions. Analysis [25] In our view, on the evidence before him, the motion judge was entitled to find that Macquarie and Leasecorp did not participate in or have knowledge of any fraud allegedly committed by Medview and Nead, or fraudulently misrepresent anything to Durham Drug Store. [26] The fraud alleged was outlined in an affidavit of a former Medview employee. Medview and Mr. Nead had allegedly defrauded several pharmacies by recruiting them to join its telemedicine business and to purchase related equipment. Medview allegedly advised pharmacies that its telemedicine services were approved by the Ontario Ministry of Health, when this was false. Several disputes involving these issues are or have been before the courts. [27] The motion judge was also entitled to find that the evidence was insufficient to establish that the Lease was an unconscionable agreement, because neither Macquarie nor Leasecorp knowingly took advantage of Ms. Abdulaziz’s vulnerability and the Lease was neither unfair nor improvident per se . [28] However, that does not resolve all issues as to the enforceability of the Lease. The Lease also contained a term that purported to eliminate Durham Drug Store’s ability to terminate or cancel the Lease during its term “for any reason, including equipment failure, damage or loss”: 3. Non-Cancellable: Lessee cannot terminate or cancel this Lease during the Term for any reason, including equipment failure, damage or loss. Lessee acknowledges and agrees that it has selected the Equipment and the Equipment Supplier and such acceptance cannot be revoked at any time. Lessor has purchased the Equipment at Lessee’s request and instruction only. [29] The effect of this provision is that Durham Drug Store would have to keep paying for the equipment even if Medview and Mr. Nead defaulted in providing telemedicine services. Without those services, the equipment was of no use. [30] As is evident, this “no cancellation” provision in the Lease is at odds with the “early termination” provision of the Medview MSA. [31] We do not dispute the ability of the contracting parties to agree to such a “no cancellation” provision in an adhesion contract such as the Lease between Macquarie and Durham Drug Store. [32] Nor do we dispute the binding effect of a party’s assent to a contract’s terms by signing it, whether or not they read the contract with appropriate care or at all. As noted by Professor John D. McCamus in The Law of Contracts , 2nd ed. (Toronto: Irwin Law, 2012), at p. 193: “If an agreement is entered into on the basis of a document proffered by one party and signed by the other, it is clearly established that the agreement between the parties contains the terms expressed in the document, whether or not the signing party has read the documents.” [33] However, Professor McCamus adds that sometimes, even with a signed agreement, inadequate notice of a particularly unfair term may render that term unenforceable, at p. 194: In many contractual settings, it will not be expected that a signing party will take time to read the agreement. Even if the document is read, it may well be, especially in the context of consumer transactions, the purport of particular provisions of the agreement will not be understood by the signing party. Under traditional doctrine, then, although the fact of the signature appears to dispense with the notice issue, the opportunities for imposing harsh and oppressive terms on an unsuspecting party are, as a practical matter, as present in the context of signed documents as they are in the context of unsigned documents. Accordingly, it is perhaps not surprising that the recent jurisprudence indicates that notice requirements are migrating into the context of signed agreements. [34] The leading Ontario case on this point remains this court’s decision in Clendenning . There, Dubin J.A. (as he then was) for the majority refused to enforce a limitation of liability provision in a car rental agreement that purported to exclude the rental company’s liability for a collision where the customer had driven the car after consuming alcohol. Before renting the car, the customer had chosen to pay an additional premium for “collision damage waiver”, which he had been led to understand provided comprehensive insurance for vehicle damage. He signed the rental agreement without reading it. [35] In finding the exclusion clause unenforceable, Dubin J.A. highlighted that such a rental transaction was typically concluded in a “hurried, informal manner”, and that the liability exclusion provision was “[o]n the back of the contract in particularly small type and so faint in the customer’s copy as to be hardly legible”: at pp. 602, 606. The exclusion clause was also “inconsistent with the over-all purpose for which the transaction is entered into by the hirer”: at p. 606. [36] In these circumstances, Dubin J.A. concluded that “something more should be done by the party submitting the contract for signature than merely handing it over to be signed” (at p. 606) — namely, reasonable measures must be taken to draw harsh and oppressive terms to the attention of the other party, at p. 609: In modern commercial practice, many standard form printed documents are signed without being read or understood. In many cases the parties seeking to rely on the terms of the contract know or ought to know that the signature of a party to the contract does not represent the true intention of the signer, and that the party signing is unaware of the stringent and onerous provisions which the standard form contains. Under such circumstances, I am of the opinion that the party seeking to rely on such terms should not be able to do so in the absence of first having taken reasonable measures to draw such terms to the attention of the other party, and, in the absence of such reasonable measures, it is not necessary for the party denying knowledge of such terms to prove either fraud, misrepresentation or non est factum . [37] In our view, the highly unusual circumstances of this case bring it within the principle in Clendenning . Without suggesting that there was any intention to mislead Ms. Abdulaziz, here, the no-cancellation provision should have been specifically brought to Ms. Abdulaziz’s attention. It should have been explained to her that she would remain obligated to pay for the telemedicine equipment under the Lease even if Medview defaulted on its obligations. [38] While on its face a no-cancellation clause is a commonplace provision that is neither harsh nor oppressive, here it became so when seen in the light of the interactions among the parties and when juxtaposed with the early-termination provision of the Medview MSA — the only agreement that Ms. Adbulaziz was sent and which Medview advised her, to Mr. Johnston’s knowledge, that Mr. Johnston would bring to her for signature. The Lease was then signed in a hurried manner, with no opportunity to negotiate the terms, without Ms. Abdulaziz reading it with any care because Mr. Johnston came by when she was busy in the pharmacy, and without the benefit of legal advice. Moreover, the entire Lease is contained in two tightly-packed pages in extremely small font. While technically legible, it can only be read with difficulty. [39] Mr. Johnston’s evidence was that it was his standard practice to bring certain clauses to the attention of the lessee – the payment terms, the lessor’s remedies, and lessee’s obligations upon default – but he did not appear to do so in this case with respect to the no-cancellation provision, nor did he explain that Durham Drug Store would have to keep paying for the equipment even if Medview defaulted. [40] In these circumstances, it was not reasonable for Mr. Johnston or Macquarrie to have believed that Ms. Abdulaziz really assented to the no-cancellation provision of the Lease, which was at odds with the termination provision in the Medview MSA, without having first taken reasonable measures to bring that clause to her attention. [41] As the motion judge found, the “apparent failure of communication” between Mr. Johnston and Ms. Abdulaziz and the failure to provide Ms. Abdulaziz with a copy of the Lease led to her “understandable confusion and consternation” when Macquarie ultimately contacted her about her default. In our view, in this case that failure of communication bears on the enforceability of the Lease. [42] In all the circumstances, the no-cancellation provision is unenforceable. Upon Medview’s default, Durham Drug Store was entitled to terminate the Lease and return the leased equipment to Macquarie. This is in effect what it purported to do when Medview defaulted and it told Macquarie to pick up the equipment. [43] Given this conclusion, it is not necessary to address whether interest is payable at the contractual rate of 2% per month for the remainder of the term of the Lease. That issue is moot. Disposition [44] The appeal is allowed. The cross-appeal is dismissed as moot. Costs of the appeal and cross-appeal are payable by Macquarie to Durham Drug Store in the agreed amount of $15,000, inclusive of disbursements and taxes. Released: February 20, 2020 (“J.C.M”) “J.C. MacPherson J.A.” “Robert J. Sharpe J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Marley v. Salga, 2020 ONCA 104 DATE: 20200210 DOCKET: C67241 Simmons, Pepall and Trotter JJ.A. BETWEEN Karen Marley Applicant (Appellant) and Suzanne Marcela Salga, Michelle Jessica Salga, The Estate of Leslie Salga, and Helmut Klassen, in his capacity as Estate Trustee of the Estate of Leslie Salga Respondents (Respondents) AND BETWEEN Suzanne Marcela Salga and Michelle Jessica Salga Applicants (Respondents) and Helmut Klassen and Karen Marley Respondents ( Respondent ) Lionel J. Tupman, Arieh Bloom and Caroline Tarjan, for the appellant Holly LeValliant and Joshua Eisen, for the respondents Suzanne Marcela Salga and Michelle Jessica Salga Anne Marie DiSanto, for the respondent Helmut Klassen Heard: February 3, 2020 On appeal from the judgment of Justice Robert B. Reid of the Superior Court of Justice, dated June 6, 2019 with reasons reported at 2019 ONSC 3527. APPEAL BOOK ENDORSEMENT [1] We reject the appellant’s argument that the recording on which the application judge relied was inadmissible. The appellant did not raise this as a ground of appeal. Further, the appellant pointed to no authority to support this position. We are satisfied that the recording was relevant to a material issue and admissible. In particular, it corroborated the respondents’ position on the applications. [2] The application judge set out the proper test for determining whether a joint tenancy has been severed. This is a fact specific inquiry. We see no basis on which to interfere with the application judge’s decision. The appeal is dismissed. [3] The respondents seek costs on a full indemnity basis against the appellant in the amount of $78,860.02. We consider this amount grossly excessive. Their substantial indemnity costs claim in the court below was $12,555.16. We order costs of $25,000 on a full indemnity scale inclusive of disbursements and HST payable out of the estate. Like the application judge we conclude this litigation was made necessary by the actions of the deceased. The appellant shall bear her own costs.

COURT OF APPEAL FOR ONTARIO CITATION: Medcof (Re), 2020 ONCA 105 DATE: 20200212 DOCKET: C66962 Doherty, Watt and Hourigan JJ.A. IN THE MATTER OF:  William R. Medcof AN APPEAL UNDER PART XX.1 OF THE CODE Mercedes Perez, for the appellant Lisa Fineberg, for the respondent, Her Majesty the Queen Michele Warner, for the Person in Charge of the Centre for Addiction and Mental Health Heard: January 31, 2020 On appeal against the disposition of the Ontario Review Board dated, April 4, 2019. REASONS FOR DECISION [1] On November 29, 2002 the appellant was found not criminally responsible on account of mental disorder (NCRMD) of several offences committed on three separate victims over a period of two days. The offences included aggravated assault; assault with a weapon; kidnapping; uttering death threats; and criminal harassment, as well as breach of probation and of a form of judicial interim release. The victims included his roommate and his parents in separate incidents. [2] During the first decade of his supervision by the Ontario Review Board, the appellant was generally detained in the minimum and medium secure units of two local mental health facilities. He was found treatment incapable in 2006 and remains so to this day. The Public Guardian and Trustee is his substitute decision-maker. [3] In 2012, the appellant was discharged to reside in the community in supportive housing. He has been re-hospitalized on many occasions as a result of urine screens positive for cannabis. Once transitioned to an injectable form of anti-psychotic medication in 2013, the appellant has remained compliant. [4] The appellant, currently 52 years old, has not been involved in any violent or other criminal behaviour in the community since his discharge to the community in 2012. Since May 8, 2017, the appellant has been subject to a conditional discharge. The Current Disposition [5] On April 4, 2019 the Review Board ordered that the appellant be conditionally discharged. He lives in the community in a supervised residence. Among other terms, he is required to report to the Hospital not less than once every four weeks. The frequency of his reporting is linked to the schedule for injections of his anti-psychotic medication. He is also entitled to travel passes for up to four weeks duration with the prior approval of the Person in Charge of the Hospital. The Grounds of Appeal [6] The appellant seeks an absolute discharge, in the alternative, a new hearing before a differently constituted panel of the Review Board. He advances two grounds of appeal. He says that: i. the Board's determination that he remains a significant threat to the safety of the public is unreasonable and cannot be supported on the evidence adduced on the hearing; and ii. the Board misapprehended the sufficiency of the availability of civil mechanisms to manage the appellant's risk were he to be discharged absolutely. [7] In our view, this appeal fails. Ground #1: Unreasonable Finding of “Significant Threat” [8] The appellant says that the Board's finding that he remained “a significant threat to the safety of the public" nearly two decades after he was found NCRMD is unreasonable and not supported by the evidence adduced at the hearing. Several factors, the appellant argues, taken together, support this conclusion. Among them are these: i. since the index offence, the appellant has not engaged in any violent conduct in or out of hospital; ii. the appellant has not been hospitalized since 2016; iii. the appellant, apart from two brief lapses several years ago, has been compliant with his anti-psychotic medication even in the absence of direct legal compulsion to do so; iv. the Board failed to expressly analyse the likelihood, timing, nature and gravity of recidivistic violence; v. the Board equated lack of insight and the prospect of non-compliance with anti-psychotic medication with the requirement of “significant threat"; vi. the Board relied on the appellant's history of decompensation when not medication-compliant or suboptimally medicated, but failed to consider the absence of violence on these occasions; and vii. the Board cut and pasted into its reasons several paragraphs of a prior Board's Reasons for Disposition which included recitals of evidence by the treating psychiatrist and reference to certain test results which were not before the Board on the hearing in this case. [9] In our view, the Board's conclusion on the issue of’ “significant threat” falls within the range of reasonable outcomes available on the evidence adduced at the hearing. That evidence included several factors identified by this court, on a prior appeal by the appellant; as relevant to the “significant threat" determination: i. the appellant suffers from a major mental illness; ii. the serious nature of the index offences; iii. the appellant's lack of insight into his mental illness, his need for continuing treatment and the role his illness played in the index offences; iv. the appellant's historic resistance to treatment and his declared and unwavering intention to discontinue his psychotropic medication if absolutely discharged; v. his history of decompensation when not medication-compliant or when suboptimally medicated; and vi. the unanimous conclusion of the treatment team that he constitutes a “significant threat". See, Medcof (Re) , 2018 ONCA 1011, at para. 3. [10] In our assessment of the reasonableness of the finding of “significant threat" in a case such as this where violent recidivism has not occurred during the Board's supervision of the appellant, we also keep in mind the exhaustive definition of “a significant threat to the safety of the public" in s. 672.5401 of the Criminal Code : For the purposes of section 672.54, a significant threat to the safety of the public means a risk of serious physical or psychological harm to members of the public — including any victim of or witness to the offence, or any person under the age of 18 years — resulting from conduct that is criminal in nature but not necessarily violent. [11] In addition, there was evidence before the Board that on the two prior periods of decompensation occasioned by medication non-compliance, the behavioural changes – increased antagonism, hostility and persecutory beliefs – were the very factors afoot when the index offences were committed. [12] In a portion of its Reasons for Disposition under the heading, Evidence at the Hearing , the Board cut and pasted seven paragraphs of the Reasons for Disposition of the Board on the previous year's annual review. This was ill-advised and should not be repeated. The phrase “ Evidence at the Hearing " is self-explanatory. It means what it says. Nothing more. Nothing less. And nothing other than “ Evidence at The Hearing ". [13] Despite this error, we are not persuaded that it resulted in an unreasonable finding of “significant threat". In large measure, the copied information was contained in the Hospital Report to the Board on which both parties relied at the hearing. The actuarial risk assessments referred to in the incorporated paragraphs were re-administered within a month of the hearing with which we are concerned without inclusion of the actual scores on the relevant tests. The conclusions replicated those of the prior year. [14] We do not give effect to this ground of appeal. Ground #2: Misapprehension of the Availability of Civil Mechanisms [15] The second ground of appeal alleged error in the Board's failure to appreciate the sufficiency of available civil mechanisms, coupled with an absolute discharge, to contain the risk to the public arising from the need to ensure that the appellant remained medication-compliant. [16] On the annual hearing with which we are concerned, the appellant was subject to a Community Treatment Order (“CTO”) on the basis of the consent provided by his substitute decision-maker, the Public Guardian and Trustee . The order was issued under the provisions of s. 33.1 of the Mental Health Act , R.S.O. 1990, c. M. 7 on the basis that if the appellant does not receive continuing treatment or care while residing under supervision in the community, he is likely at risk of causing serious bodily harm to another person or suffering substantial mental deterioration. The order was monitored by the appellant’s attending psychiatrist in the Extended Forensic Outpatient Service at CAMH. The order was in force for six months and could be renewed for a further six-month period. [17] On the hearing of the appeal, we were advised that the appellant's CTO expired four months after the hearing. It was not renewed. In these circumstances, the appellant did not press this ground of appeal and we see no reason to consider it further. [18] The Crown respondent applied to introduce a victim impact statement from the appellant’s father as fresh evidence on the hearing of the appeal. We did not receive submissions from the parties on the admissibility of this proposed fresh evidence. As a result, we have not considered this statement in reaching our conclusion on this appeal. Disposition [19] The appeal is dismissed. “Doherty J.A.” “David Watt J.A.” “C.W. Hourigan J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Muslim Green Cemeteries Corporation v. Toronto Muslim Cemetery Corp., 2020 ONCA 94 DATE: 20200205 DOCKET: C66533 Simmons, Pepall and Trotter JJ.A. BETWEEN Muslim Green Cemeteries Corporation Applicant (Respondent) and Toronto Muslim Cemetery Corp. Respondent (Appellant) Michael N. Freeman, for the appellant John Longo and Patrick Copeland, for the respondent Heard: February 4, 2020 On appeal from the order of Justice Jill M. Copeland of the Superior Court of Justice, dated January 9, 2019. APPEAL BOOK ENDORSEMENT [1] The issues on appeal concern the interpretation of an agreement dated May 13, 2014 between the appellant and the respondent and whether the agreement is tainted by illegality. Past litigation confirmed the validity of the agreement subject to excising paragraph 7(7). (See order of Lederer J. dated August 20, 2015 subsequently affirmed by this court). Further litigation required specific performance of the agreement. (See order of Dow J. dated November 22, 2016 subsequently upheld by this court, leave to the S.C.C. refused). [2] The application judge rejected the appellant’s proposed interpretation of the agreement. We see no palpable and overriding error or extricable error of law in her interpretation. The appeal is dismissed. Costs of the appeal to the respondent fixed in the agreed amount of $25,000 on a partial indemnity scale, inclusive of disbursements and HST.

COURT OF APPEAL FOR ONTARIO CITATION: Nolet v. Fischer, 2020 ONCA 155 DATE: 20200227 DOCKET: C65939 Feldman, Fairburn and Jamal JJ.A. BETWEEN David Nolet Plaintiff (Appellant) and Caroline Fischer Defendant (Respondent) Joel P. McCoy, for the appellant Chad Leddy, for the respondent Heard: October 25, 2019 On appeal from the order of Justice Francine Van Melle of the Superior Court of Justice, dated September 28, 2018. Feldman J.A.: Introduction [1] The appellant was moving out of the respondent’s home after their relationship ended, tripped on the sidewalk while carrying his freezer out of the house and injured his left ankle. He sued for damages under the Occupiers’ Liability Act , R.S.O. 1990, c. O.2. The respondent moved successfully for summary judgment dismissing his claim. [2] The motion judge gave two bases for dismissing the action. The first was that the respondent as owner and occupier of her premises did not owe the appellant a duty of care under the Occupiers’ Liability Act because he was also an occupier of the premises. The second was that if the respondent did owe him a duty of care, the appellant did not prove a breach of duty, because he did not prove there was any unevenness on the sidewalk that constituted a hazard, and if there was, he was aware of it. [3] I would defer to the factual findings of the motion judge on the second ground and dismiss the appeal on that basis. [4] However, in dealing with the first issue, the motion judge erred in law in her interpretation of the Occupiers’ Liability Act by finding that under the Act, one occupier cannot owe a duty of care to another occupier. I would set aside that erroneous interpretation. Background facts and findings of the motion judge [5] The parties began dating in 2008. The appellant moved into the respondent’s house in 2010. In 2012, he moved to a separate room in the basement as their relationship had ended. He moved out later in April 2012. While he lived at the respondent’s house, the appellant contributed approximately $500 per month towards expenses. On the day of the move, the appellant and his friend were carrying a small freezer when he tripped on the sidewalk and fell, causing injury including to his left ankle. [6] The appellant claimed he fell on a “trip ledge” between two concrete slabs that was about one to two inches high. The height of the trip ledge and whether it constituted a hazard were issues in dispute between the parties. [7] The respondent had two main defences to the action. The first was that under the Occupiers’ Liability Act , one occupier of premises owes no duty to another occupier of the same premises. The motion judge spent a considerable portion of the reasons making factual findings on the issue whether the appellant was also an occupier of the premises and concluded that he was. [8] The parties were unable to refer the motion judge to any case where one occupier had sued another for this type of accident. The motion judge accepted the respondent’s argument that the reason there was no case law was because there is no cause of action. The motion judge accepted that “the legislation was never intended to permit co-occupants to sue each other under the Occupiers’ Liability Act . It stands to reason that a co-occupant is not an entrant on the premises as envisioned by this legislation.” [9] The respondent’s second main defence was that if she owed a duty of care, the appellant had not proved any breach of duty. On that issue, the motion judge found that the appellant had not proved the existence of the hazard as he had alleged. [10] The appellant said the ledge was one to two inches high but there was no independent corroboration of that measurement. The respondent admitted there may have been a ¾ inch trip ledge on the right side of the sidewalk, but the appellant’s evidence was that he tripped in the middle or on the left side, injuring his left ankle. The photographs in evidence appeared to show that the height difference on the left side and in the middle was “far less” than on the right side. The motion judge concluded that: “in any event, there is no reliable evidence on this point.” The motion judge also noted that the appellant admitted that he had seen the unevenness before the move-out date and that he was therefore aware of a possible hazard. She concluded: “[t]hus it was not the “concealed danger” to which he referred in para. 5 of the Statement of Claim.” Issue 1: Did the motion judge err in her interpretation of the Occupiers’ Liability Act ? [11] The first issue raised on appeal is whether the motion judge erred in law by finding that under the Act, one occupier of premises is precluded from suing another occupier of the same premises, or that an occupier cannot be a person “entering on the premises” to whom the other occupier owes a duty of care. As indicated, the motion judge spent a considerable portion of her reasons determining whether the appellant was also an occupier of the respondent’s premises, and after finding that he was, concluded that no duty of care was owed to him because of his status as an occupier. In my view, that finding constitutes an error of law. The Act does not preclude one occupier from suing another occupier or negate the duty of care owed by an occupier to another occupier when that occupier enters on the premises. (a) On a proper interpretation of the Occupiers’ Liability Act , one occupier can owe a duty to another occupier [12] The Ontario Occupiers’ Liability Act was passed in 1980 in order to replace the common law rules that governed an occupier’s liability and duty of care owed to persons who enter the occupier’s premises. The Act followed from the recommendation contained in the Ontario Law Reform Commission’s 1972 Report on Occupiers’ Liability to abolish the common law distinction between the duties owed to the common law classes of entrants: invitees, licensees, trespassers and contractual entrants, and to create one duty of care owed to all entrants, subject to specifically articulated exceptions and limitations. [13] Section 2 of the Act provides that subject to specifically identified exceptions in s. 9 where a higher duty is owed, the Act applies “in place of the rules of the common law”. Section 2 provides: Subject to section 9, this Act applies in place of the rules of the common law that determine the care that the occupier of premises at common law is required to show for the purpose of determining the occupier’s liability in law in respect of dangers to persons entering on the premises or the property brought on the premises by those persons. [14] This court has made it clear in recent cases that the wording of the Act establishes that it is intended to be exclusive and comprehensive, effectively constituting a complete code with respect to the liability of occupiers: see MacKay v. Starbucks Corp. , 2017 ONCA 350, 413 D.L.R. (4th) 220, at paras. 45-46; Schnarr v. Blue Mountain Resorts Limited , 2018 ONCA 313, 140 O.R. (3d) 241, at paras. 25-26, 59-60, leave to appeal refused, [2018] S.C.C.A. No. 187. [15] As a result, one must look to the Act to determine any occupier’s liability issue. [16] The Act defines an occupier very broadly in s. 1 and provides that there can be more than one occupier of the same premises: “occupier” includes, (a) a person who is in physical possession of premises; or (b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, despite the fact that there is more than one occupier of the same premises. (“occupant”) [17] Subsections 3(1) and (3) state: (1) An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises. (3) The duty of care provided for in subsection (1) applies except in so far as the occupier of premises is free to and does restrict, modify or exclude the occupier’s duty. [18] Section 3 of the Act describes the duty of care that is owed by an occupier to “persons entering on the premises”. While “occupier” and “premises” are defined terms in the Act, “persons entering on the premises” is not defined in the Act. However, there is nothing in the Act to suggest that such persons cannot also be occupiers. [19] First, we know from s. 2 that the Act replaces the common law duties that were owed to the previously defined classes of entrants: licensees, invitees, trespassers, and contractual entrants. Therefore, “persons entering on the premises” includes everyone who fit into the former categories. To the extent that those categories could possibly have excluded anyone, there is no exclusion that arises from the words or phrase “persons entering on the premises”. [20] The respondent argued that at common law, one occupier could not sue another, and that the Act did not change that rule. However, the respondent could provide no authority for the proposition that there was any such prohibition at common law, nor have I found any authority that supports the respondent’s argument. [21] Second, the temporal scope of the duty of care that extends over the time “while on the premises” also indicates that the duty is owed to other occupiers. The duty extends to property brought onto the premises by those persons, and it extends throughout the time period “while on the premises”. Therefore, after a person enters on the premises, for however long that person or their property remains on the premises, the occupier owes the person the prescribed duty of care. The duty is therefore owed to a person who remains on the premises including a person who lives there. [22] Third, the Act contains a number of exclusions from the duty of care. The statutory interpretation principle “ expressio unius ” or “implied exclusion” applies here; if the legislature had also intended to exclude other occupiers from “persons entering on the premises”, it would have done so along with the other exclusions: Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. (Markham: LexisNexis, 2014), at p. 248. As a complete code, the Act contains all restrictions, limitations and exceptions to when the occupier’s duty of care arises. [23] One exception is in s. 3(3) where the occupier can “restrict, modify or exclude” the duty. Then, under s. 4, the duty does not apply to risks that are “willingly assumed” by the person who enters on the premises, subject to the qualifier, that even then, the occupier still owes a duty not to create a danger with the deliberate intent to harm or to act with reckless disregard of the person or the person’s property. Subsections 4(2), (3) and (4) address criminal entrants, as well as trespassers and people using other people’s property as unpaid recreational space, and provide that in certain situations these entrants will be deemed to have willingly assumed all risks for the purpose of subsection (1). Finally, s. 9 is not an exclusion per se, but maintains previously imposed higher obligations for innkeepers, common carriers and bailees, and preserves the obligations of employers to employees. [24] Given this explicit list of exclusions to the standard occupier’s duty of care, and given the absence of “other occupiers” from this list, I conclude that the legislature did not intend such an exclusion. This analysis is reinforced by the fact that the Act clearly contemplates the possibility of multiple occupiers of the same premises. [25] To conclude, there is no language or provision of the Act that one occupier does not owe the duty of care to another occupier, or that provides that when an occupier enters on the premises they are not a person “entering on premises” for the purpose of the Act. Nor is there any basis to read any such legal restriction into the Act. While persons may enter onto premises for many different reasons and may leave quickly or stay indefinitely, the Act creates one duty that is owed to all such persons including those who are also other occupiers. (b) In spite of the existence of the duty, the paucity of cases may have other explanations [26] As the motion judge noted, the parties could not find any case where one occupier was found liable to another occupier under the Act. [27] One explanation may be the defence of the willing assumption of risk. Whether it could be argued in any particular case where there is more than one occupier, that a person who is an occupier and who enters on premises has willingly assumed some or all of the safety risks associated with the premises for the reason that the person is also an occupier, would be decided on a case-by-case basis, depending on such factors as the nature of the relationship between the occupiers and the degree of control they each may have over the premises. [28] Another could be the unavailability of insurance. For example, where one spouse has an accident in the family home, that spouse is unlikely to sue the other unless there is insurance coverage available, and some insurance policies explicitly exclude from coverage claims by a resident family member. [29] For example, in Traders General Insurance Company v. Gibson , 2019 ONCA 985, Ms. Gibson had a homeowner’s insurance policy that covered her for amounts she became “legally liable to pay” for unintentional bodily injury arising out of her ownership or occupancy of her home. Ms. Gibson’s adult daughter lived with her in the home. The daughter was injured when she fell off the porch and the porch railing came down with her. [30] The policy contained an exclusion for claims for “bodily injury to you or any person residing in your household other than a residence employee”. The court found that the daughter was in residence but not as an employee and therefore coverage for her injuries was excluded under the policy. [31] It was clear in that case that the insurance policy would cover claims by a number of potential “occupiers” against the homeowner, including residence employees or any person not in residence but left in physical possession of the premises. In other words, the policy language accepts that one occupier can be legally liable to pay another occupier for unintentional bodily injury arising out of the use or occupation of the premises. It then limits its coverage to indemnify for such liability by the specific wording of the policy. [32] While there may be explanations such as these for why, in practice, occupiers do not often recover from other occupiers, there exist situations in which it is obvious that this should be possible. For example, because the definition of “occupier” is so broadly framed, some people are occupiers while they are in physical possession of premises who have no control over the premises’ maintenance or repair. Depending on the circumstances, such a person may be, for example, a friend or grandparent visiting overnight. While that friend or grandparent may have a duty to warn others who may enter, such as a delivery person or a repair person, of hazards that they are aware of, there is nothing in the Act that says that the owner of the premises does not owe the occupiers’ duty of care to the overnight guests, or that they are not persons entering on the premises because they are also occupiers within the definition contained in s. 1. [33] To conclude, the apparent paucity of case law where one occupier has sued another does not undermine the proper interpretation of the Act which does not preclude such claims on the sole basis that the person to whom the duty is owed is also an occupier of the premises. [34] As the motion judge erred in law by finding that the respondent did not owe any duty of care to the appellant under the Act, the appeal turns on whether the motion judge erred in finding in the alternative, that there was no breach of duty. Issue 2: Did the motion judge err in finding there was no breach of the duty of care? [35] As this was a motion for summary judgment, the motion judge had to be satisfied that she could decide the issues based on the record before her and that there was no genuine issue requiring a trial. The motion judge was satisfied that the record before her was complete. She observed that the facts were largely uncontroverted and it was a case of applying the law to the facts. [36] The appellant submits that the motion judge failed to consider all the evidence before her and that her reasons for rejecting his claim were inadequate. I would not accept those submissions. [37] The duty of care owed by an occupier to a person who enters on the premises is “to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises…are reasonably safe while on the premises.” The duty is to take reasonable care – it is not absolute. [38] The motion judge was not satisfied that the appellant had proved a breach of that duty for the following reasons which I synthesize as follows. 1) Although it is clear from the photos that there is an unevenness or ledge between two of the sidewalk slabs, the appellant did not prove that the height discrepancy created was significant enough to constitute a hazard. He did not provide measurements of the height differential to substantiate his claim that the ledge was 1-2 inches as opposed to ¾ inch. Further, he tripped on the left side of the slab where the ledge was lower than on the right side. 2) The appellant was aware of the unevenness between the concrete slabs so that he was aware of the need to take care to avoid the possibility of tripping there. The motion judge therefore rejected the appellant’s submission that the trip ledge was a concealed danger. [39] While the motion judge did not state explicitly why the respondent met her duty of care, it is clear from her reasons that she found that the appellant had not proved that the respondent failed to “take such care as in all the circumstances of the case is reasonable” to see that the condition of the sidewalk was reasonably safe. I see no error in that conclusion. It was open to the motion judge to view the photographs in conjunction with the evidence of the witnesses and to make a finding regarding the safety condition of the sidewalk and that the appellant was aware of that condition. [40] I also see no error in the motion judge’s conclusion that there was no genuine issue for trial. The evidence of how the accident happened was explored under oath with all the witnesses, and photographs from the time of the accident were in the record. The motion judge was in as good a position as a trial judge to look at the photos and assess whether the ledge constituted a safety hazard. Other issues raised by the appellant [41] In his factum the appellant raised a number of other issues, some of which are dealt with by the reasons above. I address the three outstanding issues here. [42] First, the appellant argued that the motion judge erred by ignoring binding precedent that “[w]hile there is no hard and fast rule, it is well established that a trip ledge, and specifically one that is the size of ¾ of an inch to 2 inches, is a hazard”. In support of this proposition the appellant cites two cases where a ¾ inch to 1 inch ledge and a 1 to 1.5 inch ledge were each found to breach the occupiers’ standard of care: Ford v. Windsor (City) , 1955 CarswellOnt 492 (C.A.); Litwinenko v. Beaver Lumber Co. (2008), 237 O.A.C. 237 (Div. Ct.). Neither of these cases says that a ¾ inch ledge is always a hazard. In fact, Ford states “[i]t is a question of fact in each case”: at para. 1. [43] Second, the appellant argued that the motion judge failed to provide sufficient reasons for her findings on credibility. There is no specific finding on credibility. With respect to the motion judge’s finding whether or not the ledge was high enough to constitute a hazard, it is clear that she relied on the contemporaneous photos. To the extent that credibility influenced her decision on other issues (such as how the appellant fell), her findings with respect to the existence of a hazard provide a sufficient justification and explanation for disbelieving the appellant. [44] Third, the appellant argued that the motion judge erred by failing to allow the parties to make submissions on costs and sought leave to appeal the costs award. The motion judge received costs outlines from both parties and ultimately awarded the costs of the entire action to the respondent on a partial indemnity basis in the amount of $30,000. I see no reviewable error with that process. Conclusions [45] The motion judge erred in law in her interpretation of the Occupiers’ Liability Act . The Act does not preclude one occupier from suing another occupier for breach of the statutory duty to take reasonable care for the safety of persons entering on the premises and the property they bring onto the premises. [46] However, I would dismiss the appeal on the alternative ground articulated by the motion judge, that the respondent did not breach her duty of care. [47] Counsel agreed at the end of oral argument that if on appeal each party were to be successful on one of the two main issues, then there would be no costs of the appeal. [48] With respect to the costs of the motion, which were $30,000 to the respondent, the appellant submitted that if he were to be successful on the issue of the interpretation of the Occupiers’ Liability Act , then the costs below should be reduced by $5000 to $10,000. I consider that a reasonable submission. [49] In the result, I would order no costs of the appeal, and that the costs below be reduced by $7,500. Released: “K.F.” February 27, 2020 “K. Feldman J.A.” “I agree. Fairburn J.A.” “I agree. M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: P.Y. v. Catholic Children’s Aid Society of Toronto, 2020 ONCA 98 DATE: 20200211 DOCKET: C66442 Brown, Harvison Young and Zarnett JJ.A. BETWEEN P.Y. and A.Y. Plaintiffs/Responding Parties (Appellants) and The Catholic Children’s Aid Society of Toronto, Mary McConville and Janice Robinson, Rena Knox, The Office of the Children’s Lawyer of Toronto, Katherine Kavassalis, Frances Ann Gregory, Fatma A. Khalid, Haeley Gaber-Katz, The Hospital for Sick Children, Lana Dépatie, Michelle Sala and Conseil Scolaire Catholique Mon Avenir Defendants/ Moving Parties (Respondents) P.Y., acting in person A.Y., acting in person Charles Sinclair, for the respondent Haeley Gaber-Katz Carole Jenkins, for the respondents The Catholic Children’s Aid Society of Toronto, Mary McConville, Janice Robinson and Rena Knox Domenico Polla, for the respondents The Office of the Children’s Lawyer of Ontario and Katherine Kavassalis Monika Korona, for the respondent Michelle Sala Erika Tower, for the respondent Fatma A. Khalid Samaneh Frounchi, for the respondent Lana Dépatie Daniel Bassili, for the respondent Conseil Scolaire Catholique Mon Avenir Ruben Lindy, for the respondent Frances Ann Gregory Chloe Richardson, for the respondent The Hospital for Sick Children Heard: January 22, 2020 On appeal from the order of Justice Darla A. Wilson of the Superior Court of Justice, dated December 12, 2018, with reasons reported at 2018 ONSC 5381 and 2018 ONSC 7097. REASONS FOR DECISION [1] By order dated October 7, 2013, Curtis J. found the appellants’ four children were in need of protection and made them Crown wards, without access to the parents: 2013 ONCJ 585. [2] The appellants’ appeal to the Superior Court of Justice was dismissed: 2014 ONSC 6526. Their further appeal to this court was dismissed by order dated July 3, 2015: 2015 ONCA 493. The Supreme Court of Canada dismissed the appellants’ application for leave to appeal on December 24, 2015: [2015] S.C.C.A. No. 415. [3] The appellants then commenced this action on December 27, 2017. The defendants are individuals or organizations that played some role in the child protection proceedings, either as parties, counsel, witnesses, experts, or entities which provided information that was used to initiate or support the proceedings. [4] In the summer of 2018, two of the defendants, psychologists Michelle Sala and Lana Dépatie, wrote to the Registrar of the Superior Court of Justice pursuant to r. 2.1.01(6) requesting the dismissal of the proceeding on the basis that it was frivolous, vexatious or otherwise an abuse of the process of the court. [5] By reasons dated September 13, 2018, the motion judge directed that the registrar give the appellants notice that the court was considering making “an order under Rule 2.1.01 dismissing this action against the Defendants Sala and Depatie”: 2018 ONSC 5381, at para. 9. [6] Rule 2.1.01(3)2 permits a plaintiff to make written submissions to the court after receiving such a notice. The appellants wrote to the registrar on September 16, 2018 requesting more time to work on their submissions. They repeated that request in an October 4, 2018 letter to the registrar. They contended that they had “a very well-founded claim against the defendants Sala and Depatie.” The appellants took the position that it was “very premature to deal with submissions at this stage.” [7] On November 27, 2018, the motion judge released reasons dismissing the action against Sala and Dépatie pursuant to Rule 2.1.01 as frivolous and vexatious. On December 12, 2018 the motion judge released amended reasons in which she dismissed the action against all defendants: 2018 ONSC 7097. [8] The appellants appeal the dismissal of their action. [9] Shortly before the hearing of the appeal, the appellants filed a three-volume motion for leave to adduce fresh evidence. The defendants opposed its admission. [10] The materials for which the appellants seek leave to introduce do not constitute fresh evidence that was unavailable at the time the motion judge directed submissions under r. 2.1.01. Instead, the materials cover a period of time from prior to the apprehension of the children through to the end of the child protection proceedings. The appellants want to introduce the materials to demonstrate that there is a basis for their action and that it is not frivolous, vexatious or an abuse of the process of the court. [11] As this court stated in Khan v. Krylov & Company LLP , 2017 ONCA 625, 138 O.R. (3d) 581, at para. 12, the issue on a r. 2.1.01 review is whether the hallmarks of frivolous, vexatious or abusive litigation are plainly evident on the face of the pleading. Rule 2.1.01 is not designed to be an alternative to an evidence-based motion for summary judgment or a trial: see also Scaduto v. The Law Society of Upper Canada , 2015 ONCA 733, 343 O.A.C. 87, at paras. 11-13. As the statement of claim is the focus of a r. 2.1.01 review, we have considered the materials filed by the appellants for the limited purpose of understanding the scope of the allegations they are asserting. [12] The appellants submit that the motion judge erred in concluding that their statement of claim disclosed on its face the hallmarks of frivolous, vexatious or abusive litigation. We are not persuaded by that submission. [13] As the motion judge noted, the appellants’ statement of claim is 70 pages in length. The motion judge described the claim against Sala and Dépatie as one for damages caused by their negligence “in the provision of psychological services and in preparation of reports which were relied on by the [Catholic Children’s Aid Society]”: 2018 ONSC 5381, at para. 7. The motion judge also observed that the claim “includes all sorts of attacks on a multitude of defendants” and “[n]owhere is it set out how the alleged negligence led to damages.” [14] The motion judge did not misread or misunderstand the claims asserted by the appellants in their action against Sala and Dépatie. Their statement of claim discloses that the core elements of their allegations concern the events leading up to their children’s apprehension in 2011, together with numerous allegations that the resulting child protection proceeding was marked by the withholding of evidence, improper reports, the alteration of evidence, and false evidence. The appellants allege that they were greatly wronged by those involved in the child protection proceeding, the various steps taken during that proceeding, and its result. They seek damages of well over $10 million. [15] When the statement of claim is read in light of the reasons issued by three levels of court in the child protection proceeding and the “fresh evidence” tendered by the appellants, it is clear that in their action the appellants seek to relitigate the issues previously decided in the child protection proceeding. Such an effort to relitigate issues already decided constitutes an abuse of the process of the court. Consequently, we see no error in the motion judge’s conclusion that the proceeding against Sala and Dépatie appears on the face of the statement of claim to be frivolous, vexatious or otherwise an abuse of the process of the court. [16] As a result, we dismiss the appeal from the order dismissing the action as against the defendants Sala and Dépatie who made the request for a review under r. 2.1.01(6). [17] However, we allow the appeal in respect of the dismissal of the action against the other defendants. The motion judge’s initial September 13, 2018 endorsement stated that she was only considering making an order under r. 2.1.01 dismissing the action against Sala and Dépatie and she invited submissions from the appellants in respect of that proposed order. Her reasons of November 28, 2018 were limited to dismissing the action against those two defendants. [18] At some point the motion judge decided on her own initiative to expand her order, and her amended December 12, 2018 reasons dismissed the action against all defendants. [19] Rule 2.1.01(1) gives the court the power, on its own initiative, to dismiss a proceeding. But rr. 2.1.01(2) and (3) stipulate certain procedures that a court must follow before making such an order, unless the court directs otherwise. One of the required procedures is giving notice to the plaintiff of the order the court is proposing to make and an opportunity for the plaintiff to make submissions in relation to that proposed order. If the plaintiff does not make submissions, then the court may make the order for which it gave notice without further notice to the plaintiff: r.2.1.01(3)1-3. [20] The motions judge did not give the appellants notice of her intention to amend her limited November 27, 2018 order to one dismissing the action against all the defendants. Nor did the motion judge expressly make an order that a procedure other than that set out in r. 2.1.01 was to be followed. Those omissions, the respondents contend, do not amount to procedural error by the judge. They point to a series of cases from this court in support of their submission that where not all defendants requisition a r. 2.1.01 review and no opportunity for submissions has been given in respect of a dismissal against other defendants, it is open to the reviewing judge to dismiss the action against all defendants where the outcome would have been the same given the nature of the claims asserted by the appellants against the other defendants: Obermuller v. Kenfinch Co-Operative Housing Inc. , 2016 ONCA 330, at paras. 3-5; Van Sluytman v. Muskoka (District Municipality) , 2018 ONCA 32, 26 C.P.C. (8th) 130, at para. 19; Kimaev v. Sobeys Inc. , 2019 ONCA 681, at para. 1. [21] In our view, those cases are distinguishable from the present one. The distinctive feature of the present case is that in her September 13, 2018 endorsement the motion judge directed the registrar to give the appellants notice that she was considering making an order dismissing the action against only two of the defendants, Sala and Dépatie. Although the blunt instrument of r. 2.1.01 should be applied robustly to weed out litigation that is clearly frivolous, vexatious or an abuse of process, the bluntness of the rule and the significant consequences of its application mandate its fair application: Scaduto , at para. 8; Khan , at para. 12. Fairness is especially important where the plaintiff is self-represented. [22] Where the court gives notice under r. 2.1.01 that it is considering the dismissal of a proceeding against only some of the defendants, procedural fairness precludes it from dismissing the proceeding against the other defendants without first giving the plaintiff notice of its intention to do so and an opportunity to make submissions pursuant to r. 2.1.01(3)2. The motion judge did not provide the appellants with such notice or provide any explanation in her December 12, 2018 reasons about why she decided to follow a different procedure. In the circumstances of this case, those omissions amounted to reversible procedural error. [23] For those reasons, the appeal from the dismissal of the action against the defendants, Michelle Sala and Lana Dépatie is dismissed. However, we allow the appeal in respect of the dismissal of the action against the other defendants. We direct that any future requests made by any remaining defendant pursuant to r. 2.1.01 be placed before another judge of the Superior Court of Justice for consideration. [24] The appellants shall pay the respondents Michelle Sala and Lana Dépatie their costs of the appeal fixed in the amount of $5,000 each, inclusive of disbursements and applicable taxes, for a total of $10,000. The other respondents collectively shall pay to each appellant the sum of $2,500 (for a total of $5,000) in respect of the appellants’ costs of the appeal, inclusive of disbursements and applicable taxes. “David Brown J.A.” “Harvison Young J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Patterson v. Peladeau, 2020 ONCA 137 DATE: 20200220 DOCKET: C65518 MacPherson, Sharpe and Jamal JJ.A. BETWEEN Ronald A. Patterson, Nadine J. Chapman and Ronda Lee Patterson Plaintiffs (Appellants) and Pascal Peladeau Defendant (Respondent) Joseph Y. Obagi and Thomas P. Connolly, for the appellants Joseph W.L. Griffiths and Matthew G.T. Glass, for the respondent Heard: February 6, 2020 On appeal from the judgment of Justice Charles T. Hackland of the Superior Court of Justice, dated May 14, 2019. By the Court: INTRODUCTION [1] This appeal arises from the trial judge’s dismissal of motions to strike the jury and to declare a mistrial in a motor vehicle personal injury action: Patterson v. Peladeau , 2018 ONSC 2625, 80 C.C.L.I. (5th) 213. During the jury’s deliberations, the jury asked the court a question that revealed that it may have accessed inappropriate extrinsic information, namely, a statutory provision that was irrelevant and inapplicable to this case, but which, if applied, could impact the apportionment of liability. [2] The trial judge questioned the jury foreperson, who revealed that he had found the provision on an Ontario government website on the weekend at the beginning of the deliberations, and then shared it with the other jurors. The foreperson also revealed that this was the full extent of the extrinsic information and that no other juror had accessed the internet in relation to the case. [3] Based on these answers, the trial judge was satisfied that he did not need to question the other jurors and that this issue, while serious, could be dealt with through a correcting charge. He dismissed the appellants’ pre-verdict motion to strike the jury, as well as their post-verdict motion to declare a mistrial. [4] The appellants now appeal to this court. They contend that the trial judge failed to conduct a proper inquiry as to what extrinsic information the jury had obtained and then failed to analyze its prejudicial effect. The appellants assert that the trial judge should have polled every juror or permitted counsel to question them. [5] For the reasons that follow, we do not agree with the appellants’ submissions and dismiss the appeal. BACKGROUND (i) The accident [6] On December 15, 2009, at 5:45 a.m., the appellant Ronald Patterson was hit by the respondent’s car while he was standing on the road next to his truck. The appellant’s truck was parked in complete darkness facing oncoming traffic in the driving lane of a two-lane country road. The appellant was trying to tow his van from a ditch that he had driven into after skidding on black ice earlier that morning. [7] Although the appellant’s truck was parked with its hazard lights activated and headlights on low beams, the respondent, who was travelling at about the speed limit, thought the lights were from an oncoming vehicle. He did not realize that the truck was parked and fully blocking his lane of travel until it was too late. [8] The respondent clipped the appellant’s truck, struck him, and collided with his van, which was parked in the ditch. While the respondent was not hurt, the appellant incurred a fractured pelvis and other significant injuries. [9] The appellant, together with his wife and daughter, claimed over $4 million against the respondent in respect of his injuries. In addition, his wife and daughter claimed damages for loss of care, guidance, and companionship under the Family Law Act , R.S.O. 1990, c. F.3. (ii) The jury’s question [10] One of the key issues at trial was the apportionment of liability for the accident. The trial judge instructed the jury that the Highway Traffic Act , R.S.O. 1990, c. H.8, sets out the rules and standards for the operation of motor vehicles and the use of roads, and advised them that s. 170(12) provides in relevant part that “no person shall park or stand a vehicle on a highway in such a manner as to interfere with the movement of traffic.” He instructed the jury that because it was “manifestly obvious” that the appellant had contravened this provision, the appellant was at least partially responsible for the accident, but it was for the jury to decide on the parties’ relative degree of fault. [11] After hearing eight weeks of evidence, closing arguments, and the trial judge’s jury charge, the jury retired to deliberate on a Friday afternoon. [12] The following Monday morning, the jury returned with several questions for the trial judge. The trial judge and counsel agreed that one question was quite obviously based on (without referring to by name) s. 17(2) of the Fault Determination Rules , R.R.O. 1990, Reg. 668, a regulation under the Insurance Act , R.S.O. 1990, c. I.8, for resolving property damage claims between insurers, but which was irrelevant to the liability issues in the action. [13] The jury’s question on this point was as follows: In the highway traffic act there is a part which states “It is illegal to park on a roadway outside a city town or village” it also says if a vehicle is struck while illegally parked, then the parked vehicle is 100% at fault. [14] Section 17(2) of the Fault Determination Rules provides as follows: If automobile “A” is illegally parked, stopped or standing when it is struck by automobile “B” and if the incident occurs outside a city, town or village, the driver of automobile “A” is 100 per cent at fault and the driver of automobile “B” is not at fault for the incident. (iii) The trial judge’s inquiry into the extrinsic information [15] The trial judge conferred with counsel and it was agreed that he would question the jurors individually in open court to determine how they had obtained the Fault Determination Rules . [16] The first juror questioned, the foreperson, revealed that he was the source of the information and that he had found it on an Ontario provincial government website. He confirmed that he had not accessed or shared any other extrinsic information with the other jurors and that he was the only juror who had accessed the internet. [17] Having obtained this information, the trial judge concluded that it was unnecessary to question the other jurors. As he later noted in his reasons dismissing the mistrial motion, the Fault Determination Rules had been in the jury room for perhaps two hours as the jury discussed liability and formulated its questions for the court. He instructed the jury to cease discussion of the liability issues until he could further review their questions with counsel and provide a response. [18] The trial judge then canvassed counsel for their positions. Appellants’ counsel submitted that every juror should be polled and that “counsel should have the right to ask these jurors questions to flush out perhaps in some more detail what the facts are.” Respondent’s counsel objected to this. In his view, the court had already identified the one juror who was the source of the extrinsic information and had determined that it had been accessed through an Ontario government website. He submitted that counsel asking the jurors questions “might invite further disclosure of their deliberations,” which would itself risk a mistrial. [19] The trial judge expressed his strong inclination to issue a correcting charge. He provided counsel with a draft charge and asked them to reflect on their positions overnight. (iv) The motion to strike the jury [20] The next day, the appellants brought a motion to strike the jury and to proceed with the remainder of the trial by judge alone on the basis that extraneous material had been introduced into the jury room. The motion also sought an order that the trial judge conduct an inquiry and question each juror about whether they had obtained extrinsic information during deliberations and ask the foreperson to produce the results of his internet searches. [21] The trial judge dismissed the motion. He was satisfied that the court had isolated the source and extent of the issue and that the question made clear that the jury was seeking further direction from the court with respect to the information it had found. He concluded that the issue could be addressed through responses to the jury’s questions and an appropriate correcting charge, accompanied by a strong warning to the jurors not to conduct any further extrinsic research. [22] The trial judge’s correcting charge, which he read to the jury and provided to them in writing, made clear that the only part of the Highway Traffic Act relevant to this case was s. 170(12), on which the trial judge had already instructed the jury. The trial judge asked the jury to re-read the relevant part of the charge. He also emphasized that the Fault Determination Rules had “ no relevance ” (underlining in original) to the liability issues in this lawsuit and that the jurors were to disabuse their minds of any consideration of this regulation. He stated that the jury’s question reflected that a member of the jury had accessed the internet. He reiterated the instruction he gave at the beginning of the trial that “ it is completely improper to research or Google law and there must be no reoccurrence of this ” (bold in original). Finally, the trial judge stressed that the jury’s verdict “ must be based exclusively on the evidence entered into the record in this trial and on the legal directions which I have given to you … There is to be no independent research conducted by any juror. I will answer any questions you have on the law or on any other matter ” (bold in original). (v) The jury’s verdict [23] Three days later, the jury returned its verdict. The jury found the appellant 73% contributorily negligent in the collision and the respondent 27% at fault. As a result of the jury’s verdict and assessment of damages, the trial judge awarded judgment to the appellants in the amount of $309,032.34. (vi) The motion for a mistrial [24] After the verdict, the appellants moved for a mistrial, again relying principally on the jury foreperson’s inappropriate internet research. [25] The trial judge dismissed the motion. He rejected the appellants’ claim that it could be inferred from the verdict that the jury ignored the court’s correcting charge and relied on the Fault Determination Rules . He concluded that the jury’s fault apportionment was “amply justified by the evidence presented in this case.” [26] Further, the trial judge stated that while he shared the appellants’ concern that a juror had engaged in internet research concerning the law, he was satisfied that the jury respected the correcting charge and disabused themselves of any further consideration of the Fault Determination Rules . ANALYSIS [27] The appellants make two arguments on appeal. They submit: (1) the trial judge failed to conduct a proper inquiry to determine the nature and scope of the extrinsic information that the jury obtained; and (2) the trial judge failed to appropriately analyze the prejudicial effect of this information. If either argument is accepted, the appellants submit that the appropriate remedy is a new trial. (1) Did the trial judge fail to conduct a proper inquiry to determine the nature and scope of the extrinsic information that the jury obtained? [28] The appellant’s first ground of appeal asserts that the trial judge misapprehended the evidence by failing to assess the nature and extent of the extrinsic information, thereby denying the appellants the right to know exactly what the jury considered. They contend that the trial judge should have questioned or polled each juror to determine what extrinsic information the jury received, and that failing to do so resulted in a miscarriage of justice. [29] We do not accept this submission. [30] A jury verdict may be impeached where the jury acquires extrinsic information if, based on an examination of the record, there is a “ reasonable possibility” that the information had an effect on the jury’s verdict . This test involves a contextual, case-by-case analysis that requires a link between the extrinsic information and the jury’s verdict: see R. v. Pannu , 2015 ONCA 677, 127 O.R. (3d) 545, at paras. 