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COURT OF APPEAL FOR ONTARIO CITATION: R. v. Asphall, 2022 ONCA 1 DATE: 20220107 DOCKET: C69050 Miller, Zarnett and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Demaine Asphall Appellant Ben ElzingaCheng, for the appellant Molly Flanagan, for the respondent Heard: in writing On appeal from the convictions entered and the sentence imposed on March 11, 2015 by Justice Malcolm McLeod of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant, who is a permanent resident of Canada and has been in Canada for 30 years, seeks to set aside guilty pleas on the basis that he was uninformed of the immigration consequences of them. The Crown now concedes the appeal. [2] The appellant pleaded guilty to possession of a restricted firearm with ammunition, carrying a concealed weapon, and breach of weapons prohibition. He was convicted and sentenced to two years less a day for possession, 90 days consecutive for carrying a concealed weapon, and 60 days consecutive for breach of the weapons prohibition. He has served his sentence. [3] After serving his sentence, the appellant was arrested by the CBSA and advised he was ineligible for admission to Canada as a consequence of his convictions, and that removal proceedings had been commenced against him. [4] The appellant swore in an affidavit in support of this appeal that he had been unaware of the immigration consequences of his convictions, and if he had been aware he would not have pleaded guilty but would have proceeded to trial. He was cross-examined on that affidavit, and the Crown now concedes that there is no basis in the evidence to challenge the appellant’s assertion that he was unaware of the immigration consequences of his guilty plea: there was no plea inquiry at trial, and trial counsel had no notes, no specific recollection, and did not have a uniform practice of advising clients of immigration consequences. Furthermore, the appellant provided evidence that he faced prejudice from removal from Canada: he has lived in Canada since he was 9 years old and removal would disrupt his family life: he has 8 children and has been living with his wife and 6 of those children for the past 12 years. DISPOSITION [5] Given the Crown’s concession, we allow the appeal, set aside the guilty pleas and convictions, and order a new trial. “B.W. Miller J.A.” “B. Zarnett J.A.” “S. Coroza J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. G.M.C., 2022 ONCA 2 DATE: 20220107 DOCKET: C66972 Strathy C.J.O., Hourigan and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and G.M.C. Appellant Scott Hutchison and Carly Peddle, for the appellant Sunil Mathai, for the respondent Heard: November 23, 2021 On appeal from the conviction entered on January 31, 2019 by Justice Gregory A. Pockele of the Ontario Court of Justice. Strathy C.J.O.: I. BACKGROUND [1] After a 12-day trial in the Ontario Court of Justice, the appellant was convicted of three counts of assault contrary to s. 266 of the Criminal Code , R.S.C., 1985, c. C-46, one count of assault with a weapon contrary to s. 267(a), one count of failure to comply with an undertaking contrary to s. 145(5.1), and one count of failure to comply with a recognizance contrary to s. 145(3). He pled guilty to one count of failure to comply with a court order. He was acquitted of sexual assault, criminal harassment, three additional counts of assault, and one additional count of breaching a recognizance. [2] The appellant was a police officer with the Waterloo Regional Police and the complainant had been a legal assistant for a criminal defence lawyer. They began a romantic relationship in 2011. Shortly thereafter, the complainant moved into the appellant’s home, where they lived with C., the appellant’s son from a previous relationship. The appellant and the complainant subsequently purchased their own home and had a child of their own, J., born in April 2015. [3] The complainant alleged that the appellant assaulted her seven times between 2013 and 2015 and that he sexually assaulted her in 2014. The complainant did not report her allegations to police until October 2016. By then, the parties had separated, but were locked in acrimonious family law proceedings relating to custody of and access to their son. The appellant had been subject to a family court order prohibiting him from communicating with the complainant. [4] The Crown theory was that the appellant was extremely jealous, had a quick and occasionally violent temper, and had vented his rage on the complainant. [5] The defence theory was that the complainant had a motive to fabricate in relation to the ongoing legal dispute concerning J., that she had friends in various police agencies, and that she had manipulated the police to achieve her objectives. [6] As the trial judge noted, the credibility and reliability of the complainant and the appellant was a central issue at trial. II. THE OFFENCES AND THE TRIAL JUDGE’S REASONS [7] The following brief overview of the offences for which the appellant was convicted will provide context for the analysis that follows. Additional details will be added as necessary for the analysis. (1) Count 1 – May 25, 2013 – The 911 call [8] The complainant alleged that the appellant assaulted her when she returned home one evening after meeting her sister, instead of having dinner at home. Upon her return, the appellant allegedly called the complainant demeaning names and questioned her about her whereabouts that evening. When the complainant allegedly removed her engagement ring, the appellant threw it at her and told her to pack her belongings and leave the house. She testified that, when she entered the basement to retrieve one of her two cats, the appellant pushed her into the washing machine, causing injuries to her chest, head, and knee. The complainant said she then went to retrieve her car keys, at which point the appellant pushed her again, causing her hip to hit the kitchen counter. The appellant then made an unsuccessful attempt to push her down the stairs as she went to retrieve the cat. [9] The complainant retrieved the nearby phone, ran upstairs, and called 911, but the appellant took the phone from her and hung up. The complainant ran back downstairs, and the appellant threw what the complainant thought was a bin of clothing at her. The dispatcher called back multiple times and eventually got the complainant on the line. [10] The complainant did not mention an assault to the 911 dispatcher during the call. However, she told the dispatcher that she was trying to leave the house, and the appellant was not letting her take her cats. She was overheard telling the appellant not to be mad at her. The police attended the house and helped the complainant leave. The complainant testified that she told her brother and sister about the assault the evening it transpired, her friend and colleague Ms. D. on the following Monday, and a doctor several months later. Ms. D. testified that she observed bruising on the complainant sometime in the spring of 2013. [11] The appellant acknowledged that he had an argument with the complainant, but he denied shoving or pushing her. He recalled trying to keep the cat in the basement, but denied that the complainant went downstairs near the washer and dryer to retrieve it. [12] With respect to this count, the trial judge recognized that the complainant’s evidence had been “shaped to some degree”, but concluded that there was no material inconsistency between the complainant’s testimony that she had been assaulted and the 911 call in which she made no mention of assault. (2) Counts 2 and 3 – October 6, 2013 – Common assault and assault with a weapon [13] The appellant and the complainant had an argument after the appellant received a message from a female colleague. The complainant wanted to end her relationship with the appellant. The complainant testified that the appellant threw a bin of clothing at her while she was descending the stairs, hitting her in the back of her head and causing her to fall to the floor. She testified that, when she tried to retrieve a phone to call the police, the appellant choked her and said, “I could fucking kill you”. She then ran out of the house and drove away. The complainant testified that after the assault she had trouble breathing and swallowing, her neck was sore and bruised, and she concealed the bruising with makeup and clothing. A doctor’s report stated that there was no obvious bruising on the complainant’s neck, but that she was wearing makeup over the area. Ms. D. recalled seeing bruising on the complainant’s neck in the fall of 2013 and observed that she was having difficulty speaking. [14] The appellant testified that he pushed the complainant in response to her hitting him. He also testified that he said “I could fucking kill you” because he was angry that she had hit him. The appellant denied throwing a bin at her or choking her. He acknowledged that the complainant had complained of soreness in her neck, which he attributed to the push. [15] The trial judge found that this was “one of the stronger cases the Crown advanced” and accepted the evidence of the complainant and the evidence of Ms. D., who observed the bruising and the symptoms of a sore neck. He also accepted evidence of the complainant having attended a doctor’s office as rebutting the allegation of recent fabrication. He rejected the appellant’s evidence as incredible and as insufficient to raise a reasonable doubt. He also found corroborative evidence in emails sent by the appellant after the incident, in which he expressed responsibility and remorse. (3) Count 7 – November 2014 – Assault (Kneeling) [16] The complainant testified that the appellant assaulted her after she refused to accompany him on a visit to his friend. She said that he pushed her onto the bed and put his knees on either side of her, pinning her forearms with his knees. The complainant said that she freed herself by striking his genitals and then ran to the basement, where she locked herself in the bathroom and attempted to call a friend, Ms. W. The complainant texted photos of bruises on her arm to Ms. W. and also told Ms. D. about the incident. [17] The appellant admitted he had an argument with the complainant but denied assaulting her. [18] The trial judge convicted the appellant on this count, accepting the evidence of the complainant and the two independent witnesses, whose evidence refuted recent fabrication and provided some corroboration of the complainant’s allegations and injuries. He found that the appellant’s evidence did not undermine the credibility of the prosecution witnesses and did not raise a reasonable doubt. (4) Compliance Charges [19] In the course of an access visit, the appellant delivered a diaper bag to the complainant, containing a “communications book” and various cards, documents, and pictures. By doing so, it was alleged, the appellant communicated with the complainant contrary to the family court order. It was also alleged that the appellant sent the complainant an e-mail in breach of his recognizance. [20] In finding the appellant guilty of breaching an undertaking, the trial judge found that the appellant’s own evidence established that he had communicated with the complainant. In finding the appellant guilty of breaching his recognizance, the trial judge relied on the appellant’s guilty plea for another offence, in which he conceded that his e-mail communications with the complainant exceeded the scope of the family court order. III. ISSUES [21] The appellant raises three grounds of appeal: 1. Judicial notice: whether the trial judge took judicial notice of matters that fall within “memory science”, relying on his own understanding of how memories operate and, if so, whether he made improper use of memory science to support his findings of fact. 2. Uneven scrutiny of the evidence: whether the trial judge applied uneven scrutiny to the Crown and defence evidence by (a) forgiving inconsistencies in the Crown’s case; (b) making improper use of the appellant’s demeanour and imposing a higher standard on the appellant because he was a police officer; and (c) relying on evidence of the appellant’s discreditable conduct to discredit him and infer guilt. 3. Reasonable apprehension of bias: whether statements and interventions made by the trial judge compromised the appearance of trial fairness and gave rise to a reasonable apprehension of bias. [22] The appellant submits that all three errors impacted the trial judge’s findings on the central issue of credibility and that a new trial is required. IV. ANALYSIS (1) First Issue: Judicial Notice [23] Counsel for the appellant argued that the trial judge’s commentary on memory went beyond the usual knowledge that judges apply as lay persons. They maintained that the trial judge’s discussions of how memories are formed, short- and long-term memory, and the capacity to recall memories all suggested he was applying memory science theory. Counsel submitted that if the trial judge was going to rely on this theory, he should have informed the parties and permitted them to make submissions on it. [24] At the outset of his lengthy reasons for judgment, the trial judge made some general observations about “the most basic and important principles in our criminal law”, including the presumption of innocence, the burden of proof on the Crown, the need for proof beyond a reasonable doubt, and the principles in R. v. W.(D.) , [1991] 1 S.C.R. 742. He then discussed some of the principles applicable to the weighing and assessment of evidence and the means of testing the credibility and reliability of witnesses. He concluded: In addition to these principles courts often refer to the [appellate] decisions, [ R. v. White , [1947] S.C.R. 268] and [ R. v. Colbert , 2006 CarswellNfld 72]. Reading these cases, there are 11 different elements of demeanour evidence discussed, including whether the witness exhibited intelligence, clarity, reluctance to testify, evasiveness, reticence, and other similar factors in their testimony. More importantly, these cases provide clear direction that a witness ought not to be disbelieved unless the evidence was illogical or unreasonable, unless there is contradictory evidence and unless there is something in the evidence that brings discredit to the witness. These last three considerations were brought into play in the arguments of the defence and of the Crown and in the manner the witnesses were cross-examined. [25] After these observations, which are not impugned, the trial judge made some comments about memory: Each judge is left to his or her own devices in making these assessments. Judges are expected to integrate our life experiences with the reality of the world to come to conclusions as to what is logical and reasonable. Similarly, we are left on our own to determine the theory for whether a memory is good or bad. Judges rarely hear expert evidence concerning memories. The exception is when expert witnesses are called with respect to the memories of children, repressed memories, memories of post-traumatic stress victims, other unique and vulnerable witnesses . Judges are frequently presented with different contrasting memory theories with no evidence or scientific support for the point being argued. The most frequent point being [that] the witness should have remembered […] a particular fact, and having not done so, should not be believed. In these arguments that are made to a judge to support whether a witness is credible or incredible, contrasting memory theories are suggested. For example it will often be suggested that memories are a record of an individual's experience of events, or, alternatively, that a memory should be like a record of the event, like a video or audio recording. Arguments are made that we should expect memories of experienced events to be complete and other arguments would be made that a normal memory necessarily features forgotten details and gaps, and those gaps ought not to be an indicator of accuracy. It is sometimes argued that memories typically contain only a few highly specific details. It will be argued that a witness should, and sometimes it is argued that [a witness] should not be able to have specific detail and long-term memories. This was an important argument with respect to the assessment of [the complainant’s] evidence . So, really, in the absence of expert evidence a judge is left alone to sort through the sorts of arguments that are presented in assessing the evidence based on memories . Finally, a judge is left with questioning whether a witness has a good memory versus a bad memory as an over-generalization. Is there a rating skill for memories? I wonder whether the real test is our ability to access a memory at the time of testifying . [Emphasis added to identify portions challenged by the appellant.] [26] On several occasions during his reasons, the trial judge returned to the theme of memory. For example, in commenting on the complainant’s evidence concerning the 911 call, the judge observed that although she had a “remarkable memory for detail”, she had been challenged in cross-examination concerning her memory of “whether [the appellant] took the cat to the basement or whether the cat ran to the basement.” In discounting inconsistencies in her evidence on this issue, the trial judge observed: I can’t ignore that this evidence is being given in 2018 regarding an incident in 2013, reported in 2016. I don’t find it logical or reasonable that any witness would be expected to have an exact memory of such a relatively minor and subordinate element in such an upsetting and traumatic overall event in which she was told to leave home, pack up her things, and the police arrived in response to a 9-1-1 call. [27] He added: For the most part, cross-examination here focussed on details that were too minor to be considered as material inconsistencies and the omissions failed to rise to a level of significance over which a reasonably honest witness should be expected to consistently recall. [28] The appellant refers to the trial judge’s assessment of the evidence of C. as an example of the trial judge’s improper use of memory science. C. was interviewed by police in 2017 concerning events that had taken place in 2013 and 2014, when he was 12 to 14 years of age. The trial judge noted that on cross-examination, C. had conceded that there was no reason for him to “access his memory” of these events until he was asked to do so in his 2017 police interview. [29] In assessing the credibility and reliability of C.’s evidence, the trial judge observed that there was “a significant element [of] self-interest” in