71-74, leave to appeal refused, [2015] S.C.C.A. No. 498; R. v. Farinacci , 2015 ONCA 392, 335 O.A.C. 316, at para. 26; and R. v. Pan; R. v. Sawyer , 2001 SCC 42, [2001] 2 S.C.R. 344, at para. 59. [31] Where the trial judge learns that the jury acquired extrinsic information before the jury’s verdict, and then conducts an inquiry and decides as to the suitability of individual jurors or the jury as a whole continuing with the trial, this court will defer to the trial judge’s decision, absent “legal error, misapprehension of the evidence, or patent unreasonableness”: Pannu , at para. 72. [32] Here, in our view, the trial judge did conduct a proper inquiry and made findings as to the nature and extent of the extrinsic information the jury received. He found on the evidence before him that only one juror had accessed extrinsic information, limited to the Fault Determination Rules obtained from an Ontario provincial government website. These findings were supported by the evidence. [33] The finding that the only extrinsic information accessed was the Fault Determination Rules from an Ontario government website was based on the following exchanges: THE COURT: Can you help us, [Juror #1]. What, like, where, has somebody Googled that information? I guess so. It’s an obvious. JUROR #1: Provinc-, Provincial, Ontario Provincial, there’s the Traffic Act. THE COURT: Right? JUROR #1: And so somebody has found it on the internet, yes, through the Ontario Provincial site. THE COURT: … Now, has the Googling information gone beyond this particular statutory reference? JUROR #1: I don’t believe so. In terms of – I, I’m not sure of the question. THE COURT: Oh, yes, well, has, doctors been Googled or – JUROR #1: No. THE COURT: Right, so, it’s restricted to, if you like, law issues; is it? JUROR #1: Correct. THE COURT: … So, in any event, as, as far as you know the only inter-, internet sort of input into your discussions has been with respect to what we’re talking about here; that, that’s right? JUROR #1: Yes. THE COURT: … Is, is just, is only one of the jurors Googling stuff or has there been more, do you know? JUROR #1: On this particular issue, only one. [34] The finding that only one juror – juror #1, the foreperson – had accessed the internet and shared information obtained from the internet with the other jurors was based on the following exchange: THE COURT: All right; and there, and you’re telling me, sir, that there is only one of the six jurors who has actually accessed the internet or shared that with people? JUROR #1: Yes. THE COURT: Okay; and I, I think we might just want to chat with that one person just to see how the scope of, of his investigations, if I can put it that way and, and who would that be if you don’t mind? JUROR #1: Me. [35] The appellants’ challenge to the trial judge’s inquiry involved a parsing of the transcript of these exchanges in particular. The appellants claimed that the exchanges were somewhat equivocal as to whether other laws might also have been researched. However, the trial judge saw and heard the juror and drew a contrary conclusion, in circumstances where the jury had forthrightly raised the issue with the court and had sought clarification. The trial judge was entitled to believe the juror’s answers and to reach the conclusions he did. The mere possibility that these exchanges may be susceptible to the different inference posited by appellants’ counsel does not rise to the high threshold required for appellate intervention based on a misapprehension of the evidence. As the Supreme Court cautioned in Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 35, at para. 56: [T]he narrowly defined scope of appellate review dictates that a trial judge should not be found to have misapprehended or ignored evidence, or come to the wrong conclusions merely because the appellate court diverges in the inferences it draws from the evidence and chooses to emphasize some portions of the evidence over others. [36] To conclude, the trial judge did not misapprehend the evidence as to the nature and scope of the extrinsic information reviewed by the jury. He identified the particular individual who obtained the specific extrinsic information at issue, isolated how he had obtained it, and confirmed that no other information had been obtained. Having done all that, the trial judge was entitled to conclude that he did not need to question or poll every juror or to permit counsel to do so. (2) Did the trial judge fail to analyze the prejudicial effect of the extrinsic information obtained by the jury? [37] The appellants’ second ground of appeal asserts, in the alternative, that even assuming the extrinsic information obtained by the jury was limited to the Fault Determination Rules , that information alone was extremely prejudicial to the appellants. The appellants contend that there is a “reasonable possibility” that this extrinsic information had an effect on the jury’s verdict, which should therefore have resulted in a mistrial. [38] The appellants make three points in this regard. [39] First, the appellants assert that the trial judge failed to consider the prejudicial nature of the extrinsic information and its ability to affect the jury’s verdict. [40] We do not agree with this submission. The trial judge undoubtedly did consider the prejudicial nature of the extrinsic information – that is why he gave the jury a correcting charge. As he explained in refusing to declare a mistrial, the real issue was “whether the correcting charge is sufficient in the circumstances and whether there is any cogent reason to believe that the jury declined to follow it.” The sufficiency of the correcting charge is addressed below. [41] Second, the appellants assert that the jury verdict used the terminology “illegally parked” in the verdict sheet, a phrase included in the Fault Determination Rules but not in the Highway Traffic Act . The appellants suggest that this raises a reasonable possibility that the jury applied the Fault Determination Rules , despite the correcting charge. [42] We do not accept this submission. The trial judge noted that the jury specified, as one of the particulars of the appellant’s negligence, the violation of s. 170(12) of the Highway Traffic Act , which “was drawn to the jury’s attention in the jury charge and deals with parking a vehicle on a roadway and impeding traffic.” He added that while s. 170(12) “does not contain the word ‘illegal’, illegal is a term of general usage connoting a contravention or violation of the law and is not a concept specific to the Fault Determination Rules .” Moreover, the trial judge noted that had the jury applied the Fault Determination Rules , it would have found the appellant 100% at fault, rather than only 73% at fault. He concluded that “[t]his is a fault apportionment amply justified by the evidence presented in this case.” We see no basis to disturb any of these conclusions. [43] Finally, the appellants assert that the correcting charge was inadequate to dispel the prejudice arising from the jury being provided with the Fault Determination Rules . The appellants contend that “[t]he correcting charge was provided in a vacuum as if the extrinsic information was neutral or benign.” [44] We would not give effect to this argument. As this court noted in Pannu , at paras. 71-72, absent legal error, misapprehension of the evidence, or patent unreasonableness, an appeal court should accord deference to a trial judge’s decision to provide a correcting charge rather than declare a mistrial. [45] Here, the trial judge concluded that the jury “respected” the correcting charge and “disabused themselves of any further consideration of the Fault Determination Rules obtained from the internet.” He observed that “this was a very engaged and diligent jury on the whole and the verdict rendered at the conclusion of this lengthy trial is well supported by the evidence.” The trial judge was very well positioned to make this finding as to the efficacy of the correcting charge, having presided over this trial that included eight weeks of evidence and having seen the jury’s engagement and diligence first hand. We see no basis for this court to intervene. CONCLUSION [46] Accordingly, despite Mr. Obagi’s forceful submissions, the appeal is dismissed. Costs are payable to the respondent in the amount of $12,000, inclusive of disbursements and taxes. Released: February 20, 2020 (“P.C.M”) “J.C. MacPherson J.A.” “Robert J. Sharpe J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Al-Enzi, 2020 ONCA 117 DATE: 20200213 DOCKET: C67122 Sharpe, MacPherson and Jamal JJ.A. BETWEEN Her Majesty the Queen Respondent and Abdulaziz Al-Enzi Appellant Matthew Gourlay and Peter Grbac, for the appellant Roger A. Pinnock, for the respondent Heard: February 7, 2020 On appeal from the conviction entered on October 1, 2018 and the sentence imposed on January 15, 2019 by Justice Peter K. Doody of the Ontario Court of Justice, with reasons reported at 2018 ONCJ 679. By the Court: [1] At the conclusion of a trial before Doody J. of the Ontario Court of Justice, the appellant, Abdulaziz Al-Enzi, was convicted of assault with a weapon (particularized as a jailhouse shank), assault causing bodily harm, and aggravated assault. In accordance with R. v. Kienapple , [1975] 1 S.C.R. 729, the convictions for assault with a weapon and assault causing bodily harm were conditionally stayed. The trial judge imposed a term of incarceration of 30 months, with 153 days deducted for pre-sentence custody. Mr. Al-Enzi appeals the conviction and sentence. [2] On April 19, 2018, there was an altercation involving several inmates in the dayroom at the maximum security unit of the Ottawa-Carleton Detention Centre. The complainant was assaulted and suffered significant injuries. [3] Two inmates, Houssine Ali and Eli Elenezi, testified that they had assaulted the complainant with short pencils grasped in their fists, which they had hidden under their clothes before the fight. No pencil or other weapon was recovered from the dayroom. [4] The complainant, who suffered two cuts to his face, testified that he did not know who had cut him. [5] Mr. Al-Enzi did not testify. [6] Two security videos recorded the altercation. The footage shows Mr. Al-Enzi holding a white object in his right hand. He removed the white covering as he ran toward the complainant. He punched the complainant and drew his right hand across the complainant’s left cheek from his mouth toward his ear. He then grabbed the complainant’s head in an arm hold. His right hand then moved across the left side of the complainant’s face. [7] The fight stopped. Mr. Al-Enzi went to the nearby partially visible (on the security videos) washroom and bent down over the toilet and then straightened up. [8] At the conclusion of the trial, the trial judge reserved his decision. Counsel agreed that he could review the video evidence as he prepared his judgment. [9] When the trial judge looked again at the videos, he noticed that Mr. Ali had his fingers splayed just before punching the complainant. There did not appear to be a pencil in his hand. [10] The trial judge also noticed that after Mr. Elenezi punched the complainant, he stood in front of the washroom door for about 50 seconds before the guards entered, despite testifying that if he had a pencil, he would have disposed of it as soon as possible after a fight. [11] Counsel had not questioned these witnesses on these potential discrepancies. [12] The trial judge wrote to counsel, requesting submissions on these points and inquiring whether the defence wanted to bring a motion to reopen the defence case. [13] Court was reconvened and, ultimately, defence counsel brought a motion to reopen its case and recall Mr. Elenezi (Mr. Ali could not be found). The trial judge granted the motion. [14] After being recalled, Mr. Elenezi testified that he did not have time to flush his pencil down the toilet. When pressed in cross-examination, he said that he did not flush it because he would have been seen on the videos. He had not said this in his original testimony or in his examination in chief when recalled. [15] Mr. Elenezi testified that he took the pencil out of his prison jumpsuit and then put it back about nine seconds later, after he had punched the complainant. However, in cross-examination, the trial Crown suggested that the video evidence showed that he put his hand on the back of another inmate immediately after punching the complainant and his fingers were splayed. There was no pencil. In addition, the video showed that he punched the complainant but did not swing his hand across his chest in a horizontal motion, contrary to his testimony when recalled. [16] The videos also showed that Mr. Elenezi and Mr. Al-Enzi punched the complainant almost 28 seconds after Mr. Ali punched him. Before Mr. Elenezi and Mr. Al-Enzi punched him, the complainant did not have blood on his face and chest. Nine seconds later, the complainant had blood on his face and chest. [17] The trial judge found Mr. Al-Enzi guilty of the three charges set out above. He said that there was a “live issue as to whether Mr. Ali and Mr. Elenezi had pencils in their fists when they struck the complainant.” [18] The trial judge said that Mr. Ali’s evidence was not credible. The video evidence shows that his fingers were fully extended after he took his hand out of the waistband of his pants. He did not have a pencil. The trial judge accepted Mr. Elenezi’s evidence that inmates dispose of weapons in the toilet as soon as possible after a fight so the guards cannot find them. The video evidence showed that Mr. Ali did not go into the washroom to dispose of the pencil despite having time to do so. Accordingly, Mr. Ali did not cause the injuries to the complainant’s face. [19] The trial judge said that he did not believe that Mr. Elenezi had a pencil. The video evidence showed that he did not have a pencil immediately after striking the complainant. He had ample time (about 50 seconds) to dispose of a pencil in the toilet before the guards arrived, but did not do so. The only reasonable conclusion is that Mr. Elenezi did not have a pencil. [20] Having disbelieved Mr. Ali’s and Mr. Elenezi’s testimony, the trial judge determined, based on the video evidence relating to Mr. Al-Enzi set out above, that he was the person who attacked the complainant with a weapon and caused the facial injuries. Conviction Appeal [21] Mr. Al-Enzi contends that the trial judge made two errors with respect to permitting Mr. Elenezi to testify after the trial was over and while he was preparing his judgment. [22] First, Mr. Al-Enzi submits that the trial judge erred by, on his own motion, inviting the defence to reopen the trial and then using the evidence tendered to convict him. In support of this position, Mr. Al-Enzi refers to the trial judge’s letter to counsel and describes it as “tantamount to the trial judge recalling the witnesses himself.” [23] We do not accept this characterization of what the trial judge did. Once court reconvened after counsel had received the trial judge’s letter, the trial judge made it clear (“I’m not proposing to call a witness”; “I do not, rather, intend to call a witness”) that he was seeking both counsels’ views on how to proceed, now that they knew that he had seen things in the video evidence that had not been addressed during the trial testimony and that were potentially significant in his assessment of the evidence and ultimate verdict. This led defence counsel to say: I understand that. I - I wouldn’t be seeking to recall Mr. Elenezi but for the letter, I mean it wouldn’t be something that I would have done otherwise. But I think that it is a defence application at this point and it’s not – it’s not something that is emanating from the Court . [Emphasis added.] [24] Second, Mr. Al-Enzi asserts that, if the defence made a motion to reopen the trial, the trial judge erred by granting the motion. Mr. Al-Enzi says that the trial judge’s decision to reopen the trial was not made in an ex improviso situation – i.e. circumstances arose that could not have been foreseen. In support of this submission, Mr. Al-Enzi points to what the trial judge said in his reasons for judgment: The videos were played many times during the trial, in both normal speed and in slow motion. All witnesses were given an opportunity to comment on and describe what they saw happening on the videos. The inmate witnesses were asked to explain what they were doing in the videos. Counsel played them during submissions and made submissions on what they showed. [25] We are not persuaded by this submission. The leading case dealing with reopening a trial is R. v. Hayward (1993), 88 C.C.C. (3d) 193 (Ont. C.A.), wherein Doherty J.A. said, at para. 15: A trial judge sitting without a jury may permit the reopening of the evidence at any time before sentence is passed. The decision to permit either party to reopen its case and call further evidence is within the discretion of the trial judge, and where that discretion is exercised judicially an appellate court will not interfere. [Citations omitted.] [26] In Hayward , the court enunciated several considerations that comprise the test for assessing whether a trial should be reopened. In the present case, the trial judge, explicitly and faithfully, applied the Hayward test and granted the defence application to recall a witness. He exercised his discretion judicially and, in the interest of trial fairness, reopened the trial. He made an entirely reasonable decision. [27] In oral submissions on appeal, counsel for Mr. Al-Enzi agreed that the trial judge wrote his letter to counsel in fairness to the defence. While we understand appellate counsel’s submission that it would have been less of a problem if defence counsel had initiated the application to reopen the trial, we do not agree that this well-intentioned decision was prejudicial to Mr. Al-Enzi. The trial judge’s letter did not suggest he had decided to reopen the trial and wanted counsel to prove him wrong. Quite the opposite. In his letter, the trial judge asked “to hear counsel whether I should grant [the defence] an opportunity to re-open the defence case to recall Mr. Ali and Mr. Elenezi to testify with respect to these points.” It was open to defence counsel as a tactical decision not to bring an application to reopen the trial. Instead, he brought an application of his own accord. Asking for submissions is not the same as asking the defence to recall a witness. Sentence Appeal [28] Mr. Al-Enzi submits that the 30-month sentence imposed by the trial judge is unfit. He says that the trial judge erred by minimizing relevant contextual factors related to the incident, namely that this was an assault (i) committed in the context of a multiparty jailhouse fight; (ii) in which the complainant participated; and (iii) the complainant’s injuries were at the low end of the scale for aggravated assault. [29] We disagree. The trial judge listed several serious aggravating factors – the assault occurred in a correctional facility where “inmates are entitled to serve their sentences or prepare for trial in an environment devoid of violence”; Mr. Al-Enzi had a criminal record, including prior offences of violence; Mr. Al-Enzi used a concealed weapon and attacked the complainant after he had already been assaulted by two other inmates (“piling-on”); and the assault left the complainant with two permanent facial scars. These factors, cumulatively, justified the sentence he imposed. Disposition [30] The appeal is dismissed. Released: “RJS” FEB 13 2020 “Robert J. Sharpe J.A.” “J.C. MacPherson J.A.” “M. Jamal J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Abdulle, 2020 ONCA 106 DATE: 20200212 DOCKET: C64718 , C65154 & C65173 Strathy C.J.O., Harvison Young and Jamal JJ.A. DOCKET: C64718 BETWEEN Her Majesty the Queen Respondent and Salma Abdulle Appellant DOCKET: C65154 AND BETWEEN Her Majesty the Queen Respondent and Libin Jama Appellant DOCKET: C65173 AND BETWEEN Her Majesty the Queen Respondent and Abdulaziz Egal Appellant Delmar Doucette and Angela Ruffo, for the appellant Salma Abdulle Daniel Brodsky, for the appellant Libin Jama Dirk Derstine, for the appellant Abdulaziz Egal Elise Nakelsky and Megan Petrie, for the respondent Heard: November 28 and 29, 2019 On appeal from the convictions entered on December 2, 2016, and the sentences imposed on April 20, 2017, by Justice Gary T. Trotter of the Superior Court of Justice, sitting with a jury. Strathy C.J.O.: I. overview [1] On February 12, 2014, 57-year old John Maclean was found lying in a pool of his own blood in the parking lot of his apartment building at 101 Kendleton Drive, Toronto. His shirt was ripped. He was so covered in blood that paramedics had difficulty lifting his lifeless body into the ambulance. Subsequent autopsy examination disclosed a minimum of nine knife wounds, including: one to the chest, which fractured a rib and went through the diaphragm; another to the heart, which severed his pulmonary artery; and another to the thigh, which severed his femoral artery and caused massive blood loss. He also suffered a broken jaw and had bruises and abrasions all over his body, including his head. [2] A few minutes earlier, John Maclean had been stabbed, beaten, kicked, and stomped upon by a group of young people. He had no vital signs when paramedics arrived, and he was pronounced dead at the hospital. [3] The three appellants, Salma Abdulle, Libin Jama, and Abdulaziz Egal, together with Rogar Bryan, were charged with second-degree murder. The Crown alleged that they were co-principals in an attack on Maclean, that one or more of them inflicted the fatal stab wounds, and that all had the necessary intent for murder pursuant to s. 229(a) of the Criminal Code , R.S.C. 1985, c. C-46. [4] The jury convicted the appellants and acquitted Bryan. The appellants were subsequently sentenced to life imprisonment, with parole ineligibility fixed at 12 years. [5] The appellants appeal their convictions on a variety of grounds. Abdulle also appeals her sentence with respect to the period of parole ineligibility. For the reasons that follow, I would dismiss both the conviction appeals and the sentence appeal. II. background [6] The following summary of the evidence will serve to put the issues in context. Additional facts will be added, where required, to address each ground of appeal. The initial confrontation on the evening of February 12, 2014 [7] The Crown alleged that on February 12, 2014, the four accused were involved in an altercation with Maclean in the parking lot at 101 Kendleton Drive, where Maclean lived. None of the accused were residents. Security cameras recorded them entering the building together at about 7:00 p.m. After someone let them in, they split into two groups (Jama and Bryan; Abdulle and Egal). Not much is known about their activities for the next two hours. It is believed they spent most of the time “chilling” and consuming alcohol and drugs. [8] The evidence did not establish with certainty how the confrontation with Maclean arose. However, what is known is that a verbal altercation began in the west stairwell of the building, between Maclean and one or more of the accused, which soon moved outside into the parking lot where Maclean’s body was found. There are security cameras at the doors of the building, except the west stairwell door. None of the accused, or Maclean, were seen on video leaving the building, leading to the conclusion that they all left through the west stairwell door. [9] Abdulle testified that she left the building just before 9:00 p.m., leaving Egal, who said he wanted to urinate, in the west stairwell. Egal was holding a vodka bottle he and Abdulle had been sharing. Abdulle said she was waiting outside when she saw Maclean dragging Egal out of the stairwell and into the parking lot. Maclean had somehow acquired the vodka bottle. By this time, she said, Jama and Bryan had arrived on the scene and were trying to free Egal from Maclean’s grip. [10] Abdulle claimed that she approached Maclean and demanded that he give her the vodka bottle. When he refused, she moved towards him and he hit her over the head with the bottle, cutting her head and causing her to momentarily lose consciousness. [11] Abdulle claimed that after she got back on her feet, she gave Bryan a hug and saw him walk towards Maclean. She looked away for a few moments before turning back, at which time she saw Maclean lying on the ground. While she denied seeing Bryan stab Maclean, her evidence arguably implicated Bryan, leading the trial judge to give an Oliver instruction in his charge to the jury: a warning that Abdulle’s testimony should be considered with particular care and caution, because she may have been more concerned with protecting herself than with telling the truth: R. v. Oliver (2005), 194 C.C.C. (3d) 92 (Ont. C.A.), at paras. 50-60, leave to appeal refused, [2005] S.C.C.A. No. 458. This instruction, and the trial judge’s refusal to give a similar instruction with respect to Bryan’s evidence, are the basis for one of Abdulle’s grounds of appeal. Witnesses to the attack on Maclean [12] Two witnesses, Emmalyn Redhead and Abdulcadir Elmi, observed the attack on Maclean. Redhead, a tenant at 101 Kendleton, saw parts of the events from a fourth-floor apartment that was about 80 feet (24 meters) away. She called 911. Elmi, whose relatives live in the building, was in a fifth-floor apartment 172 feet (52 meters) away. While both witnesses testified that they had seen parts of the confrontation, neither was able to definitively identify the actions of any of the accused. [13] In her testimony at trial, Redhead said that one of the attackers was wearing a hoodie or sweater that had a line on the wrist of the garment. Redhead was inconsistent on whether it was a tall person (alleged to be Egal) or a short person (alleged to be Bryan). Her so-called “final” answer at trial seemed to be the shorter person, but this conflicted with her evidence at the preliminary inquiry. The issue of whether Redhead adopted her evidence from the preliminary inquiry and whether the trial judge left this question to the jury forms the basis of one of Egal’s grounds of appeal. Paramedics on the scene and the post-mortem examination [14] When the paramedics arrived at the scene, there was nothing they could do for Maclean. A pathologist testified at trial that Maclean had sustained two lethal stab wounds. One, a large wound to his upper left chest, perforated his lung and penetrated his pulmonary artery, causing internal bleeding. Death would have occurred within a large number of seconds to a small number of minutes. The other was a deep, penetrating wound to his right thigh, which severed his femoral artery and vein, causing it to bleed profusely. This wound accounted for Maclean’s significant external blood loss and the large pool of blood observed at the scene. It would have led to death within the same time period as the wound to the heart. [15] Maclean sustained seven other stab wounds. A second stab wound to the left body and chest fractured his rib and perforated his diaphragm. The evidence was that it took a considerable amount of force to fracture the rib. He also suffered additional stab wounds to his left upper back, right forearm, and left thigh. He suffered a defensive wound to his left wrist. The pathologist was unable to say how many knives were used on Maclean that night. His jaw was also fractured, and he had other injuries to his face, including abrasions on his forehead and bruising on his face. There were also bruises on his torso, including his shoulders and chest. However, the beating did not cause, nor did it accelerate, his death. Forensic analysis [16] Abdulle was linked to the scene by her blood, which was found in the parking lot. There was one area containing a mixture of Maclean and Abdulle’s blood, close to where Maclean was found. [17] DNA evidence also linked Jama and Bryan to the scene. Their DNA was found in samples taken from under Maclean’s fingernails. In addition, Jama’s shoes, which were found in the hall closet of her mother’s home, were soaked with Maclean’s blood. [18] There was no forensic evidence linking Egal to the scene. Flight from the scene [19] The paramedics who responded to the 911 call testified that, as they approached 101 Kendleton, they saw four or five people on the street walking away from the scene. One testified that two women and two men were about 50 feet apart, and a third man walked about 150 feet behind them. Bryan claimed that he was not with Abdulle, Jama, and Egal. Abdulle claimed that he was. [20] Shortly after the attack, at least three of the accused (Jama, Abdulle, and Egal) went to the home of Khadra Abdi, Jama's mother. Jama and Abdulle went inside. Egal and another male, remained outside. Abdulle was bleeding and used the washroom to clean up. After about 10 minutes, Jama, Abdulle, Egal, and the other male departed. A photo of Abdulle and Egal, taken later in the night, posing together for the camera, was entered into evidence to establish their continued association afterwards. [21] Jama’s mother, Khadra Abdi, was a witness to Jama and Abdulle’s visit to her home. She also saw Egal, whom she knew from the Somali community, and another black man she could not identify. She later gave three statements to police and testified at the preliminary inquiry and at trial. Her evidence became a matter of controversy at trial when counsel for Bryan was granted permission to cross-examine Abdi concerning a statement she allegedly made about Egal having a knife. The trial judge’s ruling, and a statement by Bryan’s counsel in closing, are the subject of one of Egal’s grounds of appeal. Subsequent events [22] That night, and the following day, the group was at the homes of friends, drinking and consuming drugs. Abdulle would later testify that, during this time, Bryan (who did not admit to being present) acknowledged by his words and gestures that he would “take the rap” for Maclean’s death. [23] At some point prior to her arrest, Abdulle gave a false name to police who were investigating a noise complaint. After she was arrested for obstructing police, she was held in a cell alongside an undercover officer. Upon their release, they were joined by another undercover officer. After making certain incriminating statements to the officers, Abdulle was arrested. The alleged source of the information Abdulle gave to the officers was a conversation with Jama some time after the incident. The statements were not recorded, and the undercover officers did not testify at trial. Seeking to bolster her defence and credibility, Abdulle sought to discuss her conversation with Jama in her examination-in-chief. However, fearing prejudice to her co-accused, the trial judge restricted Abdulle from testifying on the point. Abdulle was, however, cross-examined by the Crown and counsel for Bryan regarding the nature of her statements to the police. The fairness of the trial judge’s decision to restrict her testimony forms one of Abdulle’s grounds of appeal. III. grounds of appeal [24] The appellants raise, either individually or collectively, the following grounds of appeal: A. the trial judge erred in his instruction on the mens rea for murder in a case involving co-principal liability; B. the trial judge erred by improperly restricting Abdulle’s evidence, interfering with her ability to make full answer and defence; C. the trial judge erred by failing to give the jury an Oliver instruction regarding Bryan’s evidence, warning that they should consider his testimony with particular care and caution; D. the trial judge erred in permitting counsel for Bryan to cross-examine Abdi on her police statement that Egal had a knife, and in failing to grant a mistrial; E. the trial judge erred by improperly instructing the jury concerning Redhead’s prior inconsistent statement; and F. the verdict, as it pertained to Jama, was unreasonable and not supported by the evidence. [25] In addition, Abdulle appeals the 12-year period of parole ineligibility attached to her life sentence. IV. analysis A. Did the trial judge err in his instruction on the state of mind for murder? [26] The appellants submit that, in instructing the jury on the liability of co-principals, which was the only basis of liability advanced, the trial judge erred by telling them that a “non-stabber” participant could have had the intent for murder even if he or she was unaware that another participant had a knife or had stabbed the victim. Specifically, the appellants submit that the following instruction was in error: At this stage of your analysis, you may wish to consider which accused person or persons used a knife or knew that another was using a knife in the attack on Mr. Maclean. As I have already explained to you, in terms of proving participation in causing another person’s death, it is not necessary for you to be satisfied beyond a reasonable doubt which accused person or persons delivered the fatal injuries. However, using a knife or knowledge that another person involved in the attack used, was using or was about to use a knife, may be helpful to you in determining whether an accused person had one of the required states of mind for second degree murder. It is not necessary to find use of or knowledge of the use by another of a knife to find an accused person guilty of murder, as long as you are satisfied, on all of the other evidence, that however that person participated in the concerted attack on Mr. Maclean, that person had one of the two intentions required for second degree murder . [Emphasis added.] [27] As I will explain, I would not accept this submission. The trial judge properly instructed the jury on the liability of co-principals and on the mens rea for murder. In the circumstances of this case, the intent for murder – subjective intent to cause bodily harm, and subjective knowledge that the bodily harm was of such a nature that it was likely to result in death – could be inferred if the jury found that the appellants participated in the beating, kicking, and stomping of an incapacitated and grievously injured victim. It was not necessary for them to find that an accused knew that one of the other assailants was using a knife. Applicable principles [28] In circumstances involving co-principals, as is the case here, the liability of parties to an offence is addressed by s. 21 of the Code . In R. v. Spackman, 2012 ONCA 905, 295 C.C.C. (3d) 177, Watt J.A. explained that co-principals are liable where they “together form an intention to commit an offence, are present at its commission, and contribute to it, although each does not personally commit all the essential elements of the offence”: at para. 181; See also R. v. Pickton , 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 63 . In order to be liable as principals, therefore, the parties must have had the requisite intention. [29] The mens rea required for second-degree murder is outlined in s. 229 of the Criminal Code , which states that culpable homicide is murder where the person who causes the death of a human being either means to cause their death, or means to cause them bodily harm that they know is likely to cause their death and is reckless whether or not death ensues. [30] In R. v. Cooper, [1993] 1 S.C.R. 146, at pp. 155-156, the Supreme Court of Canada explained the nature of this requirement: The intent that must be demonstrated in order to convict under [now s. 229(a)(ii)] has two aspects. There must be (a) subjective intent to cause bodily harm; (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death. It is only when those two elements of intent are established that a conviction can properly follow. See also R. v. Williams , 2019 ONCA 846, at para. 19. [31] It is this requirement of subjective foresight of death that gives rise to the moral blameworthiness required to support a conviction for murder: R. v. Martineau , [1990] 2 S.C.R. 633, at p. 645. [32] In this case, then, the ultimate questions for the jury were: (1) who were the participants in the fatal stabbing, beating, kicking, and stomping of Maclean?; and (2) can it be inferred from their conduct that they had the requisite intent for murder, namely, that (i) they intended to cause his death; or (ii) they intended to cause him bodily harm that they knew was likely to cause him death and were reckless as to whether or not death ensued? Submissions on appeal [33] In advancing this ground, the appellants note that the lethal injuries were caused by stabbing and the identity of the stabber or stabbers had not been established. They submit that a non-stabber could only be liable if he or she had knowledge of the lethal force that caused death and participated in the attack with that knowledge. There could be no basis for liability if the Crown failed to prove that an accused knew that at least one of the participants, or possibly more, had knives. As Mr. Derstine put it, each accused had to know that “lethal force was on the menu”. Mere participation in the blunt-force assault could not support an inference of the intent for murder. [34] The appellants state that the correct mens rea was described in the trial judge’s reasons on sentencing, in which he found that each of the three appellants either used a knife or knew that a knife was being used. He said: By its verdicts the jury found that each accused person had a murderous intent. I am unable to make precise findings as to which offender inflicted what blow, or who, or how many had a knife, and how it or they were used. However, from the jury’s verdict, I am able to say that all three offenders were involved in a joint attack on Mr. Maclean, either using a knife, or knives, or being aware that at least one of the others was using a knife, or knives , all the while having one of the intents for murder in s. 229(a) of the Criminal Code . [Emphasis added.] [35] The appellants argue that this language illustrates that the trial judge’s original instruction was erroneous, as it highlights that guilt could only arise where each offender was found to have either used a knife or been aware of the use of a knife. [36] In support of this argument, counsel for Abdulle cites to R. v. Kennedy , 2016 ONCA 879, 345 C.C.C. (3d) 530, in which this court held that the trial judge had erred by failing to include “any instruction that, to find Mr. Kennedy or Mr. Wolfe guilty of the jointly charged offences, the jury had to be satisfied either that he was the gun-wielding intruder or that he knew the other intruder had a weapon that would be used in the course of the robbery”: at para. 18. Abdulle argues that the same logic should be applied here. [37] The Crown responds that the trial judge accurately identified and articulated that the requisite mens rea could be readily inferred from the vicious and concerted attack on the helpless victim. [38] With regards to Kennedy , the Crown argues that the circumstances are not analogous, as the accused in that case were charged with offences that specifically included the use of an imitation handgun. It was necessary for the jury to be instructed on knowledge of the firearm in order to make out the requisite elements of the offence. Here, such knowledge was not required to make out the necessary elements for murder. Analysis [39] The trial judge did not err. He instructed the jury carefully and correctly on co-principal liability and on the necessary ingredients for the offence of second-degree murder. He referred them to the evidence necessary to determine the issues. He repeatedly reminded them that they were required to consider the evidence as it related to each accused individually. He explained that, in the context of party liability, the Crown need not prove which attacker inflicted the fatal blow, but rather only that each accused participated in the joint attack, with the requisite state of mind for second-degree murder. He instructed the jury as to how they could determine an accused person’s state of mind, including by considering the person’s words and conduct, as well as the number, nature, and severity of the injuries suffered by Maclean. Finally, he instructed them that, if they were satisfied beyond a reasonable doubt that an accused person had both caused the death of Maclean and had either intended his death or intended to cause him bodily harm that they knew would likely result in death and were reckless whether death ensued, they were to find that accused guilty of second-degree murder. [40] The jury could have found the appellants guilty on the basis of knowledge of the knife, or without such knowledge. The jury was entitled to infer knowledge of the knife from the nature of the victim’s injuries as demonstrated by the amount of blood on the victim, on the ground, and on Jama’s blood-stained shoes. While use or knowledge of the knife would have guaranteed the requisite intent, participation in the brutal attack, even without such knowledge, would also have sufficed. [41] The trial judge’s reasons on sentence do not demonstrate that the jury instruction on intent was erroneous. Under s. 724(2)(a) of the Code , in the case of a jury trial, the sentencing judge is required to accept as proven all facts, express or implied, that are essential to the jury’s guilty verdict. However, under s. 724(2)(b), the judge may find any other relevant fact that was disclosed by evidence at the trial to be proven. [42] It was under this authority that the trial judge found, in sentencing the appellants, that all three were involved in a joint attack on Maclean, “either using a knife, or knives, or being aware that at least one of the others was using a knife, or knives, all the while having one of the intents for murder in s. 229(a) of the Criminal Code .” In the two paragraphs immediately before he came to this conclusion, the trial judge described Maclean’s injuries and the brutal and violent nature of the assault, noting that, “[g]iven the viciousness and brutality of this attack, and the appalling loss of blood involved, it should have been obvious that Mr. Maclean would not survive his injuries.” It was based on this evidence that he made his finding. [43] Finally, as the Crown points out, the decision in Kennedy is unhelpful to the appellants. The appellants in that case were jointly charged with three offences: stealing while armed with an imitation handgun; assault with an imitation handgun; and using an imitation handgun while committing an indictable offence. It was in that context that this court held that the instruction on party liability was incorrect and that, in order to find the non-gun-wielding intruder guilty of the offences charged, it had to be proven that he knew the other intruder had an imitation firearm. B. Did the trial judge err by improperly restricting Abdulle’s evidence? [44] As mentioned above, Abdulle made a series of incriminating statements to two undercover police officers. According to Abdulle, the source of her knowledge of the circumstances surrounding Maclean’s death was not her own memory of the incident, but a conversation she had with Jama while they were staying at a friend’s house after the homicide. [45] At trial, Abdulle testified in her own defence. During her examination-in-chief, her counsel sought to introduce evidence of the conversation. Her counsel summarized the evidence to be elicited as follows: I remember asking [Jama] what happened because it still wasn’t clear to me how the altercation with [Maclean] started or how he ended up dead. That’s when I finally asked who stabbed him and [Jama] told me it was [Bryan]. She told me [Bryan] is an idiot, he left his hat, his phone and the knife at the scene and he has cuts on his wrist and the police have his DNA but I don’t know if she was serious because she’s an exaggerator and this is during a period of time when they were doing some heavy drinking. [46] Counsel for Abdulle took the position that the statement was relevant to establish the source of her knowledge of the information she provided to the undercover officers. If she acquired that information as a result of her own observations, it would be inculpatory. On the other hand, if she only acquired the information because Jama told her, it would support her evidence that she was uninvolved in the attack. Moreover, from Abdulle’s point of view, it was preferable to explain the source of her knowledge “up front” in her evidence-in-chief, rather than in cross-examination. Her credibility would be undermined if the evidence only came from her in cross-examination. There was also no guarantee that certain evidence, important to her substantive defence, would be adduced on cross-examination such that her lawyer would be able to respond in re-examination. [47] Bryan’s counsel objected to the evidence. Jama had not testified and the attempt to introduce her evidence by way of hearsay was highly prejudicial to Bryan. He argued that there was no certainty that Abdulle would be cross-examined on her source of knowledge and, in view of the serious prejudice to Bryan, the evidence should not be adduced unless it became necessary. [48] The Crown agreed that the issue might not arise, because it might not cross-examine Abdulle on what she had told the undercover officers. If it became relevant, the issue could be addressed at that time. [49] The trial judge accepted the submissions made on behalf of Bryan and the Crown. His ruling was as follows: Okay, I am going to rule on this now. It is not art to say the least and time does not permit me to do a narrative and frame the evidence as it has come up. But on the basis of the discussions that we have had and how the evidence has come out so far this is my ruling. The potential for prejudice to Mr. Bryan is extremely high. The probative value of the evidence at this point is speculative. It will depend on if and how the crown’s cross-examination takes place about Ms. Abdulle’s source of knowledge regarding who stabbed Mr. [Maclean]. If Ms. Abdulle is probed on this issue and it is suggested that her knowledge is from first hand observation, the utterances of Ms. Jama on this point may become probative, however this has not arisen. If it does arise, I will entertain [counsel for Abdulle’s] application if so advised to adduce this evidence. If he is successful, it may be appropriate to instruct the jury about the timing of the introduction of this evidence, or this line of questioning, so that Ms. Abdulle is not put at a disadvantage or prejudiced in any way. [50] As events transpired, Abdulle testified in-chief that a few days after the incident, she asked Jama what had happened, and Jama said, “the guy [Maclean] bottled you.” She elaborated: A. I kind of just wanted to get some clarification on exactly what happened. Q. All right. Now you remember what it was that she told you? A. Yes. Q. First of all, about had [sic] happened to you? A. Yes. Q. Go ahead. A. She told me that the guy struck me in the head with a bottle. [51] Later, in cross-examination by counsel for Bryan, Abdulle was asked whether she had told the undercover officers that the “Jamaican” (i.e., Bryan) had left his hat, phone, and knife at the scene. She admitted that she had said that. In answer to subsequent cross-examination by counsel for Bryan, she said that Jama had given her this information. She told the Crown in cross-examination that Jama had told her that her friends had “lost it” on Maclean for “bottling [her]” and that, while she was “knocked out”, they had beaten him, and an unknown person had stabbed him. [52] In his final instructions, the trial judge cautioned the jury that Abdulle’s statements to the undercover officers could be used against her, but could not be used against any other accused unless she adopted her statements as true. He also instructed them that if they found that Jama said certain things to Abdulle, which Abdulle then reported to the undercover officers, those statements could only be used against Jama, and not against anyone else. The judge added that the jury should be careful about information that Abdulle may have obtained from Jama in considering whether what she told the officers was a truth or a lie: “Whose mistake was it? Whose lie was it, Ms. Abdulle or Ms. Jama’s?” [53] On appeal, Abdulle claims that, in restricting her evidence, the trial judge undermined both her ability to make full answer and defence and her credibility. She says that the lack of fairness mandates a new trial. [54] For the reasons that follow, I disagree. The trial judge appropriately balanced the fair trial interests of Abdulle on the one hand, and of Bryan on the other. He did not exclude Abdulle’s evidence outright, but simply held that it could not be adduced until such time as it became relevant. Her evidence, as it related to her substantive defence, was given in-chief. Her evidence concerning what Jama told her was elicited in cross-examination by counsel for Bryan and by Crown counsel. The relative insignificance of the latter is evidenced by the fact that her counsel did not see fit to re-examine her on the issue and did not request a special instruction to the jury to explain why the evidence only came out in cross-examination. Applicable principles [55] At issue here is the constitutionally-protected right of an accused person to make full answer and defence. As forcefully put by counsel for Abdulle, an accused is entitled to use the “evidentiary bricks” necessary to build their defence. This principle was expressed in R. v. Seaboyer , [1991] 2 S.C.R. 577, at p. 608: The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution. As one writer has put it: If the evidentiary bricks needed to build a defence are denied the accused, then for that accused the defence has been abrogated as surely as it would be if the defence itself was held to be unavailable to him. In short, the denial of the right to call and challenge evidence is tantamount to the denial of the right to rely on a defence to which the law says one is entitled. The defence which the law gives with one hand, may be taken away with the other. Procedural limitations make possible the conviction of persons who the criminal law says are innocent. [Internal citations omitted.] [56] In R. v. Crawford , [1995] 1 S.C.R. 858, the Supreme Court confirmed that this right applies in the case of joint trials of co-accused, and “extends to prevent incursions on its exercise not only by the Crown but by the co-accused”: at para. 28. However, the “right to full answer and defence, as is the case with other Charter rights, is not absolute”, and it must be applied in accordance with the rules of evidence and other rules that govern the conduct of criminal trials: The right to full answer and defence does not imply that an accused can have, under the rubric of the Charter , an overhaul of the whole law of evidence such that a statement inadmissible under, for instance, the hearsay exclusion, would be admissible if it tended to prove his or her innocence: at para. 28, quoting Dersch v. Canada (Attorney General) , [1990] 2 S.C.R. 1505, at p. 1515. [57] Where the rights of co-accused are in conflict, the strong policy reasons for conducting joint trials (e.g . , consistent verdicts, emergence of the full truth) mandate that the trial judge engage in an attempt to balance and reconcile the competing rights: Crawford , at paras. 30-32. [58] In undertaking this balancing, the trial judge has the right to exclude defence evidence. However, as the Supreme Court observed in Seaboyer , “the prejudice must substantially outweigh the value of the evidence before a judge can exclude evidence relevant to a defence allowed by law”: at p. 611. See also R. v. Grant , 2015 SCC 9, [2015] 1 S.C.R. 475, at para. 19. The trial judge may also sever the trials, but this extreme remedy is only justified where any attempt to reconcile the rights will result in an injustice to an accused: Crawford , at para. 32. [59] To summarize, where an accused seeks to adduce evidence in an effort to mount a full answer and defence, the trial judge must ensure a balance against the rights of any joint accused. They must determine whether the evidence sought to be adduced is technically admissible, and then whether, even if technically admissible, it should be excluded on the basis that its prejudice substantially outweighs its probative value. Submissions on appeal [60] Abdulle’s submission is that, as the trial boiled down to a credibility contest between her and Bryan, both of whom testified, she should have been allowed to give the evidence in-chief. The conversation with Jama had two important components. First, it went to Abdulle’s substantive defence: she did not participate in the beating and knew nothing about it because she had been “bottled” and was dazed; hence her question to Jama asking what had happened. Second, it went to her credibility, because the information she told the undercover officers was based not on her own knowledge, but on what she had been told by Jama. [61] Abdulle argues the trial judge could have mitigated the prejudice to Bryan by telling the jury that her evidence could only be used to support her substantive defence and her credibility, and not as evidence against Bryan. As events transpired, the trial judge’s ruling undermined both her substantive defence and her credibility. Moreover, the trial judge’s ruling was based on the “false premise” that permitting the evidence to come out in-chief would be prejudicial to Bryan. However, it was Bryan’s counsel who raised the issue on cross-examination, thereby undermining Abdulle’s credibility and causing her prejudice. [62] The Crown replies that Abdulle was not prevented from leading evidence to support her defence. The only restriction on her evidence was that she was not permitted to testify that Jama told her Bryan was the stabber. Any other restriction on her testimony was inconsequential and the trial judge properly balanced the competing interests in a way that respected Abdulle’s fair trial rights. Analysis [63] No party requested severance. While counsel for Bryan raised the possibility during submissions on this issue, he never pursued it. [64] On the most important issue, Abdulle’s substantive defence, Abdulle was able to give her own evidence, in-chief. Her evidence was, in essence, “I had to ask Jama what happened, because I had been bottled and was in a daze.” This evidence was simply confirmatory of her earlier evidence that, owing to her injury, she did not participate in beating Maclean. In my view, this aspect of her conversation with Jama was self-serving and of minimal probative value: see R. v. Rojas , 2008 SCC 56, [2008] 3 S.C.R. 111, at para. 36. [65] With respect to the credibility issue, and the source of Abdulle’s knowledge of what she told the undercover officers, it is important to note that the trial judge did not exclude this evidence outright, but simply exercised his discretion to control when it could be admitted. Further, as counsel for the Crown points out, the exchanges on cross-examination were brief and not unduly prejudicial: Cross-examination by Bryan’s counsel : Q. Did you also tell both undercover officers that the “Jamaican” [Bryan] left his hat, phone and knife at the scene. A. I believe I said something along those lines. Cross-examination by the Crown : Q. Okay. So, I’m going to suggest to you that at some point in this night you must have talked directly to Mr. Bryan about what happened. A. I did not. Q. You never in this entire night you [spent] with Mr. Bryan after this incident at 101 Kendleton, ever ask him what happened? A. I don’t believe I asked him, no. Q. What about Libin Jama, ever ask her what happened? A. I asked her what happened in Brampton, I believe. Q. Now, just going back to Mr. Bryan, didn’t Mr. Bryan tell you that he had left his hat, his cellphone and the knife at the scene and he was worried about being caught? A. No, he didn’t tell me that. Q. Well, why did you tell the undercover officers that? A. Because I’d been told by [Jama]. Q. But you had no issue implicating your friends to the undercover officer, right? A. I was telling her what I was told. Q. You stated to them that your friends lost it on the victim for bottling you, and while you were knocked out, they beat him, and unknown male number one stabbed the deceased. That’s what you told them. A. I told them what I’d been told. Q. But that is what you told them. A. Essentially. [66] There are two points that are telling in relation to this evidence. First, counsel for Abdulle did not seek to re-examine in relation to this evidence, even though he would plainly have been entitled to do so, given the earlier discussions and the trial judge’s ruling. Second, and more significantly, he did not ask the trial judge to give a special instruction to explain that the evidence would have been elicited in-chief, but for his earlier ruling, and that the jury could not discount the evidence simply because it came out during cross-examination. Counsel’s decisions on these two points speak volumes about the absence of prejudice. [67] The trial judge recognized the right of each accused to make full answer and defence. He attempted to strike a fair balance between their rights without injustice to either. His ruling was designed to prevent highly prejudicial hearsay (“Jama told me Bryan was the stabber”) from being admitted to respond to a speculative line of inquiry. The fact that the evidence was eventually adduced by Bryan’s counsel, as had been feared by Abdulle’s counsel, did not make the trial judge’s premise “false”. [68] Abdulle’s substantive defence was properly put to the jury, as was her explanation for her statement to the undercover officer. The trial judge gave appropriate instructions concerning the use of that evidence – instructions that are not challenged in this court. [69] I would not, therefore, give effect to this ground of appeal. C. Did the trial judge err with regards to the Oliver instruction? [70] An Oliver instruction, as indicated earlier in these reasons, is a warning that certain evidence should be considered with particular care and caution, because the witness who gave it may have been more concerned with protecting themselves than with telling the truth: Oliver , at paras. 