C.’s testimony in support of his father and that C. had not been present for many of the assaults. He observed: With respect to capacity, his ability to make observations, fix those observations in his short-term memories. He wasn’t immediately present for the 9-1-1 incident or other subsequent assaults. [The complainant] testified he was present immediately after one assault and was part of the conversation between them. I am not impressed that he had any distinct memories about any event that occurred at approximately the same time as these allegations of assault. I don’t know whether he observed things but had [no] reason to enter them in his short-term memory. I do not know whether a 12 or 13-year-old caught up on the edge of conflict between his father and his father’s spouse would choose to harbour these memories or try to forget them. I don’t know how long he would try to hold onto these. His trial testimony, his evidence does not necessarily undermine the evidence of [the complainant] on these points. I prefer to think that the witness has limited long-term memories which can be accessed accurately. [30] The appellant’s second concern relates to the trial judge’s assessment of the reliability and credibility of the complainant’s evidence. The trial judge observed: I feel it is necessary to address the many inconsistencies [in the complainant’s evidence] raised by the defence. I earlier indicated I hold no expectation that trial testimony, a review of long-term memories related to the incident will be as accurate as an audio-video recording. I don’t know if observations are reduced to short-term memory. It’s human nature to make sense out of what is chaotic. It doesn’t mean that it is an accurate memory. Observations made in stressful situations of trauma are difficult to move into accurate short-term memories. When short-term memories are stored as long-term memories there are questions of accessing those. With respect to the 9-1-1 incident we know it happened in May of 2013, reported in 2016, trial in 2018. Memories were reduced to a video statement in 2016, into a statement then a video statement in 2016, testified to 2 years later. As to the core events, I find that her statements are a version of her experience that took place years earlier. They have been shaped to some degree, but not on the main points. [31] Counsel for the appellant asserted that the trial judge used his theories of memory to discount inconsistencies in the complainant’s testimony and C.’s lack of memory related to the 911 call assault and the assault comprising Count 7. The trial judge dismissed inconsistencies in the complainant’s evidence before trial and during trial by noting the difficulty of recalling memories of stressful and traumatic events. Counsel highlighted some of the trial judge’s comments about “accessing memory” while testifying, and noted the significance of the fact that C. did not remember the relevant incidents when testifying. For example, the complainant testified that C. witnessed the aftermath of the Count 7 assault and spoke to her about it, but C. denied any memory of the incident. The trial judge dismissed this lack of memory as an issue of short-term versus long-term memory storage during a traumatic event. The trial judge also found that C.’s lack of memory relating to the 911 call did not impact either party’s testimony. [32] Counsel for the respondent argued that the trial judge’s comments regarding memory were meant to convey only that memory fails with the passage of time. He submitted that the inconsistencies were peripheral and concerned minor incidents that took place some years earlier during more significant, upsetting events. He maintained that trial judges are able to take judicial notice of common sense matters like “memory fails over time”. Even if the trial judge’s comments constituted an improper use of judicial notice, respondent’s counsel maintained that the curative proviso would apply and that this error was harmless and had no impact on the ultimate decision. [33] I would not give effect to this ground of appeal. [34] The principles of judicial notice were recently explained by Brown J.A. in R. v. J.M. , 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 31-38. For the purposes of this appeal, only the following principles need be stated. First, courts may only take judicial notice of facts that are (1) “so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons”, or (2) “capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy”: J.M. , at para. 31. [35] Second, as Brown J.A. observed in J.M. , there are different forms of judicial notice. The form that arises in this case has been referred to as “tacit or informal judicial notice”. This involves the trier of fact drawing on “common experience, common sense or common knowledge to interpret and understand the formal evidence presented at trial”: J.M. , at para. 32. One issue on this appeal is whether the trial judge applied “common sense or common knowledge”, or a specialized field of “memory science”, which should have been the subject of expert evidence. [36] Third, judicial notice has a procedural dimension. As a matter of transparency and trial fairness, there may be occasions when a trial judge has an obligation to advise the parties that they are contemplating taking judicial notice of a fact and to invite them to make submissions. As Brown J.A. stated in J.M. , at paras. 37-38: More problematic are the occasions on which judges take judicial notice without the benefit of submissions from the parties. Such conduct by a judge lacks transparency, thereby risking the perception of the fairness of the hearing. It also risks crossing the boundary separating the notorious and readily demonstrable from the disputed and controversial, again risking the perception of procedural fairness. As put by [Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada , 5th ed. (Toronto: LexisNexis Canada, 2018)]: "Judges should not conduct their own research and come to the conclusion that facts are notorious, for, there is no opportunity for the parties to respond:" at §19.61. Where a judge, on his or her own initiative, wishes to take judicial notice of a fact or state of affairs that bears on a key issue in a proceeding, the adversarial process requires that the court ensure that the parties are given an opportunity to deal with the new information by making further submissions, oral or written, and allowing, if requested, fresh material in response: [David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence , 8th ed. (Toronto: Irwin Law, 2020)], at p. 582. [37] The trial judge identified some of the principles that judges are required to apply in the assessment of the reliability and credibility of evidence. He correctly observed that memory is rarely the subject of expert evidence, but in spite of this, trial judges frequently observe the frailties of memory and routinely caution themselves about the risks associated with memory. [38] After his general observations with respect to the assessment of evidence, the trial judge simply expressed some propositions, grounded in common experience, that are familiar to every trial judge and lawyer and to lay people. Although he used different language, I would express these as: · observations made by witnesses in the course of traumatic events can be difficult to recall and to describe accurately at a later date; · a witness cannot be expected to have a faithful memory of minor incidents that occurred during a traumatic event and the inability to recall a minor or insignificant event does not detract from the witness’s overall reliability or credibility; · it is human nature to try to make sense out of bits and pieces of memories about an event, and this may impact the accuracy of a witness’s testimony concerning events; and · a child caught up in a conflict between his father and his father’s partner is likely to have conflicting loyalties and a judge should be cautious of accepting the child’s recollection, recounted several years later, about events that may not have been particularly significant to the child at the time. [39] Although dressed up in unnecessarily scientific jargon, the trial judge’s application of these common experiences does not reflect error in his assessment of the evidence. [40] I would dismiss this ground of appeal. (2) Second Issue: Uneven Scrutiny of the Evidence [41] The uneven scrutiny submission has three branches. First, the appellant asserts that the trial judge overlooked inconsistencies in the Crown’s evidence, improperly treating evidence called to refute recent fabrication as corroborative of the evidence of the complainant. Second, he submits that the trial judge made improper use of his observations of witnesses’ demeanour, including holding the appellant to a higher standard because he was a police officer. Finally, he submits that the trial judge erred by placing undue weight on the appellant’s discreditable conduct, particularly the vulgar, demeaning, and abusive language he directed at the complainant. [42] Before turning to the specifics of this ground, and the parties’ submissions, I make a few observations on the law with respect to uneven scrutiny. [43] The principles underlying uneven scrutiny as a ground of appeal were set out by Watt J.A. in R. v. Radcliffe , 2017 ONCA 176, 347 C.C.C. (3d) 3, at paras. 23-26, leave to appeal refused, [2017] S.C.C.A. No. 274: First, as the appellant recognizes, this is a difficult argument to make successfully. The reasons are twofold. Credibility findings are the province of the trial judge. They attract significant appellate deference. And appellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge's credibility determinations and to re-try the case on an arid, printed record: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. George , 2016 ONCA 464, 349 O.A.C. 347, at para. 35. Second, to succeed on an uneven scrutiny argument, an appellant must do more than show that a different trial judge assigned the same task on the same evidence could have assessed credibility differently. Nor is it enough to show that the trial judge failed to say something she or he could have said in assessing credibility or gauging the reliability of evidence: Howe , at para. 59. Third, to succeed on the argument advanced here, the appellant must point to something, whether in the reasons of the trial judge or elsewhere in the trial record, that makes it clear that the trial judge actually applied different standards of scrutiny in assessing the evidence of the appellant and complainant: Howe , at para. 59; George , at para. 36. Fourth, in the absence of palpable and overriding error, there being no claim of unreasonable verdict, we are disentitled to reassess and reweigh evidence: George , at para. 35; R. v. Gagnon , 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20. [44] As Doherty J.A. observed in relation to an uneven scrutiny ground of appeal in Howe , it is not enough to show that the trial judge failed to say something they could have said in assessing credibility or expressly set out the legal principles relevant to that credibility assessment, or that a different trial judge could have reached a different conclusion on credibility. The appellant must point to something in the reasons or the record that makes it clear that the trial judge applied different standards in assessing the evidence of the appellant and the complainant: at para. 59. [45] This observation was recently referred to by Karakatsanis J. in R. v. G.F. , 2021 SCC 20, 404 C.C.C. (3d) 1, who observed that the Supreme Court has never ruled on the issue of whether uneven scrutiny is an independent ground of appeal. She noted that various provincial appellate courts have stressed that “it is a notoriously difficult argument to prove” and that “[c]redibility findings are the province of the trial judge and attract significant deference on appeal”: at para. 99. She expressed “serious reservations about whether “uneven scrutiny” is a helpful analytical tool to demonstrate error in credibility findings.” She continued, at para. 100: As reflected in the submissions here, it appears to focus on methodology and presumes that the testimony of different witnesses necessarily deserves parallel or symmetrical analysis. In my view, the focus must always be on whether there is reversible error in the trial judge's credibility findings. Even in Howe , Doherty J.A. ultimately chose to frame the uneven scrutiny argument slightly differently: para. 64. Rather than say that the appellant had demonstrated uneven scrutiny of the evidence, Doherty J.A. explained that the essential problem in the trial judge's reasons was that he had "failed to factor into his assessment of [the complainant's] credibility his finding that she deliberately lied on important matters in the course of testifying in reply": para. 64. In appellate cases that have accepted an uneven scrutiny argument, there was some specific error in the credibility assessments: see, e.g., [ R. v. Kiss , 2018 ONCA 184], at paras. 88-106; R. v. Gravesande , 2015 ONCA 774, 128 O.R. (3d) 111, at paras. 37-43; R. v. Willis , 2019 NSCA 64, 379 C.C.C. (3d) 30, at paras. 55-62; R. v. Roth , 2020 BCCA 240, 66 C.R. (7th) 107, at para. 54. As shown in Howe , uneven scrutiny easily overlaps with other arguments for why a trial judge's credibility findings are problematic. It is therefore unsurprising to see uneven scrutiny tacked on to arguments like insufficiency of reasons, misapprehension of evidence, reversing the burden of proof, palpable and overriding error, or unreasonable verdict. [46] With those principles in mind, I turn to the first branch of the appellant’s uneven scrutiny ground – that the trial judge erred in his treatment of inconsistencies in the Crown’s case. I do so while keeping in mind that the ultimate question is whether the appellant has demonstrated something in the record that shows that the trial judge applied different levels of scrutiny in assessing the evidence of the appellant and the complainant, or whether there is some reversible error in the trial judge’s credibility findings. [47] The appellant’s submission in relation to this issue largely concerns the trial judge’s treatment of the evidence of three witnesses called by the Crown to refute the allegation that the complainant had fabricated the assaults to gain advantage in ongoing family law proceedings concerning custody and access of the child of the marriage. The witnesses were the complainant’s older sister, the complainant’s co-worker, Ms. D., and the complainant’s friend, Ms. W. Much of their evidence, to which the defence did not object, consisted of communications the complainant made to them concerning the appellant’s conduct, including the alleged assaults. Two of the witnesses testified that they had seen bruises or injuries on the complainant, which she had attributed to the appellant’s abuse. [48] With respect to the evidence of the complainant’s older sister, the defence argued that inconsistencies between her evidence and the complainant’s was due to the complainant’s subsequent fabrication of her allegations. The trial judge found that the discrepancies were immaterial and insignificant. He added that the sister’s evidence “did corroborate several significant traumatic events relied upon as part of the prosecution’s case.” [49] The trial judge accepted Ms. W.’s evidence, finding that she was “quite integral as far as supporting witnesses and was vigorously cross-examined.” The trial judge observed that the cross-examination “made no inroads that the evidence of [Ms. W.] was intentionally false or had been molded by collaboration with [the complainant].” He added that “[i]t does provide some corroboration of an incident where [the complainant’s] arm was hurt and that she made some complaint about locking herself in the bathroom while pregnant.” The trial judge concluded that “the manner in which [Ms. W.] answered questions and her demeanour was consistent with a truthful witness. Any apparent inconsistencies were effectively rehabilitated, particularly inconsistencies on minor omissions or a lack of concordance between that and her oral statement.” [50] Finally, the trial judge found that the evidence of Ms. D., who testified that she saw bruises on the complainant’s neck, was supportive of the complainant’s evidence. He found that the defence allegation of recent fabrication in relation to this count was “effectively countered by the evidence of the [complainant’s] attendance at the doctor’s office.” [51] The appellant submits that the trial judge ignored or glossed over inconsistencies between the complainant’s evidence and the evidence of these witnesses. He also submits that the trial judge improperly used the complainant’s statements to the witnesses to corroborate the complainant’s accounts of events, instead of using them for the purpose they were tendered – to rebut recent fabrication. Finally, the appellant argues that the trial judge found corroboration in some evidence that was not corroborative. [52] Counsel for the appellant acknowledges that the trial judge’s use of the complainant’s prior statements is not a free-standing ground of appeal, based on an improper inference of corroboration from a prior consistent statement. It is simply part of the submission that the trial judge applied uneven scrutiny to the evidence. [53] Counsel for the respondent noted that the Supreme Court cast doubt on uneven scrutiny as an independent ground of appeal in G.F. Here, he submits that the trial judge did not convict on all counts and only convicted where the evidence supported the complainant’s allegations or where there was independent verification of injuries. [54] With respect to the complainant’s sister’s evidence, respondent’s counsel argued that the trial judge did not rely on her evidence at all to convict – the only evidence relied upon in convicting on the count relating to the 911 call was the complainant’s evidence and the 911 call itself. The trial judge’s use of the language of “corroboration” when discussing the sister’s evidence was a misnomer. The evidence was in fact being used to rebut recent fabrication, and not for the truth of its contents. Like the sister’s evidence, Ms. W.’s evidence was used to rebut the recent fabrication claim and was not integral to the conviction on the 911 call count. [55] I would not give effect to this first branch of the appellant’s uneven scrutiny submission, either standing alone or buttressed by the trial judge’s use of demeanour or bad character evidence. The appellant has not identified any palpable and