50-60. The issue arose as follows. [71] At trial, Abdulle testified that after Maclean hit her with the bottle, she fell unconscious to the ground. When she came to, she felt throbbing pain and blood was trickling down her face. When she was able to stand, she saw Bryan beside her and she gave him a hug. He gently pushed her away and she saw him walk towards Maclean. She turned away for a few moments, trying to figure out where she had been wounded. When she turned around again, Maclean was on the ground. She did not hear anything, and she did not recall anyone other than Bryan around him. She acknowledged in cross-examination that she did not see Bryan stab Maclean. [72] Abdulle testified that some time after the killing, the group stayed at the house of someone called Abass. There, in the presence of both Egal and Bryan, after they heard of Maclean’s death, Abass said “whoever did this, if you guys ever get arrested, you know you have to take the [rap] for it”. At this point, she said, Bryan was “nodding his head, like yeah I got it, I got it.” She added that when Bryan was leaving, “he did this little gesture where he put his hand over [his] heart and he looked at me, and I don’t believe he said anything but that’s just what he did and he left.” The implication of Abdulle’s evidence was that Bryan accepted responsibility for the killing and was “going to take the rap for it.” [73] During his testimony, Bryan admitted that he had been at Kendleton with the others that evening, but claimed he had become separated from them. He had a brief encounter with Maclean in the west stairwell, during which Maclean had grabbed his arm or the front of his neck. This would afford an explanation for why his DNA was found under Maclean’s fingernails. [74] Bryan claimed that after coming out of the building, he saw a “mixture” of people and saw a bottle thrown by a tall person wearing a black jacket. He was unable to identify that person and did not know whether the bottle was thrown in Maclean’s direction. He denied hugging Abdulle and denied participating in beating Maclean, claiming he left the scene before it occurred. He denied leaving 101 Kendleton with the others or being at either Abdi or Abass’ home. He claimed that he went on his own to a friend’s house. [75] In closing submissions, counsel for Bryan made pointed submissions about the evidence of Abdulle: So I’m going to talk to you about the evidence of Salma Abdulle. I suggest to you that all of her evidence has to be evaluated in the context of the overriding motive she had in this case, to absolve not only herself of wrongdoing, but also her friends, Libin Jama and Abdulaziz Egal. [76] He went on to suggest that the evidence that Maclean was backing up, bottle in hand, as Abdulle advanced on him, demonstrated that she had stabbed him and that, “[i]f Ms. Abdulle was the stabber, it could not be Mr. Bryan.” [77] In pre-charge discussions, counsel for Egal asked the trial judge to give an instruction that amounted to an Oliver instruction. The trial judge indicated that he was planning to do so in relation to Abdulle’s testimony, but not in relation to Bryan’s, because “he doesn’t implicate anybody.” Counsel for Egal agreed. The trial judge subsequently provided counsel with a draft of portions of his charge, including the Oliver instruction. In ongoing pre-charge discussions, Abdulle’s counsel asked that there be no such instruction for Abdulle, but that, if one were to be given, it should be given for Bryan as well. He agreed with the trial judge that, “on the surface”, Bryan implicated no one, but argued that the overall effect of his evidence was to undermine Abdulle’s case. Counsel for Bryan objected to an Oliver instruction for his client, because Bryan had simply taken the position that he did not commit the crime. [78] The trial judge did not accept Abdulle’s counsel’s submission and gave the jury the following instruction: Ms. Abdulle gave evidence that suggested that Mr. Bryan was involved in killing Mr. Maclean. She also put Ms. Jama and Mr. Egal at the scene, just before the deadly attack on Mr. Maclean. Mr. Bryan’s evidence implicated no one in the attack, nor did he place any of them in the parking lot. You should consider the testimony of Ms. Abdulle to the extent that it implicates Mr. Bryan, or any other accused person, with particular care and caution, because Ms. Abdulle may have been more concerned with protecting herself than telling the truth. Bear that in mind when you decide how much or little you believe or rely upon what Ms. Abdulle told you about Mr. Bryan’s, or anyone else’s involvement in this case. This instruction, however, does not apply when you are considering Ms. Abdulle’s evidence about her own alleged involvement. [79] On appeal, Abdulle argues that the trial judge erred by giving a caution in relation to her evidence. Alternatively, if a caution was required, one should also have been given with respect to Bryan’s testimony. [80] As I will explain, I would not accept this argument. Abdulle’s evidence clearly implicated Bryan, giving rise to the need for a caution to the jury. Bryan’s evidence, by contrast, did not implicate Abdulle or any other of his co-accused. The trial judge was correct not to issue a warning with respect to his evidence. Applicable principles [81] In Oliver , this court, speaking through Doherty J.A., noted that joint trials can raise special problems with jury instructions, particularly where co-accused raise conflicting defences. The instructions must balance those competing rights to a fair trial: at para. 54, citing Crawford . The need to balance the fair trial rights of co-accused is a case-specific exercise: at para. 56. [82] Doherty J.A. went on to suggest, at para. 58, that because the caution is exclusively concerned with protecting a co-accused’s fair trial rights, the trial judge should canvass the need for any such caution with counsel for the co-accused before instructing the jury. If counsel takes the position that no caution is required, none should be given. He also observed, at para. 60, that: Where a trial judge determines that the fair trial rights of a co-accused require a “caution” with respect to the testimony of the other accused, the trial judge should expressly tell the jury that the caution applies only to the case against the co-accused and has no application when considering the case against the accused who has testified. [83] In the recent decision of this court in R. v. Deol , 2017 ONCA 221, 352 C.C.C. (3d) 343, Juriansz J.A. emphasized that the threshold question is whether the fair trial rights of a co-accused require such an instruction: “ Oliver does not mandate or even encourage such a caution be routinely given”, but rather “makes clear that a trial judge has the discretion to give such a caution where he or she considers the fair trial rights of a co-accused require it”: at para. 26. He continued, at para. 27: The case-specific exercise requires the trial judge, who has the best appreciation of all the circumstances, to determine whether the giving or refusing of such a caution achieves the soundest balance of the competing interests of the two co-accused. Submissions on appeal [84] Counsel for Abdulle maintains the objection that the instruction was one-sided and unfair to Abdulle. He submits that the trial judge fell into error when he told the jury to view Abdulle’s evidence with caution, but that Bryan “implicated no one in the attack” and did not place any of the co-accused in the parking lot. He submits that Bryan’s evidence clearly contradicted Abdulle’s evidence that he had hugged her and had moved towards Maclean. His evidence created the impression that he had left the scene, leaving behind an angry “mixture”, including two “girls”, who were involved in Maclean’s death. This set up a credibility contest between Abdulle and Bryan. It was therefore unfair to tell the jury to consider the evidence of one with caution, while giving the other a free pass. The trial judge should have given the instruction with respect to both, or neither. Further, the closing submissions of Bryan’s counsel made the Oliver instruction imperative. [85] In response, the Crown submits that the trial judge did not err in the exercise of his discretion with respect to the Oliver instruction. It was not Bryan who put Abdulle “in the mixture”. Her own testimony, as well as DNA evidence, put her there. Bryan’s evidence was extremely vague about who was at the scene and, unlike Abdulle, he did not attempt to inculpate anyone. He went out of his way not to do so. Analysis [86] I would not give effect to this ground of appeal. [87] The contrast between Abdulle’s evidence and Bryan’s is striking and explains why an Oliver instruction was appropriate in the case of the former, but inappropriate in the case of the latter. Abdulle’s evidence plainly implicated Bryan – it put him close to Maclean before Maclean fell to the ground and attributed highly inculpatory statements to him. Bryan’s fair trial right demanded that the jury be told that Abdulle’s evidence in this regard had to be considered in light of her self-interest. [88] In contrast, Bryan’s evidence, while exculpatory, did not expressly implicate anyone else. Indeed, Bryan’s evidence about the conduct of others was vague. He was at pains to avoid saying anything about anyone else who may have been at the scene, using vague expressions like a “mixture” of people, without pointing to anyone in particular. As noted above, Abdulle put herself in the “mixture” and there was no debate concerning her presence. [89] Following Doherty J.A.’s suggestion in Oliver , the trial judge had a thorough discussion with counsel concerning the need for a special instruction after it was raised by Egal’s counsel. The decision not to provide a caution with respect to Bryan’s testimony fell well within his discretion. [90] Again following the advice of Doherty J.A., the trial judge informed the jury that the instruction did not apply “when you are considering Ms. Abdulle’s evidence about her own alleged involvement.” The Oliver instruction was given shortly after the judge had instructed the jury on reasonable doubt and the presumption of innocence and gave a full W.(D.) instruction with respect to each accused. The jury would have understood that, in assessing Abdulle’s evidence in relation to herself, they were required to acquit if her evidence alone, or in combination with other evidence, left them with reasonable doubt. [91] Finally, I do not accept that the closing submissions of Bryan’s counsel required that an Oliver instruction be given in relation to Bryan’s evidence. The jury was instructed that the submissions of counsel are not evidence. [92] In summary, considering Abdulle’s clear and powerful evidence against Bryan, an Oliver instruction was necessary to protect his fair trial rights and did not prejudice Abdulle’s rights. A similar instruction was not required in Bryan’s case. In fact, such an instruction would have been highly prejudicial in light of the substance of Bryan’s evidence. D. Did the trial judge err in his ruling on the cross-examination of Abdi concerning a knife, and in his refusal to grant a mistrial? [93] After leaving 101 Kendleton, some, and possibly all, of the accused went to the home of Jama’s mother, Khadra Abdi. Abdi later gave three statements to police, the second of which appeared to suggest that Egal had been in possession of a knife while at her home. Although English is not Abdi’s first language, only one of the statements – the last – was made with the assistance of an interpreter. [94] Abdi’s first statement was given on February 28, 2014, and described the events that took place at her home on February 12, 2014. She made no mention of seeing anyone with a knife. [95] Abdi gave a second statement on March 5, 2014, during the photo lineup. The statement was recorded. She identified Egal, whom she had known ever since he was a child, as one of the men who came to her house. She said something that sounded like, “he’s coming with a knife and I kick him”. The officer conducting the lineup, who was not one of the investigating officers, did not ask any follow-up questions. [96] The investigating officers then took a third statement on March 10, 2014, this time with an interpreter. Abdi vehemently denied that she had used the word “knife” in her previous statement and said that Egal did not have a knife. [97] Abdi testified at both the preliminary hearing and the trial with the assistance of an interpreter. She made no mention of a knife at the preliminary hearing, nor did the Crown seek to adduce evidence about a knife in her examination-in-chief at trial. [98] However, before the commencement of Abdi’s cross-examination at trial, counsel for Bryan advised the court that he wanted to cross-examine on her use of the word “knife” in her second police statement. He indicated that, depending on her answers, he might seek to have her statement admitted for the truth of its contents pursuant to R. v. B. (K.G.) , [1993] 1 S.C.R. 740. Counsel for Egal opposed this course of action, taking the position that, not only was it unlikely Abdi would adopt her prior statement, the cross-examination would be highly prejudicial because it would leave the jury with the firm impression that Egal had a knife, an impression that could not be mitigated by a cautionary instruction. [99] Having listened to the recording of the statement, the trial judge permitted cross-examination, over the objection of counsel for Egal. He noted that while Abdi struggled with grammar, her statement was not fundamentally unintelligible. [100] In his ruling, the trial judge stated: It would not be unfair to the witness to permit questioning about her assertion of a knife. She may admit that she made the statement; she may deny it, with or without an explanation; she may suggest that she misunderstood or misspoke. We just do not know at this point. I accept that some prejudice might result from Ms. Abdi’s denial of mentioning a knife or perhaps changing her position on this issue, however, the use of a knife or knives is a critical feature of the case against all four accused persons. It is open to [counsel for Bryan] in the defence of his client, to test the proposition that Mr. Egal had a knife that night. To prohibit him from doing so would be more prejudicial than letting it play out and then providing a cautionary jury instruction, if required. This approach is not without the risk of prejudice to Mr. Bryan, in that if Mr. Egal was handling a knife in a manner such that Ms. Abdi could see it, presumably in the presence of some or all of the other co-accused, it may end up providing some evidence of prior knowledge of the knife on the part of the others, including Mr. Bryan. But that is not a factor that ought to prevent me from ruling as I have on this matter. As I have said, depending on what Ms. Abdi says, if it becomes necessary, I will provide a cautionary instruction concerning what use, if any, can be made of the prior statement that [counsel for Bryan] wishes to impute to her. [101] During cross-examination of Abdi, Egal’s counsel showed her portions of her second statement. She stated that she had not seen a knife and that she did not mean to say that she saw a knife. On cross-examination by Bryan’s counsel, she categorically denied the suggestion that she had said “knife” and that Egal had arrived at her house with a knife. She attributed the misunderstanding to her limited fluency in English and the absence of an interpreter when she gave the statement. [102] At the end of Abdi’s cross-examination, counsel for Bryan sought to have her statement about the knife introduced for the truth of its contents pursuant to B. (K.G.) . The trial judge dismissed the application, noting that the statement had been made without the benefit of an interpreter and that this fatally undermined its reliability. As well, the prejudicial effect of the statement was extremely high for all the accused, but particularly for Egal. There was a real risk that the jury would use the statement improperly. He observed that the jury would be instructed twice that the statement had not been adopted by the witness, once during the trial and again in his charge concerning the use of a prior allegedly inconsistent statement. [103] The trial judge accordingly gave a mid-trial limiting instruction on the use of the statement, telling the jury that it was up to them to determine whether Abdi referred to a knife. If they found that she did, they could use the evidence to assess her credibility. However, it could not be used as evidence that she saw a knife. [104] Despite all this, counsel for Bryan referred to the “knife” statement in his jury address. He pointed out that the jury could only use the statement to assess her credibility. He went on, however, to say this: And I’m going to suggest to you that she clearly does use the word “knife” in her statement on March 5th. I’m suggesting that she let the truth slip out when she said that. She may have been reluctant to say it. She may have wanted to be truthful, but I’m suggesting to you that she let the truth slip out and she said the word “knife.” [105] This resulted in an application for a mistrial by all three appellants, which the trial judge dismissed. He pointed out that, in a multi-accused trial, the balancing of the fair trial rights of one accused may result in the admission of evidence that is prejudicial to a co-accused. [106] In the context of this case, he said, it was in Bryan’s interest to put a knife in Egal’s hand shortly after Maclean’s death. Bryan’s counsel had a good faith basis on which to vigorously pursue that issue in cross-examining Abdi: “There was nothing improper in his suggestion to Ms. Abdi that she ‘let the truth slip out’ when she mentioned a knife”, as it was “part of Mr. Bayliss' theory that Ms. Abdi changed her story out of fear of, or loyalty to, Mr. Egal, and perhaps the others.” [107] The trial judge also found that Bryan’s lawyer’s comment to the jury did not compromise the fairness of the trial and could be addressed by a jury instruction: Mr. Bayliss’ use of the expression “let the truth slip out” during his jury address presented certain challenges, especially given the important distinction the jury was ultimately asked to draw. However, he was entitled to attempt to persuade the jury that Ms. Abdi mentioned a knife and that her about-face undermined her overall credibility. In all of the circumstances, Mr. Bayliss’ jury address did not compromise the fairness of the trial for the others. It did not contain the type of highly inflammatory and prejudicial rhetoric from counsel for a co-accused that might warrant a mistrial if left unchecked. The impugned aspect of the address was restricted to a single piece of evidence. It was capable of remediation with a straightforward and commonplace instruction in the final charge. I was satisfied that the jury would be able to understand the limited use that could be made of Ms. Abdi's evidence on this issue. [Internal citations omitted.] [108] The trial judge then cautioned the jury about the use of the statement, warning them that it could not be used as evidence, but only to assess Abdi’s credibility: There are a couple of special instructions. One applies to Ms. Abdi, Ms. Jama's mother. When she testified, it was suggested to her that in one of her police statements she said that she saw a knife the evening of February 12, 2014, when Ms. Jama, Ms. Abdulle and Mr. Egal came to her house. It will be up to you to determine whether in her statement of March 5, 2014, she used the word “knife.” After considering her evidence, in the context of all of the evidence at trial, you may find that she did refer to a knife. You may find that she did not. You may be unsure. If you do find that she said this on a previous occasion, you may use this apparent inconsistency with her trial evidence in assessing the value or worth of her evidence. However, and this is extremely important, if you do find that she referred to a knife in her previous statement, you must not treat it as substantive or positive evidence that Mr. Egal did have a knife that night. That is, if you find it was said, you must limit the use of that utterance to merely assessing Ms. Abdi's credibility. Nothing more. It was suggested to Ms. Abdi in cross-examination, and it came up in one of the closing addresses, that Ms. Abdi let the truth slip out when she mentioned the knife. You must not use or approach this evidence in that way. It cannot be used for its truth, i.e., that there was a knife. Its only potential value is as a prior inconsistent or contradictory statement that may be used to assess her credibility. I give you this warning in the strongest possible terms . [Emphasis added.] [109] On appeal, Egal submits that both the cross-examination of Abdi and Bryan’s counsel’s remark to the jury were highly prejudicial, and that the trial judge erred in refusing to grant a mistrial. He asks for a new trial. [110] For the reasons that follow, I would not give effect to this ground. The trial judge’s ruling correctly recognized Bryan’s legitimate interest in pursuing Abdi’s statement, and his instruction was sufficient to address any potential prejudice. The decision not to grant a mistrial is entitled to deference. Applicable principles [111] In R. v. Suzack (2000) , 141 C.C.C. (3d) 449 (Ont. C.A.), leave to appeal refused, [2000] S.C.C.A. No. 583, this court observed that, while co-accused are entitled to constitutional protections inherent in the right to a fair trial, the balancing of the respective rights of co-accused in a joint trial does not necessarily mean that each accused is entitled to the same trial they would have received if tried alone. An accused may introduce evidence or make submissions that are prejudicial to a co-accused. Where this occurs, the trial judge must balance the respective rights of the co-accused so as to preserve the overall fairness of the trial: at para. 111. [112] In balancing the rights of co-accused, a trial judge is required to use corrective measures to address any potential prejudice, including final or mid-trial jury instructions or a mistrial. However, a mistrial should only be ordered where such less extreme measures are inadequate. It is a remedy of last resort and should only be ordered where necessary to prevent a miscarriage of justice: R. v. Khan , 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 79-80; R. v. A.G. , 2015 ONCA 159, 124 O.R. (3d) 758, at para. 50. [113] Where the issue of the appropriateness of a mistrial arises, “[t]he decision of whether or not to declare a mistrial falls within the discretion of the judge, who must assess whether there is a real danger that trial fairness has been compromised”: Khan , at para. 79. In making their determination, the trial judge must consider any lesser corrective measures that could remedy the prejudice or irregularity: Khan , at para. 80; A.G. , at para. 50. [114] A trial judge’s decision on a mistrial application is entitled to deference, as “a trial judge is best positioned to assess whether a mistrial is warranted in the circumstances”: A.G. , at para. 52, citing R. c. Lessard (1992), 74 C.C.C. (3d) 552 (Que. C.A.), at p. 563, leave to appeal refused, [1992] S.C.C.A. No. 312. Appellate courts must only interfere with a decision if it is clearly wrong or based on an erroneous principle: A.G. , at para. 51, citing R. v. Chiasson , 2009 ONCA 789, 258 O.A.C. 50, at para. 14. Submissions on appeal [115] Egal submits that the trial judge erred in permitting cross-examination and refusing a mistrial. As there was no reasonable basis to think that Abdi would recant her evidence and admit she used the word “knife”, the proposed cross-examination should have been prevented. Discrediting Abdi did not advance Bryan’s case and substantially undermined Egal’s defence. Counsel’s argument that Abdi “let the truth slip out” was overwhelmingly prejudicial to Egal. [116] In response, the Crown submits that, in a complex multi-party trial such as this, the trial judge’s balancing of the fair trial rights of Bryan, on the one hand, and of Egal on the other, is entitled to deference, as is the trial judge’s refusal to grant a mistrial. Analysis [117] In my view, the trial judge correctly found that it was in Bryan’s interest to establish that Egal had a knife and that there was a good faith basis on which to cross-examine Abdi on her statement. I do not accept that the test is whether there was a reasonable basis to think that Abdi would change her evidence. It was enough to establish that cross-examination had a reasonable possibility of undermining the credibility of her denial. As the trial judge pointed out, it was Bryan’s counsel’s theory that Abdi changed her story out of fear, or perhaps loyalty to Egal, who was a member of her Somali community and whom she had known since he was a child. In contrast, Bryan was not Somali and was a stranger to her. Bryan was entitled to challenge her credibility by suggesting that she was protecting people she knew and to suggest that she said something other than “knife” was incredible. [118] Moreover, as the authorities suggest, an appropriate jury instruction can often assist in balancing competing fair trial interests by instructing the jury on the limits to be applied in using that evidence: Suzack , at para. 114; R. v. Kendall (1987), 35 C.C.C. (3d) 105 (Ont. C.A.), at p. 128. [119] The instruction given by the trial judge on this evidence was thorough, detailed, and expressed “in the strongest possible terms.” It would have left the jury with no doubt as to the appropriate and inappropriate uses of the evidence. In the same instruction, the trial judge dealt with the statement in counsel’s closing, telling the jury that the evidence could not be used to assess the truth of Abdi’s statement, but only to assess her credibility. In my view, these corrective measures struck an appropriate balance and the trial judge’s decision to refuse a mistrial is entitled to deference. I would not give effect to this ground of appeal. E. Did the trial judge err in his instruction concerning Redhead’s prior inconsistent statement? [120] There is a marked difference between Egal’s height (6’1” or 185 cm) and Bryan’s (5’6” or 168 cm). There was also a difference in the clothing they were wearing on the evening of Maclean’s death. Egal was wearing a black, two-tone jacket, with white striping on the sleeves and on the waistband. Bryan wore a jean vest with a white “hoodie” sweatshirt underneath. [121] At the preliminary inquiry, Redhead testified that one of the participants in the attack on Maclean was tall and wore a top with stripes at the wrist. Based on its correlation with Egal’s height and clothing, Redhead’s evidence implicated Egal in the attack. [122] At trial, during Redhead’s examination-in-chief by Crown counsel, she was asked about the clothing the perpetrators were wearing. She said it was dark clothing, but one of the four was wearing “off-white and it had a line on it … on their like the wrist part … It’s like a sweater and then there was a line that … like the sweater, it seems to be like off-white, and then the line was on it but I couldn’t tell you what colour it was, but it would stand out.” She added that it seemed to be a sweater, but she could not say whether the whole sweater was off-white, or just the wrist part. [123] Redhead was then invited by the Crown to refresh her memory using her evidence at the preliminary inquiry. She was asked whether she recalled “whether the person that you described as having something that they had a white or cream coloured wrist area, do you recall anything else they were wearing?” She replied, “Um-m, not really, no.” When asked whether she recalled the height of that person, she replied, “I think they were shorter.” This evidence regarding height, which was in direct contrast to her testimony at the preliminary inquiry, was important to both Egal and Bryan, as it implicated Bryan, not Egal, in the attack. [124] In cross-examination by counsel for Egal, Redhead confirmed her description given in examination-in-chief that one of the perpetrators was a “shorter” person, with a “stripe on their wrist or sleeve” and wearing a “sweater”. This description implicated Bryan. [125] In cross-examination by counsel for Bryan, Redhead was directed to her preliminary inquiry testimony, where she had said that it was the taller person wearing the off-white garment. The key portion of the exchange was as follows: Q. Right. When you gave your – your evidence, you said the shorter one, correct? A. Yes. Q. And then you – at the preliminary hearing you said the taller one, right? A. Well, I believe that’s what’s on the transcript. Q. Right. Well, would you agree that when you gave your evidence at the preliminary hearing a year and a half ago, things were fresher in your mind? Would you agree with that? A. I would think so, yes. Q. Pardon? A. Yes. Q. Okay. And obviously you were under oath and you were trying to tell the truth? A. Yes. Q. And when you testified about this at the preliminary hearing, you said that it was the taller person. Is that correct? A. Yes. [126] It is noteworthy that, although Redhead conceded that she had been trying to tell the truth and the statement about the taller person was “on the transcript”, she did not expressly acknowledge that her evidence at the preliminary hearing was true. Nor was she asked whether her memory had been refreshed by her evidence at the preliminary hearing or whether she adopted that evidence at trial. No party found it necessary to clarify her answer. [127] In his instructions on the law, a copy of which was provided to the jury, the trial judge explained how to address prior inconsistent statements of a non-accused witness. He explained that if the jury found that a witness had given an earlier and different version about the same thing, they were to consider the differences between the versions in determining whether or how much they could believe of or rely on the witness’ testimony in deciding the case. He also explained that the jury must not use the earlier statements as evidence of what actually happened, unless they were satisfied that the witness accepted the earlier version as true, in testifying at trial. [128] In his review of the evidence in the charge, which was not given to the jury in written form, the trial judge summarized Redhead’s evidence on the issue as follows: In cross-examination by [counsel for Bryan], Ms. Redhead agreed that she only heard two female voices that night, and no male voices. The first one sounded Somali. She was unsure of the second. She also said that the “shorter one” had a sweater and she described it in the following way, “It looks like it was cream and then there was a stripe around the wrist part.” When asked about the colour of the stripes, she said, “I couldn’t tell what colour it was, but it stood out, so it had to be. It was a colour different to the off white.” However, after having an opportunity to review her preliminary inquiry evidence, she agreed that she testified that it was the tall man who wore this. During her examination in chief she said it was the shorter man. She agreed that when she gave her evidence at the preliminary inquiry about the tall man, things were fresher in her mind and she was telling the truth, but she did not formally adopt that evidence from the preliminary inquiry .” [Emphasis added.] [129] On November 30, 2016, during deliberations, the jury asked a question: In the preliminary hearing Ms. Redhead said that the tall person had the striped area around the wrists; however, on the witness stand she indicated that the shorter person was the one with the stripe at the wrists. Would it be possible to listen to [counsel for Bryan’s] cross-examination to obtain which version of the above she accepted[?] [130] The judge heard submissions from counsel concerning the appropriate answer to the question. Not surprisingly, counsel for Bryan and counsel for Egal took different positions. Bryan’s counsel argued that Redhead had said that her evidence at the preliminary inquiry was true, even though she was not expressly asked whether she had adopted the evidence. The issue should be left for the jury. Counsel for Egal, on the other hand, said that the trial judge had already instructed the jury that Redhead did not formally adopt the evidence and the jury should be expressly instructed that she had not adopted it. The Crown took the position that the decision on whether she had adopted her earlier testimony should be left to the jury. [131] The judge decided to replay the portion of Redhead’s evidence requested by the jury, and to repeat his summary of the evidence in which he stated that Redhead had not formally adopted the portion of her evidence from the preliminary hearing. [132] In the meantime, the jury delivered a request to hear additional portions of Redhead’s evidence. It was decided to respond to their first question, and then to hear submissions from counsel on the second. [133] The trial judge replayed to the jury the evidence they had requested concerning Redhead’s cross-examination by counsel for Bryan. He then repeated the earlier instruction concerning prior inconsistent statements of non-accused witnesses. He also reminded the jury: I also gave you a summary of Ms. Redhead’s evidence on that point yesterday, in my overall overview of the facts. I’m not going to repeat that for you now, but I’ll just remind you that at the very end of that summary, of what you just heard now, I said that she did not formally adopt that evidence about the tall man from the preliminary inquiry . [Emphasis added.] [134] After this instruction, there were further discussions between the trial judge and counsel concerning the jury’s second question. It was agreed to replay for the jury the portions of Redhead’s evidence-in-chief concerning the clothing worn by the assailants, as well as her cross-examination on that issue by counsel for Egal and Bryan. This included the portion of her cross-examination by counsel for Bryan that had been read in answer to the first question. [135] On appeal, Egal submits that the trial judge erred by failing to instruct the jury that Redhead had not adopted her prior inconsistent statement. He asserts that the jury instruction left this determination open to the jury, despite the absence of an evidentiary basis to support a finding of adoption. Applicable principles [136] A witness adopts a prior inconsistent statement where they testify that they made the prior statement, and that, based on their present memory, the prior statement is true: R. v. Toten (1993), 14 O.R. (3d) 225 (C.A.), at p. 243. A witness may adopt none, part, or all of a prior statement by words, action, conduct, or demeanour while testifying: Toten , at p. 243; R. v. J.B. , 2019 ONCA 591, 378 C.C.C. (3d) 302, at para. 31. Where a prior statement is adopted, it is incorporated into the witness’ evidence at trial such that the prior statement is to be considered part of their trial testimony and can be used as evidence to prove the truth of its contents: Toten , at p. 243; R. v. McCarroll , 2008 ONCA 715, 238 C.C.C. (3d) 404, at para. 39. [137] The decision as to whether or not a witness has adopted all or part of a prior inconsistent statement must be made by the trier of fact. However, before this determination can be put to the trier of fact, the trial judge must be satisfied that there is an evidentiary basis upon which the trier of fact could conclude that the witness did, in fact, adopt the statement: McCarroll , at para. 40. In determining whether such an evidentiary basis exists, the trial judge must be alive to whether the witness had a present recollection of the details contained within the prior statement. Where a witness does not have a present recollection of the content of their prior statement, an evidentiary basis will not exist: McCarroll , at paras. 38, 42; R. v. Alvarez-Maggiani , 2018 ONSC 4834, at paras. 29-30. This means that the mere acknowledgement by the witness that the prior statement was made or that questions were asked and answered is not sufficient to establish an evidentiary basis: David Watt, Watt’s Manual of Criminal Evidence (Toronto: Carswell, 2019), at p. 250, § 19.07, citing R. v. Atikian (1990), 1 O.R. (3d) 263 (C.A.). Rather, what is necessary is evidence that could establish both that the witness made the prior statement, and that they had a present recollection of the contents of the statement such that they could accept it as true while testifying. [138] However, regardless of the circumstances, where a prior inconsistent statement is at issue, the trial judge must instruct the jury that a prior inconsistent statement is not evidence of the truth of its contents, except where they find that it has been adopted as true by the witness. If not adopted, a prior inconsistent statement can only be used to assess the credibility of the witness: R. v. G.H. , 2020 ONCA 1, at paras. 32, 35-36; R. v. Bevan , [1993] 2 S.C.R. 599, at p. 618. Submissions on appeal [139] Egal submits that the trial judge left to the jury the question of whether Redhead had adopted her evidence at the preliminary inquiry. He submits this was an error, because there was an insufficient evidentiary basis on which to do so. According to Egal, three factors indicate the absence of adoption. First, at no time were the relevant portions of her prior statement read out to her – this made it unclear exactly how she had expressed herself at the preliminary inquiry. Second, it was not clear at trial that she continued to assert the truth of her previous statement. And third, the cross-examiner failed to ask the ultimate question, namely, whether her prior statement was true. The trial judge should have exercised his gatekeeping function by instructing the jury that Redhead had not adopted her earlier statement. [140] Egal also submits that the trial judge’s response to the jury’s question was confusing and conflicted with his original instruction, as the first part of the answer (the general instruction on prior inconsistent statements) seemed to leave the question of adoption open to the jury, while the second part (the specific instruction regarding whether Redhead adopted her prior statement) seemed to direct them that Redhead had not adopted her prior statement. He submits that this confusion opened the door wider to an erroneous conclusion by the jury that Redhead had adopted her prior inconsistent statement that the “taller” man with the stripe on his sleeve had been at the scene. [141] The Crown responds that the trial judge did not leave adoption with the jury. While he gave a general instruction that it is the role of the jury to determine whether prior inconsistent statements have been adopted, he later stated that Redhead had not adopted her prior inconsistent statement. This statement was correct, as there was no evidentiary basis to support a finding of adoption. Redhead was never asked to confirm that her prior statement was accurate, and her evidence at trial conflicted with the statement. The record was clear that Redhead had not adopted her statement and there was no plausible risk that the jury would mistakenly find otherwise. The trial judge addressed the jury’s question appropriately by playing back the requested portion of Redhead’s evidence, repeating the instruction he had given concerning the proper approach to that evidence, and repeating his observation that Redhead had not formally adopted her statement from the preliminary inquiry. There was no error. Analysis [142] I would not give effect to this ground. [143] By the end of this trial, the jury had been instructed three times – each time accurately and plainly – on the appropriate use of prior inconsistent statements of a non-accused witness. The first occasion was the mid-trial instruction on the use of the alleged prior statement by Abdi concerning Egal having a knife. The second was during the charge itself, and the third was when the jury was re-charged following their question. [144] On the first occasion, the judge instructed the jury that if they found the witness had given an earlier different version of the event, “you should consider the fact, nature and extent of any differences between the versions in deciding whether or how much you will believe or rely upon the witness’s testimony in deciding this case.” He continued with the standard instruction: Most importantly you must not use the earlier statements as evidence of what actually happened unless you’re satisfied that the witness accepted the earlier version as true while testifying here at trial. Even if a witness accepts the earlier version as true when testifying before you, it’s for you to say, as it is with the evidence of any witness, whether or how much you will believe of and rely upon that statement he or she accepted as true, in reaching your decision. [145] The trial judge noted that the instruction applied generally to any witness confronted with a prior statement and he noted that the jury might find that previous witnesses, notably Redhead and Elmi, had made prior inconsistent statements. In addition to the statement at issue on this appeal, Redhead had also been cross-examined in relation to two other inconsistent statements made at her preliminary inquiry. Unlike the statement at issue, however, both those statements had a basis on which the jury could have concluded that they had been adopted. [146] In his charge to the jury, the trial judge gave a substantially identical instruction. In his review of the evidence, he instructed the jury that Redhead did not “formally” adopt her evidence from the preliminary inquiry that the taller man wore a sweater with stripes on the sleeves. Counsel for Egal did not object to the instruction, either before or after the charge. [147] Rather, even after the jury’s question, and in the face of counsel for the Crown, Bryan, and Jama asking that adoption be left to the jury, counsel for Egal asked the trial judge to reiterate his instruction that Redhead had not formally adopted the statement. The trial judge did so in his re-charge, reminding them that in her evidence at trial, Redhead “did not formally adopt that evidence about the tall man from the preliminary inquiry.” [148] I reject the submission made on behalf of Egal that the jury would have been confused by the language of the trial judge’s response to their question, or that the response was in conflict with the original instruction. While there were very slight differences in phraseology, both were clear that Redhead had not adopted her earlier evidence. [149] The trial judge’s discussions with counsel concerning the jury’s questions also make it clear that he did not intend to leave adoption to the jury. After the answer to the jury’s first question had been provided, Bryan’s counsel asked the trial judge to instruct the jury that his instruction had simply been his view of the evidence, as opposed to a direction, and that they could find that Redhead had adopted the statement. The trial judge replied that the jury did not have a choice about whether Redhead had adopted the statement, that he did not think Redhead had adopted it, and that he was not going to change his instruction. [150] In my view, in light of the instruction that Redhead had not “formally adopted” her evidence from the preliminary inquiry, and having regard to Redhead’s response when the statement was put to her in cross-examination (which the jury heard three times), there was no risk that the jury would find that Redhead adopted the statement put to her by counsel for Bryan. [151] I acknowledge that use of the word “formally” was unnecessary, and it would have been preferable for the trial judge to have simply instructed the jury that they could not find the statement had been adopted. In my view, however, the instruction could only have been understood by the jury to mean that Redhead did not “accept” her evidence at the preliminary inquiry, to use the language of their question, and that they could not use the prior statement for its truth, but simply to assess Redhead’s credibility. [152] I would not, therefore, give effect to this ground of appeal. F. Was the verdict unreasonable as it pertained to Jama? [153] At the close of the Crown’s case, Egal and Jama brought an application for a directed verdict. The trial judge dismissed the motion with reasons to follow, subsequently reported as R. v. Jama , 2017 ONSC 471. [154] After reviewing the factual background and applicable principles, the trial judge set out the evidence on which a jury could infer that each of Egal and Jama were participants in the concerted deadly attack on Maclean. In the case of Jama, this included: · she entered the building with the other three accused just after 7:00 p.m. on February 12, 2014; · she was shown on security footage moments before the attack on Maclean; · she fit the descriptions of one of the female attackers given by both Redhead and Elmi; · after the incident, Jama left the scene and went to her mother’s home, where she left a pair of her shoes, soaked with Maclean’s blood, in the hall closet; and · her DNA was found under Maclean’s fingernails, indicative of her participation at an earlier stage of the events and consistent with Redhead’s evidence about four people attacking Maclean. [155] The trial judge noted that this evidence, together with evidence that there was outdoor lighting in the vicinity of the fatal attack, left it open to the jury to find that Jama could easily have observed Maclean’s massive loss of blood, and that she either inflicted the injuries or was a knowing participant in the concerted attack that caused those injuries. At para. 33, the trial judge observed with respect to both Egal and Jama: Given the condition that Mr. Maclean must have been in at the time, with blood everywhere around him, it would not be difficult for the jury to conclude that those [who] were attacking this prone man at that time wanted him dead. [156] On appeal, Jama claimed that the verdict was unreasonable, because the evidence did not establish that she was a co-principal. There was no direct evidence that she had a prior intention to kill or that she meant to cause Maclean such egregious bodily harm that she knew was likely to kill him and was reckless whether he died or not. [157] I do not agree. As identified by the trial judge, it was clearly open to the jury to find, on the evidence, that Jama was a co-principal in the attack on Maclean and that she had the requisite murderous intent. G. The sentence appeal [158] Abdulle was 19 years old at the time of the offence. She was a grade 12 student with no criminal record. She has a loving and supportive family and many letters were filed in her support. Her trial counsel argued that she had been making progress while in custody and emphasized the role of alcohol on her behaviour on the evening in question. He submitted that she should receive the minimum 10-year period of parole ineligibility. [159] The Crown argued that, due to the brutality of the crime, the parole ineligibility period should be increased to something in the range of 15 years. Pursuant to s. 745.2 of the Code , four jurors recommended that she receive the minimum 10-year period of ineligibility; the recommendations of the remaining jurors ranged from 12 (2), 13 (3), 15 (2), and 20 years (1). The trial judge noted that the jury’s recommendation regarding Abdulle were “probably marginally the harshest of the collective recommendations of the jurors.” [160] In sentencing Abdulle, the trial judge described the attack on Maclean as “brutal” and “dreadful and cowardly.” He noted that the appellants left the area after the attack and “partied on into the night”, even after learning that he had died. As I have noted, the trial judge found as a fact that, given the brutality of the attack and the “appalling loss of blood”, all three appellants either used a knife or were aware that at least one of the others was using a knife, and that all had the required intent for murder as stipulated in s. 229(a) of the Criminal Code . He observed the “devastating” impact of the offence on Maclean’s family. He also referred to Abdulle’s support from family and friends, the absence of a criminal record, and a letter from a former teacher who reported that Abdulle was “remorseful” and “contrite” for what she had done. [161] In considering the appropriate period of parole ineligibility, the trial judge referred to what he accurately described as the leading case, R. v. Shropshire , [1995] 4 S.C.R. 227, and to the decision of this court in R. v. Salah , 2015 ONCA 23, 319 C.C.C. (3d) 373. He also noted that the majority of the jurors had recommended that Abdulle serve more than the minimum period before becoming eligible for parole. [162] He concluded that, notwithstanding her youth and family support, which demonstrated that her actions were out of character and that she had rehabilitative potential, a denunciatory sentence was required, both for her own sake and to deter others. He therefore imposed a 12-year parole ineligibility period. [163] On appeal, Abdulle submits that the trial judge erred in principle by failing to impose the minimum 10-year ineligibility period. She seeks to introduce fresh evidence to establish that, at the time of the offence, she had mental health issues and was “self-medicating” with alcohol. She argues that, in light of this evidence, the minimum eligibility period is warranted. [164] As will be outlined below, I would not interfere with the sentence imposed. The fresh evidence does not reduce the appellant’s moral culpability and the trial judge’s assessment is entitled to deference. Applicable principles [165] Section 235(1) of the Code calls for a mandatory sentence of life imprisonment in the case of first- and second-degree murder. Section 745(c) provides that, subject to s. 745.1 (which deals with persons under the age of 18 at the time of the offence), the sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be, in respect of a person convicted of second-degree murder, for life without eligibility for parole until the person has served at least 10 years of the sentence or such greater number of years, not being more than 25 years, as has been substituted pursuant to s. 745.4. [166] Under s. 745.2, where a jury finds an accused guilty of second-degree murder, the presiding judge is required to ask the jury whether they wish to make any recommendation with respect to parole ineligibility. The judge must instruct the jury, using the language set out in the Code , that, while they are not required to make a recommendation, if they do, it will be considered by the judge when determining the appropriate period of ineligibility pursuant to s. 745.4. The jury is not required to be unanimous in its opinion and each member of the jury may make their own recommendation. [167] Section 745.4 provides that, at the time of sentencing, the sentencing judge may, “having regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendations, if any” of the jury, substitute a period of ineligibility of more than 10 years and not more than 25, “as the judge deems fit in the circumstances.” [168] Shropshire is the leading case. Iacobucci J., writing for a unanimous court, emphasized that the determination of parole ineligibility is a fact-sensitive process, which must have regard to the factors set out in the Code and to the discretion conferred on the judge by that section (now s. 745.4): at para. 18. He rejected the standard articulated by the Court of Appeal for British Columbia that a period of parole ineligibility of more than 10 years would not be justified in the absence of “unusual circumstances”: at para. 26. Rather, he held that, as a “general rule”, the sentencing judge shall impose a period of 10 years, unless a determination is made that, according to the criteria in s. 745.4, a longer period is required: at para. 27. In other words, the correct approach is to “view the 10-year period as a minimum contingent on what the ‘judge deems fit in the circumstances’, the content of this ‘fitness’ being informed by the criteria” in the Code : at para. 31. He added that, “the power to extend the period of parole ineligibility need not be sparingly used”: at para. 31. [169] As to the power of appellate courts to interfere with the period of parole ineligibility imposed, Iacobucci J. expressed a highly deferential standard of review. He said, at para. 46, that: An appellate court should not be given free reign to modify a sentencing order simply because it feels that a different order ought to have been made. The formulation of a sentencing order is a profoundly subjective process; the trial judge has the advantage of having seen and heard all of the witnesses whereas the appellate court can only base itself upon a written record. A variation in the sentence should only be made if the court of appeal is convinced it is not fit. That is to say, that it has found the sentence to be clearly unreasonable. Submissions on appeal [170] Abdulle advances two primary arguments. First, she submits that, having instructed the jury that they did not have to find that any accused used a knife or were aware of a knife, the judge erred in making a finding that each participant either had a knife or was aware that a knife was being used. Second, she submits that the fresh evidence concerning her mental condition, which she seeks to introduce on appeal, is sufficient to distinguish her from the other appellants and to establish that the minimum period of parole ineligibility is warranted. As a result of the fresh evidence, she says, the court can recognize that the appellant was mentally ill at the time of the attack and was “self-medicating” with alcohol. [171] The fresh evidence is in the form of two psychological reports. The first report dated August 3, 2018, more than a year after Abdulle’s sentencing, was prepared by a psychologist, on behalf of Correctional Service of Canada and the Joliette Institution for Women, where Abdulle was incarcerated. The second is a “Psychological Evaluation Report” submitted to the Correctional Service of Canada. Among other things, it makes recommendations for treatment following a deterioration in her mental state. [172] The reports indicate that Abdulle began to serve her sentence at the Joliette Institution for Women on April 20, 2017. On April 16, 2018, she was transferred to the mental health unit for women offenders at the Institut national de psychiatrie légale Philippe-Pinel at the Université de Montréal (“IPPM”) for reassessment, stabilization, and treatment following a deterioration in her psychological state. The latter report indicates that she had a personality disorder, a depressive disorder, and a substance abuse disorder in a controlled environment. [173] The former report, which was prepared following her transfer to IPPM, indicates that she had worked with staff, took part in group work, and been compliant with her treatment and medication, as well as with the rules and regulations of IPPM. It observed that her mental health needs would not interfere with her ability to adapt to a transfer to a medium security facility, which might be more supportive of her needs. [174] Abdulle argues that the evidence establishes that, akin to the circumstances in R. v. Stiers , 2010 ONCA 656, 268 O.A.C. 58, leave to appeal refused, [2011] S.C.C.A. No. 150, there “was a clear link between [her] criminal behaviour and [her] abuse of alcohol”: at para. 5. She submits that, just as a 10-year ineligibility period was imposed in that case, the same should be done here. [175] In response to the appellant’s first argument, the Crown submits that while the jury was not required to find that Abdulle had knowledge of the use of a knife in order to convict her of second-degree murder, the trial judge was entitled to conclude from the nine stab wounds, the heavy bleeding from the femoral artery, and Abdulle’s close proximity to the victim as she attacked him, that she knew that he had been stabbed. He was statutorily entitled to make that finding, it is consistent with the jury’s verdict, and it was reasonable. [176] The Crown also submits that the trial judge took account of all relevant considerations, including the appellant’s rehabilitative potential, on the one hand, and the need for a denunciatory sentence, on the other. It submits that the fresh evidence is not altogether helpful to the appellant, as the reports refer to her continued use of drugs while incarcerated and raise questions as to the veracity of her reporting. Analysis [177] Because Abdulle was convicted of second-degree murder, the trial judge was required to impose the mandatory sentence of life imprisonment under s. 235(1) of the Code . He was also required to consider whether to impose a period of parole ineligibility of more than 10 years, but less than 25 years. In making that determination, he was required to consider the character of the offender, the nature of the offence, the circumstances surrounding the commission of the offence, and the recommendations of the jury. He did all of these things. [178] For the reasons set out in paras. 41-42, above, I do not accept that the trial judge erred in concluding that Abdulle was aware that a knife had been used in the attack. He was entitled to make that finding. [179] With regards to Abdulle’s second argument, Stiers is distinguishable. In that case, a verdict of second-degree murder was imposed by this court on appeal. In determining the sentence, this court held that, in light of Stiers’ progress and rehabilitation over the course of the seven years he had already served in custody, a 10-year parole ineligibility period was more appropriate than the 12-15-year period requested by the Crown. The court noted that he “present[ed] as a very different individual than the 23-year-old man who committed th[e] crime”: at para. 6. [180] The reports tendered as fresh evidence in this appeal were not prepared for the purpose of assisting the court with respect to sentencing or parole eligibility. They were prepared for the purpose of determining the appellant’s security classification and to clarify her psychological diagnosis. More to the point, there is nothing in the reports to demonstrate that, like Stiers, the appellant has turned her life around such that she is not the person she was when the offence was committed. [181] Nor is there any reliable evidence in the reports to support the conclusion that the appellant’s emotional and psychological challenges should be a factor in determining either her culpability or her parole eligibility. Significantly, the IPPM report suggests that she may have exaggerated her symptoms. [182] The trial judge’s assessment of the factors set out in s. 745.4 is entitled to deference. Having sat through a lengthy trial, heard the evidence regarding the nature and circumstances of the offence, watched Abdulle testifying and observed her character, and having heard the submissions on parole ineligibility, he was well-equipped to make this determination and I would not disturb his conclusion. V. disposition [183] For these reasons, I would dismiss the appeal. Released: “GRS”  FEB 12 2020 “George R. Strathy C.J.O.” “I agree. A. Harvison Young J.A.” “I agree. M. Jamal J.A.”

COUR D’APPEL DE L’ONTARIO RÉFÉRENCE: R. c. Alexis, 2020 ONCA 112 DATE: 20200211 DOSSIER: C62286 Les Juges Rouleau, Benotto et Harvison Young ENTRE Sa Majesté la reine intimée et Max Alexis Appelant Max Alexis en personne Vallery Bayly pour l’intimée Date de l’audience : le 7 février 2020 En appel de la condamnation prononcée le 30 octobre 2013 et de la peine imposée le 6 juin 2016 par le juge Robert Smith de la Cour supérieure de justice. INSCRIPTION AU CAHIER D’APPEL [1] L’appelant interjette appel. Il maintient que son avocat ne l’a pas bien représenté au procès. En particulier, 1. l’avocat n’a pas avisé la cour qu’il n’était pas en mesure de subir son procès; 2. l’avocat n’a pas présenté la preuve qu’il était hospitalisé pour une période et n’aurait pas pu participé à la fraude et; 3. l’avocat n’a pas entrepris les enquêtes nécessaires pour présenter une défense aux accusations. [2] Nous rejetons ces moyens d’appel. L’affidavit déposé par l’avocat en réponse à ces allégations adresse chacun de ces points et, à notre avis, démontre qu’il n’y a pas eu négligence de sa part. Selon notre lecture de l’affidavit et notre revu du dossier, l’appelant n’a pas établi que l’affidavit de l’avocat n’est pas digne de foi. Cet affidavit est donc une réponse complète. [3] L’appel est rejeté.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Antwi, 2020 ONCA 101 DATE: 20200210 DOCKET: C65529 Rouleau, Benotto and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Jeffery Antwi Appellant Michael Dineen and Gabriel Catner, for the appellant Scott Wheildon, for the respondent Heard and released orally: February 4, 2020 On appeal from the convictions entered on May 3, 2018 by Justice Nancy J. Spies of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant appeals his conviction for possession of cocaine for the purpose of trafficking and possession of proceeds of crime. [2] Police officers responded to an emergency call about a possible gun shot on the tenth floor of a building. When they arrived at the building, they saw the appellant and a woman emerge from the elevator. Believing the appellant was holding the woman at gunpoint, the officers intercepted and detained the appellant as he was exiting the lobby. [3] Concerned that he had concealed a weapon, the police officers detained the appellant and attempted a pat down search. The appellant stiffened and tried to pull away, in effect, resisting the search. The appellant did not respond to the officer’s enquiry as to whether he in fact had a weapon. [4] The officers, believing that they had grounds to arrest the appellant, arrested him for wilfully obstructing a peace officer. They placed him under arrest and discovered the cocaine and money in the search incident to arrest. [5] The appellant advances two principal grounds of appeal. The first is that the trial judge took the appellant’s refusal to answer police questions as supporting the reasonable basis for his arrest for wilful obstruction of a peace officer in the execution of his duty. This, it is submitted, would constitute an error of law. [6] The second basis for appeal is that there were insufficient objective grounds to arrest the appellant for wilful obstruction of a peace officer in the execution of his duties. [7] The appellant submits that because the court cannot take into account the failure to answer police questions, the only remaining basis for arrest is the appellant’s alleged stiffening and attempt to pull away as the police attempted their pat down search. The video, in the appellant’s submission, does not show any such resistance or attempt to pull away. According to the appellant, by the time the pat down search was conducted, there was no objective basis for the officer’s concern that the appellant may have had a gun. [8] In our view, the appeal should be dismissed. [9] As for the first ground of appeal, the trial judge’s reference to the failure to answer questions is part of the larger context considered by the trial judge in assessing the conduct of the appellant, as described by the officers, specifically that the appellant stiffened and tried to pull away as the officers attempted the pat down search. [10] With respect to the second ground of appeal, the trial judge found that there was active resistance and that the appellant tried to pull away as the officers attempted the pat down search. This pat down search was, in the trial judge’s view, reasonably required for the officers’ safety. She was satisfied that the officer’s actions were reasonable. These are findings of fact that are supported by the evidence of the officers, including the officer’s testimony that he believed that the gun had been hidden on the appellant’s person, the video, and the circumstances surrounding the events, including the 911 call. [11] For these reasons, the appeal is dismissed. “Paul Rouleau J.A.” “M.L. Benotto J.A.” “A. Harvison Young J.A.’

COUR D’APPEL DE L’ONTARIO RÉFÉRENCE: R. c. Arsenault, 2020 ONCA 118 DATE: 20200213 DOSSIER: C64664 et C65416 Les juges Rouleau, Roberts et Harvison Young ENTRE Sa Majesté la Reine Intimée et David Réal Arsenault Appelant Christine Mainville, pour l’appelant Gabriel Poliquin, pour l’intervenant, l’Association des juristes d’expression française de l’Ontario Stéphane Marinier et Jessica Legrand, pour l’intimée Date de l’audience : le 13 novembre 2019 En appel de la condamnation prononcée le 23 juin 2017 et de la peine imposée le 2 novembre 2017 par le juge Robert N. Beaudoin de la Cour supérieure de justice, siégeant avec jury. Le juge Rouleau : A. SURVOL [1] À la suite d’un procès devant juge et jury, l’appelant a été reconnu coupable des infractions de production de la marijuana et de possession de la marijuana en vue d’en faire le trafic, contrairement aux paras. 7(1) et 5(2) de la Loi réglementant certaines drogues et autres substances , L.C. 1996, c. 19. L’appelant a reçu une peine d’emprisonnement de deux ans moins un jour. L’appelant interjette appel de sa condamnation et de sa peine. [2] L’appelant soulève deux moyens d’appel en lien avec l’appel de sa condamnation : 1) Le juge de procès a manqué à son obligation d’assister l’appelant alors qu’il se représentait lui-même et a omis de se prononcer sur la requête constitutionnelle de l’appelant contestant le mandat de perquisition pour sa résidence située au 14 rue Spence; et 2) Le juge de procès a violé les droits linguistiques de l’appelant en l’obligeant de procéder au procès alors qu’il n’avait pas réussi à trouver un avocat pouvant le représenter en français. [3] En ce qui concerne l’appel de sa peine, l’appelant allègue que le juge de procès a erré en pénalisant l’appelant pour avoir exercé son droit à un procès dans la langue de son choix. [4] La Couronne concède que le juge de procès a fait erreur en ce qu’il ne s’est pas prononcé sur la requête de l’appelant contestant le mandat de perquisition pour le 14 rue Spence et, dans le traitement de cette question, a manqué à son obligation d’assister l’appelant. La requête contestant le mandat de perquisition avait été ajournée quelque temps avant que le juge de procès soit saisi du dossier. L’appelant a tenté de soulever la question et le juge de procès a conclu par erreur que la requête avait été abandonnée et qu’il était trop tard pour tenter de la raviver. Il en découle une erreur judiciaire suffisamment grave pour justifier la tenue d’un nouveau procès. Lors du nouveau procès, la Couronne s’engage à demander un arrêt des procédures en vertu du para. 579(1) du Code criminel , L.R.C. 1985, c. C-46 . [5] La Couronne et l’appelant sont d’accord qu’il n’est plus nécessaire pour cette cour de traiter l’appel de la peine. B. Le caractère théorique de l’appel [6] La Couronne maintient qu’en raison de sa concession et de son engagement de demander un arrêt des procédures, le deuxième moyen d’appel est devenu théorique et que cette cour ne devrait donc pas le traiter. [7] Pour sa part, l’appelant affirme que l’appel n’est pas théorique, car « la poursuite n’est pas encore éteinte. » Selon l’appelant, « une ordonnance de nouveau procès et l’engagement de la Couronne de demander un arrêt des procédures au moment de ce nouveau procès n’est pas l’équivalent d’un arrêt des procédures judiciaire ». De plus, l’appelant plaide que, même si la question était devenue théorique suite à la concession de la Couronne, la cour devrait exercer sa discrétion en faveur de l’audition de l’appel sur la question de la violation des droits linguistiques. Cette question étant d’importance à la communauté francophone en situation minoritaire. [8] La cour a choisi d’entendre l’appel sur la question des droits linguistiques, que l’appel soit théorique ou non. En premier lieu, l’appelant demandait un arrêt des procédures ordonné par la cour plutôt qu’un arrêt des procédures en vertu du para. 579(1) du Code criminel . De plus, l’Association des juristes d’expression française de l’Ontario (« AJEFO ») s’est fait accorder la permission d’intervenir sur la question des droits linguistiques sur consentement de la Couronne. Ces interventions, ainsi que celles des parties, font en sorte que la cour bénéficie d’observations contradictoires, la question linguistique, si établie, pourrait potentiellement outrepasser les limites du présent litige et il n’y a pas de risque d’empiétement sur le rôle du législateur : voir Borowski c. Canada (Procureur général) , [1989] 1 R.C.S. 342, aux pp. 358-63; Ontario (Provincial Police) v. Mosher , 2015 ONCA 722, 330 C.C.C. (3 e ) 149, aux paras. 32-36. C. La nouvelle preuve [9] L’appelant demande de faire admettre de la nouvelle preuve pour tenter de démontrer qu’il avait déployé des efforts raisonnables pour embaucher un avocat d’expression française et que le refus de lui accorder un ajournement a violé ses droits linguistiques. [10] Comme la nouvelle preuve porte sur l’équité du procès, je l’admettrais conformément aux affaires R. v. W. (W.) (1995), 100 C.C.C. (3 e ) 225 (C.A. Ont.) et R. v. Joanisse (1995), 102 C.C.C. (3 e ) 35 (C.A. Ont.), autorisation de pourvoi refusée, [1996] S.C.C.A. No. 347. Voir aussi R. v. Wood (2005), 196 C.C.C. (3 e ) 155 (C.A. Ont.), au para. 7. Toutefois, tel que j’expliquerai plus loin, je n’accorderais aucun poids à la nouvelle preuve présentée par l’appelant, car elle n’est pas digne de foi. D. L’historique du dossier [11] Pour bien comprendre la décision du juge de procès de rejeter la demande d’ajournement de l’appelant, il est important de placer ce rejet dans son contexte. L’historique qui suit donne un aperçu de ce contexte. [12] Le 1 juin 2011, l’appelant est mis en accusation. L’appelant comparaît 41 fois devant la Cour de justice de l’Ontario entre son audience sur le cautionnement et son renvoi à procès. Ces 41 comparutions se déroulent en anglais, y compris de nombreuses instances où l’appelant se représente lui-même. [13] L’appelant choisit ensuite de subir son procès en Cour supérieure de justice avec jury, en anglais. Jusqu’à ce point, l’appelant n’avait pas accès à l’aide juridique et a été représenté, successivement, par trois avocats anglophones différents. [14] Le renvoi à procès suivant son enquête préliminaire a lieu le 5 décembre 2013. [15] Le 24 février 2014, l’appelant compara î t en Cour supérieure. À ce point, il n’a pas d’avocat. Suite à des ajournements accordés le 24 février, le 28 avril et le 26 mai 2014, l’appelant compara î t de nouveau en Cour supérieure le 23 juin 2014. Le 23 juin 2014, Me Scullion devient l’avocate commise au dossier de l’appelant. Les procédures continuent de se dérouler en anglais, y compris plusieurs ajournements et une conférence préparatoire au procès. [16] Le 15 décembre 2014, Me Scullion informe la cour que l’appelant désire changer le mode de procès à un procès devant juge seul. À la suite de quelques autres comparutions, une date pour les requêtes préliminaires est fixée. [17] Le 17 août 2015, les requêtes préliminaires débutent. Il est décidé de procéder en étapes. En premier lieu, la cour devrait trancher la question préliminaire à savoir si l’appelant a la qualité d’agir pour le mandat général pour le 3696 rue Dawson, la résidence de son frère. Ce n’est qu’après que cette décision soit rendue que la requête concernant le mandat pour la résidence de l’appelant, le 14 rue Spence, devait être entendue. Je rappelle que c’est cet aspect de la requête qui n’a jamais été entendu ni décidé et qui a mené à la concession de la Couronne. [18] Le 10 septembre 2015, la cour rend ses motifs et détermine que l’appelant n’a pas la qualité d’agir pour contester le mandat général pour la résidence située au 3696 rue Dawson. [19] Le 26 octobre 2015, Me Scullion et l’appelant se présentent en cour. Me Scullion est retirée du dossier. [20] C’est le 26 octobre 2015 que l’appelant, pour la première fois, et cela, quelque quatre ans après le début des procédures, exprime qu’il désire avoir un procès en français et embaucher un avocat d’expression française. Au cours du déroulement des procédures ce jour-là, l’appelant avise la cour, faussement [1] , qu’il ne comprend l’anglais qu’un petit peu et qu’il n’est pas vraiment capable de comprendre ce que le juge est en train de lui dire. La cause est donc ajournée. [21] Lors d’une comparution le 9 novembre 2015, l’appelant indique avoir parlé avec une avocate francophone qui devait considérer si elle pouvait le représenter. L’appelant informe la cour qu’il attend la réponse à sa demande d’aide juridique. [22] Le 14 décembre 2015, l’appelant compara î t de nouveau. Il attend encore la réponse de l’aide juridique et avise la cour que, si l’aide juridique lui était refusée, il a l’intention d’embaucher un avocat lui-même. Il n’y a plus mention de l’avocate dont il a fait référence le 9 novembre 2015. [23] Le 25 janvier 2016, Me Kiesman compara î t et avise la cour qu’il représente l’appelant. Il demande que la cause soit ajournée au 22 février 2016 afin de lui permettre le temps de revoir la divulgation. [24] Le 22 février 2016, la cause est de nouveau ajournée pour fixer une date pour une conférence préparatoire. Le 21 mars 2016, Me Kiesman est retiré du dossier et l’appelant renouvelle sa demande pour un procès en français avec un avocat d’expression française. Selon l’appelant, Me Kiesman n’était pas à l’aise de rédiger en français et n’était donc pas en mesure de le représenter dans un procès en français. Me Kiesman voulait que le procès soit bilingue. La cause est ajournée au 25 avril 2016. [25] Suite à trois autres demandes d’ajournement effectuées par l’appelant pour lui permettre d’engager un avocat pour son procès en français, l’appelant compara î t le 4 août 2016. Ce jour-là, sa requête pour un procès en français est accordée et la date du procès est fixée pour le 28 novembre 2016. [26] Le 23 novembre 2016, l’appelant présente une requête Rowbotham et demande de changer, encore une fois, son choix du mode de procès à un procès devant juge et jury. Il maintient qu’il n’avait jamais demandé à son avocate de changer le mode de procès à un procès devant juge seul. [27] Le juge de procès offre d’entendre la requête Rowbotham à une date ultérieure afin de permettre à l’appelant de rassembler plus de documentation pour appuyer sa requête. L’appelant refuse cette offre. La requête Rowbotham est donc rejetée, entre autres, parce que l’appelant n’avait toujours pas fait appel du refus de l’aide juridique. Avec le consentement de la Couronne, le mode de procès est changé à un procès devant juge et jury et la date du 28 novembre 2016 pour le procès est annulée. L’appelant renonce à ses droits en vertu de l’al. 11(b) de la Charte canadienne des droits et libertés. [28] Le 28 novembre 2016, l’appelant comparaît et avise la cour qu’il a l’intention de présenter une requête pour obtenir une copie des transcriptions et qu’il met de l’argent de côté pour embaucher un avocat. La cause est de nouveau ajournée. [29] Le 19 décembre 2016, l’appelant comparaît. Les dates du 8 et 9 mai 2017 sont fixées pour les requêtes préliminaires et la date du 19 juin 2017 est fixée pour le procès qui a une durée estimée de cinq jours. L’appelant avise également de son intention de présenter une requête du type Fisher ainsi qu’une requête Stinchcombe . Ces requêtes n’ont jamais été présentées. [30] Le 23 mars 2017, l’appelant se voit accorder l’aide juridique. [31] Le 8 mai 2017, l’appelant comparaît pour l’audition des requêtes préliminaires. Il demande un ajournement pour tenter de trouver un avocat d’expression française. La Couronne a été avisée de sa demande d’ajournement le matin même. L’appelant se plaint qu’il n’a pas reçu toute la divulgation et qu’aucun avocat qu’il a contacté n’était disposé à le représenter. Il informe la cour que, la semaine précédente, il a contacté un avocat dénommé Jean Jacques Primeau. Celui-ci lui a indiqué qu’il devait s’informer auprès de l’aide juridique pour savoir si ses frais de déplacement seraient remboursés. En r éponse aux questions du juge de procès, l’appelant indique qu’il n’avait pas demandé à Me Primeau s’il était disponible pour un procès débutant le 19 juin 2017. [32] Avant de rejeter la demande d’ajournement de l’appelant, le juge de procès se renseigne sur les démarches entreprises par l’appelant pour tenter de trouver un avocat d’expression française. Il accorde également une pause pour permettre aux parties de s’informer auprès de l’avocat d’aide juridique et du programme d’assistance pour les Autochtones pour voir si un avocat serait disponible pour représenter l’appelant cette journée-là. [33] Au final, le juge de procès rejette la demande d’ajournement de l’appelant en ces termes : La COUR : … Il est trop tard demand[er] un ajournement. Vous avez attendu trop longtemps pour obtenir les services d’un avocat qui pourrait vous servir de, représenter aujourd’hui. Le tribunal est même sans savoir si Monsieur Primeau serait disponible le 19 juin tel que prévu. Donc dans les circonstances je rejette votre demande d’ajournement, des requêtes qui doivent être entendues aujourd’hui. Également je rejette votre demande d’ajourn[ement] que [ sic ] afin que vous puissiez procéder avec une requête dans le genre Stinchcombe, de divulgation. Donc on procède. [34] Au cours d’un échange entre l’appelant et le juge de procès le 8 mai 2017, l’appelant exprime ce qui suit : « [J]’espère que mon autre avocat, quand il va lire les notes de Karen Scullion ce soir tu vas voir exactement de quoi je veux dire ». L’identité de cet « autre avocat » n’est pas connue. Par contre, l’appelant indique à la cour que, ce jour même, il a contacté un avocat dénommé Me Fabris. [35] Le 19 juin 2017, le procès débute. L’appelant comparaît en cour de nouveau sans avocat. Il se plaint de ne pas avoir réussi à trouver un avocat capable de le représenter en français lors du procès et que personne ne l’aurait avisé qu’il pouvait se prévaloir des services d’un avocat anglophone pour un procès en français. Par contre, la transcription démontre que le juge de procès avait bel et bien avisé l’appelant le 23 novembre 2016 qu’il pouvait, s’il le désirait, embaucher un avocat anglophone, et ce, même pour un procès en français. L’appelant indique qu’il n’est pas prêt à subir son procès, mais selon la transcription, ne semble pas avoir fait une demande d’ajournement officielle. Par contre, il appert de l’acte d’accusation que le juge de procès aurait traité les propos de l’appelant comme une demande d’ajournement et l’a rejetée. Le juge de procès exige donc que l’appelant procède au procès sans avocat. [36] À la conclusion du procès, l’appelant est reconnu coupable des deux chefs d’accusation. [37] Le 22 novembre 2017, l’appelant est condamné à une période d’emprisonnement de deux ans moins un jour. Lors du prononcé de la peine, le juge de procès fait référence au fait que l’appelant a abusé du système en demandant continuellement des ajournements pour toutes sortes de raisons différentes, y compris le changement de la langue du procès. E. ANALYSE (1) Le juge de procès n’a pas violé les droits linguistiques de l’accusé [38] Ayant été accordé le droit de subir son procès en français, l’appelant bénéficiait des droits linguistiques qui lui sont conférés par l’art. 530 du Code criminel . Selon l’appelant, les droits conférés par l’art. 530 comprennent le droit de requérir les services d’un avocat dans la langue officielle de son choix. En l’espèce, cela implique que l’appelant avait droit à un avocat capable de plaider et écrire en français. Selon l’appelant, le droit d’être représenté par un avocat pouvant le représenter dans la langue du procès découle également de l’al. 10(b) de la Charte . [39] L’appelant maintient que l’État a une obligation positive de mettre en application les droits linguistiques d’un accusé et que l’art. 530 du Code criminel oblige les tribunaux à veiller à ce que les droits linguistiques d’un accusé soient respectés. Selon lui, le juge de procès a violé ses droits linguistiques en exigeant qu’il procède au procès sans avocat alors qu’il a exprimé ne pas avoir été capable de trouver un avocat d’expression française. [40] L’appelant plaide qu’il a toujours voulu être représenté par un avocat d’expression française, mais qu’il a été incapable d’en trouver un, et cela, malgré des efforts continus. Selon son dire, il n’a pas choisi de se représenter seul et ne cherchait pas à retarder les procédures. [41] L’appelant maintient qu’il a fait preuve de diligence dans sa recherche d’avocat en contactant tous les avocats qui figuraient sur diverses listes fournies par l’aide juridique. Dans sa nouvelle preuve, il dit avoir même contacté des avocats à Montréal. [42] L’appelant demande en réparation un arrêt des procédures ordonné par la cour. Selon l’appelant, un tel arrêt des procédures est justifié étant donn é la violation de ses droits linguistiques et de ses droits conférés par les arts. 7, 10(b) et 11(d) de la Charte . [43] Pour les motifs qui suivent, je suis d’avis que le refus du juge de procès d’accorder l’ajournement demandé par l’appelant était raisonnable dans les circonstances et n’a pas privé l’appelant d’un procès équitable. Le refus du juge de procès ne constituait ni une violation des droits linguistiques de l’appelant ni une violation de ses droits conférés par la Charte. (2) Le juge de procès a bien exercé sa discrétion en re jetant la demande d’ajournement [44] La décision du juge de procès de rejeter la demande d’ajournement présentée par l’appelant est plutôt une question concernant l’exercice de la discrétion du juge de procès et non une question de violation des droits linguistiques. [45] En l’espèce, la preuve étaye que l’appelant n’était pas diligent dans sa recherche d’un avocat et cherchait à retarder son procès. Le fait que le manque de diligence concerne la recherche d’un avocat d’expression française, plutôt qu’un avocat d’expression anglaise, est sans pertinence. Pour que la question soit considérée comme étant une question de droits linguistiques, il aurait fallu que la preuve démontre, tel que l’appelant le suggère, qu’il déployait des efforts raisonnables pour retenir les services d’un avocat et que, parce que l’avocat recherché devait avoir la capacité de plaider en français, le temps qu’il lui a été accordé pour en trouver un n’était pas suffisant ou qu’il n’y avait aucun avocat d’expression française disponible pour accepter le mandat. Tel que je vais expliquer, le dossier n’appuie pas la thèse de l’appelant et la question est plutôt de savoir si le juge de procès a exercé sa discrétion de manière raisonnable. [46] La décision d’un juge de procès d’accueillir une demande d’ajournement dans le but de permettre à un accusé de trouver un avocat est une décision discrétionnaire. Dans l’exercice de sa discrétion, un juge de procès doit concilier à la fois le droit à l’avocat et son devoir de contrôler le processus judiciaire. Voir R. v. Patel , 2018 ONCA 541, au para. 3; R. v. Hazout (2005), 199 C.C.C. (3 e ) 474 (C.A. Ont.), au para. 31, pourvoi de plein droit annulé, 2006 CSC 42, [2006] 2 R.C.S. 42, et autorisations de pourvoi refusées, [2005] S.C.C.A. No. 412 et [2005] S.C.C.A. No. 501. [47] Un juge de procès devrait faire en sorte qu’un accusé qui désire être représenté ait l’occasion raisonnable de trouver un avocat. Par contre, lorsqu’un accusé présente une demande d’ajournement pour lui permettre de trouver un avocat, un juge de procès peut la rejeter si la preuve étaye que l’accusé n’a fait aucun effort raisonnable pour trouver un avocat ou qu’il cherche à retarder son procès. Voir R. v. McGibbon (1988), 45 C.C.C. (3 e ) 334 (C.A. Ont.), à la p. 346; R. v. Bitternose , 2009 SKCA 54, 66 C.R. (6 e ) 260, au para. 28, citant R. v. Beals , 1993 NSCA 215, 126 N.S.R. (2 e ) 130; et R. c. Manhas , [1980] 1 R.C.S. 591, confirmant 32 N.R. 9 (C.A. C.B.). [48] En l’espèce, vu en contexte, le juge de procès a bien exercé sa discrétion en rejetant la demande d’ajournement de l’appelant, et ce, malgré le fait que l’appelant alléguait ne pas avoir été en mesure de trouver un avocat d’expression française. [49] L’historique du dossier, ainsi que les divers échanges que le juge de procès a eus avec l’appelant, étayent qu’il est raisonnable de la part du juge de procès d’avoir conclu que l’appelant n’avait pas agi avec diligence pour retenir les services d’un avocat qui serait en mesure de le représenter en français au cours de son procès et que l’appelant ne cherchait qu’à retarder le déroulement de la cause. Les circonstances suivantes sont particulièrement révélatrices : · Il s’était écoulé six ans entre la date de la mise en accusation de l’appelant et celle de son procès. · L’appelant a été représenté par plusieurs avocats anglophones au cours des procédures, y compris un avocat provenant de Toronto. · De nombreuses demandes d’ajournement ont été accordées, et cela, pour différentes raisons. · L’appelant a changé son mode de procès à plusieurs reprises et blâme ses avocats pour ceci. · L’appelant n’a pas fait appel du refus d’aide juridique dans les délais prévus. Il ne l’a fait qu’après presque un an suivant le refus. · L’appelant a présenté sa requête Rowbotham quelques jours avant la date prévue pour son procès qui, à ce moment, était fixée pour le 28 novembre 2016. Il lui manquait de la documentation à l’appui. Toutefois, il a refusé l’offre du juge de procès de remettre pour quelques jours l’audition de la requête afin de lui permettre de présenter toute la documentation nécessaire. Il n’a pas renouvelé sa requête. · L’appelant s’est plaint qu’un des avocats d’expression française qu’il considérait embaucher demandait trop d’argent (5000 $). · L’appelant n’a pas été honnête avec la cour le 26 octobre 2016 lorsqu’il a indiqué qu’il comprenait mal l’anglais et ne comprenait pas ce que le juge lui disait. · L’appelant a été averti à plusieurs reprises que, s’il n’embauchait pas un avocat, la cause irait quand même de l’avant et qu’il devra se représenter seul. · Le 19 décembre 2016, l’appelant a indiqué son intention de présenter une requête du type Fisher , mais ne l’a jamais fait. · L’appelant a seulement avisé la Couronne qu’il allait faire une demande d’ajournement le 8 mai 2017 à 9 h 45 le matin que les requêtes préliminaires devaient être entendues. · L’appelant a contacté Me Primeau la semaine avant les dates prévues pour l’audition des requêtes préliminaires et ne lui a jamais demandé s’il était disponible pour son procès prévu la semaine du 19 juin 2017. · L’appelant n’a pas été honnête avec le juge de procès lorsqu’il lui a dit que personne ne l’avait avisé qu’il pouvait engager un avocat anglophone pour un procès en français. [50] Il est clair que le juge de procès n’a pas cru l’appelant lorsque celui-ci affirmait qu’il avait déployé maints efforts pour retenir les services d’un avocat qui pouvait écrire et plaider en français, mais que ses efforts n’ont tout simplement pas porté fruit. En effet, autre que les affirmations de l’appelant, il y avait peu de preuve concrète quant aux efforts déployés par lui pour trouver un avocat d’expression française et les motifs pour lesquels les avocats contactés n’étaient pas en mesure de le représenter. [51] L’appelant était même au courant du fait que le juge de procès ne le croyait pas. Ceci est illustré par un échange qui a eu lieu le 21 juin 2017 entre le juge de procès et l’appelant en l’absence du jury. Lors de cet échange, lorsque le juge de procès a indiqué à l’appelant qu’il était au courant de sa position qu’il voulait un avocat, mais qu’il n’y avait pas d’avocat qui parle le français, l’appelant a répondu « il en a pas pis [ sic ] tu m’crée [ sic ] pas ». [52] L’appelant maintient qu’il était injuste pour le juge de procès d’affirmer que si l’appelant ne pouvait pas trouver un avocat, c’était en raison du fait qu’il cherchait à exercer son droit de subir un procès en français. Je rejette cet argument. La décision du juge de procès de rejeter la demande d’ajournement de l’appelant n’a aucunement été motivée par le fait que l’appelant a choisi de subir son procès en français. Le procès s’est déroulé en français conformément aux obligations imposées par l’art. 530 du Code criminel . Le droit de l’appelant de subir un procès en français n’a jamais été contesté. [53] De plus, l’appelant soutient que le juge de procès l’a placé devant un choix entre un procès en français ou un procès devant juge et jury. Je ne suis pas d’accord. Les interventions du juge de procès avaient pour objet d’assurer que l’appelant comprenne qu’un procès devant juge et jury est le mode de procès le plus compliqué et que la cour serait plus en mesure de l’assister lors d’un procès devant juge seul. Il ne cherchait pas à décourager l’appelant d’exercer son choix de subir un procès devant juge et jury ni de subir un procès en français. [54] Avant de conclure sur ce point, je rappelle que le seul fait que le procès se soit déroulé sans que l’appelant soit représenté par un avocat ne donne pas automatiquement lieu à un déni de justice. Comme j’ai noté ci-haut, dans l’exercice de sa discrétion, le juge de procès devait concilier à la fois le droit de l’appelant d’être représenté par un avocat et son devoir de contrôler l’instance. Cette cour interviendra seulement si elle est d’avis que le rejet de la demande d’ajournement a privé l’appelant d’un procès équitable ou de l’apparence d’un procès équitable. Voir Patel , au para. 3; Hazout , au para. 31. [55] Dans les circonstances décrites ci-haut, il était raisonnable pour le juge de procès de conclure que le procès devait aller de l’avant et que le rejet de la demande d’ajournement ne donnerait pas lieu à un procès inéquitable. L’appelant a eu plusieurs occasions pour trouver un avocat d’expression française, mais n’a pas déployé des efforts raisonnables pour le faire. Ainsi, si l’appelant n’a pas réussi à trouver un avocat d’expression française à temps, c’est dû à son propre manque de diligence. [56] En l’espèce, il n’y a pas lieu d’intervenir dans la décision discrétionnaire du juge de procès de rejeter la demande d’ajournement. À l’exception du fait que le juge de procès a omis de traiter la requête constitutionnelle de l’appelant contestant le mandat de perquisition – une erreur pour laquelle la tenue d’un nouveau procès est ordonnée – l’appelant a eu un procès équitable. Le procès comme tel n’était pas de longue durée et n’a pas traité de questions particulièrement complexes. De plus, l’appelant a été en mesure de contre-interroger les témoins de la Couronne et, à l’exclusion de son traitement de la requête constitutionnelle, le juge de procès a fourni à l’appelant des conseils appropriés au cours du procès. (3) La nouvelle preuve présentée par l’appelant n’a aucun poids [57] Quoique je sois d’avis d’admettre la nouvelle preuve, après l’avoir étudié, je n’y accorderais aucun poids. Je constate que l’appelant manque de crédibilité et que la nouvelle preuve n’est pas digne de foi. Plusieurs des affirmations contenues dans l’affidavit de l’appelant, ainsi que les réponses que l’appelant a données en contre-interrogatoire illustrent que l’appelant n’est pas crédible et que la nouvelle preuve qu’il a présentée n’est donc pas digne de foi. Quelques exemples suffisent pour appuyer ma conclusion. [58] Premièrement, l’avocat de la Couronne a demandé à l’appelant en contre-interrogatoire l’identité de son « autre avocat » auquel il a fait référence lors de l’audience du 8 mai 2017, le texte duquel j’ai cité plus haut. L’appelant a répondu que c’était peut-être « Dieu ». Ce n’est que plus tard qu’il s’est souvenu que cet autre avocat était Me Primeau et qu’il avait aussi embauché un « Self-Rep help » à Ottawa. [59] Deuxièmement, dans son affidavit, l’appelant affirme que « [d]epuis le début de ce dossier, j’ai cherché un avocat en français. » En d’autres mots, il affirme qu’après plus de six ans d’effort, il n’a pas pu trouver un seul avocat d’expression française qui était prêt à le représenter. Il dit avoir contacté plus de 100 avocats. En contre-interrogatoire, il a affirmé avoir cherché non seulement en Ontario, mais aussi à Montréal. Je note que pour de longues périodes, l’appelant payait pour les services d’avocat lui-même. Il n’a donc pas toujours été limité aux avocats qui acceptent des certificats d’aide juridique. [60] À mon avis, si l’appelant avait vraisemblablement entamé tous ces efforts, et ce, pendant six ans, il aurait été en mesure de trouver au moins un avocat capable de le représenter en français et disposé de le faire sous des conditions raisonnables. [61] Il y a très peu de preuve concrète quant aux démarches qu’il aurait entreprises au cours de cette période de six ans pour tenter de retenir les services d’un avocat d’expression française, autre que des énoncés généraux indiquant qu’il a contacté l’aide juridique, Pro Bono Ontario et JusticeNet, qu’il a reçu des nombreuses listes et qu’il a téléphoné à plus de 100 avocats. De même, on a peu de détails sur les raisons pour lesquelles les avocats qu’il a contactés n’ont pas accepté le mandat. La preuve qu’on détient peut se résumer comme suit : · Deux avocats d’expression française de Thunder Bay avaient un conflit d’intérêts et ne pouvaient pas le représenter. · Un avocat d’expression française voulait 5000 $ pour le représenter. À ce moment, l’appelant payait son propre avocat et n’avait pas accès à l’aide juridique. Aucune raison, autre que le tarif demandé, n’est donnée pour expliquer pourquoi l’appelant ne l’a pas embauché. · En contre-interrogatoire, l’appelant a présenté deux listes d’avocats d’expression française que le bureau d’aide juridique lui a données. La première liste est datée le 28 avril 2017, un peu plus d’une semaine avant les dates prévues pour l’audience sur les requêtes préliminaires. Le nom de Me Primeau figure sur cette liste. La deuxième liste est datée le 23 mai 2017, plus de deux semaines après l’audition des requêtes préliminaires et moins d’un mois avant le début du procès. Dans son affidavit, l’appelant affirme que certains avocats sur les listes n’étaient pas capables de faire un procès en français et que d’autres n’étaient pas prêts à se déplacer à Thunder Bay sans que l’aide juridique paie leurs frais de déplacement. Il affirme aussi que certains avocats ne l’avaient pas rappelé. · Quoique l’appelant ne soit pas certain de la date précise de son premier contact avec Me Primeau, il a affirmé lors du contre-interrogatoire qu’il lui avait parlé le 6 mai 2017, soit deux jours avant le début de l’audience sur les requêtes préliminaires. Dans son affidavit, l’appelant affirme que Me Primeau voulait qu’il plaide coupable. Lors du contre-interrogatoire, l’appelant a exprimé que Me Primeau lui aurait aussi dit qu’il ne le représenterait pas, car ce n’était pas son domaine. Par contre, l’appelant n’a pas fourni ces renseignements au juge de procès. Il a seulement indiqué au juge de procès qu’il n’avait pas avisé Me Primeau de la date du procès et que Me Primeau allait contacter l’aide juridique pour savoir si ses frais de déplacement seraient défrayés. · Le 8 mai 2017, l’appelant a fait mention d’un autre avocat dénommé Me Fabris, mais n’a pas donné plus de détails. [62] Troisièmement, en annexe à son affidavit, l’appelant inclut un avis juridique obtenu en février 2016. Il explique qu’il a obtenu l’avis pour démontrer qu’il avait de bonnes chances de faire exclure la preuve saisie de sa résidence, preuve essentielle pour la poursuite. En contre-interrogatoire, l’appelant a dit qu’il avait demandé à Me Campbell de préparer l’avis juridique, car celui-ci avait écrit un livre sur les mandats de perquisition. Cet avis soulève plusieurs questions quant à son affirmation qu’il cherchait un avocat d’expression française. L’avis est en anglais et a été préparé par le cabinet d’avocats, Aubry, Campbell, MacLean. Lors du contre-interrogatoire, l’appelant a admis qu’il n’avait pas demandé à Me Campbell s’il pouvait le représenter en français. L’appelant affirme dans son affidavit qu’il a payé pour l’avis lui-même, mais n’a pas indiqué le co û t de celui-ci. À ce moment, il n’avait pas accès à l’aide juridique. Cette preuve ne fait qu’ajouter aux doutes quant aux efforts que l’appelant prétend avoir déployés pour retenir les services d’un avocat d’expression française. [63] Quatrièmement, l’appelant allègue dans son affidavit qu’il y avait eu une « mauvaise communication » entre lui et Me Scullion. Toutefois, en contre-interrogatoire, l’appelant a admis que Me Scullion se représente comme étant une avocate bilingue. L’échange qui a eu lieu entre l’appelant et l’avocat de la Couronne lors du contre-interrogatoire suggère que Me Scullion parle le français. [64] Finalement, la crédibilité de l’appelant est aussi remise en doute par le fait que, tel que j’ai not é précédemment, le 26 octobre 2015, lors d’un échange avec la cour, l’appelant a faussement déclaré qu’il ne comprenait l’anglais qu’un petit peu. Le 19 juin 2017, il a aussi faussement déclaré au juge de procès qu’il n’avait jamais été avis é qu’il pouvait se prévaloir des services d’un avocat anglophone pour un procès en français. [65] Pour ces raisons, j’ai de sérieux doutes quant à la crédibilité de l’appelant et la fiabilité de la nouvelle preuve présentée par lui. En conséquence, je n’accorderais aucun poids à la nouvelle preuve. (4) L’article 530 et le droit à un avocat [66] Avant de conclure, il est utile d’émettre quelques commentaires sur les arguments de l’appelant et de l’intervenant concernant l’art. 530 du Code criminel et le droit à un avocat capable de plaider dans la langue officielle choisie du procès. Ceux-ci constituent la thèse centrale de l’appel et la raison pour laquelle l’AJEFO s’est fait accord er la permission d’intervenir. [67] Quelle que soit la décision de cette cour sur le fond, l’appelant et l’intervenant maintiennent qu’il est opportun en l’espèce de mieux définir les obligations d’un juge d’assurer un accès égal aux tribunaux à ceux qui exercent leur droit en vertu de l’art. 530 du Code criminel . [68] L’intervenant explique que ces obligations comprennent « une obligation positive de garantir l’accès égal à la justice de l’accusé qui se prévaut de ses droits en vertu de l’article 530 et suivants », ainsi que l’obligation d’assurer « que les limites imposées par l’Aide juridique ne compromettent pas le droit de l’accusé à un avocat capable de le représenter dans la langue officielle de son choix. » [69] Je reconnais que l’art. 530 du Code criminel donne à l’accusé « le droit absolu à l’accès égal aux tribunaux désignés dans la langue officielle qu’il estime être la sienne » : R. c. Beaulac , [1999] 1 R.C.S. 768, au para. 28. Le droit à un accès égal aux tribunaux implique qu’un accusé qui a choisi de subir son procès en français devrait pouvoir bénéficier du même droit à l’avocat de son choix dont un accusé anglophone bénéficie. Toutefois, le droit à l’avocat de son choix, que ce soit un avocat d’expression française ou anglaise, n’est pas un droit absolu: voir R. v. McCallen (1999), 131 C.C.C. (3 e ) 518 (C.A. Ont.), au para. 40. Peu importe la langue officielle choisie du procès, ce droit doit être pondéré à l’encontre de la nécessité des tribunaux de traiter des causes en temps opportun : Patel , au para. 3. [70] Il est bien établi que l’art. 530 du Code criminel impose des obligations positives à la cour de veiller à la protection des droits linguistiques de l’accusé qui exerce son choix de subir un procès dans sa langue officielle choisie : R. c. Munkonda , 2015 ONCA 309, 324 C.C.C. (3 e ) 9, au para. 61; R. c. Potvin (2004), 186 C.C.C. (3 e ) 257 (C.A. Ont.), au para. 26. Il est aussi reconnu que les « juges de première instance siégeant en matière criminelle » doivent être « proactifs dans la mise en œuvre de la protection des droits linguistiques des accusés » : R. c. Parsons , 2014 QCCA 2206, J.E. 2014-2181, au para. 35. Ainsi, lorsqu’un accusé désire retenir les services d’un avocat qui est en mesure de le représenter dans la langue officielle choisie du procès, ce choix devrait être respecté et, dans la mesure du raisonnable, accommodé par la cour. La manière dont ce choix devrait être respecté et accommodé va dépendre des circonstances particulières de chaque cas. [71] Ayant conclu que les droits linguistiques de l’appelant n’ont pas été violés en l’espèce et que la nouvelle preuve n’a aucun poids, je ne considère pas que la présente cause offre un fondement factuel approprié pour aborder la question importante de l’étendue des obligations de la cour et du droit de l’accusé d’être représenté par un avocat d’expression française en vertu de l’art. 530 du Code criminel . [72] En ce qui concerne la prétention de l’intervenant que le certificat d’aide juridique de l’appelant ne lui « permettait pas de défrayer les débours d’un avocat venant d’ailleurs dans la province », rien au dossier ne me permet de conclure que ce fut bel et bien le cas. En l’espèce, l’appelant n’a pas présenté une requête du type Fisher au cours de laquelle cet enjeu aurait pu être adressé et sa requête Rowbotham a été rejetée, notamment parce que l’appelant n’avait pas, à ce moment-là, port é le refus d’aide juridique en appel. F. Conclusion [73] Pour les motifs énoncés plus haut, j’admettrais la nouvelle preuve. [74] En raison du fait que la Couronne concède que le juge de procès ne s’est pas prononcé sur la requête de l’appelant et a manqué à son obligation d’assister l’appelant à cet égard, j’accueillerais l’appel, j ’annulerais la condamnation et j’ordonnerais la tenue d’un nouveau procès. Rendu le : 13 février 2020 « PR » « Paul Rouleau j.c.a. » « Je souscris L.B. Roberts j.c.a. » « Je souscris A. Harvison Young j.c.a. » [1] Le 17 août 2015, l’appelant a témoigné en anglais. De plus, la transcription du 19 décembre 2016 démontre que l’appelant était à l’aise de procéder en anglais, et ce, sans l’aide d’un interprète, lors de sa comparution cette journée-là.