overriding error in the trial judge’s assessment of the evidence or anything in the reasons or the record that actually demonstrates the application of different standards in the assessment of the evidence of the appellant and the complainant. [56] It bears noting that the trial judge acquitted the appellant on three counts of assault and one count of sexual assault. On Counts 4 and 5, the alleged moving day assaults in July 2014, the trial judge found that there was no “supporting evidence” and he was unable to reconcile the conflicting evidence. On Count 8, the alleged assault involving a door in March 2015, the trial judge was left in reasonable doubt because the complainant acknowledged that it could have been an accident. On Count 6, the alleged sexual assault in July 2014, the trial judge stated that the appellant’s evidence had left him in reasonable doubt, and he had “limited supporting evidence”. [57] In contrast, the trial judge convicted the appellant on counts where he not only accepted the complainant’s evidence and disbelieved the appellant, but also where there was corroborative evidence. [58] With respect to Count 1, the complainant’s evidence was supported to some extent by the 911 call itself. The trial judge accepted the complainant’s explanation of why she did not report the assault during the 911 call itself or when the police came in response to the call, and why she waited until 2016 to disclose the incident to police. The trial judge also noted in his reasons that the evidence of Ms. D. was supportive of the complainant’s evidence on this count, not only to rebut recent fabrication but also to corroborate physical injury, because Ms. D. observed a red mark on the complainant’s wrist and a bruise where the appellant allegedly grabbed her. [59] With respect to Counts 2 and 3 on October 6, 2013, the trial judge identified supporting evidence, including a doctor’s report, the observations of the independent witness Ms. D. concerning the complainant’s injuries, and the appellant’s apologetic email after the event. [60] Finally, with respect to Count 7, the November 2014 assault, the trial judge found independent corroboration of the complainant’s allegations in the call she made to Ms. W. while she had locked herself in the bathroom to escape the appellant, and the text message she sent to Ms. W. showing bruises on her arms. He found that the evidence of Ms. W. and Ms. D. served to refute recent fabrication. Considering the evidence of the complainant and these two witnesses, the evidence of the appellant was insufficient to raise a reasonable doubt. [61] I do not accept the submission that the trial judge made improper use of the appellant’s prior consistent statements. He correctly noted that contemporaneous statements to independent witnesses could be admitted to rebut the defence argument of recent fabrication. He was also entitled to rely upon the observations made by independent witnesses of the complainant’s injuries as corroborative of those injuries having been suffered. [62] I would therefore reject this submission. [63] In the second branch of his uneven scrutiny argument, the appellant submits that the trial judge relied excessively on demeanour in assessing credibility, and held the appellant to a higher standard because he was a police officer. [64] The trial judge acknowledged that credibility was an important issue at the trial. He observed: Demeanour evidence is a significant part of the overall assessment in weighing of evidence. On its own, it should never be determinative of whether a witness should be believed or not believed. In this trial, the demeanour of the primary prosecution witness and the accused is significant in this assessment. There were instances of evasiveness, inability, refusal to answer direct questions, and insistence on making argument rather than presenting evidence. There was evidence of extreme animosity, prevarication, hostility, self-interest. This was a dysfunctional toxic relationship. [65] In commenting specifically on demeanour, and contrasting the demeanour of the appellant and the complainant, the trial judge stated the following with respect to the complainant: I made earlier reference to demeanour evidence, For the most part [the complainant] testified without reluctance, without hesitation, responding to the questions put to her. She was respectful of the Court and the process. She had intelligence and education to communicate well. There were matters that were raised in cross-examination and if necessary to correct her evidence, she did. She was not easily led. When she was cross-examined and provided with more information and memory cues she provided more and better answers. A couple of times in her evidence it appears she either had no memory and she had periods of convenient forgetfulness. She wasn’t a perfect witness. [66] In contrast, the trial judge said the following concerning the appellant’s demeanour: While no Court should ever make a determination of reliability and credibility on demeanour evidence, [the appellant] exhibited poor demeanour and this becomes a negative factor in assessing evidence, He didn’t respond directly to questions. He often provided excessive detail on minute points as if was a failed attempt to impress the Court about his memory for detail, while not appreciating that detail had nothing to do with the case was tangential and virtually impossible to subject to cross-examination. Having regard to his experience in the Waterloo Police Services, I expected him to have some experience testifying in court, perhaps having received some training on how to present himself. He presented poorly. He was argumentative. In cross-examination when answering questions he frequently used it as an opportunity to make legal argument, to attack the character of [the complainant], to attack the investigation and to impress the Court that [the complainant] was an unreliable witness. He had more than competent counsel to do that for him. For example, on many occasions he told the Court unprompted that [the complainant] was insanely jealous, manipulative, and had engaged in conniving behaviour since the day he first met her. [67] I do not accept the appellant’s submission that the trial judge made inappropriate use of demeanour evidence in his evaluation of credibility. [68] As we observed in R. v. Hemsworth , 2016 ONCA 85, 334 C.C.C. (3d) 534, at paras. 44-45, reliance on demeanour must be approached cautiously and it is of limited value in the assessment of credibility: This court has repeatedly cautioned against giving undue weight to demeanour evidence because of its fallibility as a predictor of the accuracy of a witness's testimony: Law Society of Upper Canada v. Neinstein , 2010 ONCA 193, 99 O.R. (3d) 1, at para. 66; R. v. Rhayel , 2015 ONCA 377, 324 C.C.C. (3d) 362. As I indicated in Rhayel , at para. 85, "[i]t is now acknowledged that demeanour is of limited value because it can be affected by many factors including the culture of the witness, stereotypical attitudes, and the artificiality of and pressures associated with a courtroom." Although the law is well settled that a trial judge is entitled to consider demeanour in assessing the credibility of witnesses, reliance on demeanour must be approached cautiously: see R. v. S. (N.) , 2012 SCC 72, [2012] 3 S.C.R. 726, at paras. 18 and 26. Of significance in this case is the further principle that a witness's demeanour cannot become the exclusive determinant of his or her credibility or of the reliability of his or her evidence: R. v. A. (A.) , 2015 ONCA 558, 327 C.C.C. (3d) 377, at para. 131; R. v. Norman (1993), 16 O.R. (3d) 295 (C.A.), at pp. 313-14. [69] As I have noted above, the trial judge specifically instructed himself about the limited use to be made of demeanour. Although an appellate court does not have the advantages of a trial judge in relation to the assessment of demeanour, a review of the record supports the trial judge’s observation that the appellant’s testimony “often provided excessive detail on minute points” and that during cross-examination, he took the “opportunity to make legal argument, to attack the character of [the complainant], to attack the investigation and to impress the Court that [the complainant] was an unreliable witness.” Appendix “C” to the respondent’s factum includes extracts from the appellant’s cross-examination containing numerous examples of the appellant refusing to answer questions directly, making argument, providing information not relevant to the question, and using the opportunity to gratuitously attack the complainant. [70] The trial judge was entitled to take this behaviour into account when assessing the appellant’s credibility. While I question the validity or utility of the trial judge’s comment that he would have expected a police officer to have had training about how to present himself in court, this comment was followed by an observation that the appellant “presented poorly” and was argumentative – the latter comment is supported by the record. [71] For these reasons, I would reject the submission that the trial judge made inappropriate use of the appellant’s testimonial demeanour. [72] The final branch of the uneven scrutiny ground is the appellant’s submission that the trial judge erred in his treatment and use of bad character evidence, and applied an unbalanced approach to his analysis of the evidence of the conduct of the complainant and the appellant. The complainant had brought an ex parte application against the appellant in family court, without disclosing that he had offered to settle the issues of custody and access. She was ordered to pay the appellant $35,000 in costs, presumably as a sanction for her conduct. In assessing this evidence, the trial judge stated: It is argued that [the complainant is] vengeful, blaming him for the breakup of the relationship. In a small way some of her conduct bring discredit to her under the issue of bias . She brought an ex parte application against him in family court without revealing that he had offered to negotiate the issues of custody and access in a letter sent by his lawyer. It was argued that her testimony was crafted only to show [the appellant] in the worse light. I am asked to hold that she only regards [the appellant] with an entirely negative attitude. [Emphasis added.] [73] The appellant asserts that the trial judge all too easily forgave the complainant’s attempt to deceive the court in the family law proceedings, while applying a stricter standard to his conduct. [74] In contrast, the appellant submits that the trial judge used evidence of his bad character – specifically, his crude, demeaning, and abusive language directed towards the complainant – to infer guilt. He submits that the trial judge’s conclusion that his conduct was discreditable, and that the complainant’s conduct only brought discredit to her in a small way, was indicative of an unbalanced approach to the assessment of evidence. [75] There are many examples in the trial judge’s reasons of the appellant’s language. The appellant points to six occasions in the reasons. I will refer to one, contained in a text message, which the trial judge quoted as follows: I hate your fucking guts you no good fucking whore. I let you in my child’s life and I knew I never should have trusted you, especially when you want me to choose between you and him. You’re a selfish cunt, I fucking hate you. I hate you. [1] [76] The trial judge observed: Within the evidence there are many, many examples of the manner in which [the appellant] spoke to [the complainant] directly, electronically. His choice of nouns, verbs and adjectives used in addressing [the complainant] were inconsistent with appropriate inter-spousal language. One would expect a police sergeant in his 40s speaking to a much younger wife to be more temperate. Instead, he was vulgar, profane, frequently referring to parts of the female anatomy. He was bullying in tone and frequently appears to be out of control. It was demeaning language, it was disrespectful. [W]e must remember that the vocabulary used by [the appellant] towards [the complainant] continues in a vile, profane, vulgar and demeaning tone. It’s difficult to imagine why a man would use such language directed to another man let alone a woman, let alone a woman in a domestic relationship, particularly in the voice of a trained police officer. It speaks to rage and a loss of control. [77] The limits on the use of bad character evidence were set out in R. v. Calnen , 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 64: As the majority of the Court of Appeal noted, the evidence of Mr. Calnen's after-the-fact conduct was admissible on the question of his credibility. Evidence of extrinsic discreditable conduct that is otherwise relevant and admissible with respect to an issue in the case may be used to assess the accused's overall credibility. In R. v. G. (S.G.) , [1997] 2 S.C.R. 716, at para. 70, Cory J. laid to rest any doubt about this common sense proposition: To require a jury to compartmentalize its thinking even further than this would be artificial and unnecessarily convoluted. It is a matter of common sense that evidence of bad character may reflect badly on the accused's credibility, and that the jury can use it as a factor in determining if the accused is likely to be telling the truth. This is not the same thing as suggesting that the accused is guilty because she is a bad person, or may have a disposition to commit the type of crime for which she is charged. [78] I do not accept the submission that the trial judge used the appellant’s bad conduct to infer guilt. He referred to the appellant’s specific behaviour, not his character. The trial judge was entitled to find that the appellant’s abusive language, directed towards the complainant on many occasions relating to the charged events, “speaks to rage and a loss of control”. It also speaks to jealousy and therefore animus . He was also entitled to consider the complainant’s misconduct in the family law proceedings as of little relevance to her credibility in relation to the four counts on which the appellant was convicted. [79] I would dismiss this ground of appeal. (3) Third Issue: Reasonable Apprehension of Bias [80] The appellant points to three interventions by the trial judge, which he asserts give rise to a reasonable apprehension of bias, thereby compromising trial fairness. While he acknowledges that, collectively, they do not warrant a new trial, he submits they may be relevant when assessing the other grounds. [81] The respondent submits that the appellant’s failure to raise the issue of bias before the trial judge should be a complete answer to this ground of appeal. [82] For the reasons that follow, I see no merit to this ground of appeal and it has no effect on the other grounds, which I reject in any event. [83] Before examining the incidents identified by the appellant, I will briefly set out the applicable principles, which are not in dispute. [84] Public confidence in the legal system is grounded in the perception “that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so”: Wewaykum Indian Band v. Canada , [2003] 2 S.C.R. 259, at para. 57; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) , 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 23. [85] In determining the existence of a reasonable apprehension of bias, the test is: what would an informed person conclude, having viewed the matter realistically and practically and having thought the matter through? Would the person think that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly?: Committee for Justice and Liberty v. National Energy Board , [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting); Yukon Francophone School Board , at paras. 20-21; R. v. Ibrahim , 2019 ONCA 631, 147 O.R. (3d) 272, at para. 83. [86] There is a presumption of judicial impartiality. That presumption may be displaced where the party establishes a “real likelihood or probability of bias”: Yukon Francophone School Board , at para. 25; see also Ibrahim , at para. 84. [87] A judge’s comments during a trial cannot be considered in isolation. The inquiry is inherently contextual and fact-specific, and there is a correspondingly high burden on the party alleging bias: Yukon Francophone School Board , at paras. 