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. Boone, 2020 ONCA 154 DATE: 20200228 DOCKET: C63062 Doherty, Miller and Fairburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Steven Boone Appellant Jonathan Shime and Ben ElzingaCheng, for the appellant Christine Tier, for the respondent Heard: February 12, 2020 On appeal from the conviction and sentence imposed by Justice Bonnie R. Warkentin of the Superior Court of Justice, sitting with a jury, on March 9, 2016, with reasons reported at 2016 ONSC 1626. Doherty J.A.: [1] On August 12, 2019, this court released reasons allowing the appellant’s conviction appeal in part, and directing that the sentence appeal should be adjourned to a later date for further submissions: R. v. Boone , 2019 ONCA 652. [2] Since the release of this court’s reasons, counsel have been attempting to obtain additional information from the correctional authorities. The Crown has also decided that it will not proceed on the attempt murder charges. Counsel have also managed to significantly narrow the issues before the court in this proceeding. [3] There are two issues: · What order should be made in respect of the three charges on which the jury returned guilty verdicts and the trial judge entered stays based on the principle in R. v. Kienapple , [1975] 1 S.C.R. 729? · Given that the convictions on the three attempt murders have been quashed and the Crown is not proceeding with a new trial on those charges, what are the appropriate sentences on the remaining convictions? A. the “ kienapple ” issue [4] This issue raises matters that are relevant to the appropriate disposition of the conviction appeal. I agree with the joint submission of counsel that this court’s disposition of the conviction appeal should be varied to reflect a proper application of the “ Kienapple ” principle given the Crown’s decision that it will not retry the attempt murder charges. The conditional stays entered at trial on the two counts of administering a noxious substance to D.S. (count 2) and M.C. (count 5) should be set aside and convictions entered on those charges: Criminal Code , R.S.C. 1985, c. C-46, s. 686(8); R. v. Provo , [1989] 1 S.C.R. 3 at p. 22. This court’s order setting aside the stay on the charge of attempting to administer a noxious substance to M.B. (count 7) and ordering a new trial, should be varied to an order setting aside the stay and entering a conviction on that charge. [5] I am told that no order has been issued to reflect the disposition of the court on the conviction appeal. Consequently, para. 144 of the reasons should be varied to read as follows: I would allow the appeal from the convictions on the three attempt murder charges (counts 3, 6 and 8) and quash those convictions. The Crown has decided to not proceed with a new trial on those charges. I would set aside the stay of proceedings entered on counts 2, 5 and 7 and enter convictions on those charges. [6] In summary, the appellant now stands convicted of: · aggravated sexual assault of D.S. (count 1); · administering a noxious substance to D.S. (count 2); · aggravated sexual assault of M.C. (count 4); · administering a noxious substance to M.C. (count 5); · attempt to administer a noxious substance to M.B. (count 7); and · aggravated sexual assault of B.C. (count 9). B. the appropriate sentence [7] The customary deferential approach taken on appeals from sentence must be adjusted, to some extent, to fit the unusual circumstances of this case. Four years have passed since the trial judge imposed sentence. The three attempt murder convictions, which were the focus of the sentencing at trial, have been quashed and the Crown has elected not to proceed with a new trial. The appellant has also tendered material addressing post-sentence events and developments, which counsel for the appellant submits should mitigate the sentence. In significant ways, this is a different case from the one that was before the trial judge on sentencing. [8] While these circumstances warrant a less deferential approach to the sentences imposed by the trial judge, they do not mandate a de novo assessment of the proper sentences. The trial judge provided careful, detailed reasons for sentence: R. v. Boone , 2016 ONSC 1626. Having conducted the lengthy trial, she was familiar with the case in a way that this court can never be. [9] I accept the trial judge’s findings of fact on sentence, except to the extent that those findings are dependent upon the convictions on the attempt murder charges. I also adopt the trial judge’s description of the seriousness of the offences and her findings as they relate to the impact of the crimes on the victims. Finally, I accept the trial judge’s findings made in the context of the long-term offender application. The trial judge held that the appellant was a long-term offender and imposed a five-year supervision order. The appellant has abandoned his challenge to that order. [10] In her reasons for sentence, the trial judge gave the appellant pretrial custody credit on a 1.5:1 ratio, resulting in a total credit of 57 months. The parties agree that 57 months is the appropriate credit. [11] The trial judge also appreciated that the totality principle requires a mitigation of the sentences that would otherwise be appropriate on individual counts. While the trial judge appears to have approached the calculation of the reduction based on totality differently than this court did in cases like R. v. Jewell (1995), 100 C.C.C. (3d) 270, at p. 279 (Ont. C.A.) and R. v. Ahmed , 2017 ONCA 76, 346 C.C.C. (3d) 504 it is common ground that the sentences imposed on individual counts must be tempered to take into account totality. Consequently, the sentences imposed on some of the individual counts, viewed in isolation, would appear wholly inadequate. [12] After taking into account credit for presentence custody and the mitigating effect of the totality principle, the trial judge determined that sentences totalling 9 years, 3 months (111 months) should be imposed. She then entered sentences on the individual counts totalling that amount. Sentence was imposed on March 9, 2016. The appellant has served almost 48 months of his sentence. [13] The appellant and Crown agree that the quashing of the three convictions on the attempt murder charges requires a downward adjustment in the totality of the sentences imposed. They disagree on the quantum of that deduction. The appellant submits that the total sentence imposed should be reduced from 9 years, 3 months (111 months) to 3 years, 9 months (45 months). On that calculation, the appellant has effectively served his prison term but would still be subject to the long-term offender order. The Crown argues for a reduction from 9 years, 3 months to 6 years, 9 months (81 months). [14] Counsel for the appellant’s submission in support of a substantial sentence reduction is straightforward. He submits that the trial judge, quite correctly, focused primarily on the moral blameworthiness attached to the three attempt murder convictions. Each of those verdicts indicated that the jury was satisfied, beyond a reasonable doubt, that the appellant had meant to kill his victims. [15] Counsel further contends that the trial judge’s finding that the appellant meant to kill his victims influenced her sentencing on all counts. Counsel acknowledges that the offences of aggravated sexual assault and the administering of a noxious substance carry their own serious culpable mental states. He argues, however, that those culpable mental states are significantly less blameworthy than the culpability that attaches to the crime of attempt murder. Attempt murder requires an actual intention to kill. Counsel submits that the significantly reduced level of moral culpability in respect of the remaining convictions justifies the substantial reduction in the total sentence imposed. [16] There can be no doubt that the sentences imposed must be reassessed in light of the quashing of the convictions on the attempt murder charge. I also agree with counsel’s submission that an intention to kill, the mens rea required for attempt murder, carries with it a higher level of moral blameworthiness than the fault components attached to the crimes of aggravated sexual assault and administering a noxious substance. [17] I do not, however, accept counsel’s submission that the moral blameworthiness of the appellant’s conduct is determined exclusively by reference to the fault component of the offences for which he still stands convicted. The fault element of an offence describes the mens rea required for a finding of guilt. The moral blameworthiness of an individual offender’s conduct depends not only on the existence of the mens rea required to convict, but also on the trial judge’s findings made in relation to the appellant’s conduct and mental state. Those findings can mitigate or aggravate the moral blameworthiness of the offender’s conduct. [18] In this case, the trial judge found that the appellant set out, with considerable planning, effort and deception, to infect young men with HIV. He wanted to “mark” his victims for life. Tragically, in the case of D.S., he achieved that goal. As the trial judge correctly observed, the appellant’s conduct was predatory and dangerous in the extreme. [19] Although it can no longer be said that the appellant meant to kill his victims, he did clearly intend to infect them, appreciating the very real risk that he would succeed and that his victims could ultimately die from medical problems associated with HIV. The appellant maximized that risk by not taking the appropriate medication or using condoms. He sought out victims upon whom he could inflict that risk for his own gratification. I agree with the trial judge’s characterization of the appellant’s conduct as “deliberate and malicious”. [20] The high degree of moral blameworthiness properly attached to the appellant’s conduct is best exemplified by the trial judge’s findings in respect of D.S., the complainant on counts 1 and 2. D.S. was a 17-year old, sexually inexperienced boy when he met the appellant on the internet. The appellant, who was HIV positive and not taking antiviral medication, assured D.S. that he was “clean”. Ultimately, the appellant and D.S. had unprotected anal sexual intercourse several times over a 10-day period. In various chatrooms, the appellant bragged about lying to D.S. about his HIV status and spoke of his desire to “convert” D.S. to a HIV positive status. [21] D.S. became infected with HIV. The trial judge found as a fact that the appellant was the source of that infection. I accept that finding. [22] According to the expert evidence, D.S.’s life expectancy has been greatly reduced by virtue of his HIV infection. He will be on medication for the rest of his life and may well encounter significant medical problems as a result of both the disease and the medication. [23] The trial judge described the appellant’s actions towards D.S. as calculated and ruthless. She also said, at para. 88: At all times during his interaction with this complainant, Mr. Boone acted with the intention of causing him harm that could end his life. [24] The trial judge’s finding that the appellant intended to cause D.S. bodily harm that could end his life stands even though the convictions on the attempt murder have been set aside. Attempt murder requires a specific intent to kill. The trial judge’s finding speaks, not to an intention to kill, but rather to an intention to cause bodily harm, coupled with an appreciation of the risk that death could result. This mens rea , while short of the mens rea for attempt murder, demonstrates a high level of moral blameworthiness. [25] Counsel for the appellant referred to cases involving convictions for aggravated sexual assault based on an accused’s failure to disclose his or her HIV status to a sexual partner. None of those cases match the appellant’s moral culpability. Unlike the offenders in those cases, the appellant set out to infect his sexual partners with HIV for his own perverse gratification. He vigorously pursued that goal and, as noted above, tragically succeeded in achieving that goal in respect of D.S. [26] Counsel for the appellant relied, to some degree, on the post-sentence material placed before the court. I think it is fair to say that he put less emphasis on this argument than on his submission arising out of the quashing of the attempt murder convictions. [27] I do not find the post-sentence material of much assistance in determining the fit sentence. The allegations of mistreatment by correctional authorities are largely unsubstantiated. I agree with Crown counsel that, in light of the appellant’s propensity for misrepresentation and manipulation, it would be unwise to rely on his unsupported assertions. The allegations of violence toward the appellant by other prisoners, at least one of which is substantiated, while regrettable, do not warrant any reduction in the sentence. [28] It is concerning that the post-sentence material provides nothing to suggest that the appellant has gained any appreciation for the profound harm his conduct caused. In making that observation, I do not suggest that the appellant should be punished for his obvious lack of remorse. However, his lack of insight, even at this point, four years post-sentencing, indicates that there remains, as there was at the time of sentencing, a substantial risk that the appellant will reoffend if afforded the opportunity. [29] In my view, the total sentence of 6 years, 9 months (81 months), proposed by the Crown, is the appropriate disposition. I come to that conclusion having regard to the totality of the appellant’s conduct, as revealed in the evidence at trial, the seriousness of the six remaining convictions, and the number of complainants. A total reduction of 30 months fairly reflects both the quashing of the attempt murder convictions and the seriousness of the remaining convictions. [30] In fixing the appropriate sentence on each count, I start by recognizing that there are four victims. Two, D.S. and M.C., are the complainants on two convictions each. The other two victims, M.B. and B.C., are the subject of one conviction each. The sentences imposed in respect of different victims should be consecutive to each other. The sentences imposed in respect of counts involving the same victim should be concurrent to each other. [31] All of the convictions are for serious offences. However, for the purpose of fixing individual sentences, the offences against D.S. are the most serious, followed by the offences against M.C., the aggravated sexual assault of B.C., and the attempt to administer a noxious substance to M.B. [32] The sentences I would impose are set out in the chart below. In keeping with the direction in s. 719(3.3) of the Criminal Code , I have first identified the sentence I would impose on each count prior to any credit for presentence custody. I have next attributed, based on the relative seriousness of the offences, parts of the presentence custody to each of the convictions on counts 1, 4, 7 and 9. The deduction of the credit for presentence custody results in the actual sentence imposed. The sentences, as varied by these reasons, run from March 9, 2016, the date on which the trial judge imposed sentence. Count Offence Sentence Prior to Credit for Presentence Custody Credit for Presentence Custody Sentence Imposed 1 Aggravated sexual assault of D.S. 6 years, 9 months (81 months) 27 months 4 years, 6 months (54 months) 2 Administer a noxious substance to D.S. 4 years – 4 years concurrent to count 1 4 Aggravated sexual assault of M.C. 3 years (36 months) 18 months 18 months consecutive to count 1 5 Administer a noxious substance to M.C. 18 months – 18 months concurrent to count 4 7 Attempt to administer a noxious substance to M.B. 9 months 6 months 3 months consecutive to counts 1 and 4 9 Aggravated sexual assault of B.C. 1 year (12 months) 6 months 6 months consecutive to counts 1, 4 and 7 TOTAL: 11 years, 6 months (138 months) 57 months 6 years, 9 months (81 months) [33] In addition to the period of incarceration as described above, the appellant remains subject to the long-term supervision order imposed by the trial judge. All other orders imposed by the trial judge also remain in effect. Released: “DD” “FEB 28 2020” “Doherty J.A.” “I agree B.W. Miller J.A.” “I agree Fairburn 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. Flores, 2020 ONCA 158 DATE: 20200227 DOCKET: C66209 Watt, Pardu and Roberts JJ.A. BETWEEN Her Majesty the Queen Respondent and Eric German Flores Appellant Nicholas A. Xynnis, for the appellant Christine Tier, for the respondent Heard and released orally: February 24, 2020 On appeal from the conviction entered on January 23, 2018 and the sentence imposed on July 5, 2018 by Justice Tamarin M. Dunnet of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] The appellant was convicted of a single count of sexual assault after a jury trial in the Superior Court of Justice. He was sentenced to a term of imprisonment of four years less credit for pre-disposition custody. The net sentence imposed was three years, seven months. He appeals both conviction and sentence. The Background Facts [2] The appellant and complainant met when both were attending alcohol treatment programs at a local addiction and mental health facility. [3] Several weeks after the conclusion of their respective programs, the complainant lost a big project in her chosen field. She relapsed and drank steadily for a week. She recognized ultimately that she needed to go to a detox centre. After unsuccessful attempts to enlist the assistance of two friends, she called the appellant. He agreed to help her. [4] When the appellant arrived at the complainant’s apartment, the complainant’s dog-walker was also there. The appellant told the dog-walker that she could leave. He would make dinner for the complainant and then take care of her. [5] According to the complainant, the appellant approached her as she was lying on the couch. He got on top of her. He said he always found her “hot and incredibly sexy”. Despite her resistance, the appellant removed the complainant’s pants, performed oral sex upon her and then had intercourse with her, during which he ejaculated. He did not wear a condom. [6] The appellant testified. He said that the sexual activity between them was consensual. He offered to wear a condom or to withdraw before ejaculation, but the complainant declined his offers. The Appeal from Conviction [7] On the appeal from conviction, the appellant advances two grounds of appeal. Each has to do with events that took place after the sexual intercourse. More particularly, each concerns the use the trial judge instructed the jury they could make of the evidence of those events. Ground #1: The Examination and Treatment Evidence [8] The jury heard evidence that the complainant attended at a local hospital where a nurse completed a sexual assault examination kit, and a report detailing her findings. The complainant also undertook a month-long prophylactic treatment program (PEP) during which she experienced very unpleasant side effects. The purpose of this program was to ensure that the unprotected intercourse did not result in any sexually transmitted diseases. [9] In her instructions to the jury, the trial judge explained how this evidence could be used in reaching a verdict. She said: You will recall that [B.C.] testified that she underwent a sexual assault examination at Women’s College Hospital as she was concerned because the sexual assault was unprotected. As part of her treatment, swabs were taken vaginally and medication was prescribed to prevent infectious diseases. She testified that the symptoms from the medication made her physically ill for a month, but she took it all the way through. It has long been held that post-event demeanour of a sexual assault victim can be used as circumstantial evidence to corroborate the complainant’s version of events. When assessing the credibility of [B.C.], you may find that her testimony regarding her willingness to undergo an invasive sexual assault examination corroborates her version of events. It is up to you. [10] In our view, the evidence that the complainant reported to hospital, had administered a sexual assault examination kit, and later followed a post-exposure prophylactic treatment program (PEP), was relevant and admissible at trial. While the use of the language “corroborates” the testimony of the complainant was ill-chosen, we are not persuaded that its inclusion caused the appellant any prejudice. [11] In this case, there was a significant body of evidence that described the complainant’s physical and emotional condition after the appellant had left her apartment. That this evidence was not marshalled in support of the complainant’s claim enured to the benefit of the appellant. [12] In addition, in this case, the PEP evidence had some significant probative value in that, according to the appellant, the complainant had declined two offers from the appellant to protect herself from sexually transmitted diseases. In these circumstances, it seems unlikely that, having foregone those offers, she would willingly submit to a regimen of medication that she described variously as “dreadful”, “unbelievable” and “horrific”. [13] It is also not without significance that trial counsel was content with what the trial judge proposed to say about this evidence before the charge was delivered and raised no objection thereafter. Ground #2: The Text [14] The second ground of appeal against conviction relates to the trial judge’s instructions to the jury about their use of a text the appellant sent to the complainant when he learned that he would be charged with sexual assault. This evidence was admitted in the defence case without any adjudication on its admissibility. [15] The principal complaint in this court is that in her instructions to the jury, the trial judge left the issue of spontaneity to the jury when this issue had already been decided because the evidence had been admitted. In this case, it would have been preferable had trial counsel sought a ruling on admissibility in advance of tendering the text message. However, once the evidence had been admitted, trial counsel made use of it in closing address. We are not persuaded that the jury instructions about its use prejudiced the appellant in any way. The Appeal from Sentence [16] On the appeal from sentence, the appellant says that the trial judge erred by concluding that the offence involved a breach of trust. Although this was not a traditional trust relationship, it is clear that the complainant sought the appellant’s assistance in getting to a detox facility. The appellant undertook to do so. At the very least, he took advantage of a vulnerable person whom he knew required help. This attracted denunciation and deterrence as the paramount sentencing objectives. What is more, the sentence imposed was well within the range of sentences applicable to this offence and the offender who committed it. There is no basis upon which this court can interfere. DISPOSITION [17] The appeals from conviction and sentence are dismissed, except to the extent that any victim surcharge imposed at trial is set aside. “David Watt J.A.” “G. Pardu J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Fuller, 2020 ONCA 115 DATE: 20200213 DOCKET: C65692 Gillese, Rouleau and Fairburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Terry Robert Fuller Appellant Michael Ellison, for the appellant Adam Wheeler, for the respondent Heard: January 13, 2020 On appeal from the sentence imposed on December 20, 2017 by Justice Robert S. Gee of the Ontario Court of Justice, with reasons reported at 2017 ONCJ 865. REASONS FOR DECISION A. overview [1] The appellant pled guilty on the basis of a joint sentencing position. The sentencing judge expressed concern with that position, after which the parties proposed another joint sentencing position. In the end, the appellant received a sentence that exceeded both joint positions. [2] The appellant argues that the sentencing judge erred when he departed from both joint positions in the court below. He asks that leave to appeal sentence be granted, the appeal be allowed, the custodial portion of the sentence be set aside, and a new sentence imposed that reflects the final joint position. We agree. B. background (1) The facts before the sentencing judge [3] The 55-year-old appellant pled guilty to one count of robbery. Under the influence of fentanyl, he entered a pharmacy wearing a baseball cap, a hoodie, and sunglasses. He pulled out a knife with a five-inch blade and demanded that the pharmacist give him narcotics. He filled his bag with numerous bottles and packages of drugs, including fentanyl patches, hydromorphone, and oxycodone. It is agreed that he did not know how many drugs he had taken. The appellant then fled the scene in his getaway vehicle – a bicycle – and ran straight into a police cruiser that was responding to the 9-1-1 call. [4] There is no suggestion that the appellant took the drugs for anything other than his own personal use, to feed an opioid addiction that he developed as a teen when he was prescribed opioids for an injury. [5] The appellant has a very lengthy criminal record which bespeaks a lifelong challenge with drug addiction. It includes 70 prior convictions, 3 of which are for robbery. Two of the robbery convictions, though, are from 26 years prior to this offence and resulted in the appellant receiving a sentence of three years’ custody to be served concurrently on each count. The last robbery conviction was entered six years before the offence that is the subject of this appeal. For that robbery conviction, the appellant received a sentence of approximately nine months. That was also the appellant’s last conviction before the robbery that forms the backdrop of the sentence appeal in this case. [6] Other than the 3-year sentence from 26 years prior to this offence, the appellant had never received a penitentiary sentence. (2) The proceedings at sentencing [7] The appellant pled guilty about one month after the offence was committed. A joint position was advanced by experienced trial and Crown counsel. [8] The original joint position was for two years’ custody in addition to pre-sentence custody. At that time, the appellant had served the equivalent of 51 days pre-sentence custody. The sentencing judge expressed concern with that joint position given, among other things, the appellant’s lengthy criminal record, as well as the nature and quantity of the drugs stolen. The matter was put over to allow a pre-sentence report to be prepared. [9] The matter returned to court about a month later. At that point, the pre-sentence custody had increased to the equivalent of 91 days. Counsel agreed that, if sentencing had proceeded on that day, and the joint position had been accepted, the equivalent of a 27-month sentence would have been imposed. [10] The sentencing judge was still not satisfied with the joint position. At counsel’s request, the matter was adjourned to permit the appellant to bring an application to set aside his guilty plea. That application was heard three weeks later and taken under reserve. [11] On December 20, 2017, the matter returned to court for the fourth time. At the commencement of the hearing, the appellant’s counsel informed the sentencing judge that the parties were proposing a new joint position: [A]fter your extensive review of this matter, I met with the Crown Attorney. They have reviewed the matters again and because of all of the exigencies, we would like to offer a joint submission for time served plus three years, boosting it up a further year from what it was. At the time it would be an effective sentence of 40.5 months , which for all the reasons we have put on the record, et cetera , this was a late-breaking development so sorry to surprise you with it. [Emphasis added.] [12] Instead of two years custody, counsel were now jointly suggesting a three year custodial term, in addition to time served, which, by that point, was the equivalent of 4.5 months. In other words, counsel were now suggesting a sentence that included an additional year of custody. The sentencing judge immediately dismissed the new position, saying: “[F]or the reasons I’m about to deliver that is not agreeable in the circumstances ” (emphasis added). The sentencing judge never addressed why the final joint position was “not agreeable”. Instead, he gave reasons for refusing to allow the appellant to set aside his guilty plea, followed by reasons for why the original joint position of two-years’ custody in addition to pre-sentence custody was, in his view, inadequate. He then sentenced the appellant to a five-year sentence, minus 4.5 months for pre-sentence custody, leaving the appellant with 55.5 months to serve. C. The parties’ positions on appeal [13] The appellant does not challenge the decision refusing to allow him to set aside his guilty plea. Instead, he challenges the fact that the joint positions were rejected. [14] While the appellant acknowledges that the sentencing judge followed the correct procedural steps when contemplating rejecting a joint position, he argues that the sentencing judge fundamentally misapplied the threshold test justifying a departure from a joint position. The appellant argues that the sentencing judge erred in failing to grapple with the final joint position advanced by counsel and why that proposed sentence would so seriously harm the administration of justice that it could not be countenanced. [15] Crown counsel on appeal takes a different position than the trial Crown who arrived at and advanced the joint positions. Contrary to the trial Crown’s position, Crown counsel on appeal argues that both joint positions were clearly contrary to the public interest and proper administration of justice. While Crown counsel acknowledges that joint positions should not be lightly interfered with, the circumstances of this case and this offender demanded the imposition of a sentence that well exceeded what was being proposed to the sentencing judge. Accordingly, it was not necessary for the sentencing judge to address the final joint position, given that it so badly fell below the mark of a reasonable joint position. D. analysis [16] A joint position on sentence following a guilty plea should only be rejected in rare cases because such positions are “vitally important to the well-being of our criminal justice system, as well as our justice system at large”: R. v. Anthony-Cook , 2016 SCC 43, [2016] 2 S.C.R. 204, at para. 25. Given that such positions “help to resolve the vast majority of criminal cases in Canada” and promote a “fair and efficient criminal justice system”, deference to those positions should be the rule, not the exception: R. v. Nixon , 2011 SCC 34, [2011] 2 S.C.R. 566, at para. 47. The effective and efficient operation of our criminal justice system relies on litigants enjoying a high degree of confidence that joint positions will be accepted when guilty pleas are entered. [17] While joint positions are not immutable, they should only be interfered with in exceptional circumstances. The question is not whether a joint position results in a fit or a demonstrably unfit sentence, but whether the “proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest”: Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions , the Hon. G. Arthur Martin, Chair (Toronto: Queen’s Printer for Ontario, 1993), at p. 327 (“the Martin Report ”). [18] In Anthony-Cook , at para. 34, Moldaver J. amplified upon the public interest test referred to in the Martin Report : a joint submission should not be rejected lightly … Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. This is an undeniably high threshold – and for good reason [19] There is no dispute that the sentencing judge was aware of this test and properly articulated it in his reasons for rejecting the joint position. The difficulty is that he only applied the test against the first joint position of two years in addition to pre-sentence custody. [20] The appellant argues that the explicit rejection of the initial joint position and implicit rejection of the second joint position reveal a fundamental misunderstanding of the inherent value of guilty pleas arising from joint positions. In oral submissions, the appellant acknowledged that, because the parties amended their joint position, the remedy sought is the imposition of the second joint position. As a result, there is no need for this court to address whether the original joint position was erroneously rejected by the sentencing judge. We should not be taken as commenting either way on the matter. [21] The fact is that the parties listened to the trial judge’s initial expressions of concern, discussed the matter between themselves, and returned to court to suggest a new joint position. Clearly, the parties were under no obligation to advance a new joint position. Indeed, it will be the very rare case where this will occur. Joint positions are not intended to be moving targets. Having regard to the recognized value to accused, victims, witnesses, counsel, and the administration of justice more broadly, judges should only challenge the appropriateness of joint positions in rare cases. Having done so in this case, though, and having been presented with a new joint position, fairness demanded that the newly proposed joint position be addressed. [22] The fact remained that the appellant had given up his right to a trial and pled guilty at the earliest possible opportunity. Having done so, the sentencing judge should have addressed why, through the imposition of a 40.5-month sentence, a reasonable person would be led to believe that the proper functioning of the justice system had broken down. [23] Having failed to apply that test to the second joint position, it falls to this court to do so. [24] In our view, the circumstances of this case did not justify departing from the final joint submission. The fact is that it was not far from the four-year sentence imposed by this court against one of the offenders in R. v. Chuvalo (1987), 24 O.A.C. 71 (C.A.), a decision that the sentencing judge acknowledged “most closely resembles this case”. On a Crown appeal, this court increased a sentence for robbery of a pharmacy from 22 months to 4 years. While the respondent in Chuvalo was much younger than the appellant in this case, he also had a criminal record which included convictions for robbery and possession of a dangerous weapon. Unlike this case, the Chuvalo case involved two armed robbers: one had a hatchet and the other a knife. Unlike this case, one of the offenders actually used the butt end of the hatchet to strike a pharmacist and also swung the hatchet at the head of a clerk. [25] Despite the more serious facts involved in Chuvalo , the hatchet-wielding offender received a sentence of only 7.5 months more than the jointly recommended 40.5-month sentence in this case. [26] Crown counsel acknowledged during oral submissions in this court that a four-year sentence in this case would have been within the range, albeit at the bottom end of that range. If that is so, it cannot be said that the final joint position was so “unhinged” from the reality of the situation that a reasonable and informed person would think that the justice system had broken down if the joint position had been adhered to. This is particularly true in light of the appellant’s extremely early guilty plea, which relieved the Crown of its obligation to prove the appellant’s guilt, showed the appellant’s remorse, saved witnesses from testifying, and saved the public the cost that would have been involved in running a trial. E. disposition [27] Leave to appeal sentence is granted and the appeal is allowed. The custodial portion of the sentence (four years and seven and a half months) is set aside and replaced with a three-year custodial term. The pre-sentence custody of four and a half months remains the same, but is in addition to the three-year custodial term. The victim fine surcharge order is set aside. The sentence remains the same in all other respects. “E.E. Gillese J.A.” “Paul Rouleau J.A.” “Fairburn 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.W., 2020 ONCA 130 DATE: 20200218 DOCKET: C64161 Hoy A.C.J.O., Feldman and Gillese JJ.A. BETWEEN Her Majesty the Queen Respondent and G.W. Appellant G.W., in person Delmar Doucette, duty counsel Jessica Smith Joy, for the respondent Heard and released orally: February 13, 2020 On appeal from the conviction entered on November 18, 2016, by Justice A.J. O’Marra of the Superior Court of Justice, sitting without a jury. REASONS FOR DECISION [1] The appellant appeals his convictions for invitation to sexual touching (3 counts), sexual interference (4 counts), and sexual assault (3 counts). The appellant’s submission on appeal was that he could not have committed the offences because the hours he worked at his job, coupled with his other commitments, meant that he was never alone with the children.  Thus, he says, he could not have committed the offences. [2] This same submission was made at trial. The trial judge clearly rejected the appellant’s evidence on this matter. At paras. 88 and 89 of his reasons for conviction, the trial judge states: [88] In considering the evidence of Mr. [W.], I find that in his denial of any misconduct he tried to minimize any opportunity to be alone with the children, such that it undermined his credibility. He said that he worked long hours and was out evenings with soccer practice or games. He never spent any time alone with the children when he lived at he lived at S[…] Street. On weekends he would help [A.] Friday nights to prepare meals for Church the next day. On Saturday mornings he would take them to church and the rest of the day he devoted to bible study. On Sundays he would take the children, other than [M.], to soccer. [89] He maintained he had no time alone with the children. However, he acknowledged in cross-examination that during that first year and a half living with [A.], she would work every other weekend and on occasion she would be called in on the other weekends. There was ample opportunity for him to have been alone with the children. [3] We see no basis on which to interfere with the decision below. The trial judge’s finding is thoroughly grounded in the evidence and owed deference. [4] Accordingly, the appeal is dismissed. “Alexandra Hoy A.C.J.O.” “K. Feldman J.A.” “E.E. Gillese J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Garrell, 2020 ONCA 127 DATE: 20200214 DOCKET: C65211 Lauwers, Trotter and Fairburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Gary Garrell Appellant Jessica Zita, for the appellant Catherine Weiler, for the respondent Heard and released orally: February 10, 2020 On appeal from the conviction entered on February 16, 2018 and the sentence imposed on May 14, 2018 by Justice Michael R. Dambrot of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] This is an appeal from conviction for one count of robbery involving a home invasion where one of the home occupants was shot. One of the robbers pleaded guilty to the offence, at which time he gave evidence of the appellant’s role in the offence. At trial, that individual testified and gave a more exculpatory version of events. The facts on the guilty plea were admitted for the truth of their contents. [2] The trial judge properly gave a Vetrovec instruction: R. v. Vetrovec , [1982] 1 S.C.R. 811. Given the exculpatory nature of the witness’s trial evidence and the inculpatory nature of the agreed upon facts at the guilty plea, the appellant says that a “mixed witness” Vetrovec instruction should have been given: R. v. Murray , 2017 ONCA 393, 138 O.R. (3d) 500, at paras. 125, 126 . [3] We are satisfied that, when read as a whole, the charge adequately conveyed to the jury that they were to look for independent confirmatory evidence only in relation to the inculpatory aspects of the witness’s evidence. Although not a mixed witness instruction, the trial judge was clear that his Vetrovec instruction only applied to that evidence that supported the Crown’s case. The absence of any defence objection at trial demonstrates the adequacy of the charge when read as a whole. [4] The appellant also objects to the absence of a W.(D.) instruction, specifically in relation to the exculpatory aspects of the same Vetrovec witness: R. v. W.(D.) , [1991] 1 S.C.R. 742 . Again, when read as a whole, the charge properly reflects all concerns underlying a W.(D.) instruction, and there was no objection to the charge on this basis at trial. [5] The appellant also seeks leave to appeal sentence. The primary complaint concerns the process used to reach the findings of fact that were not inherent in the jury’s verdict, specifically the appellant’s knowledge relating to whether a firearm was to be used during the robbery. [6] Consistent with what had been discussed with counsel ahead of time, the trial judge conveyed his finding of fact on this point to counsel by email. All were content with this manner of proceeding given that full submissions had been previously made on a directed verdict application. We note that the trial judge properly expressed his reasons for the finding of fact disputed by the appellant in his reasons for sentence. [7] In light of all these circumstances, we do not accede to this submission and see no error. [8] Finally, the respondent concedes that the appellant should be credited 90 days of pre-sentence custody to be removed for the custodial disposition imposed. We agree. [9] The conviction appeal is dismissed. Leave to appeal sentence is granted. The sentence appeal is granted only to the extent of crediting 90 days pre-sentence custody, reducing the appellant’s custodial term by 90 days. “P. Lauwers J.A.” “G.T. Trotter J.A.” “Fairburn 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. WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.5 (1)     Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. (2)     On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice. (2.1) The offences for the purposes of subsection (2) are (a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act ; or (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c). (3)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community. (4)     An applicant for an order shall (a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies. (5)     An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice. (6)     The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private. (7)     In determining whether to make an order, the judge or justice shall consider (a) the right to a fair and public hearing; (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (f) the salutary and deleterious effects of the proposed order; (g) the impact of the proposed order on the freedom of expression of those affected by it; and (h) any other factor that the judge or justice considers relevant. (8)     An order may be subject to any conditions that the judge or justice thinks fit. (9)     Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (a) the contents of an application; (b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19 COURT OF APPEAL FOR ONTARIO CITATION: R. v. Groves, 2020 ONCA 86 DATE: 20200205 DOCKET: C61515 Doherty, Watt and Hourigan JJ.A. BETWEEN Her Majesty the Queen Respondent and William Groves Appellant Michael Davies, for the appellant Michael Perlin, for the respondent Heard: January 29, 2020 On appeal from the designation as a dangerous offender and the indeterminate sentence imposed by Justice Lynn D. Ratushny, of the Superior Court of Justice, dated June 8, 2015. REASONS FOR DECISION [1] The appellant is a paedophile. He pled guilty to, and was convicted of, 21 offences, including 12 counts of child internet luring, 3 counts of sexual touching, and 1 count of sexual interference. The offences occurred over a 40-month period between 2008 and 2011. The victims were children between the ages of 11 and 16. The appellant has a criminal record for similar offences going back to about 2004. [2] The Crown brought a dangerous offender application. On June 8, 2015, the trial judge granted that application, declared the appellant a dangerous offender, and imposed an indeterminate sentence in the penitentiary. The appellant appeals. [3] The facts relevant to the appellant’s many offences, his history within the criminal justice system since about 2005 and various psychiatric assessments, including the assessment of Dr. Pallandi, prepared for the purposes of the dangerous offender hearing, are fully and accurately summarized in the trial judge’s reasons: 2015 ONSC 2590. We need not repeat them. Grounds of Appeal (1) Did the trial judge err in her interpretation of the requirements of ss. 753(1)(a)(i) and (ii)? [4] The appellant submits that, in deciding whether the criteria in ss. 753(1)(a)(i) or (ii) were met, the trial judge focused exclusively on the appellant’s prior conduct and did not engage in any “meaningful analysis of future risk”. The appellant contends that, as made clear in R. v. Boutilier , 2017 SCC 64, future risk is an integral part of the s. 753(1)(a)(i) and s. (ii) analysis. [5] We agree that an assessment of the threat posed to the safety of the public in the future by the appellant’s conduct is a component of the analysis under the relevant provisions. We disagree that the trial judge did not have regard to future risk assessments in considering the applicability of ss. 753(1)(a)(i) and (ii). [6] The trial judge did review the appellant’s prior conduct at length. She was required to do so for the purposes of assessing future risk. On this evidence, the nature and duration of the appellant’s prior conduct provided powerful evidence of how the appellant would act in the future, if given the opportunity. The evidence of the appellant’s prior conduct was strongly suggestive of a significant future risk. [7] The trial judge did not stop, however, at the appellant’s prior conduct. She specifically referred to, and considered, the assessment of Dr. Pallandi. That assessment spoke directly to future risk. [8] In Dr. Pallandi’s assessment, he indicated that the appellant might be managed in the community if several steps were taken. The first required the appellant to agree to take long-acting intramuscular sex drive-reducing medication. The appellant had, however, indicated to Dr. Pallandi that he did not believe that the medication was necessary, both because he was getting older and because he had somehow developed sufficient empathy for his victims to render the drugs unnecessary. He was not willing to take the medication. [9] Dr. Pallandi made it clear that, absent the implementation of any of the conditions in the proposed management program, he regarded the appellant as posing an unacceptable risk in the community “at any near point in the future”. A willingness to take the proper medication was one of those conditions. [10] Reading the trial judge’s reasons as a whole, it is clear that she accepted Dr. Pallandi’s opinion. Absent a commitment to taking the required medication, the appellant clearly posed a future risk to the safety of the public. (2) Did the trial judge deny the appellant procedural fairness? [11] In their written submissions filed with the trial judge (there was no oral argument), counsel for the Crown and defence both referred to a requirement in the prior legislation. That provision required that an indeterminate sentence be imposed only where there was no “reasonable possibility of eventual control of the risk in the community”. In fact, the amendments proclaimed in 2008 applied in this proceeding. Under the amendments, an indeterminate sentence was to be imposed unless there was “a reasonable expectation” that a lesser sentence would adequately protect the public. [12] In her reasons, the trial judge referred to counsel’s reliance on the prior legislation and went on, however, to address the evidence based on the applicable legislation. [13] The appellant submits that the trial judge, once she realized that counsel’s submissions were directed at the prior, rather than the applicable legislation, should have given counsel an opportunity to make further submissions directed at the applicable legislation. [14] We agree that the trial judge could have followed that course. However, we do not see how the appellant was prejudiced. There is no suggestion in the arguments before us that the evidence would have been any different. Counsel had a full opportunity to frame his arguments in the context of the present legislation in this court. It does not appear to us that the different language in the two versions of the legislation would, in the circumstances of this case, have made any difference in the evidence adduced on behalf of the appellant or the arguments put forward for him. [15] The trial judge’s reasons also offer an explanation for the trial judge’s failure to afford counsel an opportunity to make further submissions. The trial judge was satisfied, based on Dr. Pallandi’s report, that the appellant could not pass the “reasonable possibility of eventual control” test set out in the previous legislation. It followed from that, and the trial judge so found, that he must also fail the arguably more strenuous “reasonable expectation” test in the present legislation. There was, therefore, no need to request further submissions from counsel. (3) Did the trial judge erroneously place the onus on the appellant? [16] The trial judge, not surprisingly, given the language of s. 753(4.1), indicated that there was a presumption in favour of an indeterminate sentence, unless the court was satisfied that there was a reasonable expectation that some lesser measure would adequately protect the public. Boutilier , decided after the trial judge released her reasons, makes it clear that there is no presumption: Boutilier , at para. 71. [17] The trial judge’s single reference to a “presumption” caused no substantial wrong or miscarriage of justice. This case did not turn on any presumption. The outcome turned on the trial judge’s detailed findings of fact and the application of the proper burden of proof to those findings. (4) Was the imposition of an indeterminate sentence unreasonable? [18] The trial judge’s reasons accurately set out the factual background and the applicable legislation. Her analytical route to an indeterminate sentence is crystal clear and free of any legal error. Nor is her conclusion outside of the range of reasonable results on this record. To the contrary, an indeterminate sentence seems the necessary result, given the appellant’s refusal to take the medication necessary to render the risk posed by his continued presence in the community acceptable. [19] As indicated at the conclusion of oral argument, the appeal is dismissed. “Doherty J.A.” “David Watt J.A.” “C.W. Hourigan J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hulme, 2020 ONCA 156 DATE: 20200227 DOCKET: C66831 Watt, Pardu and Roberts JJ.A. BETWEEN Her Majesty the Queen Respondent and Daniel Scott Hulme Appellant C. Stephen White, for the appellant Tanit Gilliam, for the respondent Heard: February 26, 2020 On appeal from the conviction entered on January 25, 2018 and the sentence imposed on March 29, 2018 by Justice Jocelyn Speyer of the Superior Court of Justice. APPEAL BOOK ENDORSEMENT [1] The appellant has failed to surrender into custody at Collins Bay Institution as required by his release order. The appeal is dismissed as an abandoned 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. J.J., 2020 ONCA 138 DATE: 20200219 DOCKET: C67006 Lauwers, Trotter and Fairburn JJ.A. BETWEEN Her Majesty the Queen Respondent and J.J. Appellant Jaime Mor, for the appellant Nicolas de Montigny, for the respondent Heard and released orally: February 13, 2020 On appeal from the conviction entered on June 28, 2018 by Justice Jon-Jo Douglas of the Ontario Court of Justice. REASONS FOR DECISION [1] This is an appeal from conviction on one count of sexual assault. In arriving at his conclusion on the appellant’s guilt, the trial judge is said to have erred in his use of transcripts from the complainant’s police statement and preliminary inquiry evidence. [2] Those transcripts had been used during the cross-examination of the complainant to confront her with alleged inconsistencies between what she had previously said and what she testified to at trial. This was done in an effort to impeach her credibility. In re-examination, the Crown put other passages from the transcripts to the complainant in an effort to neutralize the strength of the alleged prior inconsistencies by showing certain consistencies between what the complainant had previously said and her viva voce evidence. [3] The parties offered to assist the trial judge by giving him copies of the transcripts of the prior police statement and preliminary inquiry evidence. Somewhat unusually, the transcripts got marked as numbered exhibits at trial. Despite this fact, counsel were clear that the sole purpose for which the transcripts were being provided to the trial judge was to assist him in recalling the portions of transcript that had been put to the complainant during her viva voce evidence. This understanding was subsequently confirmed with the trial judge in writing from counsel, when they specifically identified for his consideration the relevant page references from the transcript that had been put to the complainant when she testified at trial. [4] The reasons for judgment make clear that, rather than staying focused on what had been put to the complainant at trial, the trial judge considered the entirety of the transcripts to assist in his reasoning process. Accordingly, the respondent fairly acknowledges that the transcripts were used for a purpose other than that for which they were filed. Despite having used the transcripts for a different purpose than that agreed to by counsel at trial, the respondent argues that the trial judge did not use them for a legally improper purpose. [5] We do not agree. [6] The transcripts – in their entirety – were used by the trial judge as an essential component of his credibility assessments. He quoted from those transcripts at length, specifically numerous passages that were never put to the complainant during her viva voce evidence. He then observed that the “three interrogations” of the complainant were “internally consistent”. He gave this as a reason for preferring the complainant’s evidence and rejecting the evidence of the accused. [7] This improper use of the prior statements rendered the trial fundamentally unfair. In these circumstances a new trial is required. [8] The appeal is allowed, and a new trial is ordered. “P. Lauwers J.A.” “G.T. Trotter J.A.” “Fairburn J.A.”