25-26; Ibrahim , at para. 85. [88] As a general rule, allegations of bias or a reasonable apprehension of bias should be advanced as soon as it is reasonably possible to do so. This can serve to alert the trial judge to the possible need to modify their behaviour or for a corrective jury instruction. It may also serve to create an evidentiary record and a ruling for the purpose of an appeal, if necessary: R. v. Mills , 2019 ONCA 940, 151 O.R. (3d) 138, at para. 227. [89] The appellant’s first submission on this issue concerns an incident that occurred after the trial judge made a ruling unfavourable to the defence. It arose in the following manner. [90] The defence had challenged the complainant’s delay in reporting the alleged assaults to police, pointing out that she knew a number of officers and was familiar with the criminal justice system. During her cross-examination, defence counsel asked whether she was, at that time, “in a relationship” with a police officer whom she described as a “roommate”. The Crown objected to the question based on s. 276 of the Criminal Code . Defence counsel responded that he was simply trying to establish that “this woman is well connected across a number of police services in order to rebut her evidence that she was so lost that she could never report any of this.” [91] The trial judge indicated that defence counsel could ask the witness whether she had a relationship with the individual prior to making her complaint, but that her relationship with the individual in the present could not be relevant. There followed a brief and evidently somewhat heated dialogue between the trial judge and defence counsel over the questions the latter proposed to ask the witness. The trial judge said, “Now, this line of questioning stops right here. It’s just totally irrelevant and immaterial. You can’t link it to anything that would be of any assistance to me in determining the issues so …”. The discussion continued, and after a few moments, the following exchange occurred: Defence Counsel: Your Honour, I don’t think have to telegraph [the import of the question to the complainant] according to [ R. v. Lyttle , 2004 SCC 5, [2004] 1 S.C.R. 193]. The Court: You do if you have to establish relevance and materiality and since you choose not to do so, the ruling Defence Counsel: Well The Court: The ruling stands, [defence counsel]. We’re moving on. Defence Counsel: Not that I The Court: We’re moving on, [defence counsel]. Defence Counsel: Respectfully, we will then have The Court: Get a court officer in here, please. Defence Counsel: Can we take a break, please? The Court: We will. Defence Counsel: If that – may I just put something on the record, please? The Court: Yes. Defence Counsel: Okay. Again, may I file [ Lyttle ]? The Court: You may file [ Lyttle ]. Defence Counsel: Because I take it that the reason – may I ask why a court officer has to attend? The Court: I like to have security in the courtroom when I’m hearing criminal matters and I think it enforces the need for proper decorum in the courtroom and that’s what I think I would like to have henceforth in this matter. Defence Counsel: All right. And may I address that? The Court: You may. Defence Counsel: All right. Because really, with great respect, what you’re suggesting is that I’m bordering on contempt, which I disagree with and, according to [ Lyttle ], I have – I’m duty-bound professionally to jealously protect my client’s interests. And – to sort of – to impugn my – my credit, Your Honour, with great respect, I don’t think is necessary and therefore I’d like a break to consider my options and whether or not I need to bring a motion The Court: We will take a break but I want to answer you. You’re not bordering on contempt but when I have counsel not accepting my decision, then I’m thinking that counsel is beginning to go down a path that I don’t want to have take place in this courtroom. And it is a criminal matter and I’m going to have security in this courtroom from now on. Defence Counsel: And again, so that I can state what my concern is in view of what you’ve raised, the difficulty of course with your ruling is that it creates a [ Browne v. Dunn (1893), 6 R. 67 (U.K. H.L.)] situation because then I can’t establish what I’ve been prohibited from doing so The Court: You’ve asked for a break. I’m giving you that break. [92] After the break, the Crown withdrew its objection to what had appeared to be a question raising s. 276 concerns. The trial judge told defence counsel that he could ask the questions, but added that wide latitude to cross-examine did not mean “unbridled licence” and that cross-examination is “subject to the requirements of good faith and other limitations.” Defence counsel responded, “I have always conducted myself with good faith, with all due respect. I think I’ll stand on my reputation.” The trial judge said, “I’m not talking about your reputation. I’m talking about good faith in this trial.” To which defence counsel replied, “There’s good faith in this trial.” [93] The appellant’s second submission on the issue of bias arose during the cross-examination and re-examination of the appellant’s mother, whom the defence called as a witness. Her evidence was brief and almost exclusively confined to one of the compliance charges. The Crown cross-examined her, also briefly, asking whether she saw anything in the relationship between her son and the complainant that caused her concern. She replied: A: A couple of things that happened that did - did disturb me and - and - and bother me and it had to do with [J.]. Q: Okay. Because we're not dealing with [J.] in this case I'm gonna just let that go, okay. A: Yes, all right. [94] In re-examination, defence counsel asked about the witness’s answer with respect to J. The Crown objected on the basis that it was not a proper subject of re-examination. The trial judge asked defence counsel how the question was material and relevant. Defence counsel replied that he did not know, but asserted that he was entitled to an answer. The following dialogue ensued: The Court: You're not unless it is material and relevant and I'm giving you that opportunity to – to argue and present that her answer on this point is material and relevant in this proceeding. It may be interesting but it's not material and relevant in a criminal process as it stands now. Make your argument and satisfy me. Defence Counsel: How can I make an argument when I don't know the answer? The Court: Well then that's the end of it isn't it. Defence Counsel: Well that's your ruling. The Court: That's my ruling. Defence counsel: Thank you. Thank you for coming today ma'am. I know you spent the whole day here and it's a hard long day but I thank you for coming. All right. The Witness: I spent nine days here sir. [95] The third and final complaint regarding bias is an allegation that the trial judge unfairly pressured defence counsel to abbreviate or end his cross-examination of the complainant, who testified over five days in mid-May and mid-June of 2018. Her evidence in chief was conducted on May 15 and 16 and her cross-examination took place on June 11, 12 and 13. [96] On the afternoon of June 12, the trial judge granted an adjournment to the following day because the complainant had a breakdown and was unable to compose herself after what the trial judge described as a “long and withering cross-examination”. [97] The appellant takes issue with comments made by the trial judge when the complainant’s cross-examination resumed the following day, June 13, 2018. He submits the trial judge made several comments encouraging defence counsel to take shortcuts in the cross-examination and urging him to “get it done today”, in spite of counsel’s objections that he did not want to be rushed. [98] In the course of these exchanges, the Crown raised a concern that the evidence should be completed that day because if that did not happen, there would be a break for several months over the summer before the trial resumed. The trial judge said, “Well, you can waive those concerns. If the staff is onside I’ll cut lunch back to half an hour today and we’ll go late until she’s done. We have to do what we have to do.” [99] Defence counsel pointed out that he had personal and family responsibilities and was tired at the end of the day. The trial judge stated: Well, let’s see where we’re at. We’ll take the bite out of lunch and if we have to – I’m not going to sit until 6:00 or 7:00 or anything like that, but we might have to go to 5:00. That’s about it. I’ve got to be – have considerations for the staff. They may have childcare responsibilities. I’ll have to talk to them about that. Let’s start off by taking a bite out of lunch today and seeing where we go. [100] Later that morning, as defence counsel was about to cross-examine the witness on a prior statement, the Crown rose to provide a copy to the trial judge. There was a discussion about whether that was necessary, at which point the judge observed: The Court: I’m just concerned of getting things moving because I’m seriously considering finishing your cross-examination today so any shortcuts we can take to get matters (unintelligible) would be appreciated. Defence Counsel: Well, I just – with all due respect, I can’t be rushed. I trust that’s The Court: I’m not going to rush you. I’m not going to rush you but we’re going to stay late. So let’s get on with it so we can cover this material. Defence Counsel: Well, I am. If it needs to be said, I haven’t been dragging. It’s been The Court: [Defence counsel], nobody is picking on you. I haven’t said anything. I’ve got to get this done. I’ve got a witness here who’s had a breakdown yesterday. We lost half a day. I’m going to sit late. If we have to order dinner in so everybody can be refreshed, we’ll do it, but we’re all going to share the pain and we’re going to get it done. Defence Counsel: Right. And I have commitments and I can’t stay beyond a reasonable time as we discussed before the witness came in. [101] Just before the lunch break, defence counsel asked the complainant about having witnessed assaults committed by the appellant on his son, C. This issue had not previously been raised in the complainant’s evidence and the Crown rose to state that if the defence raised it, the Crown would re-examine the complainant about it. The trial judge observed to defence counsel: The Court: The Crown is indicating that if you want to open the door, they intend to try to walk through it. Do you want that lunch [break] to two o’clock right now and [defence counsel], it’ll give you a chance to get your thoughts consolidated? Defence counsel: Yeah. I’d appreciate it. I think we could both have a little longer because it could well be that I The Court: I’ve got to pick up the time here. I have this matter coming back in September and I’m not – I’m going to tell you right now, this is a cross-examination where you’ve been accessing everything that this witness has said and answered and I’m not going to have cross-examination in September/October on what she said today based on a transcript today on matters that aren’t overwhelmingly material so I think it’s got to be done today and I think the witness is fragile and I don’t like the idea of working late. I’m well past the age when I’m in my prime after 4;30. We’ve got to get it done today. Let’s take the break. By the time we walk out of here – let’s just come back at two o’clock. We’ll be starting at two o’clock. We’ll have picked up at least half an hour on this and we’ll go from there. You know, the two of you, if you’ve got some issues you want to get into, talk about it so we can get to the heart of what’s being asked. Okay? [102] At this point, defence counsel indicated that a somewhat longer lunch break might be helpful so that he could review his notes, because his cross-examination might be almost finished. The trial judge acknowledged that he could take more time, if required. [103] As matters transpired, both cross-examination and re-examination were completed that afternoon. [104] In addition to the foregoing incidents, the appellant’s factum identifies several interchanges between the trial judge and counsel, which he submits were critical, disparaging, or interruptive. I do not find it necessary to recount them in full for the purpose of evaluating this ground of appeal. [105] In my view, the record in this case does not come close to displacing the presumption of judicial impartiality. [106] First, I acknowledge that the trial judge’s call for security was demeaning of counsel, inappropriate, and very unfortunate. That said, it was triggered by counsel continuing to dispute a ruling made by the trial judge. That, too, was improper and regrettable. However, on a full review of the record, including the proceedings after the exchange and the entire course of the trial, this was an isolated incident in what was clearly a hotly contested and somewhat lengthy trial. Having regard to the entirety of record, it does not reflect bias. [107] Nor do I see unfairness in relation to the re-examination of the appellant’s mother. She gave a non-responsive answer to a question during examination-in-chief, an answer that the Crown did not pursue. That did not open the door to re-examination. In any event, the trial judge’s ruling does not reflect bias. [108] Finally, I do not accept the submission that the trial judge demonstrated bias or acted improperly in urging counsel to complete the complainant’s cross-examination to avoid having to continue her evidence several months later. That submission must be understood in the context of a witness whose evidence had occupied five days, three of them in cross-examination, and who had become emotionally distraught the previous day during a vigorous cross-examination. Looking at the issue in context and not in isolation, the record discloses that the trial judge recognized the challenges defence counsel was facing and made reasonable efforts to accommodate them. [109] It is a bedrock principle of our criminal justice system that an accused person has a constitutional right to a fair trial. But that does not mean a trial without limits. While giving paramount consideration to the right of an accused to make full answer and defence, a trial judge has a public responsibility to ensure appropriate use of valuable public resources (courtroom and court staff time) and to ensure that other participants in the justice system (including witnesses and jurors) are not unnecessarily burdened. Given the circumstances identified by the trial judge, it was entirely appropriate for him to encourage counsel to seek ways to simplify and expedite the completion of the complainant’s evidence. V. DISPOSITION [110] For these reasons, I would dismiss the appeal. Released: January 7, 2022  “G.R.S.” “George R. Strathy C.J.O.” “I agree. C.W. Hourigan J.A.” “I agree. David M. Paciocco J.A.” [1] The actual language of the text message was: “I fucking hate ur fucking guts u no good fucking whore! I let u in my childs life and I knew I shud have never trusted u! Especially when u want me to choose btw u and him! U r a selfish fucking cunt! I fucking hate u! I hate u!”

HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN" COURT OF APPEAL FOR ONTARIO CITATION: Extreme Venture Partners Fund I LP v. Varma, 2022 ONCA 5 DATE: 20220106 DOCKET: C67057, C67062, C67364, C67376 Hourigan, Huscroft and Coroza JJ.A. BETWEEN DOCKET: C67057 Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir, and Kenneth Teslia Plaintiffs/Defendants by Counterclaim (Respondents) and Amar Varma, Sundeep Madra, Varma Holdco Inc. , Madra Holdco Inc. , Chamath Palihapitiya, El Investco I Inc. , Extreme Venture Partners Annex Fund I LP, and EVP GP Annex Fund I Inc. Defendants/ Plaintiffs by Counterclaim ( Appellants / Respondents ) AND BETWEEN DOCKET: C67062 Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir, and Kenneth Teslia Plaintiffs/Defendants by Counterclaim (Respondents/Appellants by Cross-Appeal) and Amar Varma, Sundeep Madra, Varma Holdco Inc. , Madra Holdco Inc. , Chamath Palihapitiya, El Investco I Inc., Extreme Venture Partners Annex Fund I LP, EVP GP Annex Fund I Inc., Cassels Brock & Blackwell LLP, and Seven Hills Group LLC Defendants/Plaintiffs by Counterclaim ( Appellants/Respondents by Cross-Appeal ) AND BETWEEN DOCKET: C67364 Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir, and Kenneth Teslia Plaintiffs/Defendants by Counterclaim (Respondents) and Amar Varma, Sundeep Madra, Varma Holdco Inc. , Madra Holdco Inc. , Chamath Palihapitiya, El Investco I Inc., Extreme Venture Partners Annex Fund I LP, EVP GP Annex Fund I Inc., Cassels Brock & Blackwell LLP, and Seven Hills Group LLC Defendants/Plaintiffs by Counterclaim ( Appellants ) AND BETWEEN DOCKET: C67376 Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir And Kenneth Teslia Plaintiffs (Respondents) and Amar Varma, Sundeep Madra, Varma Holdco Inc., Madra Holdco Inc., Chamath Palihapitiya, El Investco I Inc. , Extreme Venture Partners Annex Fund I LP, EVP GP Annex Fund I Inc., Cassels Brock & Blackwell LLP, and Seven Hills Group LLC Defendants ( Appellants ) Jonathan Lisus, Crawford Smith, Nadia Campion, Vlad Calina and John Carlo Mastrangelo, for the appellants Amar Varma, Sundeep Mandra, Varma Holdco Inc. and Madra Holdco Inc. Andrew Brodkin, David E. Lederman and Daniel Cappe, for the appellants Chamath Palihapitiya and El Investco 1 Inc. Won J. Kim, Megan B. McPhee, Aris Gyamfi and Rachael Sider, for the respondents Heard: in writing On appeal from the orders of Justice Barbara A. Conway of the Superior Court of Justice, dated May 14, 2019, July 24, 2019, and February 4, 2020, and the judgment of Justice Barbara A. Conway of the Superior Court of Justice, dated May 14, 2019. COSTS ENDORSEMENT [1] The Respondents − Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir, and Kenneth Teslia − were successful in resisting an appeal commenced by Amar Varma and Sundeep Madra, along with their respective holding companies, Varma Holdco Inc. (“Varma Holdco”) and Madra Holdco Inc (“Madra Holdco”), collectively the "Varma/Madra Appellants." They were also successful on the appeal commenced by Chamath Palihapitiya and his holding company, El Investco 1 Inc., collectively the “Palihapitiya Appellants”. In addition, the Respondents succeeded on their cross-appeal. [2] As the successful parties, the Respondents are entitled to their costs. They seek their costs of the appeals and cross-appeal on a substantial indemnity basis. However, in our view, there was nothing in the way this matter proceeded in this court that would justify an award of costs on a higher scale. [3] We fix the total costs of the appeals and cross-appeal on a partial-indemnity basis in the all-inclusive amount of $300,000. The Palihapitiya Appellants shall pay $150,000 of the total costs award and the Varma/Madra Appellants shall also pay $150,000 of the total costs award. Order to go accordingly. “ C.W. Hourigan J.A.” “Grant Huscroft J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Biddersingh, 2022 ONCA 6 DATE: 20220110 DOCKET: C63052 & C63064 Strathy C.J.O., Hourigan and Paciocco JJ.A. DOCKET: C63052 BETWEEN Her Majesty the Queen Appellant and Elaine Biddersingh Respondent DOCKET: C63064 AND BETWEEN Her Majesty the Queen Respondent and Elaine Biddersingh Appellant Alexander Alvaro, for the appellant (C63052) and respondent (C63064) Paula A. Rochman, amicus , for the respondent (C63052) and appellant (C63064) Heard: November 25, 2021 On appeal from the conviction entered on June 20, 2016, by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting with a jury. Hourigan J.A.: Part I: Overview [1] In 1991, Melonie Biddersingh came to Canada as a 13-year-old with her brother, 12-year-old Dwayne, and stepbrother, 17-year-old Cleon. She left Jamaica to live with her father, Everton Biddersingh, and her stepmother, the appellant, in hope of a better life with more opportunities. Instead, from the moment she arrived in Canada she endured horrendous abuse. [2] On September 1, 1994, a York Regional Police officer discovered a fire burning beside a garbage bin in an industrial area of Vaughan. After the fire department was called to extinguish the blaze, the body of what appeared to be a child, or a small adult was located in the ashes inside the remnants of a suitcase. A forensic pathologist determined that the body was that of a severely malnourished female with 21 fractures and a broken pelvis, and that the cause of death or a major contributing factor was drowning. Unfortunately, at the time, the police were unable to identify the victim. As a result, the case remained unsolved for almost two decades. The body was later positively identified as Melonie. [1] [3] In December 2011, the appellant disclosed to her church pastor the circumstances of Melonie’s death. She advised that her husband had abused Melonie and that her dead body had been put into a suitcase. The appellant admitted that she, Cleon, and Everton had been involved in the disposal of Melonie’s remains. In addition, the appellant disclosed details of Everton abusing her, both around the time of Melonie's death and at the time of the discussion. The pastor then provided this information to the Niagara Regional Police. As a result, the appellant was eventually interviewed by the Toronto police on January 23, 2012, at which point she provided information about the circumstances of Melonie's death and her own safety concerns with respect to Everton. [4] On March 5, 2012, Toronto police charged Everton and the appellant with failing to provide the necessaries of life (two counts), criminal negligence causing bodily harm, aggravated assault, forcible confinement, and offering an indignity to a dead human body all in relation to their alleged mistreatment of Melonie. They were subsequently charged with first degree murder. [5] The two accused were tried separately, with Everton's trial proceeding first. The appellant was called as a witness. Prior to the commencement of Everton's trial, the appellant unsuccessfully applied for an order temporarily banning publication of her evidence and the evidence of other witnesses as to what she was alleged to have said or done. The appellant testified at Everton's trial over a period of four days. The position of Everton's counsel was that she was responsible for Melonie's mistreatment and death. [6] The trial received extensive negative media coverage. On January 7, 2016, Everton was found guilty of first degree murder. Subsequent media coverage outlined some of the evidence that had been ruled inadmissible at trial, including information detailing Dwayne's suspicious death in 1992. [7] The appellant’s trial for first degree murder arising from Melonie’s death began on April 11, 2016. Before the trial, defence counsel contacted Crown counsel and sought its consent to proceed without a jury, as required under s. 473(1) of the Criminal Code , R.S.C. 1985, c. C-46, in light of the negative publicity surrounding Elaine's evidence at Everton's trial. The Crown refused to consent to proceed without a jury. [8] Defence counsel then brought an application to permit the appellant to be tried without a jury based on negative pretrial publicity, pointing to several media articles in relation to evidence adduced and not adduced before the jury in Everton's trial. She also relied on the results of a public opinion survey her counsel had commissioned regarding her case. [9] The trial judge dismissed the defence’s application and the jury convicted the appellant of second degree murder. On her conviction appeal, with the assistance of amicus , the appellant raises the following grounds of appeal: 1. The trial judge erred in dismissing the defence's application for a judge alone trial based on negative pretrial publicity and juror partiality. 2. The trial judge erred in ruling that certain statements made by the appellant were admissible because she was not a suspect at the time they were made, and in ruling that the police did not mislead her about her legal jeopardy. 3. The trial judge erred in refusing to instruct the jury on the intervening act of drowning. [10] The Crown cross-appeals against the appellant’s acquittal for first degree murder only if the appellant succeeds on her appeal from her conviction for second degree murder. The Crown raises only one ground of appeal: the trial judge erred in law by limiting the route to first degree murder to death caused by drowning. [11] For the reasons that follow, I would dismiss the appeal. Given this result, it is unnecessary to consider the Crown’s cross-appeal. In summary, I conclude as follows: · The trial judge was correct in finding that the appellant did not meet her heavy onus of establishing why the Attorney General's consent to a trial by judge alone should be dispensed with in the circumstances of this case. He properly considered the evidence and the general protections in place to ensure fair jury trials. · Regarding the impugned statements, even if the trial judge’s voluntariness analysis was flawed, there was no prejudice to the appellant. The impugned statements were not introduced into evidence, and the trial judge’s admissibility decision could not have realistically played a role in her decision not to testify. · Finally, in the circumstances of this case, the trial judge correctly instructed the jury that to be a cause of death, an act or omission by the appellant must be a significant contributing cause. Given this instruction, there was no need for an intervening act instruction. Part II: Analysis (1) Jury Trial (a) The Issue [12] The appellant brought an application to dispense with the Attorney General’s consent for a trial by judge alone on the basis that her right to a fair trial under s. 11(d) of the Canadian Charter of Rights and Freedoms would be compromised if a judge and jury tried her. In making this submission, she pointed to the negative pretrial publicity about her evidence at Everton's trial and the evidence that came out after the trial regarding Dwayne's death in 1992 that resulted from a fall from the balcony of the family’s apartment. She also relied on a public opinion poll regarding her case, arguing that it showed that she could not impanel an impartial jury. [13] The trial judge found that the polling evidence filed by the appellant did not support the suggestion that it would be impossible to find 12 impartial jurors. Further, he determined that, contrary to the submissions of defence counsel, the questions to prospective jurors could be devised in a way that would not reveal prejudicial information. The trial judge also noted that the possibility of prejudicial details coming to the jury's attention after they have been selected could be mitigated by the usual safeguards, including instructions to the jury to refrain from attempting to find information about the case. [14] On appeal, the appellant does not argue that the Crown’s conduct in refusing to consent to a judge alone trial amounts to an abuse of process. Instead, she submits that her right to a fair trial has been violated. Specifically, she argues that there was a sufficient evidentiary basis for the order sought. According to the appellant, the trial judge erred in law by setting the test for an order for a judge alone trial at a level that is impossible to meet. (b) The Law [15] There is no dispute between the parties regarding the relevant process and test on an application for a judge alone trial pursuant to s. 473(1) of the Criminal Code . An accused charged with murder must be tried by judge and jury unless the accused and the Attorney General consent to a trial by judge alone. Where the Attorney General does not consent, the accused can bring an application for an order for a judge alone trial. [16] The test on such an application is difficult to meet. It was described this way in R. v. Khan , 2007 ONCA 779, 230 O.A.C. 174, at paras. 13 to 16: In s. 473(1) of the Criminal Code , Parliament has made its intention clear that a person charged with murder, the most serious crime in the Criminal Code , is to be tried by a court composed of a judge and jury absent the consent of both parties. While this provision can be overridden in order to ensure an accused’s right to a fair trial, it should not be interfered with lightly. In our view, this court’s decision in R. v. Henderson (2001),145 O.A.C. 150, is dispositive of this ground of appeal. Henderson makes it clear that an accused seeking a judge alone trial in these circumstances must, at a minimum, meet the test required for a change of venue – a test the appellants concede is more stringent than the one they propose. On our view of the record, the appellants fall well short of meeting that test. We are satisfied that their right to a fair trial was adequately protected through well-established procedures, including extensive screening of prospective jurors and challenges for cause. As Henderson provides a full answer to this ground of appeal, we find it unnecessary to finally determine the test that should be applied when an accused seeks to dispense with the mandatory requirement of trial by jury under s. 473(1). That said, we are inclined to the view that absent consent from the Crown, in order to avoid the requirement of trial by jury under s. 473(1), an accused must show that, on balance, the time-honoured statutory and common law procedures designed to preserve and protect the right of every accused to a fair trial by an impartial tribunal are insufficient in the particular circumstances of his or her case. Whatever the precise test, it will not be an easy one to meet. That accords with our view that s. 473(1) should only be overridden in the clearest of cases. The test proposed by the appellants falls well short of the mark. If adopted, it would effectively eviscerate s. 473(1). [17] Based on the foregoing, the issue is whether the trial judge erred in finding that the appellant had not met her onus of establishing that this is one of the clearest of cases where s. 473(1) should be overridden. (c) The Appellant’s Position [18] The appellant submits that the publicity surrounding Everton’s trial was widespread. In support of that submission, she notes that during the course of the trial a juror referenced the death of Dwayne in a conversation with another juror. The appellant concedes, however, that the juror receiving the information brought it to the trial judge's attention and was discharged, as was the juror who conveyed the information, albeit for other reasons. The argument regarding these jurors is not raised as an independent ground of appeal. In my view, it is unfair and unhelpful to consider what a juror might have said during the trial in assessing the trial judge's decision regarding the application for a judge alone trial made before the trial. I do not consider that information relevant in determining whether the trial judge erred in refusing the application. [19] As noted, the appellant's principal argument relates to the sufficiency of the evidence she adduced on the application. She filed affidavits that affixed copies of articles written about her. In addition, she relied on the results of a public opinion telephone survey conducted by Forum Research. Dr. Lorne Bozinoff, the President and CEO of Forum Research, also testified on the application to explain the survey results. Given problems with Dr. Bozinoff's testimony, the appellant did not rely on his expert evidence and instead relied solely on the raw data generated by the survey. [20] The appellant focuses on a series of questions designed to determine whether the respondents would be prepared to discharge their duties faithfully and properly. The appellant’s view of the data is that an inference could be drawn that some jurors would not follow a judge’s instruction not to seek or receive outside information, that some jurors would engage in their own Internet research about the case and obtain inadmissible information, and that some who received that information would not be able to disabuse themselves of it when performing their duties. [21] The trial judge rejected that argument, at para. 41 of his ruling, on the basis that it "is founded on an assumption that members of a real jury in a real trial will behave in the same way as random members of the public taking a telephone survey." He observed that even though the survey respondents were asked to assume that a judge had instructed them not to research any details on the case, they were not asked to assume that a Superior Court judge explained to them the importance of the instruction, how it could lead to a miscarriage of justice if they did not follow the instruction, and that they had taken an oath or made a solemn declaration to decide the case solely on the evidence led at trial. Further, the trial judge relied on R. v. Find , 2001 SCC 32, [2001] 1 S.C.R. 863, for the proposition that trial processes are effective in cleansing jurors of influence from emotion, prejudice, or preconception. [22] The appellant argues that the error in the trial judge's analysis is that if a court can always fall back on the general court process to protect the interests of the accused to a fair trial, then an order for a judge alone trial under s. 473(1) of the Criminal Code will never be granted. In other words, the bar has been set too high. (d) Discussion [23] I would not give effect to this ground of appeal. I accept that the impugned part of the trial judge’s analysis regarding the safeguards in the criminal jury system could apply in any case. However, in my view, this part of his analysis was directly responsive to the inferences that the appellant was drawing from the survey data. She put forward the rather general argument that there is a chance that jurors would not abide by a trial judge’s instructions and might conduct their own research. Of course, the same argument could be made in any case. The trial judge quite correctly responded to that submission by observing that the safeguards developed over the centuries have evolved to protect against those possibilities. [24] Second, the trial judge's analysis was not limited to the general safeguards in the trial process. He considered the circumstances of this case. For example, he noted that the survey results showed that when asked whether they had heard or seen anything in media or the Internet regarding "the death of Melonie Biddersingh [whose] body was found in [a] burning suitcase in 1994 [and whose] remains weren't identified until 2012 when her father and stepmother were charged with murder," 46% of respondents answered no. In addition, he pointed to the result that 74% of respondents had not heard or seen anything about the appellant. The trial judge also placed the coverage of Everton's trial in context, noting that at the time of the trial, there was another high profile case in the news that involved the shooting by a police officer of a member of the public on a streetcar. [25] In my view, the trial judge properly considered the evidence and the general protections in place to ensure fair jury trials and reached a decision that was free from error. Consequently, I would not give effect to this ground of appeal. (2) The Appellant’s Statements [26] The Crown brought a pretrial application for an order that various statements made by the appellant to the police were admissible for the purposes of cross-examining her if she chose to testify. At issue on this ground of appeal is the trial judge's ruling regarding two of the appellant's statements. The first statement was made on January 23, 2012, to Detective Sergeant Steve Ryan of the Toronto Police Service in the course of an interview at the office of the Homicide Squad. The second statement was made on March 5, 2012, to Detective Sergeant Ryan in the course of an interview at 52 Division following her arrest. [27] Detective Sergeant Ryan testified on the voir dire . The defence called no evidence. The trial judge found that, at the time of the January 23, 2012 statements made to Detective Sergeant Ryan, a reasonably competent investigator would have considered the appellant to be a witness and not a suspect because the investigation was focused on the mistreatment of Melonie and potentially the appellant, and not neglect or inadequate parenting on the appellant’s part. As a result, the confessions rule did not apply and the statement could be used for the purposes of cross-examination. [28] In the alternative, the trial judge concluded that even if the appellant was a suspect, her statements were nevertheless voluntary. He noted that the statement was videotaped and affirmed and that the officer provided the appellant with the primary and secondary caution. The officer instructed the appellant regarding her right to counsel and gave her the opportunity to speak to a lawyer when she asked. Further, he told the appellant that she could be charged with offences including homicide and warned her of the penalties for lying under oath. All of these steps were consistent with what she would have been told had she been arrested and charged, except that she was informed that she could leave at any time. Thus, the trial judge found that the cautions and warnings given by the officer were more than sufficient to advise the appellant of her right to remain silent. He also held that there was no evidence that Detective Sergeant Ryan misled her. [29] In addition, the trial judge found that the statement made to Detective Sergeant Ryan after the appellant's arrest during the police interview on March 5, 2012 was voluntary as it was not tainted by references to the January 23, 2012 statement. [30] Neither of the statements were tendered in evidence at trial, as the appellant elected not to testify. [31] The appellant submits that the trial judge made three errors in his analysis. First, she argues that he erred in finding that she was not a suspect but a witness at the time of her January 23, 2012 statement. Second, the trial judge is said to have erred in finding that Detective Sergeant Ryan did not mislead her by providing incorrect legal advice regarding her potential jeopardy if she had done nothing to stop the abuse of Melonie.  