WARNING THIS IS AN APPEAL UNDER THE YOUTH CRIMINAL JUSTICE ACT AND IS SUBJECT TO: 110(1)          Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. (2) Subsection (1) does not apply (a) in a case where the information relates to a young person who has received an adult sentence; (b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and (c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community. (3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication. 111(1)          Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. 138(1)          Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (b)  is guilty of an offence punishable on summary conviction. WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)      any of the following offences; (i)       an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)      two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)      In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)      at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)      on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)      In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)      An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. J.T., 2020 ONCA 125 DATE: 20200214 DOCKET: C66683 Lauwers, Trotter and Fairburn JJ.A. BETWEEN Her Majesty the Queen Appellant and J.T. Respondent Holly Loubert, for the appellant Doug Baum, for the respondent Heard and released orally: February 11, 2020 On appeal from the order staying proceedings entered on February 11, 2019 by Justice Marc D’Amours of the Ontario Court of Justice. REASONS FOR DECISION [1] This is a Crown appeal from a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms , imposed on February 11, 2019. [2] The respondent was 12 to 13 years of age at the time of the alleged offences. After the application judge stayed these proceedings, the Supreme Court of Canada clarified the law with respect to the applicability of R. v. Jordan , 2016 SCC 27, [2016] 1 S.C.R. 631 to youth matters: R. v. K.J.M. , 2019 SCC 55. [3] It is now clear that the trial judge erred in applying a framework other than the Jordan framework in youth matters. Applying the correct framework now, it is clear that the 18 month ceiling set out in Jordan was not exceeded. There is nothing on the record to suggest that the defence took meaningful steps to expedite the case or that the case took markedly longer than it should have in the jurisdiction where it was being prosecuted. [4] Particularly in light of his age at the time of the alleged offences and his age now, the respondent asks that we maintain the stay in any event. He is now 18 years of age. Based upon on this record, we see no basis upon which to do so. [5] We are informed by the appellant that there are trial dates available in June 2020. We urge the parties and the court to move forward with this matter as expeditiously as possible. [6] The appeal is allowed, the stay of proceedings is set aside, and a new trial is ordered. “P. Lauwers J.A.” “G.T. Trotter J.A.” “Fairburn 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. K.V., 2020 ONCA 131 DATE: 20200218 DOCKET: M51269 Paciocco J.A. (Motions Judge) BETWEEN Her Majesty the Queen Responding Party and K.V. Moving Party Kristin Bailey, for the moving party Kevin Rawluk, for the responding party Heard: February 7, 2020 REASONS FOR DECISION [1] K.V. is currently being tried in the Ontario Court of Justice on sexual offence charges relating to his young daughter, the complainant. [2] After evidence in the trial was completed on May 29, 2019, K.V. launched an abuse of process application before the trial judge. K.V. claims that an abuse of process occurred during the trial when, in violation of a court order, and contrary to the Rules of Professional Conduct of the Law Society of Ontario, the investigating officer, who had already testified as a witness in the proceeding, was directed by the prosecuting Crown counsel to question the complainant about her testimony while the complainant was still under cross-examination. [3] The abuse of process hearing was scheduled to be heard on August 16, 2019. On that day, it was adjourned because neither the prosecuting Crown counsel nor the investigating officer were present; defence counsel had anticipated they would be present. The trial judge refused an invitation from the Crown to resolve the motion on the paper record, commenting that more context could be acquired from oral evidence, and the hearing was adjourned. [4] On October 4, 2019, K.V. obtained and served a subpoena on the prosecuting Crown counsel to give evidence at the re-scheduled abuse of process hearing, set to be heard on December 2, 2019. On November 19, 2019, prosecuting Crown counsel succeeded in having that subpoena quashed by a Superior Court judge. [5] K.V. quickly applied for legal aid to facilitate an appeal of that order. The legal aid application was delayed but finally approved on January 24, 2020. K.V. is now ready to file his notice of appeal and has applied before me for an extension of the time to file the notice of appeal. [6] The Crown concedes that K.V. had a bona fide intention to appeal during the requisite period and has explained the delay in not filing the appeal. However, the Crown contends that K.V. has not established that the extension is in the interests of justice because his appeal lacks merit and is delaying the completion of a sexual offence trial involving a minor. [7] I do not agree with the Crown that the appeal is frivolous. I accept that context and statements made by the prosecuting Crown attorney on the record support a strong inference that the Crown acted as he did in order to determine whether to maintain his objection under s. 276 of the Criminal Code , R.S.C. 1985, c. C-46, to a line of questioning defence counsel was pursuing. However, this alone does not render the appeal meritless. [8] First, the Superior Court judge exercised his discretion to quash the subpoena, in part, on the basis that Crown discretion must be protected. K.V.’s contention that this was erroneous because the Crown was not exercising protected discretion when acting illegally and contrary to a court order is not without merit. [9] Second, the Superior Court judge concluded that the subpoena was a fishing expedition, bereft of a reasonable likelihood that the prosecuting Crown attorney would have relevant evidence to give. However, K.V.’s contention that the seriousness of the apparent breaches that occurred will be relevant to the outcome of the abuse of process application is not without merit, and as the trial judge had recognized, the prosecuting Crown attorney is likely to give relevant evidence. That evidence could include testimony about what consideration, if any, he gave to the trial judge’s ruling and to his ethical obligations before instructing the investigating officer. These things could affect the seriousness of any breaches that may have occurred. [10] Finally, the Superior Court judge did not find there to be extraordinary circumstances warranting the subpoenaing of a prosecuting Crown attorney. There may be merit in K.V.’s contention that this “extraordinary circumstance” standard was either met, or does not apply where there is a manifest breach of a court order and a rule of professional conduct by a prosecuting Crown attorney. [11] I do appreciate the Crown’s concerns about delay in the prosecution of a sexual assault trial involving a minor. And it may be that defence counsel aggravated the delay by taking inadequate steps to attempt to ensure the timely attendance of the prosecuting Crown attorney at the scheduled abuse of process hearings. However, I make two points. [12] First, K.V. has a right of appeal from the Superior Court judge’s decision. He is therefore entitled to delay the trial to exercise his right of appeal even though it is a serious sexual assault prosecution involving a minor. The primary focus on this application should be on the delay caused in filing the notice of appeal and that delay has been explained. [13] Second, the delay that is occurring, including the delay in having the abuse of process hearing conducted, has not delayed the testimony of the young complainant. Her evidence is completed. [14] I appreciate the heightened public interest in completing charges of this kind; however, I am satisfied that it is in the interests of justice for K.V. to be given an extension of time to file the notice of appeal. [15] I understand that the notice of appeal is ready to go, and that K.V. can file the notice of appeal on short notice. I would order that the notice of appeal be filed within 3 business days of the release of this decision, and that he perfect his appeal within 30 days of the filing of the notice of appeal. [16] I will not order the Crown to file its response materials in an expedited manner but would encourage that to occur. “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Khill, 2020 ONCA 151 DATE: 20200226 DOCKET: C65655 Strathy C.J.O., Doherty and Tulloch JJ.A. BETWEEN Her Majesty the Queen Appellant and Peter Khill Respondent Susan Reid, for the appellant Michael Lacy and Joseph Wilkinson, for the respondent Heard: September 30, 2019 On appeal from the acquittal entered by Justice C. Stephen Glithero, sitting with a jury, dated June 27, 2018. Doherty J.A.: I introduction [1] The respondent, Peter Khill, shot and killed Jonathan Styres. He was charged with second degree murder. At trial, Mr. Khill testified that he shot Mr. Styres in self-defence, believing Mr. Styres was armed and about to shoot him. [2] There were two issues at trial – did Mr. Khill act in self-defence, and if he did not, did he have the mens rea required for murder? [1] The self-defence claim, if accepted, would lead to an acquittal. The mens rea issue would, at best for Mr. Khill, result in a manslaughter conviction. The jury acquitted, indicating that it had a reasonable doubt on self-defence. [3] The Crown advances four grounds of appeal. Three allege misdirection in respect of self-defence. The fourth challenges the admissibility of the evidence of Dr. Laurence Miller, an expert called by the defence. The Crown’s oral argument focused on the alleged misdirection. [4] I would allow the appeal and order a new trial. I agree with the Crown’s submission that the trial judge failed to instruct the jury to consider Mr. Khill’s conduct during the incident leading up to the shooting of Mr. Styres when assessing the reasonableness of that shooting. I do not agree that the trial judge made the other errors advanced by the Crown. II the evidence (i) Overview [5] It is necessary to review some of the evidence, particularly Mr. Khill’s testimony, in detail. However, it is helpful to begin with an overview of the tragic events. [6] Mr. Khill and his then girlfriend, now wife, Millie Benko, lived in a single-story house in a rural area near Hamilton, Ontario. Mr. Khill was asleep at about 3:00 a.m. on February 4, 2016 when Ms. Benko woke him up and told him she had heard a loud banging. Mr. Khill listened and heard two loud bangs. He went to the bedroom window. From the window, he could see his 2001 pickup truck parked in the driveway. The dashboard lights were on indicating, to Mr. Khill, that some person or persons were either in the truck or had been in the truck. [7] Mr. Khill had received training as an army reservist several years earlier. This training taught him to assess threat situations and respond to those situations proactively. According to Mr. Khill, his military training took over when he perceived a potential threat to himself and Ms. Benko. He decided to investigate the noises and, if necessary, confront any intruder or intruders. Mr. Khill loaded the shotgun he kept in the bedroom and, armed with the shotgun, went to investigate the noises. [8] Using techniques he had learned as an army reservist, Mr. Khill stealthily made his way through his house, ending up at the front door of the breezeway connecting the house to the garage. Mr. Khill could see his truck from this vantage point. The truck was parked in the driveway facing away from the house with the back end near the garage door. The dashboard lights were still on. [9] Mr. Khill suspected that one or more persons were in or near his truck. He quietly made his way to the back of the passenger’s side of the truck. The passenger door was open. Mr. Khill saw the silhouette of a person leaning into the front seat of the truck from the passenger door. It was Mr. Styres. Evidence later gathered at the scene indicated that the lock on the front door of the truck had been punched out. It would appear that Mr. Styres was trying to steal the truck or the contents in the front cab of the truck. [10] Mr. Khill said in a loud voice, “Hey, hands up.” Mr. Styres, who apparently had not seen Mr. Khill, began to rise and turn toward Mr. Khill. As he turned, Mr. Khill fired a shot. He immediately racked the shotgun and fired a second shot. Both shots hit Mr. Styres in the chest. He died almost immediately. [11] According to Mr. Khill, immediately after he yelled at Mr. Styres to put his hands up, Mr. Styres began to turn toward him. Mr. Styres’ hand and arm movements indicated that he had a gun and was turning to shoot Mr. Khill. Mr. Khill claimed that he believed that he had no choice but to shoot Mr. Styres. Mr. Styres did not have a gun. (ii) Mr. Khill’s Evidence [12] Mr. Khill was 26 years old at the time of the incident. He and Ms. Benko had moved into their home about six months earlier. The garage was connected to the house by a breezeway. There was, however, no direct access from the garage or the breezeway into the house. There was a window space in the breezeway that had been boarded over by Mr. Khill. If that board was removed, a person could get into the basement of the home from the breezeway and, from the basement, access the rest of the house. [13] Mr. Khill is a millwright and works on jet engines. He was often required to go out-of-town on short notice for job-related reasons. He worried about Ms. Benko’s safety while he was gone. They lived in the country and his neighbours had told him about numerous break-ins in the area. About a week before the homicide, Ms. Benko had told Mr. Khill that she thought she had heard someone using the keypad lock on the door, apparently trying to gain entry to the home. Mr. Khill was concerned that burglars might be watching the house. He changed the entry codes on the door locks. [14] On the night of the homicide, Ms. Benko awoke to a loud noise outside of the home. She woke Mr. Khill. He heard two loud bangs coming from the area of the garage. Mr. Khill knew that the noises did not come from inside the house but could not tell whether they were from inside or outside of the garage. [15] Mr. Khill got out of bed and went to the bedroom window. He saw the dash lights in his truck were on. This confirmed to him the presence of one or more intruders in or near the garage and the truck. Mr. Khill knew that his garage opener was in the truck and worried that someone might gain entry to the garage using the opener. Mr. Khill also kept a knife in the truck, which he feared could be used as a weapon by the intruder. He worried that the intruder or intruders could get into the house and put him and Ms. Benko in danger. [16] Mr. Khill testified that his concerns about possible intruders led him to perform the kind of threat assessment that he had been trained to do as an army reservist. A threat assessment involved considering how many people were outside, the weapons they might have, and what they might want. This training also led Mr. Khill to think proactively about neutralizing the potentially threatening situation. He asked himself: What do I need to do to gain control of the whole situation? [17] Mr. Khill kept a shotgun in the closet of his bedroom. He had ammunition for the shotgun in the bedroom. Mr. Khill explained that he kept the gun and ammunition in the bedroom because he anticipated that if the need to use the gun to defend himself and Ms. Benko ever arose at night, that need would probably occur when they were in their bedroom. [18] Mr. Khill had the appropriate licence for the shotgun. He took the shotgun out of its gun sock and removed the trigger lock. Mr. Khill removed two shotgun shells from the drawer and loaded them into the gun, racking one into the chamber. He put the safety on the weapon. Although it was the middle of winter, Mr. Khill left the bedroom in his bare feet wearing only a t-shirt and boxer shorts and carrying the loaded shotgun. [19] Mr. Khill testified that, in keeping with his military training, he left the bedroom, prepared for the worst, but hoping for the best. He had decided that if he came upon an intruder, he would disarm that intruder, if necessary, and detain him. Mr. Khill insisted that he was instinctively following his military training. In cross-examination, he was asked if he was prepared, when he left the bedroom, to kill somebody if necessary. He responded: Yes, I have deadly force with me. [20] Mr. Khill exited the house using the back door and then entered the breezeway. The lights in the breezeway went on automatically. Mr. Khill could see into the garage from the breezeway. He did not see anybody in the garage. [21] Mr. Khill exited the breezeway through its front door. This put him near the driveway and beside his truck. He passed between the garage and the truck, taking up a position on the back-passenger side corner of the truck. Mr. Khill was moving as quietly as he could, using techniques he had learned as a reservist to avoid alerting the intruder. [22] From his vantage point by the back of the truck, Mr. Khill saw that the passenger door was open. He could also see a person, Mr. Styres, leaning across the front passenger seat of the truck. Mr. Styres’ feet were on the ground beside the passenger door. Mr. Khill did not know Mr. Styres and Mr. Styres did not appear to be aware of Mr. Khill’s presence. It was dark. Mr. Khill could not see Mr. Styres’ face. Based on his observations to this point, Mr. Khill believed that there was a single intruder breaking into his truck. [23] Mr. Khill said in a loud voice, “Hey, hands up.” Mr. Khill saw Mr. Styres begin to turn toward him in response to Mr. Khill’s voice. He had been taught to focus on the target’s hands. Mr. Khill saw Mr. Styres’ hands moving in unison downward toward his waist. His hands came together at the waist and pointed toward Mr. Khill. Based on these movements and his army reservist training, Mr. Khill believed Mr. Styres had a gun and was turning to point it at Mr. Khill. Mr. Khill testified that Mr. Styres was about twelve feet away from him. The forensic evidence suggested the two men were three to twelve feet apart. [24] Mr. Khill testified that he believed he faced “a life or death situation”: shoot or be shot. He raised his shotgun, removed the safety, and fired, aiming at Mr. Styres’ chest. He immediately racked the gun and fired a second time, again aiming at the chest. Mr. Khill testified that he had been trained to fire twice and aim at “centre mass”. Both shots struck Mr. Styres. One entered his chest directly, the other passed through his arm and into his chest. [25] Mr. Styres fell to the ground. Mr. Khill quickly searched Mr. Styres for a gun. Mr. Styres was unarmed. Mr. Khill went into the house. Ms. Benko was on the phone with the 911 operator. [26] Mr. Khill put his shotgun in the house and went back outside to try and help Mr. Styres. He applied CPR for several minutes to no avail. He returned to the house and spoke to the 911 operator. Mr. Khill went back outside to wait for the arrival of the police. [27] Mr. Khill was arrested at the scene and eventually charged with murder. He made statements to the 911 operator, to the police at the scene, and later to the police at the station to the effect that he had acted in self-defence and believed Mr. Styres was about to shoot him. [28] In cross-examination, Mr. Khill was asked why he did not call 911 from his bedroom and wait for the police. He acknowledged that he could have done so but indicated, “There was nothing that I was ever trained on to dial 911.” [29] Mr. Khill also agreed in cross-examination that there were other reasonable things he could have done rather than seeking out and confronting the intruder in the manner he did. Mr. Khill indicated that none of these other options came to his mind. He insisted that he feared for his and Ms. Benko’s safety and was “falling back on my military training”. [30] The jury heard a great deal of forensic evidence. Much of that evidence related to Mr. Styres’ position when he was shot by Mr. Khill. Not surprisingly, some of that evidence was equivocal. As I understand that evidence, it did not necessarily contradict Mr. Khill’s testimony in any material way. (iii) Mr. Khill’s Military Training [31] Mr. Khill joined the army reserve while in high school in 2007. He remained involved with the reserves until 2011. Mr. Khill participated in weekly training sessions and some weekend training sessions. He took longer training sessions during the summers. In 2010, Mr. Khill also trained to assist in the security efforts surrounding the G8 Summit in Huntsville, Ontario. [32] Mr. Khill testified that he was taught how to react to various situations that soldiers encounter in a war zone. The training emphasized repetition so soldiers would react instinctively. Mr. Khill believed this part of his training remained with him long after he left the reserves and affected the way he reacted during the fatal encounter with Mr. Styres on the night of February 4, 2016. [33] Mr. Khill was taught to assess potential threats and take proactive measures to neutralize threats. His teaching involved the use of teamwork and various techniques when seeking out and neutralizing threats. Mr. Khill also learned how to use deadly force when necessary. He was taught to aim for the target’s centre mass and fire twice in rapid succession when using deadly force. [34] Mr. Khill agreed that all of his training, with the exception of the training relating to the G8 Summit, assumed operations in a theatre of war. The training was not intended for encounters in civilian situations. Although Mr. Khill testified he could see “some overlap” in wartime situations presented in his training and the situation he faced in the early morning of February 4, 2016, he understood that military training had to be kept separate from civilian life. [35] Walter Sroka, an officer who trained Mr. Khill in the army reserves, testified for the defence. He described the army reservist training and acknowledged that the training was designed to teach soldiers how to address situations, including threatening situations, that arose in a combat situation. The training included learning tactics to be used when protecting structures at night.  Mr. Sroka agreed that soldiers had to be careful to keep their military training separate from their daily civilian lives. [36] Mr. Sroka testified that the reservist training taught soldiers to operate as a unit and not as individuals when responding to perceived threats. The training also used repetition so soldiers could perform the necessary tasks without thinking about them. Mr. Sroka described the training as allowing soldiers to turn on a switch and go into a “military mindset”. He further testified that because of the nature of the training, one could be away from the training for quite some time and it would return very quickly should a threatening situation arise. [37] Mr. Sroka testified that, unlike the rest of the reservist training, the G8 Summit training did not involve war conditions. In that training, the reservists were taught that they must act in coordination with, and in cooperation with, the civilian police. III A: The Self-Defence Instructions (i) Overview of s. 34 [38] Self-defence renders an act that would otherwise be criminal, not culpable. The nature of the defence is evident in the jury instruction routinely used in murder cases. Jurors are told to first decide whether the accused caused the victim’s death. If the jury is satisfied the accused caused the victim’s death, the jury goes on to decide whether the accused acted unlawfully in causing the victim’s death. In answering this question, the jury considers self-defence. An act done in self-defence is not unlawful and death caused by that act is not culpable: see David Watt, Watt’s Manual of Criminal Jury Instructions , 2nd ed. (Toronto: Carswell, 2015), at p. 657 (Final 229-A). [39] Section 34 of the Criminal Code , R.S.C., 1985, c. C-46, codifies the law of self-defence in Canada. The section also speaks of the defence of others. Mr. Khill claimed to be protecting Ms. Benko in addition to defending himself when he shot Mr. Styres. For the purposes of the appeal, however, I will focus exclusively on the self-defence component of Mr. Khill’s defence. In the circumstances of this case, his defence stands or falls on his claim that he shot Mr. Styres to save his own life. [40] Sections 34(1) and (2) provide: 34(1) A person is not guilty of an offence if (a)   they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; (b)  the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and (c)  the act committed is reasonable in the circumstances. (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors: (a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force; (c) the person’s role in the incident; (d) whether any party to the incident used or threatened to use a weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [41] The present s. 34 came into force on March 11, 2013. It aimed at simplifying the previous law [2] by replacing four different overlapping statutory definitions of self-defence with a single definition: Citizen’s Arrest and Self-defence Act , S.C. 2012, c. 9, s. 2; Canada, Department of Justice, “Bill C-26 (S.C. 2012, c. 9) Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners”, March 2013, at pp. 7-10; R. v. Bengy , 2015 ONCA 397, 325 C.C.C. (3d) 22, at paras. 27-30; R. v. Evans , 2015 BCCA 46, 321 C.C.C. (3d) 130, at paras. 29-33. [42] Self-defence, as defined in s. 34(1), has three elements: · the accused must believe, on reasonable grounds, that force is being used or threatened against him: s. 34(1)(a) [the trigger]; · the act of the accused said to constitute the offence must be done for the purpose of defending himself: s. 34(1)(b) [the motive]; and · the act said to constitute the offence must be reasonable in the circumstances: s. 34(1)(c) [the response]. [3] (a) The Trigger [43] Section 34(1)(a) reads: 34(1) A person is not guilty of an offence if (a)   they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; [44] Section 34(1)(a) focuses on the accused’s state of mind. The accused must have a subjective belief that force is being used or threatened against them. Absent that belief, the defence is not available. That belief, however, does not itself trigger the defence. For the defence to be triggered, the belief must be based on “reasonable grounds”. [45] Self-defence has traditionally been regarded as a justificatory defence rooted in necessity founded on the instinct for self-preservation. Justification treats an act that would normally be regarded as criminal as morally right, or at least morally acceptable in the circumstances: R. v. Perka , [1984] 2 S.C.R. 232, at p. 246; R. v. Ryan , 2013 SCC 3, [2013] 1 S.C.R. 14, at paras. 24-25. Because an act done in self-defence justifies as morally acceptable an act that would otherwise be criminal, the defence cannot depend exclusively on an individual accused’s perception of the need to act. Put another way, killing another cannot be justified simply because the killer believed it was necessary. Justification defences demand a broader societal perspective. Consequently, self-defence provisions contain a reasonableness component. For example, the previous s. 34(2) justified deadly force if the accused caused death “under reasonable apprehension of death or grievous bodily harm” and believed “on reasonable grounds” that he could not otherwise save himself. [46] The requirement in s. 34(1)(a) that the belief be based on “reasonable grounds” imports an objective assessment of the accused’s belief. Reasonableness is ultimately a matter of judgment. A reasonableness assessment allows the trier of fact to reflect community values and normative expectations in the assignment of criminal responsibility. To brand a belief as unreasonable in the context of a self-defence claim is to declare the accused’s act criminally blameworthy: see R. v. Cinous , [2002] 2 S.C.R. 3, at para. 210, per Arbour J. in dissent but not on this point; R. v. Pilon , 2009 ONCA 248, 243 C.C.C. (3d) 109, at para. 75; R. v. Philips , 2017 ONCA 752, at para. 98; George P. Fletcher, “The Right and the Reasonable” in Russell L. Christopher, ed., Fletcher’s Essays on Criminal Law (Oxford: Oxford University Press, 2013) 150, at p. 157. [47] My colleague, Paciocco J.A., writing extrajudicially in his influential article, “The New Defense Against Force” (2014) 18 Can. Crim. L. Rev. 269, describes the purpose of the reasonableness component of the defence in these terms, at p. 278: When the law uses an objective component it does so to ensure that the acts or beliefs it accepts are “reasonable” ones. It is a quality control measure used to maintain a standard of conduct that is acceptable not to the subject, but to society at large. [48] Canadian courts consistently interpreted the reasonableness requirements in the previous self-defence provisions as blending subjective and objective considerations. Reasonableness could not be judged “from the perspective of the hypothetically neutral reasonable man, divorced from the appellant’s personal circumstances”: R. v. Charlebois , [2000] 2 S.C.R. 674, at para. 18. Instead, the court contextualized the reasonableness assessment by reference to the accused’s personal characteristics and experiences to the extent that those characteristics and experiences were relevant to the accused’s belief or actions. For example, an accused’s prior violent encounters with the other person or her knowledge of that person’s propensity for violence had to be taken into account in the reasonableness inquiry: see R. v. Pé tel , [1994] 1 S.C.R. 3, at p. 13; R. v. Lavallee , [1990] 1 S.C.R. 852, at pp. 874, 899; Charlebois , at para. 14; R. v. Currie (2002), 166 C.C.C. (3d) 190, at paras. 43-44 (Ont. C.A.), leave to appeal refused, [2003] S.C.C.A. No. 410; R. v. Sheri (2004), 185 C.C.C. (3d) 155, at para. 77 (Ont. C.A.). Similarly, an accused’s mental disabilities were factored into the reasonableness assessment: see R. v. Nelson (1992), 8 O.R. (3d) 364, at pp. 383-384 (C.A.); R. v. Kagan , 2004 NSCA 77 , 185 C.C.C. (3d) 417, at paras. 37-45. [49] Not all characteristics or experiences of an accused were, however, relevant to the reasonableness inquiry under the previous self-defence provisions. An accused’s self-induced intoxication, abnormal vigilance, or beliefs that were antithetical to fundamental Canadian values and societal norms were not relevant to the reasonableness assessment: see R. v. Reilly , [1994] 2 S.C.R. 396, at p. 404; Cinous , at para. 130, per Binnie J. concurring; R. v. Boucher , 2006 QCCA 1079 , at paras. 34-41; Pilon , at para. 75. For example, an accused’s “honest” belief that all young black men are armed and dangerous could not be taken into account in determining the reasonableness of that accused’s belief that the young black man he shot was armed and about to shoot him. To colour the reasonableness inquiry with racist views would undermine the very purpose of that inquiry. The justificatory rationale for the defence is inimical to a defence predicated on a belief that is inconsistent with essential community values and norms. [50] Contextualizing the reasonableness inquiry to take into account the characteristics and experiences of the accused, does not, however, render the inquiry entirely subjective. The question is not what the accused perceived as reasonable based on his characteristics and experiences, but rather what a reasonable person with those characteristics and experiences would perceive: see Pilon , at para. 74 . [51] The language of the present s. 34(1)(a), and in particular the phrase, “on reasonable grounds”, tells me that Parliament intended the same kind of reasonableness inquiry conducted under the previous self-defence provisions should be conducted under s. 34(1)(a). To the extent that Mr. Khill’s personal characteristics and experiences informed his belief that he was about to be shot by Mr. Styres, those characteristics and experiences had to be taken into account in assessing the reasonableness of his belief, unless excluded from that assessment by policy-based considerations. [52] The Crown argues that Mr. Khill’s previous military training should not have been taken into account in assessing the reasonableness of his belief that force was being used or threatened against him by Mr. Styres. I address that argument below. (b) The Motive [53] The second element of self-defence is set out in s. 34(1)(b): A person is not guilty of an offence if, (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force. [54] Section 34(1)(b) looks to the motive of the accused. Why did he do the “act” which is said to constitute the offence? This inquiry is subjective. The requirement that the “act which constitutes the offence” be done for defensive purposes was not explicit in the prior Criminal Code definitions of self-defence. It is, however, implicit in any legitimate notion of self-defence: see R. v. Craig , 2011 ONCA 142, at para. 35; David Paciocco, “Applying the Law of Self-Defence” (2007) 12 Can. Crim. L. Rev. 25, at p. 29. Absent a defensive or protective purpose, the rationale for the defence disappears. Vengeance, even if righteous, is blameworthy and cannot be camouflaged as self-defence. (c) The Response [55] The third element of the s. 34 defence is found in s. 34(1)(c): A person is not guilty of an offence if, (c) the act committed is reasonable in the circumstances. [56] This element examines the accused’s response to the perceived or actual use of force or the threat of force. That response – “the act” – which would otherwise be criminal, is not criminal if it was “reasonable in the circumstances”. [57] Section 34(2) directs that, in determining the reasonableness of the accused’s act, the court must consider “the relevant circumstances of the person, the other parties and the act”. This language signals that the reasonableness inquiry in s. 34(1)(c), like the reasonableness inquiry in s. 34(1)(a), blends objective and subjective considerations. [58] The “relevant circumstances of the accused” in s. 34(2) can include mistaken beliefs held by the accused. If the court has determined, under s. 34(1)(a), the accused believed wrongly, but on reasonable grounds, force was being used or threatened against him, that finding is relevant to, and often an important consideration in, the court’s assessment under s. 34(1)(c) of the reasonableness of “the act in the circumstances”. [4] [59] Other mistaken beliefs by an accused that are causally related to the “act” that gives rise to the charge will also be relevant to the assessment of the reasonableness of “the act in the circumstances”. Those beliefs may be reasonable or unreasonable. To the extent that the court determines that a mistaken belief causally related to the “act” is reasonable, that finding will offer support for the defence claim that the “act” was reasonable. However, if the court assesses a mistake as honest but unreasonable, that finding may tell against the defence assertion that the accused’s “act” was “reasonable in the circumstances”. For example, if the jury concluded that when Mr. Khill decided to arm himself and go outside to investigate the noises he mistakenly believed he and his wife were in danger, the jury’s assessment of the reasonableness of that mistaken belief would factor into their assessment of the reasonableness of the shooting under s. 34(1)(c. [60] The blending of objective and subjective considerations to determine the reasonableness of the accused’s act is made all the more apparent by reference to the specific factors identified in s. 34(2) as relevant to the reasonableness inquiry. Some of those factors explicitly incorporate characteristics and experiences of the accused: see s. 34(2)(e)(f), (f.1). In addition to the specific factors identified in s. 34(2), the section also indicates that the trier of fact must consider all factors relevant to the circumstances of the accused, the other parties, and the act. Clearly, s. 34(2) invites the kind of contextualization of the reasonableness inquiry developed under the previous self-defence provisions and described above in relation to s. 34(1)(a) (see paras. 43 to 52 above). [61] The factors listed in s. 34(2) as relevant to the determination of the reasonableness of the accused’s act include many of the considerations that were relevant to self-defence under the previous definitions of that defence. For example, the imminence of the threat and the nature of the threat are relevant in deciding the reasonableness of the accused’s act under ss. 34(2)(a) and (b). They were also relevant to the availability of the defence under the previous statutory definitions. [62] Section 34(2) does, however, make one important change in the law. Under the prior self-defence provisions, some specific factors identified in the definitions of self-defence were preconditions to the availability of the defence. For example, under the previous s. 34(1), the force used could not be “more than is necessary” for the purposes of self-defence. Under s. 34(2), the nature of the force used is but one factor in assessing the reasonableness of the act. The weight to be assigned to any given factor is left in the hands of the trier of fact: see Bengy , at paras. 46-47. [63] The approach to reasonableness in s. 34(1)(c) and s. 34(2) renders the defence created by s. 34 more open-ended and flexible than the defences created by the prior self-defence provisions. At the same time, however, the application of the new provision is less predictable and more resistant to appellate review. Assuming the trier of fact is properly alerted to the relevant considerations, there would seem to be little direction or control over how the particular factors are weighed and assessed in any given case. Reasonableness is left very much in the eye of the beholder, be it judge or jury. Especially where the reasonableness assessment is reflected in the verdict of a jury, that assessment will be largely beyond the reach of appellate review: see Kent Roach, “A Preliminary Assessment of the New Self-Defence and Defence of Property Provisions” (2012) 16 Can. Crim. L. Rev. 275, at pp. 286-287; The New Defense Against Force, at pp. 286-287; Alan Brudner, “Constitutionalizing Self-Defence”, (2011) 61 U. Toronto L.J. 867, at pp. 896-897. (d) The Elements of Self-Defence in this Case [64] Having described the elements of self-defence as defined in s. 34, it is helpful to relate those elements to the facts of this case. The jury, in deciding whether Mr. Khill should be acquitted on the basis of his self-defence claim, had to address three questions: · Did Mr. Khill believe, on reasonable grounds, that Mr. Styres was about to shoot him? (s. 34(1)(a)) · Did Mr. Khill shoot Mr. Styres for the purpose of defending himself from being shot by Mr. Styres? (s. 34(1)(b)) · Was it reasonable in the circumstances for Mr. Khill to shoot Mr. Styres? (s. 34(1)(c)) [65] Mr. Khill could only be convicted if the Crown convinced the jury, beyond a reasonable doubt, that the answer to at least one of the three questions posed above was “no”: see R. v. Cormier , 2017 NBCA 10, 348 C.C.C. (3d) 97, at para. 40; R. v. Curran , 2019 NBCA 27, 375 C.C.C. (3d) 551, at para. 13; R. v. Levy , 2016 NSCA 45, 374 N.S.R. (2d) 251, at para. 158; R. v. McPhee , 2018 ONCA 1016, 143 O.R. (3d) 763. IV The alleged errors in the jury instructions [66] Crown counsel, Ms. Reid, submits the trial judge made three errors in his instructions on self-defence. She argues the trial judge: · failed to instruct the jury that, in deciding whether Mr. Khill acted reasonably when he shot Mr. Styres, they had to consider Mr. Khill’s role in the incident and whether either Mr. Khill or Mr. Styres had or threatened to use a weapon during the incident; · erred in instructing the jury that Mr. Khill’s military training was relevant to the jury’s assessment of the reasonableness of his belief that he was about to be shot as well as the reasonableness of his act when he shot Mr. Styres; and · erred in instructing the jury that they should acquit Mr. Khill if they accepted his testimony that he acted in self-defence. A: Did the trial judge fail to instruct the jury that, in considering the reasonableness of Mr. Khill’s act, they were required to consider his role in the incident and whether either Mr. Khill or Mr. Styres had or used a weapon? [67] Sections 34(2)(c) and (d) identify two of several specific factors the court must take into account in deciding whether the act committed by the accused, which would otherwise be criminal, was reasonable in the circumstances. Under those provisions, the court must consider: · the person’s role in the incident (s. 32(2)(c)); · whether any party to the incident used or threatened to use a weapon (s. 32(2)(d)). [68] I will first address s. 34(2)(d) and the trial judge’s instruction with respect to the use or threatened use of weapons. The trial judge did not identify Mr. Khill’s use of the shotgun as a separate factor for the jury to consider in determining the reasonableness of Mr. Khill’s shooting of Mr. Styres. The use of the shotgun was, however, the essence of the act. It is impossible to imagine how the jury could divorce the use of the weapon by Mr. Khill from the assessment of the reasonableness of the shooting. [69] A trial judge is under no duty to repeat verbatim the language in s. 34(2) of the Criminal Code . The trial judge’s responsibility is to ensure the jury appreciates the parts of the evidence relevant to the reasonableness inquiry required under s. 34(1)(c). I have no doubt they appreciated the significance of Mr. Khill’s possession and use of the shotgun to their determination of the reasonableness of the shooting. [70] The trial judge did instruct the jury to “consider whether Jonathan Styres used or threatened to use a weapon”. There was evidence from which it could be inferred that Mr. Styres was in possession of a screwdriver when he was shot. There was no evidence that he actually used or threatened to use that screwdriver or anything else as a weapon when confronted by Mr. Khill. [71] There was evidence Mr. Khill believed Mr. Styres was armed and was about to shoot him when he fired on Mr. Styres. Indeed, that belief was central to Mr. Khill’s defence. The trial judge did put Mr. Khill’s belief to the jury as a relevant consideration in assessing the reasonableness of the actions. He also reminded the jury that the belief, though mistaken, must be reasonable. [72] It may have been better had the trial judge avoided any reference to the possibility of Mr. Styres using or threatening to use a weapon. Mr. Khill’s defence depended on his mistaken belief that Mr. Styres had a gun and was about to use it. The possibility that Mr. Styres had a screwdriver in his hand would not significantly advance the defence. [73] I would not, however, hold that the brief reference to the possibility of Mr. Styres using or threatening to use a weapon led to reversible error. Viewed as a whole, the jury would understand this was not a case about Mr. Styres having a weapon or threatening to use the weapon, but rather a case about Mr. Khill believing that Mr. Styres had a gun and was about to use it. [74] Turning to s. 34(2)(c), nowhere in his instructions did the trial judge tell the jury to consider Mr. Khill’s role in the incident in assessing the reasonableness of the shooting of Mr. Styres. For reasons I will explain, this was an important omission. [75] Section 34(2)(c) introduced a factor into the reasonableness inquiry that had no equivalent under the previous legislation. The court is required to examine the accused’s behaviour throughout the “incident” that gives rise to the “act” that is the subject matter of the charge. The conduct of the accused during the incident may colour the reasonableness of the ultimate act. Placed in the context of the evidence in this case, Mr. Khill’s behaviour from the moment he looked out his bedroom window and saw that the dash lights in his truck were on, until the moment he shot and killed Mr. Styres, had to be examined when assessing the ultimate reasonableness of the shooting. [76] Section 34(2)(c) renders an accused’s conduct during the “incident” relevant, even though the conduct is not unlawful or provocative as that word was defined in the prior self-defence provisions. The court must consider whether the accused’s behaviour throughout the incident sheds light on the nature and extent of the accused’s responsibility for the final confrontation that culminated in the act giving rise to the charge. It is for the trier of fact, judge or jury, to decide the weight that should be given to the accused’s behaviour throughout the incident when deciding the ultimate question of the reasonableness of the act giving rise to the charge: The New Defence Against Force, at pp. 290, 293-94. [77] The Department of Justice’s Technical Guide for Practitioners, at p. 26, accurately describes the effect of s. 34(2)(c): This factor in part serves to bring into play considerations surrounding the accused’s own role in instigating or escalating the incident. Under the old law, the distinction between section 34 and 35 was based on the defender’s role in commencing the incident, creating higher thresholds for assessing the defence where the accused was the provoker of the incident as opposed to an innocent victim. As the new law contains only one defence that does not distinguish between conflicts commenced by the accused and those commenced by the victim, this paragraph signals that, where the facts suggest the accused played a role in bringing the conflict about, that fact should be taken into account in deliberations about whether his or her ultimate response was reasonable in the circumstances . [Emphasis added.] [78] On the evidence, the jury could have taken different views of Mr. Khill’s role in the incident. On one view, the jury could have found Mr. Khill took a series of steps, bringing about the confrontation with Mr. Styres, while at the same time failing to take measures that could well have avoided the ultimate conflict. For example, Mr. Khill could have called the police and waited in the house for their arrival. If the jury concluded that Mr. Khill’s conduct leading up to the shooting was in some respects unreasonable, if not reckless, and contrary to his military training, the jury may have decided that Mr. Khill bore significant responsibility for the confrontation that ended in Mr. Styres’ death. On that view of the evidence, Mr. Khill’s role in the incident would not support his claim that he acted reasonably when he shot Mr. Styres. [79] The jury could also have taken a different view of Mr. Khill’s role in the incident. The jury could have determined that Mr. Khill had good reason to be concerned about the safety of his wife and himself. The jury could further have determined that, in the circumstances, it was reasonable for Mr. Khill to take the proactive measures he had been taught as an army reservist to find and neutralize the threat before it materialized. On that assessment of the evidence, Mr. Khill’s conduct during the incident leading up to the shooting supported the defence position that the shooting was reasonable in the circumstances. [80] Under the open-ended reasonableness inquiry mandated by s. 34(2), it would have been entirely for the jury to decide how much or how little weight to give their findings about Mr. Khill’s role in the incident in their ultimate reasonableness assessment: see Preliminary Assessment of the New Self-Defence, at p. 290. [81] The potential importance of an instruction on the relevance of Mr. Khill’s role in the incident to the reasonableness assessment required by s. 34(1)(c) is demonstrated by a consideration of findings that were reasonably open to this jury on the evidence. The jury could have concluded that Mr. Khill acted recklessly and contrary to his military training by arming himself with a loaded shotgun, sneaking up on Mr. Styres, and startling him while standing only a few feet away with a loaded shotgun pointed at him. If the jury took that view of the evidence, they could well have determined that Mr. Khill bore significant responsibility for the shooting. At the same time, however, the jury could have concluded that at the moment Mr. Khill fired at Mr. Styres he believed, on reasonable grounds, that Mr. Styres was armed and was about to shoot him. [82] In deciding whether, on the basis of the factual findings outlined above, the shooting was reasonable under s. 34(1)(c), the jury would have to understand that the reasonableness of the shooting could not be determined exclusively by Mr. Khill’s reasonable perceptions and beliefs at the moment he fired, but that other factors, including Mr. Khill’s “role in the incident” had to be taken into account. The jury would also have to understand that the weight to be assigned to the various relevant factors, some of which clearly conflicted, was for them and only for them to determine. [83] The jury was not told that they must consider Mr. Khill’s conduct during the incident that ended with Mr. Styres’ death and Mr. Khill’s responsibility for the confrontation when assessing the reasonableness of Mr. Khill’s shooting of Mr. Styres. The trial judge did review the evidence concerning Mr. Khill’s conduct. However, without a clear instruction, I do not think the connection between Mr. Khill’s role in the incident leading up to the shooting and the reasonableness of the shooting itself would necessarily be clear to the jury. Instead of considering reasonableness in the broader context of the incident ending with the shooting, the jury may have focused on the reasonableness of Mr. Khill’s act judged exclusively by reference to what he reasonably believed was about to happen when he opened fire. [84] As with all jury instructions, the adequacy of this instruction requires a functional evaluation: R. v. Calnen , 2019 SCC 6, at para. 8. The failure to refer to specific factors identified in s. 34(2) in any given jury instruction is not necessarily an error, much less a reversible error. The need to refer to specific factors in s. 34(2) depends on the evidence and the positions of the parties: R. v. Srun , 2019 ONCA 453, 146 O.R. (3d) 307; see also R. v. Harvey , [2009] EWCA Crim. 469, at para. 23; R. v. McGrath , [2010] EWCA Crim. 2514, at para. 20. [85] Mr. Khill’s role in the incident leading up to the shooting was potentially a significant factor in the assessment of the reasonableness of the shooting. The failure to explain that relevance and to instruct the jury on the need to consider Mr. Khill’s conduct throughout the incident in assessing the reasonableness of the shooting left the jury unequipped to grapple with what may have been a crucial question in the evaluation of the reasonableness of Mr. Khill’s act. On this basis, the acquittal must be set aside and a new trial ordered. [86] I appreciate there was no objection to the charge. I also appreciate that this is a Crown appeal. Appellate courts should be reluctant to set aside acquittals based on legal arguments that were not made at trial. There is, however, no suggestion that the failure to object to the charge was in any way a tactical consideration. Given the very real possibility that a jury could have given substantial weight to Mr. Khill’s conduct leading up to the shooting when assessing the reasonableness of the shooting, and given that s. 34 gives the jury a virtually unfettered discretion in weighing the various factors to be taken into account, I am satisfied that the Crown has met its burden to show that, “in the concrete reality” of this case, the non-direction with respect to Mr. Khill’s role in the incident had a material bearing on the verdict: R. v. Barton , 2019 SCC 33, at para. 160. B: Did the trial judge err in instructing the jury that Mr. Khill’s military training was relevant to the reasonableness inquiries under s. 34(1)(a) and s. 34(1)(c)? (i) The Appellant’s Argument [87] The Crown submits the trial judge erred in law in instructing the jury that Mr. Khill’s military training was relevant to the reasonableness of his belief under s. 34(1)(a) and the reasonableness of his act (the shooting) under s. 34(1)(c). The Crown concedes that evidence of Mr. Khill’s military training was relevant to his subjective belief that he was in immediate danger but argues that, by instructing the jury that the evidence was also relevant to the reasonableness of that belief and the reasonableness of the shooting of Mr. Styres by Mr. Khill, the trial judge made the reasonableness inquiry purely subjective. Crown counsel contends that, based on the trial judge’s instructions, the reasonableness inquiry no longer reflected community standards and norms. Instead it became a norm made to measure for Mr. Khill. [88] Crown counsel further submits that the prejudicial effect of the instruction was amplified by the trial judge’s answer to the single question posed by the jury. In answering the question, the trial judge told the jury that, in considering s. 34(1)(c) and, in particular, the reasonableness of Mr. Khill’s shooting of Mr. Styres, the jury should determine: Whether it’s, in your view, would be a reasonable reaction to the circumstances as viewed through the eyes of a person with all of Mr. Khill’s qualities , but keeping in mind the military training, but also keeping in mind that he has to obey the law… [Emphasis added.] [89] Crown counsel stresses the phrase, “all of Mr. Khill’s qualities”. She contends that this language would confirm for the jury that they were to assess the reasonableness of Mr. Khill’s actions exclusively through the eyes of Mr. Khill. (ii) The Trial Proceedings [90] As summarized above, the jury heard a great deal of evidence about Mr. Khill’s military training in the army reserve. The evidence began during the case for the Crown when the Crown elicited evidence of statements Mr. Khill made to the police at the scene. There was no objection to any of the evidence tendered at trial pertaining to Mr. Khill’s training in the military reserves. [91] During the pre-charge discussions, before counsel addressed the jury, counsel for Mr. Khill argued that his military training was one of the factors relevant to the jury’s assessment of whether the killing was “reasonable in the circumstances”. I do not read Crown counsel’s submissions as taking issue with the defence position. Crown counsel did argue there was no need to review that evidence in the jury instructions. Alternatively, Crown counsel submitted that if the evidence was reviewed, it should be reviewed in a balanced way, as there were parts of the evidence about Mr. Khill’s military training that were inconsistent with his actions and arguably damaged his assertion that he acted reasonably in the circumstances. [92] Counsel for the Crown and Mr. Khill accepted that the trial judge, in instructing the jury on s. 34(1)(c), should follow the instruction set down in Watt’s Manual of Criminal Jury Instructions , at p. 1253 (Final 74-B). It provides: A reasonable person is sane and sober, not exceptionally excitable, aggressive or fearful. S/he has the same powers of self-control that we expect our fellow citizens to exercise in our society today. A reasonable person has the same characteristics and experiences as [the accused] that are relevant to [the accused’s] ability to respond to (what he reasonably believes was) the use or threatened use of force . The reasonable person is a person of the same age, gender, physical capabilities, as well as past interaction and communication with [the complainant] as [the accused]. [Italics in original; Underlining added.] [93] Both counsel referred extensively to Mr. Khill’s military training in their closing arguments. Not surprisingly, they urged the jury to use that evidence for different purposes. Counsel for Mr. Khill stressed that the training triggered a mindset in dangerous situations that emphasized proactive responses intended to gain control of the situation. Counsel also referred to the focus placed in the training on watching the hands of one’s target. Crown counsel reminded the jury that the training drew a clear distinction between conduct that was appropriate in a war zone and conduct that might be appropriate on the driveway of one’s home. Crown counsel contended that, tested against Mr. Khill’s army reserve training, his actions in the early morning of February 4, 2016 were anything but reasonable. [94] In his instructions, the trial judge told the jury that Mr. Khill’s military training in risk assessment “may well be relevant to all three of the self-defence questions”. He specifically told the jury that when considering whether Mr. Khill’s shooting of Mr. Styres was reasonable in the circumstances, the jury must: Consider as well the evidence you have heard about the military training previously received by Mr. Khill. [95] The trial judge reviewed the evidence of Mr. Khill’s military training at length. He did so in a balanced manner that would enable the jury to appreciate the significance of that evidence both from the perspective of the accused and the Crown. (iii) Analysis [96] As I read the trial record, the Crown and the defence both accepted Mr. Khill’s military training had to be taken into account in deciding the reasonableness of his belief that he was about to be attacked and the reasonableness of his response. I come to the same conclusion for three reasons. First, an instruction that Mr. Khill’s military training was relevant in assessing the reasonableness of his belief that he was about to be attacked and the reasonableness of his response was consistent with the law as it stood under the previous self-defence provisions. Under those provisions, Mr. Khill’s military training fell easily within the scope of his “characteristics and experiences”. For the reasons discussed earlier, I think the present s. 34 requires the same contextualized objective assessment of the reasonableness of the accused’s belief and conduct. [97] The cases decided under s. 25 of the Criminal Code , which provides a defence for a police officer’s use of deadly force in the execution of police duties, are instructive. Section 25 declares that deadly force is justifiable if the officer “believes on reasonable grounds that it is necessary” to preserve his life. Like the previous self-defence provisions, s. 25 takes a blended subjective/objective approach to the question of whether the officer had reasonable grounds: see R. v. Nasogaluak , 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 34-35; R. v. DaCosta , 2015 ONSC 1586, at paras. 