Finally, the appellant submits that her March 5, 2012 statement should also have been ruled inadmissible because it was tainted by references to her January 23, 2012 statement. [32] In support of her submission, the appellant seeks to adduce fresh evidence on this appeal. The proffered evidence is a CTV news article published on September 10, 2021, in which former Detective Sergeant Ryan – now CP24's Crime Analyst – discussed taking a statement from the appellant and his reaction to her interview. The story was based on a podcast on which the officer appeared. The appellant maintains that the parts of the article demonstrate that Detective Sergeant Ryan misled the court when he testified that he did not believe the appellant to be a suspect. [33] I am not persuaded that the appellant suffered any prejudice as a consequence of the trial judge’s voluntariness ruling. The impugned statements were not introduced into evidence, and the trial judge’s admissibility decision could not realistically have played any role in her decision not to testify, given that she had conceded the voluntariness of two other statements and would be facing her testimony from Everett’s trial. Further, there is nothing in the impugned interviews that could realistically have altered her testimony. [34] Given my conclusion that the appellant could have suffered no prejudice from the trial judge’s admissibility ruling, it is unnecessary to consider the fresh evidence application. For these reasons, I would dismiss this ground of appeal. (3) Intervening Act [35] The appellant submits that the trial judge erred in failing to instruct the jury on the intervening act of drowning in the context of culpable homicide. The defence requested this instruction in the pre-charge conference. Specifically, it sought an instruction that the jury should consider whether the drowning was an intervening act. The request for an intervening act instruction arose from the theory that Everett may have drowned Melonie on his own, which, if true, could have been an intervening act that broke the chain of causation . [36] The trial judge rejected that request. Instead, he repeatedly instructed the jury that the appellant’s conduct had to make a “significant contribution” to Melonie’s death t o be guilty of culpable homicide. He charged the jury as follows: [335] Proof that Elaine Biddersingh’s failure to intervene to protect Melonie was an unlawful act is not sufficient to make her guilty of culpable homicide unless it was a cause of Melonie's death. As I have said, to be a cause of death, an act or omission must be a significant contributing cause. It is for you to say whether the defendant’s failure to intervene played a significant role in permitting a course of conduct that led to Melonie's death by drowning to continue. If you have a reasonable doubt concerning whether it played a significant role, then her failure to intervene will not make her guilty of culpable homicide. [336] As I have said, one of the essential elements that must be proved to make a failure to perform the legal duty to protect Melonie from harm an unlawful act is the objective foreseeability of endangerment of Melonie's life or the risk of permanent injury to her. Objective foreseeability does not require that the specific mechanism of harm that was ultimately “inflicted on Melonie, drowning, have been foreseeable...” What is required, rather, is that a reasonable person would have foreseen that the failure to protect Melonie from the ongoing course of assaultive behaviour would lead to some further assaultive behaviour that would endanger her life or create a risk of permanent injury. Accordingly, if you are satisfied beyond a reasonable doubt that Elaine failed to intervene of protect Melonie, in circumstances that make her failure an unlawful act, that that unlawful act made a significant contribution to Melonie's death, and that it was objectively foreseeable that a failure to intervene would expose Melonie to a danger to her life or the risk of permanent injury, she is guilty of culpable homicide. [37] I am not persuaded that the trial judge erred in declining to give the intervening act instruction. His significant contribution instruction was entirely consistent with the decision of the Supreme Court in R. v. Maybin , 2012 SCC 24, [2012] 2 S.C.R. 30, at para. 38. [38] In my view, given the factual circumstances of this case, the significant contribution instruction made an intervening cause direction unnecessary. This can be seen by looking at the material factual scenarios if Melonie drowned: · Scenario 1: The appellant caused the drowning death of Melonie by actively participating in the drowning as a principal. No intervening act is possible, and no direction is required. · Scenario 2: The appellant aided or abetted Everett by encouraging him to drown Melonie or by assisting the drowning in some way short of direct participation, with the intention of assisting him. If she intentionally aided or abetted the very act, no intervening act is possible, and no direction is required. · Scenario 3: The appellant failed to fulfil her duty to protect Melonie from Everett’s abuse in circumstances where it was reasonably foreseeable that Everett would kill Melonie. For there to be causation, the jury would be required to conclude that the appellant’s failure to act was a significant contributing cause to Melonie’s death. The trial judge not only repeatedly told the jury in general terms that to convict the appellant, they had to find that she had to make a significant contribution to Melonie's death, but also directed the jury specifically on this theory of guilt, telling them that they had to find that the appellant’s failure to discharge her duty by intervening had to play a significant role in permitting the course of conduct that led to Melonie’s death. On that scenario, there is no possibility of an intervening act. · Scenario 4: Everett drowned Melonie on his own, without the appellant’s participation, either unforeseeably or without the appellant having failed to discharge her duty. This would be an intervening act on Everett's part, but if the jury had a reasonable doubt that this may have happened, the judge's direction that to be guilty, the appellant had to make a significant contribution to Melonie's death, would have prevented her conviction. [39] Based on the preceding analysis, I am of the view that the trial judge did not err in failing to give the requested intervening act instruction. On the contrary, the jury had a functional understanding of their obligations as a consequence of the significant contribution instruction. Therefore, I would dismiss this ground of appeal. Part III: Disposition [40] I would dismiss the application for fresh evidence and dismiss the appeal for the foregoing reasons. The cross-appeal was only to proceed if the appellant succeeded in her appeal. Therefore, I would dismiss the cross-appeal as abandoned. Released: January 10, 2022 “G.R.S.” “C.W. Hourigan J.A.” “I agree. G.R. Strathy C.J.O.” “I agree. David M. Paciocco J.A.” [1] First names are used in these reasons for clarity and are not intended to show any disrespect to the parties.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Jarvis, 2022 ONCA 7 DATE: 20220112 DOCKET: C67419 Miller, Zarnett and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Kristian Jarvis Appellant Myles Anevich, for the appellant Jessica Smith Joy, for the respondent Heard: January 4, 2022 by video conference On appeal from the sentence imposed on March 20, 2019 by Justice John McMahon of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant was sentenced to 13 years in custody, with credit for 3 years for time served, after pleading guilty to four counts of robbery while using a firearm, four counts of recklessly discharging a firearm, one count of aggravated assault, and one count of failing to stop for police. [2] The appellant argues that the sentencing judge erred in four respects: 1. By imposing the sentence related to discharging a firearm at a police officer consecutively rather than concurrently; 2. By imposing a harsh, excessive, and crushing sentence; 3. By failing to adhere to the principle of restraint; and 4. By erring in principle by failing to properly weigh the aggravating and mitigating factors. [3] At the hearing of the appeal, counsel for the appellant focused his submissions on the first and fourth grounds. [4] As explained below, we do not agree that the sentencing judge made any error. [5] The decision to impose sentences consecutively is a discretionary decision. The sentencing judge carefully attended to the circumstances of the case and concluded that the offences ought to be grouped into three distinct phases: (1) firing a handgun at his brother, (2) multiple attempted carjackings and assaults including shooting the occupant of one of the vehicles, and (3) evading capture by firing at the police while engaging them in a high speed chase up Highway 400. The appropriateness of sentencing consecutively for offences related to flight from police is supported by the authorities that stress the need for deterrence of highly dangerous behaviour in flight from police: R. v. Corcho , [1993] O.J. No. 98 (C.A.); R. v. Mills , 2014 ONSC 1134, at para. 110; and R. v. McFarlane , [2012] O.J. No. 6566 (S.C.), at paras. 70-73. If sentences for such offences are not consecutive, flight from police might seem well worth the risk: R. v. Sturge (2001), 17 M.V.R. (4th) 272 (Ont. C.A.), at para. 6. The sentencing judge made no error in this regard. [6] The 10-year sentence imposed for aggravated assault involving gun violence and injury was within the range identified by the parties of 7 – 11 years: R. v. Bellissimo , 2009 ONCA 49, at para. 3. With respect to firing at police during the chase on Highway 400, the sentencing judge reduced the consecutive sentence for discharging a firearm with intent to endanger the life of the police officers to 3 years from 7 out of respect for the totality principle. The sentencing judge was entitled to approach sentencing in this fashion, and the total sentence resulting was not harsh and excessive given the circumstances of the offences. [7] With respect to the restraint principle, the sentencing judge considered the facts relevant to restraint, including the appellant’s lack of a prior criminal record and that the global sentence imposed should not crush the appellant’s hope of rehabilitation and reintegration into society. The sentencing judge did not err by prioritizing denunciation and deterrence in the circumstances of these offences and this offender. [8] Finally, the appellant’s submission that the trial judge erred in improperly weighing the aggravating and mitigating factors is in reality an invitation to reweigh, something an appellate court is not permitted to do. The sentencing judge took into account, as a mitigating factor, that the appellant had committed the offences while in a drug induced psychosis brought on by the voluntary ingestion of methamphetamines, but also noted that this did not justify his criminal conduct and that the appellant had made conscious and clear decisions demonstrating a high degree of culpability. The sentencing judge did not make the error of using the elements of the offences as aggravating factors. Carrying a handgun was an aggravating element, as was the number of times the appellant fired the gun, and the infliction of gratuitous violence, particularly with respect to the victim he shot. DISPOSITION [9] Leave to appeal sentence is granted but the appeal of sentence is dismissed. “B.W. Miller J.A.” “B. Zarnett J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: UL Lawyers Professional Corporation v. Notay, 2022 ONCA 8 DATE: 20220112 DOCKET: C69327 Doherty, Tulloch and Thorburn JJ.A. BETWEEN UL Lawyers Professional Corporation Applicant (Appellant) and Jasbir Notay Respondent (Respondent in Appeal) Sunish R. Uppal and Vismay Merja, for the appellant Jamie Min, for the respondent Heard: January 5, 2022 by video conference On appeal from the order of Justice Thomas A. Bielby of the Superior Court of Justice, dated March 23, 2021. REASONS FOR DECISION [1] The appellant law firm (“UL”) acted for the respondent in motor vehicle litigation. The respondent discharged UL and retained the Naimark Law firm (“Naimark”). UL sought an undertaking from Naimark to protect UL’s account for legal fees and disbursements arising out of the retainer with Mr. Notay. Ultimately, no undertaking satisfactory to UL was provided by Naimark. UL sought a solicitor’s lien in the amount of $73,195.75 against the proceeds of the settlement of the accident benefit claims arising out of the motor vehicle litigation. [2] The application judge identified the three criteria which must be satisfied to obtain a solicitor’s charging order. The solicitor must show: · the fund or property over which the charging order is sought is in existence at the time the order is sought; · the property must have been recovered or preserved through the instrumentality of the solicitor; and · there must be some evidence that the client cannot or will not pay the lawyer’s account: see Bilek v. Salter Estate , 2009 CanLII 58582 (ONSC). [3] The application judge was satisfied the first two criteria were met. He concluded, however, that there was no evidence the client would not or could not pay the fees. The application judge relied on what he found to be a clear undertaking given by Naimark to protect UL’s account for fees and disbursements. [4] Counsel for UL submits the application judge made a palpable and overriding error in concluding that a clear undertaking had been given by Naimark. In addition to alleged errors in respect of the evidence before the application judge, counsel also relies on the fact that after the application judge’s decision, Mr. Notay commenced a $5,000,000 lawsuit against UL. In that action, he claims that UL was negligent and in breach of its fiduciary duty to him in the context of the tort litigation arising out of the automobile accidents. UL argues that this lawsuit, on its own, constitutes “some evidence that the client cannot or will not pay” UL’s fees and disbursements. [5] The evidentiary burden on a solicitor to show the client cannot or will not pay the lawyer’s fees is a low one. There need only be “some evidence”. The evidence before the application judge arguably cleared that evidentiary hurdle. The undertaking relied on by Naimark was arguably ambiguous. Naimark’s refusal to provide an undertaking in the terms requested by UL, and its delay in responding to UL’s request for clarification, along with disputes over the amounts of certain disbursements, provide reasons to doubt that Mr. Notay would pay the fees and disbursements in issue. Furthermore, after about four months of wrangling over the terms of the undertaking to pay UL’s fees and disbursements, Naimark appeared to further qualify the undertaking to protect UL’s fees by including the indication that any undertaking would be subject to the client’s approval. No approval was forthcoming. Finally, the tone of the communications between UL and Naimark took on a decidedly hostile tone, suggestive of the possibility of litigation over UL’s fees and disbursements. [6] Ultimately, it is unnecessary to decide whether the application judge made a clear and palpable error in declining to make the order sought by UL. The lawsuit commenced by Mr. Notay after the application was heard, considered along with the factors identified by the application judge, provides “some evidence” that Mr. Notay would not pay UL’s account. [7] The appeal is allowed. UL is entitled to a solicitor’s lien on the funds obtained through settlement of the accident benefit claims in the litigation brought on Mr. Notay’s behalf in the amount of $73,195.75. [8] The appellant, having successfully reversed the result on the application, is entitled to costs on the application. We fix those costs at $1,662 plus H.S.T., the amount the application judge had awarded to Mr. Notay on the application. UL is also entitled to costs of the appeal. We fix those costs in the amount of $4,867, inclusive of disbursements and H.S.T. “Doherty J.A.” “M. Tulloch J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Amatuzio v. 650 Atwater Avenue Ltd., 2022 ONCA 9 DATE: 20220112 DOCKET: C68798 Rouleau, van Rensburg and Roberts JJ.A. BETWEEN Michele Amatuzio and Magdalena Amatuzio Applicants (Appellants) and 650 Atwater Avenue Ltd. Respondent (Respondent) Obaidul Hoque, Zaheed Moral and Taheratul Haque, for the appellants Micheal Simaan, for the respondent Heard: January 4, 2022 by video conference On appeal from the order of Justice Heather A. McGee of the Superior Court of Justice, dated October 13, 2020. REASONS FOR DECISION [1] The appellants contracted with the respondent to purchase a new condominium unit in a residential development that the respondent was building in Mississauga. After the respondent required a number of extensions, the interim occupancy date was set for June 27, 2019. The appellants were concerned that the unit was not in fact ready for occupancy, and there were communications between legal counsel for the parties. Ultimately, the appellants’ purchase was not completed and eventually the unit was sold to another purchaser. [2] The appellants brought an application seeking a declaration that the respondent had breached the agreement of purchase and sale (the “APS”) and for a reference to determine damages. [3] The central issue in the application was whether the respondent complied with its obligations under a Tarion Warranty Corporation Addendum that formed part of the APS. Section 9(a) of the Tarion Addendum provides as follows: 9.  Ontario Building Code – Conditions of Occupancy (a) On or before the Occupancy Date, the Vendor shall deliver to the Purchaser: (i) an Occupancy Permit (as defined in paragraph (d)) for the home; or (ii) if an Occupancy Permit is not required under the Building Code, a signed written confirmation by the Vendor that all conditions of occupancy under the Building Code have been fulfilled and Occupancy is permitted under the Building Code. “Occupancy Permit” is defined as “any written or electronic document, however styled, whether final, provisional or temporary, provided by the chief building official (as defined in the Building Code Act ) or a person designated by the chief building official, that evidences that permission to occupy the home under the Building Code has been granted”. [4] The application judge concluded that, notwithstanding that an Occupancy Permit dated June 27, 2019 was in fact provided for the unit by the respondent’s lawyer to the appellants’ lawyer on July 9, 2019, on a plain reading of the Building Code , an occupancy permit was not required for the purchasers’ unit “because a condominium development with multiple floors does not fall within the definition of a residential building that requires an occupancy permit”. She concluded that the June 27, 2019 letter from the builder’s representative was sufficient: at para. 28. [5] The appellants assert that there was no evidence to support the application judge’s conclusion that no occupancy permit was required under s. 1.3.3.4 of Part C of the Building Code [1] , which was based on statements of the respondent’s counsel during oral argument, and that the application judge erred in failing to consider s. 1.3.3.4 in the context of the other provisions of s. 1.3.3. During oral argument on the appeal we asked the respondent’s counsel to take us to the evidence that supported this conclusion. He referred to photos of the buildings under construction and drawings in the record to assert that no occupancy permit was required, but suggested at the same time that the evidence was not as clear as the application judge suggested. [6] It is unnecessary for the disposition of this appeal to determine whether an occupancy permit was required. Even if the application judge was correct in concluding that no occupancy permit was required, we agree with the appellants that she made a palpable and overriding error in her conclusion that the June 27 letter was delivered before closing, on June 26, along with the pre-delivery inspection form, and that this satisfied the requirement under s. 9(a) of the Tarion Addendum. [7] There is no evidence that the letter was “delivered” to the purchasers as required by the terms of the Tarion Addendum on June 26, or at any time until the responding materials were delivered in these proceedings. Rather, the evidence of the builder’s representative was that the letter, together with the key to the appellants’ unit, was placed in an envelope that was available for pick up on closing. The respondent’s counsel refers to an answer to an undertaking with respect to evidence that the letter had been delivered, which simply states that, according to the respondent’s real estate solicitor, all purchasers’ solicitors were informed that the key and “any final instructions” would be available “upon receipt of all closing documents” and funds. At no time during the exchange between the parties’ counsel with respect to whether an occupancy permit was required did the respondent’s counsel indicate that such a letter existed or ensure that it was delivered. To the contrary, he took the position that the unit was cleared for occupancy by the City and that the appellants’ lawyer should satisfy himself that occupancy was permitted. [8] Accordingly, we allow the appeal. The respondent failed to comply with s. 9(a) of the Tarion Addendum until July 9, 2019, and the appellants were entitled to set a new date for the interim closing. The evidence is that they attempted to do so, and had provided evidence that they were in funds and ready to close once the occupancy permit was provided. [9] The order below and the order for costs against the appellants are set aside. The appellants are entitled to an order declaring that the respondent breached the APS by failing to close the interim purchase and sale of their unit, with a reference to determine damages. [10] The appellants are entitled to their costs of the appeal, which we fix at $7,500, inclusive of HST and disbursements, and costs of the proceedings in the court below fixed at $15,000 plus HST. “Paul Rouleau J.A.” “K. van Rensburg J.A.” “L.B. Roberts J.A.” [1] The application judge referred to s. 1.3.3.3, which the parties agree was in fact a reference to s. 1.3.3.4, which was relied on by the respondent at the hearing of the application.