97, 103. [98] In cases in which an officer advances a defence under s. 25, the court routinely hears evidence about the officer’s training and the relevance of that training to the officer’s decision to use deadly force. The same kind of evidence is offered when a police officer relies on self-defence to justify the use of force: see R. v. Forcillo , 2018 ONCA 402, 141 O.R. (3d) 752, leave to appeal refused, [2018] S.C.C.A. No. 258. If the proper contextualization of the reasonableness assessment required when a police officer uses force requires taking into account the officer’s training, I see no reason why the same should not hold true in the case of Mr. Khill who, like the police officer, had received training that impacted on his belief that he was under attack and his response to that perceived attack. [99] The second reason I reject the Crown’s argument flows directly from the language used in s. 34(2). The section directs that, in assessing the reasonableness of the accused’s act, the court must consider “the relevant circumstances” of the accused. Clearly, Mr. Khill’s military training was, on the evidence, relevant to the events that culminated in Mr. Styres’ tragic death. That training played a key role in Mr. Khill’s belief that Mr. Styres was armed and about to shoot him and an equally crucial role in his decision to respond with deadly force. Mr. Khill’s military training was, on a plain reading, a “relevant circumstance of the person” and had to be taken into account in assessing the reasonableness of the shooting of Mr. Styres. [100] The third reason the Crown argument must fail flows from the rationale for self-defence. Self-defence is a justificatory defence. An act done in self-defence is morally justifiable or at least acceptable. Mr. Khill’s military training figured prominently in any assessment of the moral acceptability of his conduct. Nothing in that training suggests that it should be discounted or eliminated from a community norm-based assessment of the justifiability of Mr. Khill’s act. To the contrary, training as a military reservist is seen as socially appropriate, if not laudable, conduct. To the extent that the availability of self-defence should mirror public perceptions of the circumstances in which otherwise criminal conduct is morally acceptable, the morality of Mr. Khill’s shooting of Mr. Styres is only fairly assessed having regard to the training he had received and the effect it had on his state of mind and the actions he took. [101] It is important to emphasize that, while the evidence of Mr. Khill’s military training is relevant to the reasonableness of his belief and the act of shooting Mr. Styres, that evidence does not necessarily support Mr. Khill’s contention that he acted in self-defence. As counsel for Mr. Khill acknowledged in this court, the military training evidence was a “two-edged sword”. In some ways, the evidence suggested that Mr. Khill’s actions were inconsistent with his training. Certainly, the trial Crown forcefully advanced that interpretation of the evidence. [102] Nor does a recognition that Mr. Khill’s military training was relevant to the reasonableness inquiry render that inquiry a subjective one. The question was not whether Mr. Khill, given his characteristics and experiences, regarded his act as reasonable, but rather whether the jury, with regard to Mr. Khill’s characteristics and experiences, including his military training, considered the shooting of Mr. Styres reasonable. [103] I am also satisfied that the trial judge’s response to the jury’s question ( see para. 88, above) did not constitute misdirection. He correctly told the jury that Mr. Khill’s military training was relevant to their assessment of the reasonableness of Mr. Khill’s shooting of Mr. Styres. The trial judge’s instruction that the jury should consider “all of Mr. Khill’s qualities” when assessing the reasonableness of the act, while potentially misleading in some circumstances, caused no harm in this case. There was no evidence of any “qualities” possessed by Mr. Khill that would not properly be taken into account in the contextualization of the reasonableness inquiry required under s. 34(1)(c). [104] The trial judge did not err in instructing the jury that Mr. Khill’s military training was relevant to their inquiries under both s. 34(1)(a) and s. 34(1)(c). C: Did the trial judge misdirect the jury on the application of the W.(D.) instruction to self-defence? [105] Early in his instructions, after telling the jury that he would give them a detailed direction about self-defence the next day, the trial judge instructed the jury on the application of the burden of proof to the claim of self-defence. The trial judge did so, using the familiar three-step analysis described in R. v. W.(D.) , [1991] 1 S.C.R. 742: If you believe the testimony of Peter Khill, that he shot Jonathan Styres with a shotgun while acting in self-defence, as Mr. Styres turned or started…to turn towards him, then you must find Peter Khill not guilty. If you do not believe the testimony of Peter Khill, that he shot Jonathan Styres while acting in self-defence, but you are left with a reasonable doubt about that, you must find Peter Khill not guilty. Even if you do not believe the testimony of Peter Khill and it does not cause you to have a reasonable doubt that he did not act in self-defence, you may only find that Peter Khill was not acting in self-defence when he shot Jonathan Styres with a shotgun on the basis of the evidence that you do accept you were satisfied beyond a reasonable doubt that he did not act in self-defence when he caused the death of Jonathan Styres by shooting him. [106] Crown counsel argues that, in this instruction, the trial judge wrongly told the jury that if they believed or had a doubt about Mr. Khill’s claim that he acted in self-defence, they must acquit. She submits that this instruction ignores the objective components of self-defence in s. 34. Counsel maintains that it was open to the jury, even if it accepted Mr. Khill’s testimony or had a doubt about its truth, to conclude beyond a reasonable doubt that Mr. Khill’s mistaken belief was not based on reasonable grounds or that his act was unreasonable in the circumstances. If the jury took that view, the self-defence claim failed regardless of the jury’s assessment of Mr. Khill’s credibility: see R. v. Reid (2003), 65 O.R. (3d) 723, at para. 72 (C.A.); R. v. Scott , 2001 BCCA 657, 159 C.C.C. (3d) 311, at para. 31. [107] Counsel relies heavily on Reid . In Reid , at para. 72, Moldaver J.A., as he then was, set out a modified W.(D.) instruction that could be used to explain the burden of proof as applied to self-defence: If you accept the accused’s evidence and on the basis of it, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you , you will find the accused not guilty. Even if you do not accept the accused’s evidence, if, after considering it alone or in conjunction with the other evidence, you believe or have a reasonable doubt that he/she was acting in lawful self-defence as I have defined that term to you , you will find the accused not guilty. [Emphasis added.] [108] The trial judge’s instructions do not contain the phrase “acting in self-defence as I have defined that term”, or any equivalent instruction. Clearly, the instruction in Reid is preferable in that it expressly alerts the jury to the need to apply the definition of self-defence provided by the trial judge when deciding whether the testimony of the accused, or the evidence as a whole, leaves the jury with a reasonable doubt in respect of that defence. As the definition of self-defence includes objective components, the jury must understand that the availability of that defence cannot be determined exclusively by an assessment of Mr. Khill’s credibility. [109] This ground of appeal turns on whether, despite the absence of an express direction, this jury would have understood the trial judge’s reference to “acting in self-defence” in the W.(D.) instruction was a reference to self-defence as he would define it for them and not as simply asserted by Mr. Khill. [110] The instructions must be considered as a whole: R. v. Araya , 2015 SCC 11, [2015] 1 S.C.R. 581 at para. 39; Bengy , at para. 92. The trial judge, as he told the jury he would, dealt with the law of self-defence and the application of the burden of proof to that defence in detail later in his instructions. He began those instructions with this caution: Each of you may have your own idea about when, where, how and to what extent a person is or should be permitted to defend or protect him or herself. Under our law, however, self-defence is not a loose term – quite the contrary. The law defines the circumstances in which and prescribes the nature and extent of what a person is lawfully entitled to do for the purposes of defending or protecting themselves from the actual or threatened use of force against them. [111] Before addressing the constituent elements of the defence, the trial judge told the jury: It is not Peter Khill’s responsibility to prove that what he did was in lawful self-defence or protection of himself and Ms. Benko. It is the Crown’s responsibility to prove beyond a reasonable doubt that Peter Khill was not acting in lawful self-defence or protection of himself or Ms. Benko when he shot Jonathan Styres with the shotgun. [5] [112] The trial judge proceeded to instruct the jury on each of the three elements of self-defence. After explaining each component and reviewing the evidence, he returned to the burden of proof. For example, in relation to the “reasonable belief” elements in s. 34(1)(a), the trial judge told the jury: It is up to you, ladies and gentlemen, to decide how much, if any, of the testimony of Peter Khill you will accept and rely on in deciding this case. You may accept some, none or all of it. If you are satisfied beyond a reasonable doubt that Peter Khill did not believe, on reasonable grounds, in the circumstances as he knew or believe [ sic ] them to be, that force was being used or threatened against him by Jonathan Styres, then Peter Khill was not acting in lawful self-defence . Your consideration of self-defence would be at an end. Your finding would be that Peter Khill caused the death of Jonathan Styres unlawfully and you would, you must then go on to the third essential element question for murder. If you accept or have a reasonable doubt that Peter Khill believed on reasonable grounds in the circumstances as he knew or believed them to be that force was being used or threatened against him by Jonathan Styres, then you must go on to the second self-defence question . [Emphasis added.] [113] The trial judge gave similar instructions in respect of the second and third elements of the defence of self-defence. None of these instructions are challenged on appeal. [114] Considering the instructions as a whole, I am satisfied the jury understood the trial judge’s references to self-defence throughout the charge were references to self-defence as he had defined it as a matter of law for the jury. With that understanding, the jury could not have been misled by the impugned W.(D.) instruction. [115] I find support for my conclusion in Crown counsel’s position at trial. There were extensive pre-charge discussions. There was no objection to the W.(D.) instruction as it related to self-defence, either before or after the instruction was given. Counsel was clearly satisfied that the jury would understand the reference to self-defence, as a reference to that term as defined by the trial judge. So am I. V the alleged error in admitting the opinion evidence of Dr. Miller [116] Dr. Laurence Miller is a clinical psychologist. He had extensive experience in the United States with the military and the police. That experience included involvement in training programs and the assessment and treatment of military and police personnel after potentially traumatic events. [117] The defence sought to elicit various opinions from Dr. Miller. After a voir dire , the trial judge ruled that Dr. Miller could give opinion evidence but only on a narrow issue. He held that Dr. Miller could give an opinion on whether the kind of training Mr. Khill received as an army reservist could remain “operative” several years later in a situation like that faced by Mr. Khill on February 4, 2016. [118] In his evidence, Dr. Miller explained the kind of repetitive physical training associated with military and police training causes physical changes in the brain structure. Those changes become reinforced and deeply embedded in the brain. Dr. Miller testified that his years of clinical experience with military and police personnel were consistent with the kind of neurological change he had described. [119] At one point in examination-in-chief, Dr. Miller appeared to be going beyond the limited scope of the evidence the trial judge had ruled he could give. The witness was excluded and, after discussion with counsel, the witness returned to the stand. As directed by the trial judge, counsel put two further questions to the witness. In answer to the first, Dr. Miller indicated the military training received by Mr. Khill could be “operative” for as long as five years after the training ceased. In answer to the second question, Dr. Miller agreed the effect of the training Mr. Khill had received could have been “operative” during the encounter that led to Mr. Styres’ death, even though that incident was a “non-military situation”. [120] Crown counsel chose not to cross-examine Dr. Miller. The trial judge, in his instructions to the jury, which included a detailed summary of the evidence, made only a very brief reference to Dr. Miller’s evidence. [121] On appeal, the Crown argues Dr. Miller’s evidence should not have been admitted, first, because Dr. Miller had no experience in training in the Canadian military context and, second, because his evidence was unnecessary and amounted to no more than the suggestion that “practice makes perfect”. [122] It was not necessary, for the purposes of his evidence, that Dr. Miller have experience in the Canadian military. Dr. Miller was aware of the training Mr. Khill had received. The nature and content of that training was not in dispute in this trial. It was sufficient, for the purposes of the very limited opinion offered by Dr. Miller, that he was aware of, and appreciated, the nature of the training Mr. Khill had received. [123] There is merit to the Crown’s argument that Dr. Miller’s evidence was unnecessary. In the end, it seems to have come down to little more than the common sense proposition that intensive training involving the repetition of physical actions can influence behaviour in certain circumstances even years after the training has stopped. The absence of any cross-examination by the Crown would suggest that Dr. Miller’s evidence was hardly contentious. [124] Although I agree with the Crown that Dr. Miller’s evidence added little, I think it did offer something. Dr. Miller’s evidence offered some neurological and clinical support for the “common sense” proposition that the kind of training received by Mr. Khill would remain operative even years after the training ceased. [125] While Dr. Miller’s evidence added little of substance to the evidentiary pool, it did not cause any risk of confusion or prejudice. Most of the Crown’s argument directed at prejudice said to be caused by admitting Dr. Miller’s evidence is really an argument about the relevance of evidence concerning Mr. Khill’s military training to the reasonableness inquiries under the s. 34 defence. I have rejected that argument. [126] I do not accept the Crown’s submission that the trial judge erred in allowing Dr. Miller to give evidence on the narrow issue identified by the trial judge. I would also conclude that even if the evidence should have been excluded as unnecessary, its admission caused no prejudice to the Crown and could not justify setting aside the acquittal. VI conclusion [127] I would allow the appeal, set aside the acquittal, and order a new trial on the charge of second degree murder. Released:  “G.S.” “FEB 26 2020” “Doherty J.A.” “I agree G.R. Strathy C.J.O.” “I agree M. Tulloch J.A.” [1] Although the mens rea issue arose on the evidence, the defence did not argue Mr. Khill lacked the requisite intent required for murder. At the outset of the trial, the parties advised the trial judge that self-defence was the sole issue. [2] Criminal Code , R.S.C. 1985, c. C-46, ss. 34-37, as they appeared on March 10, 2013, referred to throughout this judgment as the “previous” or “prior” provisions. [3] I have borrowed the trigger/response terminology from David Ormerod, Smith and Hogan’s Criminal Law , 13th ed. (Oxford: Oxford University Press, 2011) at pp. 380-382. See also Bengy , at para. 28; R. v. Mohamad , 2018 ONCA 966, 369 C.C.C. (3d) 211, at para. 213. [4] Of course, if the jury is satisfied beyond a reasonable doubt that the accused did not have reasonable grounds to believe force was being used or threatened against him, his self-defence claim will fail before the jury reaches the question of the reasonableness of the act in the circumstances. [5] The trial judge gave this direction twice in less than one page of transcript.

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. Korecki, 2020 ONCA 157 DATE: 20200227 DOCKET: C63743 Watt, Pardu and Roberts JJ.A. BETWEEN Her Majesty the Queen Respondent and Richard Korecki Appellant Breana Vandebeek, for the appellant Alexander Hrybinsky, for the respondent Heard and released orally: February 24, 2020 On appeal from the convictions entered on July 25, 2014 and the sentence imposed on June 2, 2016 by Justice Maureen D. Forestell of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] The appellant was convicted after a jury trial in the Superior Court of Justice of 14 personal injury offences against his former domestic partner. After the trial had concluded, the appellant was found to be a dangerous offender and sentenced to an indeterminate term of imprisonment. [2] The appellant appeals his convictions of the predicate offences advancing a single ground of appeal. He says that the trial judge erred in admitting, as evidence of similar acts, evidence of two incidents involving a former domestic partner which had resulted in convictions. [3] It is well known that the admissibility of evidence of similar acts is determined by balancing the probative value of the evidence, on the one hand, against its prejudicial effect, on the other. It is equally familiar that, absent an error of law or of principle or an unreasonable conclusion, appellate courts afford substantial deference to the conclusions of trial judges on these admissibility issues. [4] In this case, the trial judge articulated and applied the governing test. Her reasons for admitting some of the evidence of similar acts proffered by the Crown, but excluding others, reveals no error of law or of principle. Nor can her conclusion be characterized as unreasonable. [5] The appeal from conviction is dismissed. The appeal from sentence was not pursued and is dismissed as abandoned. “David Watt J.A.” “G. Pardu J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Lights, 2020 ONCA 102 DATE: 20200211 DOCKET: C64364 Rouleau, Benotto and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Michael Lights Appellant Christopher R. Murphy, for the appellant Ken Lockhart, for the respondent Heard: February 5, 2020 On appeal from the convictions entered on May 26, 2017 and the sentence imposed on August 31, 2017 by Justice Beth A. Allen of the Superior Court of Justice. REASONS FOR DECISION A. Overview [1] The appellant was convicted of dangerous driving and criminal negligence causing bodily harm after running a red light at high speed and causing a serious accident involving two other cars at about 4:30 a.m. on January 1, 2014. When the accident took place, the appellant’s friend was a passenger in the back seat. He had been shot in the chest. At trial, the issues were the identity of the driver and the defence of necessity. The trial judge found the appellant guilty on the basis that he was the driver of the car. She did not, however, address the defence of necessity at all in her reasons. [2] The appellant raises three grounds of appeal. First, he argues that the trial judge’s finding that the appellant was the driver was unreasonable and based on her misapprehension of the evidence. Second, he argues that she erred in not giving any reasons to explain why she had not addressed the necessity issue and in failing to acquit on the basis of the necessity defence. Third, he argues that the sentence was unfit. B. The Verdicts Were Not UNreasonable [3] First, we do not agree that the verdicts were unreasonable on the basis of a misapprehension of the evidence as to who was driving the car. While there was some conflicting evidence, the trial judge considered the discrepancies and arrived at conclusions that were open to her on the record. [4] The appellant argued at trial, and here, that the appellant had been taken out of the rear driver’s side window and was thus not the driver. The appellant argues that given the evidence, the trial judge’s finding that there were two “stocky black men” at the scene was an error. The appellant argues that, consequently, the trial judge’s findings that the driver’s door of the vehicle had been pried open to get the driver out, and that the driver was the appellant, were made in error. [5] One witness, Colibou Tchadouwa, testified to asking a man with corn rows, dark skin and a light top sitting in the driver’s seat whether he was okay. He then briefly went to assist occupants of another vehicle involved in the accident.  Upon returning, he went to get the wounded man in the back seat out of the rear door on the driver’s side, but this door was jammed. He pulled it open and it became slightly ajar. He eventually saw two Asian males remove the injured man from the car and noticed, by this point, that the driver was already out of the vehicle. [6] Another witness, Angelo Hofilena, testified to seeing a stocky black man try to pry open the driver’s side front door, but the damage prevented it from opening very far. He saw an “African American” man with a thin build, corn rows, a light top and a thin black jacket in the driver’s seat. He and the stocky black man pulled him out through the opening in the driver’s side front door. [7] The trial judge was alive to the “seeming discrepancies” among some of the witnesses but accepted the core of the evidence of these two witnesses who had close and first-hand observations of the car. Noting that Tchadouwa is a “stocky black man”, the trial judge concluded that he was not the stocky black man described by Hofilena and there must, therefore, have been two stocky black men at the scene. This finding reconciled the evidence of these witnesses to some extent. This was a conclusion that was open to her on the record. [8] Viewed within the context of the rest of the evidence the trial judge was entitled to accept the evidence of these witnesses regarding the identification of the driver and consequently conclude that the appellant was the driver of the vehicle. This was not a palpable and overriding error and the verdicts were not unreasonable. C. There is no Air of REality to the DEfence of Necessity [9] Turning now to the defence of necessity, we would not give effect to this ground of appeal. The appellant cites the proposition that a trial judge’s failure to provide reasons respecting a defence is a reviewable error, where there is an air of reality to the defence and the reasons are insufficient to allow the verdict to be properly understood and scrutinized: R. v. Wobbes , 2008 ONCA 567, 235 C.C.C. (3d) 561, at paras. 33-54. On this record, there was no air of reality to the defence of necessity. This is apparent on the record, and the absence of reasons in this case does not foreclose meaningful appellate review. [10] The defence of necessity exists where (1) the accused was faced with a danger of imminent peril or harm, (2) there was no reasonable legal alternative to the accused’s conduct and (3) there was proportionality between the harm inflicted and the harm avoided by resorting to that conduct: R. v. Latimer , 2001 SCC 1, 150 C.C.C. (3d) 129, at para. 28. [11] Although the presence of the first element, a situation of clear and imminent peril, was conceded, the only reasonable conclusion open to the trier of fact on this record was that the second and third elements, and therefore the defence, did not have an air of reality. The test to be applied in determining whether there is an air of reality is whether there is evidence upon which a properly instructed trier of fact acting reasonably could acquit if it believed the evidence to be true: R. v. Cinous , 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 87. [12] In assessing whether the defence has an air of reality in respect of these offences, we reject the appellant’s suggestion that we must focus solely on the act of running the red light. The trier of fact would be entitled to consider the appellant’s driving as a continuous transaction: R. v. Singh , 2019 ONCA 872, at para. 11. [13] Here, there was no reasonable inference available that there was no reasonable legal alternative to the dangerous driving. There is no evidence as to where the appellant’s passenger was shot, how close this location was to a hospital, or how quickly an ambulance could have arrived there and transported him to a hospital. There is no available inference that it was necessary to run the red light at a high rate of speed at night in a car with no operating headlights rather than to drive with more caution within the limits of the law to address the peril. The only evidence in the record tended to suggest otherwise – the ambulance arrived at the scene of the accident 58 seconds after being dispatched. There is therefore no air of reality to the defence on this basis. [14] Further, there was no reasonable inference available to the trier of fact that the harm inflicted was proportionate to the harm avoided. There was evidence on this record that the dangerous driving caused bodily harm. The appellant argues that the harm he sought to avoid was harm to his wounded passenger, including potentially his death, from delay in receiving medical attention. Whatever delay may have been caused by proceeding safely through the intersection or not driving at all and calling an ambulance must have been relatively minor based on the evidence. Again, we note that the ambulance arrived at the scene from the nearby hospital 58 seconds after being dispatched. When compared to the harm caused by the crash, a trier of fact could not reasonably have concluded that there is proportionality here. [15] The trial judge should have given reasons to explain why she did not give effect to the defence argued at trial. However, we do not find this to be a reversible error in light of our conclusion that the record clearly reveals that there is no air of reality to the defence. D. The Sentence Appeal [16] Finally, we would not interfere with the sentence imposed by the trial judge. She considered the sentence in terms of the offence for which he was convicted, along with the relevant sentencing principles and mitigating and aggravating circumstances. E. Disposition [17] For these reasons we dismiss this appeal. “Paul Rouleau J.A.” “M.L. Benotto J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Lights, 2020 ONCA 128 DATE: 20200218 DOCKET: C64243 Watt, Huscroft and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Michael Lights Appellant Christopher R. Murphy, for the appellant Katie Doherty, for the respondent Heard: August 19, 2019 On appeal from the conviction entered by Justice Susan G. Himel of the Superior Court of Justice on June 29, 2016, and from the sentence imposed on January 13, 2017. Watt J.A.: [1] On a midwinter night a few years ago, Michael Lights (the appellant) had some friends over to the apartment he and his girlfriend, Kimberley Johnson, shared. The appellant, who had suffered a broken leg in a motor vehicle accident several weeks earlier, had just returned from a week in the Dominican Republic the previous day. [2] The appellant and his friends gathered in the living room. Four of them, including the appellant, sat on a couch. The other two sat on chairs or stood in a bar area adjacent to the living room. One of the men was smoking marijuana. Ms. Johnson remained in the bedroom. [3] Around 11:25 p.m. someone opened the apartment door with a key. Several men entered. They were armed. They identified themselves. Toronto Police. Search warrant. Raise your hands. [4] Six armed police officers took control of the apartment. All of its occupants were placed under arrest. The appellant was charged with several firearm and drug offences, as well as one count of possession of the proceeds of crime. [5] After a trial before a judge of the Superior Court of Justice, sitting without a jury, the appellant was convicted of each offence with which he was charged. He was sentenced to a term of imprisonment of 9.5 years, which the judge reduced to a net sentence of 64 months after awarding credit for pre-sentence custody. [6] The appellant appeals both conviction and sentence. These reasons explain why I have decided that the appeals should be allowed in part. The Background Facts [7] The circumstances surrounding the offences of which the appellant was convicted lie within a narrow compass. They consist of the observations made by police on and after entry to the appellant’s apartment and the things they found and seized during the warranted search which followed. The Warrant [8] Police obtained a telewarrant to search the appellant’s apartment for guns, ammunition, and magazines, together with documents linking the appellant to the apartment. [9] At trial, the appellant challenged the telewarrant as having been improvidently issued. He sought exclusion of the evidence obtained in execution of the warrant. The application failed. The ruling was not challenged in this court. The Entry [10] Police entered the appellant’s apartment by opening the front door with a key. They were armed. In the living room and adjacent area leading to the kitchen, the officers encountered six men. Four were sitting on an L-shaped couch. Two occupied chairs or stood in the adjacent bar area. [11] The appellant was one of the men sitting on the living room couch. He was wearing shorts and a T-shirt. The officers instructed the men not to move and to raise their hands. The Appellant’s Reaction [12] Despite the police commands, the appellant did not immediately raise his hands. He appeared to be putting a silver object under his buttocks or between his legs. None of the officers were able to determine the nature of this silver object. None of the officers described the object as a gun or something that looked like a gun. The Appellant’s Apprehension [13] Although the first police officer who entered the apartment noticed the appellant pushing this silver object under his buttocks or between his legs, it was the third officer to enter the apartment who approached the appellant. The officer took the appellant to the ground and yelled “Gun” to alert the other officers in the apartment. The gun was a silver Ruger semi-automatic handgun. The officer proved the weapon safe by removing its magazine. The Firearm [14] The firearm seized from the appellant was a Ruger .22 calibre semi-automatic handgun with an 11-shot detachable box magazine. It is a restricted firearm within s. 84(1) of the Criminal Code , R.S.C. 1985, c. C-46 . It was admitted at trial that this firearm was found together with readily accessible ammunition capable of being discharged in the firearm. The Drugs and Related Paraphernalia [15] On a shelf in the bedroom closet, police found a vacuum sealer and a money counter. From a table by the bed, they recovered a black book containing numbers, but no dates or names. There was a bulletproof vest under the bed. A Tupperware container with a few leaves of marijuana sat on a set of scales in the kitchen. [16] A black duffel bag was on the floor near the entrance from the kitchen to the living room. None of the officers noticed this bag when they entered the apartment to execute the search warrant. The bag was away from the area of the couch where most of the men, including the appellant, were sitting, and the bag was equidistant from all of them. There was no identification in or attached to the bag. [17] Inside the duffel bag were several smaller bags. In one sealed bag was one kilogram of marijuana. Four smaller Ziploc bags also held marijuana. In two other bags were about two ounces of cocaine. The Money [18] Police found a locked safe in the bedroom closet. On top of it was a lockbox. There was also a coke can with a hidden compartment. The appellant had a key to the safe in his pocket when he was arrested. [19] Police prised the safe open. Inside it was a brown pouch. And inside the brown pouch were some bills bundled together: $9,450 CAD and $442 USD. A gun and a magazine fit in the gun safe. The Appellant and the Apartment [20] Several items bearing the appellant’s name, some including the address of the apartment, were found in the bedroom. A passport with a stamp from the Dominican Republic dated the previous day. A birth certificate. Prescription medication. A health card. Medical and dental appointment cards and reminders. Credit card and service provider statements. And a lease agreement for the apartment in the name of Paul Hibbert. There were similar documents for Kimberley Johnson. The Admissions [21] Several formal admissions were made at trial under s. 655 of the Criminal Code . [22] It was admitted that the appellant had been out of Canada from February 9-16, 2014. The guns recovered in the apartment were all prohibited or restricted firearms. The ammunition was capable of being fired from these weapons. Ammunition capable of being discharged in the Ruger semi-automatic handgun was found together with it so that it was readily accessible for discharge from the weapon. None of the occupants of the apartment had an authorization, licence or registration certificate that permitted them to be in possession of any of the firearms recovered there. And the quantities of cocaine and marijuana found were sufficient for the purpose of trafficking. The Grounds of Appeal [23] The appellant appeals both conviction and sentence. [24] On the appeal from conviction, the appellant advances a single ground of appeal. He contends that, except for the count charging him with possession of a restricted firearm without a registration certificate, contrary to s. 92(1) of the Criminal Code , the convictions entered at trial are unreasonable. [25] On the appeal from sentence, the appellant seeks a reduction in the term of imprisonment imposed by the trial judge. The extent of the reduction is dependent on the result of his appeal from conviction. [26] As I explain, I would allow the appeal in part, set aside the convictions and enter acquittals on counts 1, 3, 4, and 5, dismiss the appeal on counts 2 and 6, and vary the sentence to 5 years, the sentence imposed on count 2, to which the sentence imposed on count 6 – 3 years – is to be served concurrently. The Appeal from Conviction [27] The convictions challenged here as unreasonable have three common features. In each case, the evidence relied upon to prove the offence is entirely circumstantial. The offences all allege possession of contraband and involve both constructive and actual physical possession. And each conviction is impeached as unreasonable largely, but not entirely, because of a lack of persuasive force in the evidence relied upon to prove it. [28] Before assessing each claim of error the appellant raised, it is helpful to recall the basic principles governing an unreasonable verdict that control our determination. Unreasonable Verdicts [29] Under s. 686(1)(a)(i), an appellate court may set aside a trial verdict if the verdict is either unreasonable, unsupported by the evidence, or both. [30] A verdict is unreasonable if it is one that no properly instructed jury, acting judicially, could reasonably have rendered. This test requires not only an objective assessment of the evidence adduced at trial, but also, to some extent at least, a subjective evaluation of that evidence. To discharge this responsibility, we are required to review, analyse, and, within the limits of appellate disadvantage, weigh the evidence. This weighing is only to determine whether that evidence, considered as a whole, is reasonably capable of supporting the verdict rendered: R. v. R.P ., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9; R. v. Yebes , [1987] 2 S.C.R. 168, at p. 186; R. v. Biniaris , 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. Burns , [1994] 1 S.C.R. 656, at p. 663. [31] A verdict may also be unreasonable where a judge has drawn an inference or made a finding of fact that is plainly contradicted by the evidence or is incompatible with evidence that is not otherwise contradicted or rejected: R.P ., at para. 9, citing R. v. Sinclair , 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4, 16, 19-21. [32] Two further points warrant brief mention. [33] When the claim of an unreasonable verdict rests on the assertion that, based on the evidence, the trier of fact could not have reasonably rendered the guilty verdict, an appellate court is entitled to consider that the accused did not testify at trial or adduce other evidence to support any other reasonable inference consistent with innocence: Corbett v. The Queen , [1975] 2 S.C.R. 275, at pp. 280-81; R. v. Wu , 2017 ONCA 620, at para. 16. [34] The remedy available to an appellant who successfully challenges a trial verdict as unreasonable depends on the circumstances of the case and the basis upon which the argument succeeds. Where the appellate court is satisfied that the verdict is unreasonable because no properly instructed jury, acting judicially, could reasonably have reached such a verdict, the appellate court should enter an acquittal. The same result would follow when the court determines that a finding or inference drawn by the judge contradicted by the evidence or incompatible with evidence not otherwise contradicted or rejected and the verdict is unavailable on the evidence. But when the verdict is unreasonable but available on the evidence, the remedy is a new trial: Sinclair , at para. 23 (Fish J. dissenting, but not on this point); R. v. Beaudry , 2007 SCC 5, [2007] 1 S.C.R. 190, at para. 97. [35] Having reviewed the legal principles governing unreasonable verdicts, I now briefly turn to those that concern circumstantial evidence; expert evidence; and proof of possession. Each helps us determine the reasonableness of the verdicts in this case. Circumstantial Evidence [36] When the Crown’s case consists wholly or substantially of circumstantial evidence, the standard of proof requires the trier of fact be satisfied beyond a reasonable doubt that the accused’s guilt is the only reasonable inference to be drawn from the evidence as a whole: R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 20. [37] To determine if the circumstantial evidence meets the required standard of proof, the trier of fact must keep in mind that it is the evidence, assessed as a whole, that must meet this standard of proof, not each individual piece of evidence that is but a link in the chain of proof: R. v. Smith , 2016 ONCA 25, 333 C.C.C. (3d) 534, at paras. 81-82; R. v. Morin , [1988] 2 S.C.R. 345, at pp. 360-61; Côté v. The King (1941), 77 C.C.C. 75 (S.C.C.), at p. 76. [38] Inferences consistent with innocence need not arise from proven facts. Rather, they may arise from a lack of evidence: Villaroman , at para. 35. Accordingly, a trier of fact must consider other plausible theories and other reasonable possibilities inconsistent with guilt so long as these theories and possibilities are grounded on logic and experience. They must not amount to fevered imaginings or speculation. While the Crown must negate these reasonable possibilities, it need not negate every possible conjecture, no matter how irrational or fanciful, which might be consistent with an accused's innocence: Villaroman , at paras. 37-38. See also R. v. Bagshaw , [1972] S.C.R. 2, at p. 8. [39] When a verdict that rests wholly or substantially on circumstantial evidence is challenged as unreasonable, the question appellate courts must ask is whether the trier of fact, acting judicially, could reasonably be satisfied that the guilt of the accused was the only reasonable conclusion available on the evidence taken as a whole: Villaroman , at para. 55. Fundamentally, it is for the trier of fact to determine whether any proposed alternative way of looking at the case as a whole is reasonable enough to raise a doubt about the guilt of the accused: Villaroman , at para. 56. The Admissibility of Expert Evidence [40] Three brief points on admissibility provide the appropriate framework to assess the expert evidence in this case. [41] First, determining admissibility. Decisions on the admissibility of expert opinion evidence require a two-step inquiry. At the first step of the inquiry, the proponent must establish the threshold requirements laid down in R. v. Mohan , [1994] 2 S.C.R. 9, at p. 20. See also, White Burgess Langille Inman v. Abbott and Haliburton Co. , 2015 SCC 23, [2015] 2 S.C.R. 182, at para. 23. The second, gatekeeping step requires the judge to decide whether the benefits of the proposed evidence exceed the risks of admitting it: White Burgess , at para. 24. [42] Second, preserving admissibility. The trial judge must also ensure the expert remains within their field of expertise and that the content of their evidence itself is properly expert evidence: R. v. Sekhon , 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 47. This, of course, means the trier of fact cannot use expert evidence that extends beyond the witness’ expertise or is otherwise not within the scope of permissible expert evidence, for example, anecdotal evidence: Sekhon , at para. 50. See also, R. v. Marquard , [1993] 4 S.C.R. 223, at pp. 242-44. [43] A final point concerns the admissibility and, in consequence, the trier of fact’s use of expert opinion evidence on the ultimate issue. No general or bright line rule prohibits either admission or trier of fact’s use of expert opinion evidence on the ultimate issue. But the proximity of the opinion to the ultimate issue requires that the evidence be given special scrutiny: Mohan , at p. 25; R. v. J.-L.J ., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 37; R. v. Potts , 2018 ONCA 294, at para. 47. Proof of Possession [44] Section 4(3) of the Criminal Code defines possession. It includes: · personal possession; · constructive possession; and, · joint possession. Our concern here is with personal possession and constructive possession. Knowledge and control are essential elements common to both: R. v. Morelli , 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 15. [45] When personal possession is alleged, the knowledge element consists of two components. An accused must be aware that they have physical custody of the thing alleged. And an accused must be aware of what that thing is. These elements of knowledge must co-exist with an act of control: Morelli , at para. 16. See also R. v. Beav er, [1957] S.C.R. 531, at pp. 541-42. [46] When personal possession is not alleged or cannot be established on the evidence, the Crown may rely on constructive possession to prove its case. [47] Constructive possession is established when an accused does not have physical custody of the thing but has it in any place for their own or another's use or benefit: Criminal Code , s. 4(3)(a)(ii). Constructive possession is complete where an accused: i. has knowledge of the character of the thing; ii. knowingly puts or keeps the thing in a particular place, irrespective of whether the place belongs to or is occupied by the accused; and iii. intends to have the thing in the place for the use or benefit of the accused or of another person. Morelli , at para. 17. [48] In many cases, the evidence relied upon to prove constructive possession is wholly or substantially circumstantial. [49] Two further points deserve brief mention. [50] When things are found in a premises or place occupied by an accused, no presumption of knowledge and control arises from proof of occupancy. Put simply, occupancy does not create a presumption of possession: R. v. Watson , 2011 ONCA 437, at para. 13; R. v. Lincoln , 2012 ONCA 542, at para. 3. [51] We define knowledge as true belief: United States of America v. Dynar , [1997] 2 S.C.R. 462, at para. 41. It includes not only actual knowledge but also wilful blindness. [52] Wilful blindness involves a degree of awareness of the likely existence of the prohibited circumstances together with a blameworthy conscious refusal of self-enlightenment. A person, aware of the need for some inquiry, who declines to make that inquiry because they do not wish to know the truth, is wilfully blind: R. v. Williams , 2003 SCC 41, [2003] 2 S.C.R. 134, at paras. 27-28; R. v. Briscoe , 2010 SCC 13, [2010] 1 S.C.R. 411, at paras. 22-24; Sansregret v. The Queen , [1985] 1 S.C.R. 570, at p. 584. [53] With these general principles in mind, I turn now to consider the convictions on individual counts, each of which is said to be unreasonable. The Loaded Restricted Firearm [54] The first count in the indictment alleged that the appellant possessed a loaded restricted firearm – a Ruger handgun – without the required authorization, licence and registration certificate. [55] I am satisfied that the verdict on this count is unreasonable. Before turning to my reasons, I will examine the background giving rise to this allegation; the trial judge’s reasons; the parties’ positions; and the governing legal principles. The Essential Background [56] The firearm that is the subject of this count is a Ruger handgun. It is silver in colour and functions as a semi-automatic firearm. It was found fully-loaded with a detachable box magazine inserted into a receptacle in the grip of the gun. The magazine holds 11 cartridges. [57] The Ruger is a restricted .22 calibre firearm. The several boxes of .22 calibre ammunition only suitable for use in the Ruger, one of the three handguns found in the apartment, were also found in the apartment during the search. [58] At trial, the Ruger handgun, and several photographs of it, were filed as an exhibit. Those photographs appear to show that when the magazine is in place it sits flush with the bottom of the handgrip. When the magazine is removed, however, it is not clear whether the bottom end of the receptacle remains open, not closed, as it is when the magazine is in place. [59] No firearms examiner testified at trial. Instead, a document containing several formal admissions was filed as an exhibit. The admissions included the contents of a Certificate of Analysis by a person designated by the Toronto Police Service as an examiner of weapons, prohibited devices, ammunition and prohibited ammunition, including their parts and components. It did not, however, establish any difference between the firearm being loaded or unloaded. The Trial Judge’s Reasons [60] The trial judge accepted the evidence of the several police officers who saw and described the appellant's motions with the silver object while seated on the couch. It was uncontested that the silver object was, in fact, the Ruger semi-automatic handgun loaded with a full 11-shot magazine. [61] The trial judge then considered whether the Crown had proven the fault element required for this offence under s. 95(1) of the Criminal Code . On this issue, she concluded: To satisfy the knowledge component of personal possession, the accused must: (1) be aware that he/she has physical custody of the thing in question; and (2) be aware of what that thing is: see R. v. Morelli , 2010 SCC 8, [2010] 1 S.C.R. 253, at para. 16. In R. v. Tyrell , 2014 ONCA 617, the Ontario Court of Appeal wrote at para. 30: “[p]roof of knowledge, or of its close cousin, wilful blindness, demands a subjective inquiry. The question is “what did the accused know” and not “what ought he to have known”. The mental element is made out in my view, by the inference that Mr. Lights had knowledge of the gun and deliberately moved it out of sight of the police. By manually handling the gun, it is implicit that the accused was aware that he had physical custody of the thing in question and knew that it was a loaded firearm . The facts of this case also suggest that the accused was subjectively aware of the gun’s criminal character: why else would Mr. Lights attempt to conceal the gun from the police if not for his recognition that the gun was an illicit item? To paraphrase, the Court of Appeal in R. v. Williams , 2009 ONCA 242, at para. 20, the accused knew the loaded handgun that he had in his possession was indeed a loaded handgun, the possession of which was contrary to the statute. [Emphasis added.] The Arguments on Appeal [62] The appellant says that the conviction entered on this count is unreasonable. The evidence on this issue was entirely circumstantial and did not establish, beyond a reasonable doubt, the appellant knew the firearm was loaded. Other inferences were equally available on the evidence. The appellant's guilt does not follow from the rejection of Jahdel Myers' testimony about ownership of the gun and his placement of it between the cushions on the couch on which the appellant was sitting. And mere occupancy of the apartment does not establish an occupant's knowledge of all the things in that apartment, much less their inherent characteristics. On this basis, the appellant asks this court to set aside the verdict and enter an acquittal in its place. [63] The respondent accepts that the critical issue at trial was the adequacy of the evidence to establish the appellant's knowledge that the Ruger was loaded. But the respondent contends that, having found that the appellant handled the loaded Ruger, it was open to the trial judge in those circumstances to infer actual knowledge that the gun was loaded. That the trial judge drew this inference in the circumstances does not make her conclusion of guilt unreasonable in the absence of any other reasonable possibility or plausible theory. The Governing Principles [64] Earlier in these reasons, I canvassed several general principles equally applicable to our determination of this claim of unreasonable verdict: the essential elements of possession; the standard to be applied in determining whether a verdict grounded on circumstantial evidence was unreasonable; and the admissibility of expert opinion evidence. I see no need to repeat this discussion of basic principles. [65] Instead, I focus my attention on the essential elements of the offence with which we are concerned – s. 95(1) of the Criminal Code – and more particularly, on its fault element. [66] Under s. 95(1), the Crown must prove beyond a reasonable doubt that the appellant knew that the firearm was loaded: R. v. Eastgaard , 2011 ABCA 152, 276 C.C.C. (3d) 432, at para. 8, aff’d 2012 SCC 11, [2012] 1 S.C.R. 393; R. v. Hunter , 2016 BCCA 94, at para. 25. [67] To prove this essential element of knowledge, the Crown may attempt to establish that the accused actually knew that the firearm was loaded. But the Crown is not restricted to proof of actual knowledge. The Crown could also establish knowledge by showing that the accused was wilfully blind that the firearm was loaded, explained in the section on general principles above. [68] One further point about wilful blindness. [69] Wilful blindness, perhaps better described as “deliberate ignorance”, involves a person who has become aware of the need for some inquiry but declines to make that inquiry because they would prefer to remain ignorant: Sansregret , at p. 584; Briscoe , at para. 22. The doctrine is narrow in scope lest it become indistinguishable from negligence in failing to acquire knowledge: Briscoe , at para. 23, citing Glanville Williams, Criminal Law , The General Part , 2nd ed. (United Kingdom: Stevens & Sons Ltd., 1961), at p. 159. The Principles Applied [70] As I will briefly explain, I am satisfied that this ground of appeal succeeds. In the result, I would set aside the conviction on this count and enter an acquittal. [71] I approach our task in connection with this ground of appeal mindful of basic principles. A verdict is reasonable if it is one that a properly instructed trier of fact acting judicially could reasonably have rendered. In our application of this standard, we are to re-examine and, to some extent, within the limits of appellate disadvantage, to reweigh and consider the cumulative effect of the evidence adduced at trial. In this case, where the evidence on the controverted issue of knowledge is entirely circumstantial, our task is to determine whether a trier of fact, acting judicially, could reasonably have been satisfied that the appellant's guilt was the only reasonable inference available on the evidence taken as a whole. And we must also have in mind that it remains fundamentally for the trier of fact to decide whether any proposed alternative way of looking at the case is reasonable enough to raise a doubt. [72] We begin by eliminating the uncontroversial. [73] The trial judge accepted the evidence of the police officers who executed the search warrant at the appellant's apartment. This evidence, taken as a whole, established that the appellant was in actual possession of the Ruger handgun, which he attempted to move beneath his buttocks as he sat on the couch in the living room area of the apartment. The gun, fully loaded with a box magazine containing 11 cartridges, is a restricted firearm. This evidence established the actus reus of the offence under s. 95(1). [74] In her analysis of the fault element required to establish personal possession, the trial judge was satisfied that by manually handling the gun, the appellant knew what he handled was a loaded firearm. [75] In my view, knowledge of the nature of the object he handled as a firearm, without more, does not establish knowledge, actual or imputed, that the firearm was loaded. The problem, as I see it, is twofold. I would characterize the conclusion as the product of speculation, not inference. And, in the circumstances of this case, even characterizing it as an inference does not meet the standard of proof required, that is to say, it is not the only reasonable inference available on the totality of the evidence. [76] The offence was possession of a loaded restricted firearm. Once again, the evidence falls short of what is required. [77] For these reasons, I am satisfied that the conviction on this count cannot stand. I would set it aside as unreasonable and enter an acquittal on that count. The Drug Counts [78] The appellant was convicted of two separate drug counts: possession of marijuana and of cocaine for the purposes of trafficking. Like the possession of a loaded firearm offence, I conclude that these verdicts are unreasonable. [79] A brief discussion of the background, the expert evidence given at trial; the trial judge’s reasons; the parties’ positions; and the governing principles is the logical point of departure for our analysis. The Essential Background [80] The drugs that were the subject-matter of these counts were those found during the search of the black bag found in the front hallway of the appellant's apartment. The bag was zipped closed. No identification was found attached to it, displayed on it or located inside it. Officers executing the search warrant did not see the bag when they entered the apartment. They only saw it after all the occupants had been arrested and secured and a more thorough search of the apartment had begun. The bag was equidistant from the various occupants. [81] Searching officers found several other things associated with drug trafficking at different places in the apartment. A vacuum sealer. A money counter. Scales. Baggies. Marijuana. A safe containing $9,450 in currency and two cellphones. The Evidence of Detective Hutchings [82] The appellant’s trial counsel acknowledged that Detective Hutchings, a member of the Drug Squad of the Toronto Police Service, was qualified to provide expert opinion evidence about proceeds of crime and trafficking in marijuana and cocaine. This included evidence about the modus operandi of traffickers; the methods of payment for drug purchases; the association of drug trafficking with firearms; and the interpretation of documents associated with drug trafficking. [83] Det. Hutchings gave evidence that the amounts of drugs and cash, together with the presence of firearms reflected a mid-to-high-level trafficker. He explained that drug trafficking is a cash business. Drug traffickers use vacuum sealing to mask the smell of the drug and to keep it fresh for prospective buyers and use safes to store drugs and money to guard against robberies. [84] The presence of a large scale, placement of a Tupperware container with marijuana residue in it on the scale, and packaging of both the marijuana (smaller baggies insider larger sealed Ziploc) and the cocaine (ounce-level deals) confirmed this level of trafficking. As did a book found in the apartment, which contained numbers reflective of various amounts, but it was not a typical debt list. [85] Det. Hutchings also gave evidence that the person with the key to the safe that contained large amounts of currency consistent with the proceeds of trafficking was likely the person in charge of the trafficking operation. Absent the duffel bag and its contents, Det. Hutchings considered that the evidence revealed both current and future trafficking in marijuana from the apartment. The Trial Judge’s Reasons [86] The trial judge considered at length whether the evidence adduced at trial proved the essential elements of the two counts alleging possession of marijuana and of cocaine for the purpose of trafficking. She itemized the evidence she considered relevant to the critical issue of knowledge and control of the drugs found in the duffel bag: Mr. Lights was the main occupant of unit 1810 as demonstrated by his clothing, documents, medication and inhalers, and other personal items he kept at the apartment; Mr. Lights had been in the Dominican Republic for one week, until February 16, 2014, but was back in Canada and living at his residence prior to his arrest; While Mr. Lights occupied the apartment, there was evidence that Paul Hibbert was named as tenant on the lease and had articles with his name on it (the computer and the blank cheques) in the apartment and Kimberley Johnson had several articles of clothing and personal documents in the apartment and was present in the bedroom when police executed the warrant; When police entered the apartment, they did not notice the bag until the warrant had been executed and the occupants had been removed from the premises. Even so, the black bag was located in full view in the hallway, in a common, high-traffic area of the apartment; The black bag was zipped up and had no identifying information on or in it; There is no direct evidence that Mr. Lights knew that the bag was in his apartment or that the contents of the bag were illicit; The apartment was filled with drug paraphernalia including the vacuum sealer, money counter, scales, baggies, and a safe with $9,450 in bundled cash, as well as marijuana in other parts of the apartment and an odour of burnt marijuana; There were other visitors in the apartment at the time the search warrant was executed. [87] On the issue of control , the trial judge concluded that this essential component of possession had been established on the basis of the appellant's occupancy of the apartment in which the bag containing the drugs was found: Based on the above facts, I find that Mr. Lights had control of the bag in question. As noted above, the Crown must prove that the accused had a measure of control over the item in issue. Control refers to power or authority over the item whether exercised or not. I am satisfied that Mr. Lights had sufficient control for the purposes of making out the offence of possession. The existence of his clothing, photographs, medications and inhalers, and personal documents demonstrate that Mr. Lights was the main occupant of unit 1810. While Paul Hibbert was named as tenant on the lease and had articles with his name on it (e.g. the computer, the blank cheque book in the bedroom, the energy management bill and the insurance envelope), there is no evidence that he resided there. Kimberley Johnson’s name was on her passports and other personal documents. She appeared to reside at the apartment for at least some time, and was there when the search warrant was executed; however, she was not a full-time occupant. In my view, the existence of the numerous personal effects of Mr. Lights, including the Rogers bill addressed to him at the apartment, demonstrates that he was the primary occupant of the residence. I find the evidence probative in determining Mr. Lights’ ability to grant or withhold consent to the duffel bag being in his apartment. [88] Turning to the requirement of knowledge , the trial judge recognized the fact-specific nature of this inquiry. She then examined several precedents in which courts in similar circumstances had considered whether the evidence was sufficient to prove knowledge. At the conclusion of her recital of these authorities, the trial judge reasoned that the required standard of proof had been met: In conclusion, considering the cumulative effect of all the evidence led, and the fact that the evidence did not support any other reasonable inference other than that the accused had knowledge of and a measure of control over the duffle bag and its contents, I find that the Crown has established beyond a reasonable doubt the elements of knowledge of and control over the drugs found in the bag. The evidence also demonstrates, and it is conceded, that the quantity of drugs would support the conclusion that, if possession were established, the possession was for the purpose of trafficking. Accordingly, the prosecution has proven beyond a reasonable doubt the offences of possession of the drugs for the purpose of trafficking. The Arguments on Appeal [89] The appellant says the convictions on both drug counts are unreasonable because the evidence, taken as a whole, cannot establish his possession of the drugs as the only reasonable inference available on that evidence. The absence of any evidence specifically linking the appellant to the black bag containing both marijuana and cocaine gives rise to other available inferences. Five other people were present at the time the bag was found. It was found in the open, in an area not hidden away from view or together with other drug paraphernalia or proceeds of drug activity. And no evidence supports an inference of pre-concerted activity amongst those present. [90] The appellant continues, the trial judge reached her finding of guilt on these counts, at least in part, by relying on evidence of Det. Hutchings that was anecdotal and exceeded his expertise. Det. Hutchings’ testimony was, in other respects, speculative and should not have been used on the ultimate issue of the appellant’s guilt. [91] The respondent rejects any suggestion that the findings of guilt on the drug counts are unreasonable. The trial judge was well aware of the circumstantial nature of the evidence relied upon by the Crown and the standard of proof required to establish the appellant's guilt on the drug counts. The cumulative force of the evidence satisfied the burden of proof settled upon the Crown: the bag was in the hallway of the appellant's home; the contraband was not hidden away out of plain view; drug paraphernalia and the proceeds of commercial drug activity were all around; and the appellant had the key to the safe where the proceeds were located. [92] The respondent also says the trial judge did not err in her use of Det. Hutchings’ testimony. His qualifications were admitted. Trial counsel did not object to the admissibility of any part of his evidence. He was not cross-examined on the testimony he gave about the significance of possession of the key to the safe in determining who controlled the trafficking operation. And his evidence did not include anecdotal evidence in breach of the prohibition in Sekhon nor offend what little remains of the rule prohibiting expert opinion evidence on the ultimate issue. The Governing Principles [93] Earlier in these reasons, I canvassed several general principles equally applicable to our determination of this claim of unreasonable verdict. Those principles, which had to do with the essential elements of possession; the standard to be applied in determining whether a verdict grounded on circumstantial evidence was unreasonable; and the admissibility of expert opinion evidence, need not be repeated here. I add two brief points to the previous discussion. [94] The first concerns anecdotal evidence included within otherwise admissible expert opinion evidence. [95] The rule against anecdotal evidence as part of an expert's opinion testimony originates in Sekhon . There, Moldaver J. held that anecdotal evidence while logically relevant, was not legally relevant. It should not be admitted because it says nothing about the appellant’s guilt: at para. 49. [96] The Supreme Court identified two further problems with the anecdotal evidence – its prejudicial effect and its tendency to require a response from the accused, which compromises the burden of proof: Sekhon , at para. 50. [97] Second, the availability of inferences about the elements of possession from occupancy of or control over premises. [98] In some instances, occupancy of premises, more particularly, the authority to control access to them, may support an inference of control over drugs found there when coupled with evidence of knowledge: Re Chambers and the Queen (1985), 20 C.C.C. (3d) 440 (Ont. C.A.), at pp. 446-48. See also R. v. Pham (2005), 203 C.C.C. (3d) 326 (Ont. C.A.), at paras. 25-29. The Principles Applied [99] As I will explain, I am satisfied this ground of appeal has merit and warrants an order setting aside the convictions of possession of cocaine and of marijuana for the purposes of trafficking and entering acquittals on those counts. [100] The appellant's liability on these counts cannot be established on the basis that he had the bag and its contents in his actual physical possession. Unlike the firearm the appellant handled while sitting on the couch and attempted to remove from the police view, the bag containing the drugs was in the hallway equidistant from the occupants of the living room and kitchen area, including, but not only the appellant. [101] Absent evidence of actual physical possession, the Crown was required to show that possession of the drugs in the bag could be attributed to the appellant under s. 4(3)(a)(ii) of the Criminal Code (constructive possession) or that he was in joint possession of them under s. 4(3)(b). [102] To establish constructive possession, the Crown was required to prove that the appellant knew the bag contained drugs, intended to possess them and had the necessary control over them. Because the evidence the Crown relied upon was entirely circumstantial, to establish the appellant’s guilt beyond a reasonable doubt the Crown was required to prove each essential element was the only reasonable inference available on the evidence taken as a whole. [103] I reject the appellant's claim that the trial judge was not entitled to rely on Det. Hutchings' expert testimony because it included anecdotal evidence and contravened the ultimate issue rule. The opinion offered consisted of two components. The first – that the apartment exhibited the characteristics of a premises from or in which drug trafficking was taking place – was a reasonable inference from the presence of several indicia of trafficking in the apartment. Scales. Packaging. A money counter. A vacuum sealer. Currency in denominations typical of proceeds of drug trafficking. The second – that the person who controlled the money was the person in charge of the scheme – was also a reasonable inference, untainted by any anecdotal elements as in Sekhon . [104] In this case, the evidence disclosed that, although he did not sign the lease, the appellant was a principal occupant of the apartment. And as the principal occupant, it is reasonable to infer that the appellant controlled access to the premises. [105] But the black duffel bag and its contents was in a common area near the entrance to the apartment, equidistant to all six male occupants in possession of three fully-loaded handguns. The duffel bag was closed, its contents not visible from its exterior. There was no identification in, on, or attached to the bag. No forensic evidence linked the appellant to the bag. There was no evidence of its origins or how it came to be in its location. In these circumstances, we simply cannot say that the only reasonable inference from the evidence as a whole is that the appellant was in possession of the bag and its cache of contraband. [106] In the result, I would set aside the convictions on the drug counts and enter verdicts of acquittal. The Proceeds Count [107] The appellant also challenges as unreasonable his conviction of possession of the proceeds of crime. The allegation relates to $9,450 in currency found in a locked safe in the bedroom closet of the appellant’s apartment. [108] I am satisfied that the finding of guilt on this count is reasonable. A brief reference to some additional background provides the framework essential for an evaluation of this ground. The Essential Background [109] When police searched the bedroom, they found a black bulletproof vest under the bed. They also found several items in the closet: i. a locked safe with a lockbox on top of it and a pouch containing bundled Canadian currency in the amount of $9,450, together with a small amount of United States currency, some jewellery and cellphones; ii. a coke can with a hidden compartment; iii. a box containing a vacuum sealer and money counter; iv. mens’ clothing and shoes; v. prescription medication. [110] Elsewhere in the bedroom police found the appellant’s passport and birth certificate, as well as various items of prescribed medication, medical appointment cards, a credit card statement, and a bill from a service provider all in the appellant’s name. The appellant’s passport showed an entry in the Dominican Republic on February 16, 2014, the day before the search was conducted. [111] On arrest, police located a key to the safe in the appellant’s pocket. The Trial Judge’s Reasons [112] The trial judge explained why she found the appellant guilty of possession of the proceeds of crime: In my view, the evidence in this case including the presence of a digital scale with remnants of marijuana on the kitchen counter, evidence of smoking of marijuana, a locked safe with money where the key was found on Mr. Light’s person and where the safe was in the bedroom occupied by Mr. Lights, a vacuum sealer, a money counter, magazines about marijuana and guns, the black bag containing packaged cocaine and marijuana, the presence of three firearms and a bullet proof vest in the apartment are all pieces of circumstantial evidence consistent with a drug trafficking operation being conducted by Mr. Lights from this apartment. In the opinion of Detective Hutchins who was qualified as an expert on proceeds of crime and drug trafficking, this type of evidence is characteristic of a drug trafficking operation and the manner in which the cash was stored and bundled was characteristic of proceeds of crime. In reaching this conclusion, I rely in no way on the presence of a black book with some numbers listed in it. That item cannot be said to be a debt book as suggested by the Crown. However, there are numerous other indicators of a drug trafficking operation. I am satisfied beyond a reasonable doubt that the money (more than $9,000) in the bundles locked in a safe was proceeds obtained by the commission of the offence of drug trafficking. The Arguments on Appeal [113] The appellant says that the trial judge found him guilty on the proceeds count on the basis that: i. drug trafficking was taking place in the apartment; ii. the appellant had exclusive access to the safe, and thus had possession of its contents; and, iii. the appellant had failed to adduce any evidence to contradict the presumption arising from the possession of the currency and evidence of drug trafficking. [114] According to the appellant, the trial judge’s finding is unreasonable because of two errors she made in reaching her conclusion. She relied on the expert opinion evidence of Det. Hutchings to conclude that the appellant had exclusive access to the safe, thus was in the possession of its contents. The safe had a keypad. At least one other person – Kim Johnson – had access to the room in which the safe was located. And about one-third of the money in the safe was labelled “Kim”. At all events, the opinion expressed by Det. Hutchings was either anecdotal evidence or an opinion that exceeded the scope of the officer’s expertise. In addition, the trial judge erred by treating possession of the currency as the possession of the proceeds of crime as a presumptive conclusion based on the finding of guilt on the drug counts. [115] The respondent rejects any suggestion that the finding of guilt was grounded on impermissible use of the expert testimony of Det. Hutchings, or reliance upon a rebuttable presumption to ground the necessary findings of unlawful origin and knowledge of or wilful blindness about the origins of the currency. The respondent says that the necessary findings were the product of a reasoned consideration of the totality of the evidence. The trial judge drew the only reasonable inference available on the totality of that evidence. The Governing Principles [116] Our decision on this ground of appeal involves application of principles already discussed in connection with the previous grounds of appeal. Their repetition is unnecessary. The Principles Applied [117] As I will briefly explain, I am satisfied that this ground of appeal fails. [118] At its core, the appellant’s claim of unreasonableness alleges that the trial judge erred in relying on two items of evidence to find guilt established on the proceeds count: i. evidence of drug trafficking in the apartment; and, ii. evidence that the appellant had exclusive access to the safe containing $9,450 in cash and other items. [119] To establish the appellant’s guilt on the proceeds count, it was incumbent on the Crown to prove beyond reasonable doubt, among other things, that: i. the appellant was in possession of proceeds of property; ii. the proceeds were obtained by crime; and, iii. the value of the proceeds exceeded $5,000. The count particularized the proceeds as “Canadian currency of a value exceeding five thousand dollars” but did not specify the “offence punishable by indictment” from which the proceeds were derived or obtained. [120] The proceeds alleged were the Canadian currency in the safe in the bedroom. The amount of currency exceeded $5,000. The appellant had a key to the safe. It was the only key located during the investigation. Other items in the bedroom and in close proximity to the safe were also linked to the appellant. The cumulative effect of this evidence supported the finding that the appellant was in possession of the currency found in the safe. Whether his possession was exclusive or joint with Kim Johnson was of no moment to proof of these essential elements. [121] It was also incumbent on the Crown to prove beyond a reasonable doubt the unlawful origin of the currency of which the appellant was in possession. As is the practice in this jurisdiction, the count did not specify the indictable offence from which the currency was derived. At trial, the Crown sought to establish the genesis of the funds was trafficking in controlled substances. To establish these origins, the Crown relied on the evidence located on search of the apartment and the opinion evidence of Det. Hutchings. [122] In my view, the cumulative effect of the evidence located on search of the appellant’s apartment and the properly admissible opinion testimony of Det. Hutchings fully supported a conclusion that drug trafficking was being carried on by the appellant. The instrumentalities of the offence were in abundance in the apartment. Scales. A vacuum sealer. Baggies. A money counter. Marijuana residue in a Tupperware container on a set of scales. The appellant lived there. Several items of his personal property were located in the bedroom, much of it in close proximity to the safe. Bundled cash in denominations typical of, albeit not unique to, the proceeds of drug sales in a locked safe to which the appellant had the only key. The evidence fully supported the trial judge’s conclusion that the nexus required to establish the origins of the currency had been proven. [123] Nor am I persuaded that the inferences drawn by the trial judge in reaching her finding of guilt on the proceeds count were tainted by reliance on anecdotal evidence from Det. Hutchings, or by presuming guilt from her prior finding of guilt on the possession for the purpose counts. The opinion testimony of Det. Hutchings did not fall foul of the prohibition against anecdotal evidence announced in Sekhon . The essence of the officer’s opinion was expressed in answer to a hypothetical question based on a premise which consisted of the findings on search of the appellant’s apartment. He did not, as in Sekhon , offer an opinion about the appellant’s state of mind – in particular, his knowledge – on the basis of the states of mind of others. [124] Nor can it be said that the trial judge found guilt on this count established because she had earlier found the appellant guilty of possession of cocaine and of marijuana for the purposes of trafficking based on the contents of the black duffel bag found in the hallway. Read as a whole, the reasons of the trial judge do not reveal such presumptive reasoning or infidelity to the burden of proof. [125] As a result, this ground of appeal fails. The Prohibited Device Count [126] The appellant also challenges his conviction on the count alleging possession of a prohibited device as unreasonable. [127] I am satisfied that the verdict on this count is unreasonable. Some additional background is required to better understand this ground of appeal. The Essential Background [128] In count 3 in the indictment, the appellant was charged with possession of “a prohibited device, to wit: an over-capacity magazine, knowing that he was not the holder of a licence under which he may possess it”. No further description of the device was provided. [129] When police officers entered the apartment to execute the search warrant, they saw the appellant attempting to hide a silver object as he sat on the living room couch. The object was a .22 calibre Ruger semi-automatic handgun. The handgun was loaded with an 11-shot detachable box magazine. [130] No firearms examiner testified at trial. A Certificate of Analysis was filed as an exhibit. The only “prohibited device” described in that Certificate was a 15-shot detachable 9 mm box magazine found in the 9 mm Luger calibre Glock semi-automatic handgun seized from Rohan Reid. In addition to the detachable 11-shot box magazine found in the .22 calibre Ruger semi-automatic handgun, police also found 350 rounds of .22 calibre LR ammunition suitable for use in the Ruger handgun. These cartridges are described in the Certificate of Analysis as “ammunition”. The Trial Judge’s Reasons [131] The trial judge referred to the section under which the appellant was charged, s. 92(2) of the Criminal Code , then described the “ammunition” found in the apartment. The reasons contain no reference to either a “prohibited device” or the prohibited device described in the count – the over-capacity magazine. After summarizing the essential elements of possession and the modes of participation described in ss. 21(1)(b), (c) and 21(2) of the Criminal Code , the trial judge concluded: I am satisfied beyond a reasonable doubt that Mr. Lights was in possession of ammunition found in the apartment. The Arguments on Appeal [132] The appellant contends that the verdict on the “prohibited device” count is unreasonable. The only evidence of a “prohibited device” in the Certificate of Analysis related to a box magazine with capacity of 15-9 mm Luger cartridges found in the Glock 9 mm semi-automatic handgun. There was no evidence that the appellant knew about the Glock or whether it was loaded with an over-capacity magazine, much less that he exercised any control over either. Nor was there any evidence that the appellant knew that the Ruger of which he had physical possession was loaded, or all the more so, that it was loaded with what the law characterizes as a “prohibited device”. [133] The respondent says that the “prohibited device” count referred to the over-capacity box magazine found in the Ruger of which the appellant had actual physical possession. There was no dispute that this box magazine was over-capacity. As a result, it was a “prohibited device” within s. 84(1) of the Criminal Code because it falls within s. 3(1)(b) in Part 4 of the Schedule under Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Weapons, Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited, Restricted or Non-Restricted , SOR/98-462. The appellant had physical possession of the Ruger. He knew it was loaded. This was a sufficient basis for a finding of guilt to be entered and the conviction recorded. The Governing Principles [134] The term “prohibited device” is exhaustively defined in s. 84(1) of the Criminal Code for the purposes of Part III. Among other things, a “prohibited device” is “a cartridge magazine that is prescribed to be a prohibited device”. In SOR/98-462, as amended, Part 4 – Prohibited Devices, in s. 3(1) provides: Any cartridge magazine . (b) that is capable of containing more than 10 cartridges of the type for which the magazine was originally designed and that is designed or manufactured for use in a semi-automatic handgun that is commonly available in Canada. [135] Section 84(1) defines “ammunition”, as well as “prohibited ammunition”. “Prohibited device” is not part of either definition. The Principles Applied [136] Three reasons persuade me that this conviction cannot stand. [137] First, the reasons of the trial judge failed to record the findings of fact necessary to support a conviction on this count. [138] The appellant was charged with unlawful possession of a prohibited device. The prohibited device of which he was alleged to have been in unlawful possession was an over-capacity magazine. The device was not further described or particularized in the count. [139] But, with respect, the findings of the trial judge on this count are unclear. She does not identify the “prohibited device” which is the subject of the count, indeed nowhere uses the term “prohibited device”. The finding that the appellant “was in possession of the ammunition found in the apartment” cannot sustain a conviction under s. 92(2). Possession of “ammunition” is not possession of a “prohibited device”. [140] Second, my conclusion that the appellant’s conviction of possession of the Ruger, a restricted firearm, knowing that it was loaded , was unreasonable requires the same conclusion on the “prohibited device” count. The absence of evidence to support the finding of knowledge or wilful blindness that the gun was loaded requires the same conclusion for possession of the device with which it was loaded. [141] Finally, I can see no basis upon which the appellant can be found guilty on the “prohibited device” count in connection with the magazine contained in the Glock handgun in Rohan Reid’s possession. The absence of evidence to support the finding of actual knowledge or wilful blindness about whether that gun was loaded eliminates it as a basis for conviction on this count. [142] For these reasons, I would also set aside the conviction on this count and enter a verdict of acquittal. The Sentence Appeal [143] The appellant also appeals his sentence. He sought a reduction in the length of the term of imprisonment – 9.5 years – imposed at trial. Apart from seeking a reduction in quantum, to some extent dependent on success on the appeal from conviction, he made no specific submissions on sentence either in writing or in oral argument. [144] Following the appellant’s conviction, the trial judge imposed a global sentence of 9.5 years: · Possession of a loaded restricted firearm: 6.5 years · Possession of a firearm without a licence or registration certificate: 5 years (concurrently) · Possession of cocaine for the purposes of trafficking: 3 years (consecutively) · Possession of marijuana: 2 years (concurrently) · Possession of proceeds of crime: 3 years (concurrently) [145] The effect of the decision on the conviction appeal is that the sentence is reduced to a term of 5 years. I see no basis upon which to reduce it further. [146] Having regard to R. v. Boudreault , 2018 SCC 58, [2018] 3 S.C.R. 599, the victim surcharge must also be set aside. Disposition [147] For these reasons, I would allow the appeal from conviction on counts 1, 3, 4 and 5 of the indictment and enter acquittals on those counts. I would dismiss the appeal from conviction on counts 2 and 6. [148] I would grant leave to appeal sentence on counts 2 and 6 but dismiss the appeal from sentence on those counts. In the result, the sentence is 5 years. The victim surcharge is set aside. Released: (“DW”) February 18, 2020 “David Watt J.A.” “I agree. Grant Huscroft J.A.” “I agree. Gary Trotter J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. MacMillan, 2020 ONCA 141 DATE: 20200219 DOCKET: M51246 (C67940) MacPherson J.A. (Motions Judge) BETWEEN Her Majesty the Queen Respondent and Gavin MacMillan Applicant Breana Vandebeek, for the applicant Jennifer A.Y. Trehearne, for the respondent Heard: February 12, 2020 REASONS FOR DECISION [1] The applicant Gavin MacMillan and his co-accused Enzo De Jesus Carrasco were found guilty, by a jury in a trial presided over by Dambrot J. of the Superior Court of Justice, of sexually assaulting and administering a noxious substance to a young woman in the College Street Bar, owned by the applicant. [2] The applicant’s and co-accused’s assault and violation of the complainant took place over approximately six hours. A great deal of it was captured by the bar’s surveillance camera. What the camera shows is profoundly troubling – substantial violence and nauseating degradation over the course of a prolonged physical and sexual assault on the complainant. For most of the time, the complainant was unable to resist due to severe intoxication by alcohol and cocaine the two men gave her. [3] On February 12, 2020, the applicant received a sentence of nine years’ imprisonment for the offences. He has prepared a draft Notice of Appeal. He seeks bail pending the hearing of the appeal. [4] The test for granting bail pending appeal is set out in s. 679(3) of the Criminal Code : the judge of the court of appeal may order that the appellant be released pending the determination of his appeal if the appellant establishes that (a) the appeal or application for leave to appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. [5] The Crown concedes that the appeal is not frivolous. The applicant’s principal ground of appeal is that the trial judge erred by determining, as did several other Ontario trial judges, that a recent federal law (“Bill C-75”) removing peremptory juror challenges applied retrospectively to criminal proceedings that had started, but not finished, before Bill C-75 came into force. [6] This argument is far removed from being frivolous. Indeed, it is almost the opposite; it is almost certain to succeed. That is because two months after this trial concluded, this court reached the opposite conclusion on the same issue. In R. v. Chouhan , 2020 ONCA 40, Watt J.A. said, at paras. 5 and 217: With respect to the temporal application of the amendments, I decide that the abolition of the peremptory challenge applies prospectively, that is to say, only to cases where the accused’s right to a trial by judge and jury vested on or after September 19, 2019. But I conclude the amendment making the presiding judge the trier of all challenges for cause applies retrospectively, that is to say, to all cases tried on or after September 19, 2019. [T]he abolition of peremptory challenges affected the substantive rights of the appellant, thus it should not have applied to the selection of the jury in his case nor should it apply to the selection of the jury in other cases if the accused had a vested right before September 19, 2019 to a trial by judge and jury as it existed in the prior legislation . [Emphasis added.] [7] In terms of the relevant temporal factors, the present case is identical to Chouhan . It follows that, barring something unforeseen arising, the appeal in this case will almost certainly be allowed and a new trial will be ordered. Accordingly, this factor counts strongly in the applicant’s favour. [8] The Crown also concedes that the second factor in s. 679(3) of the Criminal Code is not in play on this appeal. The Crown says: “It appears that any risk that the Applicant will flee the jurisdiction can be controlled pending appeal by the imposition of strict bail conditions”. [9] I agree. The applicant complied with his bail conditions throughout the pre-trial and trial period. Moreover, he has agreed with the Crown that stringent bail conditions are appropriate. One of the bail conditions will be virtual house arrest: 5. You must reside with your surety [mother] at […] 6. You must remain in your residence at all times except: i. for medical emergencies involving you or a member of your immediate family (spouse, child, parent, sibling); or ii. for purposes of travelling directly to, from and while at court appearances, or meeting with your lawyer, or for purposes of complying with this or any other order. [10] Taking these factors into account, it is highly unlikely that the applicant is a flight risk. [11] Turning to the third factor, the question for determination is whether the applicant has shown, on a balance of probabilities, that his detention is not necessary in the public interest: see R. v. Oland , 2017 SCC 17, at para. 19; R. v. Iraheta , 2018 ONCA 229, at para. 4. [12] The ‘public interest’ factor in s. 679(3) of the Criminal Code has two components – public safety and public confidence in the administration of justice: see Oland , at para. 23, and R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), at paras. 41-43. While public confidence in the administration of justice is rarely a central factor in the test, it ought to be considered when an offence is serious: Oland , at paras. 29 and 43. [13] The public confidence in the administration of justice factor is in play in this application. Public confidence requires a balancing of reviewability and enforceability. In determining whether public confidence requires detention, the relevant factors are: (1) the gravity of the offence; (2) the circumstances surrounding its commission; (3) the potential for a lengthy term of imprisonment; and (4) the strength of the appeal: see Oland , at paras. 37-40. [14] The offences are grave. The applicant has been convicted of two serious offences – sexual assault and administering a noxious substance. [15] The circumstances surrounding the commission of the offence are, in a word, appalling. The applicant’s treatment of the complainant – captured on camera – was violent, degrading and prolonged. [16] The potential for a lengthy term of imprisonment is obvious – the applicant has been sentenced to nine years’ imprisonment. [17] However, and unusually on an application for bail, the applicant’s proposed appeal is beyond strong; it borders on certainty. On the issue of the jury selection process, the applicant’s case is identical to Chouhan . The jury selection process in the applicant’s trial was, therefore, defective. His appeal will likely be allowed and a new trial will likely be ordered. [18] The respondent disagrees, submitting that it is not almost certain that the applicant’s appeal will be allowed. The respondent makes two submissions in support of this position. [19] First, the respondent informed the court at the bail hearing that it has decided to seek leave to appeal Chouhan . The respondent submits that, because of the importance of Chouhan in the Ontario justice system (the Chouhan formula was followed in many trials), the Supreme Court is likely to grant leave. Then, the respondent submits, the Supreme Court might allow the appeal, rendering the applicant’s principal ground of appeal meritless. [20] The problem with this submission is that it is entirely speculative. On the ground now, Chouhan is the law in Ontario. It will be applied in this appeal. Almost certainly, that will mean a new trial in this case. [21] Second, the respondent submits that even if a ‘ Chouhan error’ is established in this case, a new trial will not necessarily be the remedy. In a similar Ontario case, R. v. Esseghaier and Jaser , 2019 ONCA 672, where this court ordered a new trial because of a fault in the jury selection process, the federal Crown is seeking leave to appeal to the Supreme Court of Canada and, if leave is granted, will argue that the curative proviso in s. 686 of the Criminal Code should be applied to save the trial result. The respondent contends that, if this becomes the result in Esseghaier and Jaser , then a similar result would likely follow in this appeal. [22] This submission suffers from the same defect as the previous one: it is entirely speculative. On the ground now, Esseghaier and Jaser is the law in Ontario. And in Esseghaier and Jaser , Zarnett J.A., speaking for a unanimous court, said, at para. 95: In my view, the curative proviso cannot be applied in this case. As pointed out in Noureddine , beyond the issue of the curative proviso’s application to a question that affects the proper constitution of the jury, and thus of the court which tried the appellants, the curative proviso cannot be applied unless there was no prejudice to the accused. As in Noureddine , the question here is not actual prejudice, which in these kinds of circumstances is impossible to gauge, but prejudice to the due administration of justice flowing from the denial of a jury selection method which was in law properly invoked: Noureddine , at paras. 62-64. [23] Taking these factors together, I cannot say public confidence in the administration of justice would be offended if the applicant were released on bail pending his appeal. He has a very strong case on the appeal. He complied with all the conditions of his bail before and during his trial. And as stated above, the public confidence factor does not exhaust the public interest: the stringent conditions on the applicant’s interim release are adequate to protect public safety. In my view, these are the controlling factors on this application, against the backdrop of this court’s decisions in Chouhan and Esseghaier and Jaser . [24] For these reasons, the application for bail pending appeal is granted. The Crown and the applicant have agreed on the terms of bail, including virtual house arrest. Order to go in terms of the draft Release Order filed. “J.C. MacPherson J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Nadarajah, 2020 ONCA 85 DATE: 20200204 DOCKET: C65091 Doherty, Watt and Hourigan JJ.A. BETWEEN Her Majesty the Queen Respondent and Arun Nadarajah Appellant Breana Vandebeek, for the appellant Sandy Thomas, for the respondent Heard and released orally: January 31, 2020 On appeal from the conviction entered on July 12, 2017 by Justice Katarynych of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant was found in possession of 102 grams of powder cocaine and was charged with possession for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. After the trial judge dismissed the appellant’s applications under ss. 8 and 9 of the Canadian Charter of Rights and Freedoms , the appellant conceded the case against him and was convicted. [2] In her reasons for sentence, the sentencing judge accepted that there were several mitigating factors, including the appellant’s youthfulness; his first offender status; his concession of the case against him; his self-generated rehabilitation; and his family support. However, the sentencing judge rejected other circumstances that defence counsel had presented as mitigating factors. Ultimately the appellant received a sentence of 18 months’ incarceration. [3] On his sentence appeal, the appellant submits that the sentencing judge erred in finding that a custodial sentence was necessary and failed to give sufficient, if any, weight to the following mitigating circumstances: his history on bail; the fact that jail was not necessary to deter him; the fact that he was a drug-addicted trafficker; and the support available to him from his peer group. It is the appellant’s position that the sentencing judge overemphasized specific deterrence and denunciation in light of the evidence of rehabilitation. [4] We are not satisfied that the sentencing judge erred in finding that a custodial sentence was necessary in the circumstances. The submissions regarding deterrence, available peer support, and the appellant’s history on bail, were specifically considered and rejected by the sentencing judge, as she was entitled to do. The sentencing judge also found that there was an insufficient evidentiary basis to conclude that drug addiction was a mitigating factor. That finding was also available on the record, especially given that the appellant did not testify on the sentencing hearing. [5] In our view, the appellant has not met his onus under R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, of establishing that the sentencing judge erred in principle; failed to consider a relevant factor; or erroneously considered or placed undue emphasis on an aggravating or mitigating factor in determining the sentence. The sentencing judge properly balanced the competing factors in her careful and detailed reasons and imposed a sentence that is within the range of fit sentences in these circumstances. [6] Leave to appeal sentence is granted, but the sentence appeal is dismissed. “Doherty J.A.” “David Watt J.A.” “C.W. Hourigan J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Pathan, 2020 ONCA 108 DATE: 20200211 DOCKET: C64187 Rouleau, Benotto and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Wariskhan Pathan Appellant Breana Vandebeek, Mark Halfyard, for the appellant Lisa Joyal, for the respondent Heard and released orally: February 6, 2020 On appeal from the conviction entered on May 29, 2014 and the sentence imposed on July 29, 2014 by Justice W. Brian Trafford of the Superior Court of Justice. REASONS FOR DECISION [1] The deceased was shot and killed in the lobby of an apartment building. Security cameras captured the following events. The appellant and the co-accused Patel entered the outer lobby of the main entrance of the building. Patel pulled on a locked door to the entrance of the inner lobby, but it did not open. [2] The deceased walked through the inner lobby towards the locked door, let Patel in but closed it before the appellant could enter. Patel and the deceased had an altercation and struggled for what appeared to be Patel’s gun. The appellant, still in the outer lobby took out a firearm. Patel opened the glass door to the outer lobby and the appellant shot through the glass door. The deceased fell to the ground and the appellant and Patel fled through the front door. [3] The appellant was convicted of second-degree murder and Patel was acquitted. The appellant submits that the trial judge erred by allowing, at the request of Patel, expert evidence about what happened on the security video. Patel sought to rely on this evidence to support his position that he did not fire a weapon. The appellant took the position that the expert evidence undermined his claim of self-defence, lack of mens rea and his claim that Patel had an operational firearm. [4] The parties agreed that there were defects in the video that required expert testimony, in particular, motion blur, pixilation and data-compression. However, the appellant submits that the trial judge allowed the testimony to go beyond permissible opinion evidence because the expert testified in a narrative fashion about what he saw in the video. The expert opined as to the direction of the apparent gun that Patel was holding, who was firing and the number of shots that were fired. It is submitted that this testimony usurped the function of the jury. We do not agree. [5] The trial judge had ruled that the expert could testify as to the area within his expertise. The trial judge recognized that it would be difficult for the expert to limit his testimony to the defects in the video without providing some narration that would have been within the jury’s ability to assess. [6] In our view, the trial judge correctly exercised his gatekeeper function at the time of the ruling and throughout the evidence. We do not agree that the expert testimony went beyond the trial judge’s ruling. In any event if there had been extra-narrative, the trial judge gave three separate cautions to the jury. Prior to the evidence being given, the trial judge instructed the jury that it was up to the jury to interpret the video and that the jury should assess the expert’s credibility and reliability as it would assess the evidence of any other witness. [7] During the cross-examination of the expert, the trial judge gave another caution and told the jury that the expert was not “here to tell us everything that he sees on the tape”, but rather, the expert was there to help the jury interpret certain aspects of the video that are hidden to the lay mind. [8] Finally, the trial judge gave specific instructions in his final charge to the jury. He reminded the jury that it was the jury’s responsibility to interpret the video and the jury was to interpret it themselves. In particular, he said: “We do not need [the expert’s] help in the interpretation of much of the video, do not be affected by those parts of the opinion, interpret them on your own as you see fit in the context of the evidence as a whole.” [9] In our view, the trial judge’s three separate instructions to the jury addressed the issues raised by the appellant. [10] With respect to the prejudice alleged, we note that the trial judge was alive to the potential prejudicial impact of the evidence. We defer to the exercise of his discretion in the weighing of the probative value and prejudicial impact of the evidence. [11] Given the careful ruling of the trial judge and the cautions in his charge to the jury, we do not accept the appellant’s position that the jury would have been overwhelmed by the expert testimony. [12] For these reasons the appeal is dismissed. “Paul Rouleau J.A.” “M.L. Benotto J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Raia, 2020 ONCA 132 DATE: 20200219 DOCKET: C66017 & C66019 Hoy A.C.J.O., Feldman and Gillese JJ.A. BETWEEN Her Majesty the Queen Respondent and Salvatore Raia and Michael Vitello Appellants Salvatore Raia, acting on his own behalf Amy Ohler for the appellant, Michael Vitello Hannah Freeman, for the respondent Heard and orally released: February 12, 2020 On appeal from the convictions entered by Justice C. McKinnon of the Superior Court of Justice, dated July 13, 2018. REASONS FOR DECISION [1] Mr. Raia and Mr. Vitello appeal their convictions for conspiring to kidnap, sexually assault and murder Mr. Vitello’s spouse, Sonia Bernard. Neither Mr. Raia nor Mr. Vitello testified on his own behalf at trial. [2] In convicting Mr. Raia and Mr. Vitello, the trial judge relied on the evidence of Chris Richards, an employee of Mr. Vitello, about the conspiracy. The trial judge found that there was “elaborate corroborative evidence” and that Mr. Richards was a credible witness. The trial judge considered that Mr. Richards’ evidence that he, Mr. Raia, and Mr. Vitello stopped in a parking lot for about two to three minutes on the planned date of the murder was “clearly mistaken”, but concluded that it was not a “foundation for reasonable doubt” about Mr. Richards’ evidence. [3] On appeal, Mr. Raia and Mr. Vitello argue that the trial judge erred in finding that Mr. Richards was a credible and reliable witness. They argue that the evidence that the trial judge relied on as corroborative was not corroborative of their alleged agreement to kidnap, sexually assault and murder Ms. Bernard. [4] Further, they say that the trial judge made several errors in his reasons. For example: 1) he wrote that Mr. Vitello’s first wife called him in jail, whereas he called her; 2) he referred to Oscar Giroux looking at a photo lineup, but Oscar Giroux did not look at a photo lineup; 3) he wrote that Mr. Vitello’s son, Nicholas, testified that Mr. Raia seemed drunk, when Nicholas’s evidence was only that Mr. Raia smelled of alcohol; and 4) he wrote that, during his police interview, Mr. Raia stated that he did not remember going anywhere else on the morning of the planned date of the murder, whereas Mr. Raia testified that he could not remember where they went. [5] The trial judge’s finding that Chris Richards was a credible and reliable witness is entitled to deference on appeal barring palpable and overriding error. On this appeal, we do not consider afresh whether Chris Richards was a credible and reliable witness. [6] We are not persuaded that there is any basis for this court to interfere with the trial judge’s finding that Chris Richards was a credible and reliable witness. The trial judge was entitled to rely on the extensive corroborating evidence that supports Chris Richards’ account, including the text messages exchanged between Chris Richards and Sonia Bernard and a number of security surveillance videos that tracked the movements of Mr. Vitello’s truck, essentially as Chris Richards described it. As noted by the trial judge, Chris Richards was unaware of this video surveillance when he gave his statements to the police. [7] In our view, the errors in the trial judge’s reasons identified by the appellants go to peripheral matters and had no impact on the trial judge’s credibility assessment. For example, while the trial judge referred, in one sentence at para. 90 of his reasons, to Oscar Giroux looking at a photo lineup, the significant part of para. 90 is that Oscar Giroux described the passenger in the front seat of Mr. Vitello’s truck on the morning of the planned date of the murder, and his description matched Mr. Raia. Moreover, Chris Richards, who was also in the truck, testified Mr. Raia was in the front seat and, in his statement to the police, Mr. Raia said he was the passenger in the front seat of Mr. Vitello’s truck that morning. [8] Accordingly, the appeals against conviction are dismissed. “Alexandra Hoy A.C.J.O.” “K. Feldman J.A.” “Eileen E. Gillese J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Shepherd, 2020 ONCA 133 DATE: 20200219 DOCKET: C67313 Hoy A.C.J.O., Feldman and Gillese JJ.A. BETWEEN Her Majesty the Queen Respondent and Timothy James Shepherd Appellant Amy Ohler for the appellant Hannah Freeman, for the respondent Heard and orally released: February 13, 2020 On appeal from the sentence imposed by Justice Anderson of the Ontario Court of Justice on July 31, 2019. REASONS FOR DECISION [1] The appellant pled guilty to assault causing bodily harm and was sentenced to a period of incarceration of two years, less a day. He appeals his sentence. [2] He makes two main arguments. First, he argues that, in finding in the course of the Gardner hearing that his attack on his spouse was unprovoked, the trial judge improperly considered that he had a propensity for violence and should have accepted his evidence that the attack was provoked. The appellant submits that the trial judge’s finding that the attack was unprovoked impacted the sentence imposed. Second, in imposing sentence, the trial judge mistakenly considered that the appellant had been previously convicted of assaulting his spouse. [3] We reject these arguments. First, at p. 9 in the reasons for judgment for the Gardner hearing, the trial judge specifically indicated that evidence of propensity to violence played no part in his analysis. Moreover, the trial judge’s assessment of the appellant’s credibility is entitled to deference. There is no basis to interfere with his rejection of the appellant’s version of events. [4] Second, what the trial judge considered as an aggravating factor in sentencing the appellant was that he “was on probation for an offence that related at least to the complainant and a significant offence that related to the complainant”. The appellant acknowledges that, at the time he committed this assault, he was on probation for an offence committed in 2015 as a result of a disturbance at the complainant’s parents’ residence at the time that the complainant was living there with their children. The trial judge correctly described the offence as relating to the complainant. [5] As the trial judge described, the assault was significant and the bodily harm substantial. On the appellant’s own version of events, he “snapped” and got “carried away” and became the aggressor. In our view, the sentence imposed in this case of domestic violence would have been fit, even if the assault were provoked, as the appellant submits. [6] With regard to the materials prepared for his parole hearing that the appellant handed up to the panel today, which speak to his prospects of rehabilitation, we note that the trial judge specifically considered that the appellant has family support, is intelligent, has employable skills, and was working on his mental health concerns. He noted the importance of rehabilitation in the appellant’s life. [7] Accordingly, the appeal is dismissed. “Alexandra Hoy A.C.J.O.” “K. Feldman J.A.” “Eileen E. Gillese J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Torcaso, 2020 ONCA 100 DATE: 20200210 DOCKET: C64170 & C66470 Rouleau, Benotto and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Zachary Torcaso and Dereck Maione Appellants Michael Lacy and Bryan Badali, for the appellant Zachary Torcaso Philip Norton, for the appellant Dereck Maione Katie Doherty, for the respondent Heard and released orally: February 5, 2020 On appeal from the convictions entered on January 26, 2017 (C64170 & C66470), and the sentence imposed on June 28, 2017 (C64170), by Justice Michael Varpio of the Superior Court of Justice. REASONS FOR DECISION [1] The charges arose out of a home invasion. The two appellants were convicted of break and enter. The appellant Torcaso was also convicted of assault. [2] Both appellants submit that a letter sent to the trial judge apparently by a juror during the trial compromised the fairness of the trial. Torcaso argues that the trial judge erred his charge as to the identity issue. The Reasonable Apprehension of Bias Issue [3] First, with respect to the letter sent to the judge, the appellants argue that the letter raised a reasonable apprehension of bias. We disagree. [4] The juror denied authoring the letter or having ever seen it. From our review of the evidence, the circumstances and the denial that she wrote the letter, we see no reason to look behind her denial. We note that nothing in the letter bears on the merits of the case. It complimented the Crown on his appearance and conduct during the case “so far” and indicated that she knew someone who would be a good match for him. [5] Moreover, even if she wrote the letter, it does not meet the high standard required to raise a reasonable apprehension of bias. Nothing in the letter suggested that she would not respect her oath and decide the case on the evidence. [6] The appellant also argues that the entire sequence of events, including the judge’s inadvertent delay in discovering the letter, the manner in which the inquiry was conducted and the treatment of the juror’s communication with the Crown office just after the post-verdict inquiry, affects the appearance of fairness and risks bringing the administration of justice into disrepute. [7] We do not agree that the cumulative effects of these steps rose to the level that the fairness of the entire process was compromised. Nor do we find error with the inquiry process. The trial judge reviewed each step of the inquiry with counsel, and we see no basis for concluding that any of these steps compromised the appearance of fairness. The Identity Issue [8] Identity was the central issue at trial. The appellant Torcaso submits that the trial judge failed to instruct the jury adequately on the identification evidence, in failing to include a separate section of his charge independently reviewing the evidence and pointing to specific weaknesses in the identity evidence. Again, we disagree. [9] This was a one issue trial. The trial judge directed the jury to be cautious regarding eye-witness testimony including the usual cautions about the frailties of eye-witness identification. In the circumstances of this case, the jury was given the tools they needed to do their job. The structure of the trial judge’s charge and the manner in which he set out the evidence discloses no legal error. Based on the totality of the instructions in the context of the entirety of this case, the jury would have understood that identity was really the issue they had to resolve. They were provided with the law that applied to that issue, the positions of the parties and the evidence relevant to the positions of the parties on the central issue of identity. Even if the charge could have been organized differently or more could have been said that does not indicate the instructions were flawed. [10] As conceded by the Crown, the sentence appeal of Torcaso is allowed to the extent of striking the victim’s surcharge. The appeals are otherwise dismissed. “Paul Rouleau J.A.” “M.L. Benotto J.A.” “A. Harvison Young J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. V.L., 2020 ONCA 87 DATE: 20200204 DOCKET: C66807 Doherty, Watt and Hourigan JJ.A. BETWEEN Her Majesty the Queen Respondent and V.L. Appellant Michael Davies, for the appellant Nicolas de Montigny, for the respondent Heard and released orally: January 31, 2020 On appeal from the sentence imposed by Justice M. Z. Charbonneau, of the Superior Court of Justice, dated December 21, 2018. REASONS FOR DECISION [1] The appellant was convicted of sexual assault after a trial by judge alone. [2] This is a sentence appeal. The issue is a narrow one. The trial judge imposed a sentence of four years. Counsel for the appellant submits, based on the case law, that the appropriate range of sentence in the circumstances was three to five years. He argues that three years is the appropriate sentence, given the absence of any physical violence beyond the violence inherent in a forcible rape. [3] Counsel submits that the trial judge wrongly treated the appellant’s false vilification of the victim in his testimony as an aggravating factor on sentence. He submits that this error warrants a re-appraisal of the sentence by this court and the imposition of a sentence of three years. [4] Having regard to the totality of the sentencing record, it is not entirely clear that the trial judge made the error alleged. One passage from his reasons for sentence suggests that he did. Assuming he made that error, we are satisfied it played a minor role in his determination of the appropriate sentence. The trial judge focused on the inherent seriousness of the assault, a rape during which the appellant overpowered the victim, a neighbour and friend, in her own home, and did as he wished. The trial judge also emphasized the planning that led to the assault. [5] In R. v. Lacasse , [2015] 3 S.C.R. 1089 (the leading authority), the majority observed, at para. 44: In our view, an error in principle, the failure to consider a relevant factor or the erroneous consideration of an aggravating or mitigator factor will justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence. [6] In our view, the error alleged by the appellant, assuming it was made by the trial judge, did not have an impact on the sentence. The aggravating features in this case fully justify the four-year sentence imposed. [7] The appeal is dismissed. “Doherty J.A.” “David Watt J.A.” “C.W. Hourigan J.A.”