COURT OF APPEAL FOR ONTARIO CITATION: Ho v. Ontario, 2022 ONCA 11 DATE: 20220112 DOCKET: C69369 Rouleau, van Rensburg and Roberts JJ.A. BETWEEN Wendy Sin Ming Ho Plaintiff (Appellant) and Her Majesty the Queen in Right of Ontario Defendant (Respondent) Wendy Sin Ming Ho, acting in person Adam Mortimer, for the respondent Heard: January 7, 2021 by video conference On appeal from the order of Justice Frederick J. Myers of the Superior Court of Justice, dated March 24, 2021, with reasons at 2021 ONSC 2249. REASONS FOR DECISION [1] The appellant alleges that she suffered significant psychological harm from harassment and criminal threats made against her while employed at an Ontario hospital between 1999 and 2000. [2] Her efforts to obtain redress against her employer were dismissed by the Ontario Labour Relations Board and the Workplace Safety and Insurance Appeals Tribunal. The Ontario Human Rights Commission refused to take up her case, and she obtained no satisfaction from a complaint before the Health Professions Appeal and Review Board. [3] The appellant then sued the Crown and the four tribunals for their failure to protect her from the alleged illegal acts of her former supervisor and employer. Firestone J. found that the tribunals were not suable entities and struck her claim against the Crown with leave to amend. [4] The present appeal is from the motion judge’s dismissal of that amended pleading. There, the appellant argued that the Crown is responsible for her employer’s alleged harassment and threats, as well as the subsequent failure of the tribunals to support her claims, because the province is constitutionally responsible for hospitals and provincial administrative tribunals. She also claimed that these wrongs violate her security of the person and right to equal benefit of the law as guaranteed by the Canadian Charter of Rights and Freedoms . Finally, the appellant sought a declaration and an injunction requiring the Royal Canadian Mounted Police (“RCMP”) to investigate the alleged criminal conduct on the part of her former employer. [5] The motion judge dismissed the appellant’s action because her pleading could not possibly result in a judgment against the Crown. The motion judge explained that the Crown is not vicariously liable for the employment related issues of public hospitals, nor is it liable for the quasi-judicial decisions of administrative tribunals. He also determined that the alleged Charter breaches were no more than the appellant disagreeing with the outcome of the tribunal proceedings. Finally, the motion judge found no basis for a court exercising civil jurisdiction to make a declaratory order compelling a criminal investigation by the RCMP. [6] Before this court, the appellant has sought to reframe the arguments she made below. She suggests there has been a fraud on the court, and that the court must protect her rights and prevent abuses of authority. In addition, she criticizes the way she has been treated by the legal system, including the fact that she has not been provided with appropriate assistance to advance her claim. [7] The appellant has also brought a motion seeking leave to file fresh evidence. That fresh evidence consists principally of material related to her dispute with her previous employer, as well as her request for a declaratory order compelling the RCMP to carry out an investigation. [8] In our view, the appellant has not demonstrated any error on the part of the motion judge. Her arguments, although reframed, are, in effect, the same as were made before the motion judge. There is simply no viable cause of action pleaded against the Crown. As for the fresh evidence, it does not, in our view, assist her in making out a potential claim. [9] For these reasons, the motion to file fresh evidence and the appeal are dismissed. Costs to the respondent are fixed in the amount of $2,500 inclusive of disbursements and applicable taxes. “Paul Rouleau J.A.” “K. van Rensburg J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Meridian C C Intl Inc. v. 2745206 Ontario Inc., 2022 ONCA 12 DATE: 20220112 DOCKET: C69533 Rouleau, van Rensburg and Roberts JJ.A. BETWEEN Meridian C C Intl Inc. and Guiyan Xin Plaintiffs/Defendants by Counterclaim (Appellants) and 2745206 Ontario Inc. Defendant/Plaintiff by Counterclaim (Respondent) Robert S. Choi and Gina P. Rhodes, for the appellants Michael A. Katzman, for the respondent Heard: January 4, 2022 by video conference On appeal from the judgment of Justice Frederick L. Myers of the Superior Court of Justice dated May 3, 2021, with reasons reported at 2021 ONSC 3270. REASONS FOR DECISION [1] This appeal concerns a termination provision in a commercial lease. Paragraph 11(1) of the lease permits the landlord to terminate the tenancy upon giving 180 clear days’ written notice where the landlord desires to remodel or demolish any part of the rented premises “to an extent that renders continued possession by the tenant impracticable”. It is the interpretation and application of the quoted words that are in issue in this case. [2] The respondent landlord gave the appellant tenant the requisite 180 days’ written notice to terminate under para. 11(1) of the lease so that it could remodel the premises. The remodeling plan proposed the demolition of the garage, the remodelling of the main floor into two separate units, the replacement of windows, wiring and plumbing throughout the premises, and the use of part of the basement for building services and utilities. The appellants (the tenant and its principal) resisted the termination. They asserted, among other things, that the termination was in bad faith because the respondent had sought to terminate the lease, which had been in existence since 2013, shortly after purchasing the building in which the leased premises were located. They also claimed that the proposed remodelling would not interfere with the operation of the tenant’s business. The retail portion occupied only one half of the main floor of the building, such that the remodelling would not render the tenant’s continued possession “impracticable”. [3] In the litigation that followed, the respondent moved for summary judgment seeking to enforce the termination. The motion judge found that the planned renovations were bona fide and that the premises as described under the lease would cease to exist because of the planned renovations. As a result, he concluded that continued possession by the tenant was impracticable. He rejected as irrelevant the issues surrounding the evolution of the landlord’s plans and whether the tenant could possibly remain in part of the premises during renovations because, as he explained, “the proposed remodeling and demolition deprive the tenant of substantial portions of the “Premises” defined under the lease”. He determined that the respondent properly gave notice to terminate the lease in accordance with the parties’ bargain. He dismissed the appellants’ action and allowed the respondent’s counterclaim to terminate the lease, with costs to the respondent in the amount of $75,000. [4] The appellants raise several grounds of appeal. To dispose of the appeal, it is necessary to resolve only the issue of whether the motion judge erred in construing para. 11(1) of the lease too narrowly and in isolation from the other provisions of the lease. [5] For the reasons that follow, we agree that the motion judge made reversible errors of law in his interpretation of the lease, and we allow the appeal. [6] It is helpful to begin our analysis with the standard of review. The motion judge’s interpretation of the parties’ lease agreement, including its factual matrix, would ordinarily attract a deferential standard of appellate review: Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at paras. 50-52. Absent an extricable question of law, which courts should be cautious in identifying, or palpable and overriding error, appellate intervention is not warranted: Sattva , at paras. 53-54. [7] An extricable question of law includes a legal error made in the course of contractual interpretation such as the application of an incorrect principle, the failure to consider a required element of a legal test, or the failure to consider a relevant factor: Sattva , at para. 53. Moreover, a failure to consider the contract as a whole, by focussing on one provision without giving proper consideration to other relevant provisions, can also be an error of law: Fuller v. Aphria Inc. , 2020 ONCA 403, 4 B.L.R. (6th) 161, at para. 50; Resolute FP Canada Inc. v. Ontario (Attorney General) , 2019 SCC 60, 444 D.L.R. (4th) 77, at paras. 26-27, 30 and 32-34. Finally, in Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust , 2007 ONCA 205, 85 O.R. (3d) 254, at para. 24, this court emphasized that a commercial contract should be interpreted “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”. In our view, the motion judge made these errors of law in his analysis of the lease. [8] The motion judge was required to consider whether it was “impracticable” in this case for the landlord to carry out the proposed remodelling while the tenant continued in possession. This was a fact-specific exercise for the motion judge to undertake based on his interpretation of the particular lease and the evidence in the record before him: Kinglip Holdings Inc. v. Novak Graphics Inc. , [2000] O.J. No. 3723 (S.C.), at para. 12. [9] However, the motion judge erred by focussing too narrowly on the definition of the leased premises and the results of the proposed renovations. This was a flawed approach.  Instead of giving effect to para. 11(1) in its entirety, the motion judge’s approach would give rise to the unintended and commercially unreasonable result that any change which reduces the area of the leased premises would allow the landlord to terminate the lease. The motion judge’s approach further caused him to interpret para. 11(1) of the lease in a manner that was inconsistent with the whole of the parties’ agreement. Most notably, the motion judge’s narrow interpretation would untenably permit the landlord to terminate the lease in order to make alterations, such as partitioning the main floor, and lease parts of the leased premises to other tenants when, with the approval of the landlord, the tenant is permitted to carry out the same kinds of alterations and sublet parts of the premises under paras. 4 and 7 of the lease. [10] As a result of these errors, the motion judge failed to determine the principal question that he had to decide, namely, the question of whether the proposed renovations rendered continued possession by the tenant impracticable. Accordingly, whether the tenant could remain in possession and continue its operation in part of the premises during the renovations were relevant questions, among others, that the motion judge should have determined. [11] It is not appropriate for this court, on the available record, to make the factual findings to determine these issues. Accordingly, we set aside the dismissal of the action and the judgment in the counterclaim, such that the action will continue in the Superior Court. [12] While not strictly necessary to dispose of this appeal, it will be of assistance to the parties going forward for us to address the appellants’ argument concerning the motion judge’s treatment of the opinion offered by the appellants’ construction witness, Tim Clarke. We see no error in the motion judge declining to accept Mr. Clarke’s opinion evidence. As the motion judge rightly noted, the appellants did not seek to qualify him as an expert. Mr. Clarke was not a fact witness but was proffered solely for the purpose of giving opinion evidence. If the appellants wish to adduce Mr. Clarke’s opinion evidence in this action, they will have to comply with the requirements respecting experts under the common law and the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. Disposition [13] Accordingly, we allow the appeal. The judgment and the costs order are set aside. [14] The appellants are entitled to their partial indemnity costs of the appeal in the amount of $15,000, inclusive of disbursements and applicable taxes. [15] As this matter is not finally determined, it is appropriate to reserve the disposition of the summary judgment motion costs to the judge who finally disposes of this action. “Paul Rouleau J.A.” “K. van Rensburg J.A.” “L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Kam v. Canadian Broadcasting Corporation, 2022 ONCA 13 DATE: 20220111 DOCKET: C69274 Huscroft, Trotter and Coroza JJ.A. BETWEEN Michelle Kam Plaintiff (Appellant) and Canadian Broadcasting Corporation, Zach Dubinsky and Lisa Mayor Defendants (Respondents) Christopher Stienburg, for the appellant Andrea Gonsalves and Carlo Di Carlo, for the respondents Heard: January 10, 2022 by video conference On appeal from the order of Justice Eugenia Papageorgiou of the Superior Court of Justice, dated March 3, 2021. REASONS FOR DECISION [1] The appellant argues that the motion judge erred in finding the photo of the appellant (“Statement 6”) in the second article was not defamatory. We disagree. The motion judge applied the proper test and her conclusion that the placement of the photo was not capable of bearing any of the defamatory meanings claimed by the appellant is entitled to deference. [2] The appellant’s main argument is that the motion judge erred in finding that she failed to demonstrate that the defence of responsible communication did not tend to weigh more in favour of the respondents. There is no merit to this argument. [3] The motion judge applied the proper legal framework from 1704604 Ontario Ltd. v. Pointes Protection Association , 2020 SCC 22, and Grant v. Torstar , 2009 SCC 61, [2009] 3 S.C.R. 640, and her findings are amply supported by the record. It was reasonable for the respondents to conclude that the appellant chose not to respond to the allegations given her refusal to speak with the respondents concerning those allegations on several occasions. The motion judge made no error in finding that no material facts were omitted from the publication and again, her decision is entitled to deference. [4] Finally, the motion judge addressed the public interest balancing under s. 137.1(4)(b) only out of caution, in the event that her decision concerning the responsible communication defence was found to be erroneous. We have concluded the motion judge made no error in applying s. 137.1(4)(a). As a result, her findings concerning s. 137.1(4)(b) are irrelevant and we are not to be taken as endorsing or rejecting them. [5] The appeal is dismissed. [6] The respondents are entitled to costs in the agreed amount of $8,300, all inclusive. “Grant Huscroft J.A.” “Gary Trotter J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Idea Notion Development Inc. v. CTO Boost Inc., 2022 ONCA 14 DATE: 20220113 DOCKET: C69205 Doherty, Tulloch and Thorburn JJ.A. BETWEEN Idea Notion Development Inc. Plaintiff (Respondent) and CTO Boost Inc., Gurminder Kandola and Gursharnjit Kandola Defendants (Appellant) James R. Smith for the appellant, CTO Boost Inc. Aaron Boghossian, for the respondent Heard: January 4, 2022 by video conference On appeal from the order of Justice Papageorgiou of the Superior Court of Justice, dated February 12, 2021 and reported at 2021 ONSC 289. REASONS FOR DECISION [1] The appellant (“CTO”) hired the respondent (“Idea Notion”) to provide software development services on various projects. The work began in August 2018 and was completed about 10 months later. Idea Notion submitted five invoices to CTO totalling about $219,000. CTO made no complaint about the quality of the work, or the invoice amounts. [2] CTO provided Idea Notion with cheques for their services, however, many of those cheques were returned NSF. As of June 2019, there remained about $200,000 owing to Idea Notion, based on the invoices submitted by it to CTO. [3] Negotiations in respect of the payment of the outstanding invoices ensued over several months. CTO made two offers to settle. Both were rejected by Idea Notion. On October 17, 2018, CTO made a third offer to settle based on a lump sum payment of $85,000 by CTO, followed by 12 equal monthly payments totalling $115,000, for a total payment of $200,000. On October 22, 2018, Idea Notion, through counsel, accepted CTO’s October 17, 2018 offer. [4] Three days after accepting the offer, counsel for Idea Notion provided CTO with draft Minutes of Settlement. Discussions concerning those draft minutes occurred between October 25 and November 5, 2018. On November 5, 2018, CTO advised Idea Notion that CTO would not proceed with the settlement, claiming the invoices were fraudulent and inflated. [5] On November 19, 2018, Idea Notion sued CTO on the original contract. Idea Notion later amended its claim to include a claim for enforcement of the settlement entered into in October 2018. [6] Idea Notion successfully moved for summary judgment on the claim to enforce the settlement. CTO appeals from that judgment and renews many of the arguments unsuccessfully advanced on the summary judgment motion. [7] We are satisfied this appeal must fail. As we are in substantial agreement with the motion judge, we need not repeat her careful analysis and need only deal briefly with the grounds of appeal. Ground #1: Did the motion judge err in allowing Idea Notion to tender “without prejudice” documents relating to the two rejected Offers to Settle made by CTO prior to October 2019? [8] Normally, “without prejudice” communications made in the course of settlement discussions are inadmissible. They are, however, admissible if disclosure is necessary to prove “the existence or scope of the settlement”: Union Carbide Inc. v. Bombardier Inc. , 2014 SCC 35, at para. 35. [9] CTO denied that it entered into an enforceable agreement to settle (Statement of Defence, at para. 35). Mr. Kandola, the directing mind of CTO, repeated that assertion in his examination. [10] It was incumbent on Idea Notion to demonstrate the existence of the agreement to settle. To do so, Idea Notion had to refute CTO’s claim that there was no agreement to settle because CTO’s offer was conditional upon CTO being satisfied that the amounts invoiced were correct. Idea Notion also had to refute CTO’s argument that there was no settlement because the October offer did not deal with all of the terms essential to a settlement, including the potential ongoing liability of the personal defendants. [11] In the course of considering and rejecting these arguments, the motion judge took into account some of the “without prejudice” communications between counsel for CTO and counsel for Idea Notion (e.g. see Reasons, at paras. 46-49, 53-58). The motion judge was entitled to consider the “without prejudice” documents to the extent those documents were relevant to the existence of the alleged agreement to settle. CTO’s arguments that the October offer was conditional, and that it did not contain all essential terms, both went to the existence of an agreement to settle. The contents of the “without prejudice” documents, even though they related to prior offers, were also relevant to whether the parties had reached an agreement in October. Consequently, the “without prejudice” communications fell squarely within the exception to the exclusionary rule described in Union Carbide . The motion judge correctly held the documents to be admissible. [12] In a related argument, CTO submitted that the “without prejudice” documents were submitted by way of an affidavit that was filed in contravention of r. 39.02 of the Rules of Civil Procedure . Even if there was non-compliance with r. 39.02, CTO was not prejudiced, given our finding that the “without prejudice” documentation was admissible. There is no suggestion that CTO was, in any way, taken by surprise by the documentation, or unable to address the significance, if any, of the documents on the motion. The real complaint is that the documents were inadmissible. We have held the motion judge correctly determined they were admissible. Ground #2: Did the motion judge err in her analysis of the evidence presented on the summary judgment motion? [13] The motion judge was entitled to weigh the evidence offered by the parties and make assessments of the credibility and reliability of various aspects of that evidence. She gave several reasons for giving little credence to CTO’s evidence in respect of the bona fides of the invoices provided by Idea Notion. She also gave reasons for giving little weight to the analysis of those invoices allegedly done by Mr. Kandola’s brother (Reasons, at paras. 68-82). [14] The motion judge’s observations with respect to that evidence were available on the record. She was entitled to make those assessments and we defer to her credibility and reliability findings. Based on her assessment of the evidence, this was an appropriate case for summary judgment. Ground #3: Was there any basis upon which to give effect to CTO’s fraudulent misrepresentation defence? [15] The motion judge properly identified the elements of the defence (Reasons, at para. 67). In concluding that the defence provided no reason not to grant summary judgment, the motion judge said: The most significant problem with CTO’s argument [i.e. that the settlement was procured by fraudulent misrepresentation], however, is that even if the invoices contained errors or “misrepresentations”, fraudulent or otherwise, Mr. Kandola admits that CTO believed there were discrepancies, had access to all the information needed to audit them, and then decided to proceed with settlement negotiations in any event. CTO cannot show that any alleged misrepresentation in the invoices caused it to enter into the settlement. It did so with its eyes wide open as to the possibility of discrepancies for its own business reasons . [Emphasis added.] [16] The observations of the motion judge are supported by the record. We are also satisfied that the “without prejudice” documentation was admissible on the question of whether any misrepresentation by Idea Notion with respect to the bona fides of the invoices allegedly made during the negotiations had any impact on CTO’s decision to make the offer to settle in October 2018. Ground #4: Should the motion judge have exercised her discretion and declined to enforce the settlement by way of summary judgment? [17] There is a discretion to decline to enforce settlement agreements by way of summary judgment motions. This discretion is guided by administration of justice concerns. If the enforcement of the agreement would be unreasonable, result in an injustice, or for some other good reason, not be in the interests of justice, the motion judge can decline to grant summary judgment on the agreement, even though on the evidence an agreement was reached. [18] The motion judge considered and rejected the arguments that the interests of justice required that she not exercise her discretion in favour of enforcing the agreement on a summary judgment motion (Reasons, at paras. 84-94). As this involves an exercise of discretion, we must defer to the motion judge, absent a determination that the motion judge’s decision is unreasonable or tainted by legal error. In our view, the motion judge’s finding is neither unreasonable, nor based on any legal error. Conclusion [19] The appeal is dismissed. Idea Notion is entitled to its costs against CTO, the only defendant involved in the summary judgment motion. We fix those costs at $8,000, inclusive of disbursements and relevant taxes. “Doherty J.A.” “M. Tulloch 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. H.W., 2022 ONCA 15 DATE: 20220113 DOCKET: C68189 Hourigan, Paciocco, and Zarnett JJ.A. BETWEEN Her Majesty the Queen Appellant and H.W. Respondent Jamie Klukach and Holly Loubert, for the appellant James Lockyer and Jessica Zita, for the respondent Heard: June 21, 2021 by video conference On appeal from the acquittal entered by Justice Sean F. Dunphy of the Superior Court of Justice, sitting with a jury, on February 18, 2020. Zarnett J.A.: OVERVIEW [1] This Crown appeal raises the question of how a jury should be instructed on the mens rea requirement for sexual assault when the defence of honest but mistaken belief in communicated consent is not available to the accused. That question is part of a broader one concerning the extent to which the knowledge element of the offence — that the accused knew of, or was wilfully blind to or reckless as to, the absence of the complainant’s consent to the sexual activity — is to be considered when the accused has no defence of honest but mistaken belief in communicated consent. [2] It was not in dispute at trial that the complainant and respondent had engaged in sexual activity. The complainant testified that she did not consent; the respondent’s position was that the complainant did consent and that her evidence that she did not consent was not credible. He gave evidence that included why he believed, from their interaction, that she was consenting. [3] Prior to instructing the jury, the trial judge conducted a pre-charge conference. At it, the parties agreed, and the trial judge accepted, that if the jury was satisfied that the complainant had not consented to the sexual activity, there was no air of reality to a defence of honest but mistaken belief in communicated consent. Accordingly, the defence would not be left with the jury. [4] The trial judge indicated that he proposed to instruct the jury that to convict, they had to be satisfied beyond a reasonable doubt on four elements: (a) that there had been intentional touching, (b) of a sexual nature, (c) without the complainant’s consent, and (d) that the respondent knew of, or was wilfully blind or reckless as to, the absence of the complainant’s consent (the “knowledge element”). [5] The Crown objected to the fourth element – the knowledge element – being left with the jury, on the basis that if the jury was satisfied on the first three elements, there was nothing further for the jury to consider. As the defence of honest but mistaken belief in communicated consent was not available to the respondent, he could not have had a non-culpable mental state and the knowledge element should have been treated as satisfied. [6] The trial judge rejected the Crown’s position. He instructed the jury that they had to be satisfied beyond a reasonable doubt on each of the four elements. He provided summaries of evidence relevant to the first three elements, including the respondent’s evidence of his perception of the complainant’s conduct and why he viewed that as her consent. On the knowledge element, he told the jury to consider all of the evidence, including the evidence he had summarized on the other elements. [7] On appeal, the Crown argues that it was an error to leave the knowledge element with the jury at all, or, alternatively, in the manner that it was left. [8] First, the Crown submits that the knowledge element of the offence is co-extensive with the defence of honest but mistaken belief in communicated consent, and that if the defence is not available to the accused, there is no room for reasonable doubt about the accused’s knowledge of the complainant’s non-consent. The Crown argues that when there is no air of reality to a defence of honest but mistaken belief in communicated consent, “the jury should be instructed that guilt is established if they are satisfied beyond a reasonable doubt that the accused intentionally touched the complainant in circumstances of a sexual nature, without her consent.” [9] Second, and in the alternative, the Crown argues that even if the knowledge element may be left with the jury when the defence of honest but mistaken belief in communicated consent is unavailable to the accused, that unavailability will in most cases be practically conclusive on the knowledge element, and that it was in this case. The jury should have been told this. Inviting the jury to consider all of the evidence to determine whether there was knowledge of non-consent without further guidance as to what they could and could not consider on this issue risked the jury considering irrelevant matters and engaging in impermissible forms of reasoning. [10] The respondent submits that the knowledge element of the mens rea requirement for sexual assault is part of the Crown’s burden as a matter of law, and that this burden is not contingent on the presence of the defence of honest but mistaken belief in communicated consent. He argues that the trial judge was bound to charge on the need for the Crown to prove the knowledge element as part of the mens rea . He also argues that if there was an error, it could not have affected the verdict. [11] I agree with the respondent that it was not an error of law to instruct the jury that the charge of sexual assault required that the Crown prove that the respondent knew of, or was wilfully blind or reckless as to, the complainant’s non-consent, even where the defence of honest but mistaken belief in communicated consent was unavailable to the respondent. In my view, the argument that the unavailability of the defence equates with proof by the Crown of the knowledge element must be rejected in light of R. v. Morrison , 2019 SCC 15, [2019] 2 S.C.R. 3 and R. v. Carbone , 2020 ONCA 394, 150 O.R. (3d) 758. There are important reasons of principle to legally distinguish the unavailability of a defence from proof of the Crown’s case even in situations where there is little practical difference between them. The Supreme Court has, since Morrison , repeated that proving the knowledge element is part of the Crown’s burden in a charge of sexual assault. [12] But I agree with the Crown that in the circumstances, the trial judge’s instruction to the jury had to provide guidance as to what the jury could and could not properly consider on the knowledge element of the offence. The jury instruction had to ensure that the respondent was not effectively given the benefit of a defence that was not available to him. [13] The instruction in this case did not do so. It did not instruct the jury that the respondent’s evidence of a mistaken perception or belief that the complainant had consented was not a defence and should not be considered. Instead, it directed the jury to consider that very evidence. Moreover, it failed to guide the jury as to how to approach the knowledge element issue on the evidence they could consider. [14] The lack of a proper instruction may reasonably have affected the verdict. I would allow the appeal, set aside the acquittal, and direct a new trial. THE CIRCUMSTANCES OF THE SEXUAL ACTIVITY [15] The complainant and the respondent were both guests at a wedding and at the reception that followed it. They had not met before the wedding. The respondent testified that he had approximately nine or ten alcoholic drinks over the course of that afternoon and evening. [16] The complainant testified that she had no interaction with the respondent at the wedding or reception until, toward the end of the evening, she was waiting in a hallway to use one of the individual bathrooms. The respondent, who was in one of those bathrooms, opened the door and pulled her in, which surprised and confused her. She introduced herself, but he did not respond or answer her when she asked who he was. He proceeded to penetrate her orally, vaginally, and anally with his penis. She described herself as being in a state of shock, confusion, and disassociation, unable to process what was happening or understand how such a violent act could take place at a family wedding. She asked him a series of questions concerning who he was, what was going on, and how she got there. He did not answer. She also asked whether they were related, whether he was married, and whether he was related to the bride. He said that he was not married, they were not related, and that he was related to the bride. When he was finished anally penetrating her, he left the bathroom without saying anything further to her. [17] The respondent testified that he met the complainant briefly at the wedding ceremony, but they did not engage in conversation. Around midnight, he had a 15-minute conversation with her near the washrooms that was neither romantic nor sexual. When he went to use one of the bathrooms, the complainant followed him, cut in front of him, and backed into the bathroom, looking at him and smiling. They began to kiss; she dropped to her knees and he undid his pants. She performed oral sex on him. When he lost interest in oral sex and stepped back, she stood up, turned around, and looked back at him smiling. He pulled up her dress, pulled down her underwear, and penetrated her vagina with his penis. After vaginal intercourse, he stopped and left the bathroom without saying anything to the complainant. [18] The respondent explained that he took the complainant’s initial eye contact and smile as an invitation to join her in the bathroom, and believed, after they had oral sex and she stood up, turned around, and looked at him smiling, that this was an invitation to have sexual intercourse. The respondent assumed that the complainant consented to the sexual activity based on her eye contact and smiles. He agreed that at no point did the complainant verbally communicate consent. The only conversation that occurred inside the bathroom, according to the respondent, was that she twice asked if they were related, to which he replied “no.” THE JURY CHARGE, THE JURY’S QUESTION, AND THE ACQUITTAL [19] At a pre-charge conference, the defence and Crown agreed that there was no air of reality to a defence of honest but mistaken belief in communicated consent. They disagreed as to whether the “fourth element of sexual assault” – whether the accused knew that the complainant did not consent – should be put to the jury. The Crown’s position was that the jury should not be directed that the Crown had to prove beyond a reasonable doubt that the respondent knew the complainant was not consenting. [20] The trial judge did not accept the Crown’s position, based on his reading of recent Supreme Court of Canada jurisprudence, including R. v. Barton , 2019 SCC 33, [2019] 2 S.C.R. 579. He instructed the jury as follows: For you to find [the respondent] guilty of sexual assault, Crown counsel must prove each of these essential elements beyond a reasonable doubt: a. That [the respondent] intentionally touched [the complainant]; b. That the touching took place in circumstances of a sexual nature; c. That [the complainant] did not consent to the sexual activity with [the respondent] in question; and d. That [the respondent] knew that [the complainant] did not consent to that sexual activity. [21] On the first two elements (elements (a) and (b) above) – whether intentional sexual touching took place – the trial judge reminded the jury that both the complainant and the respondent testified that there was contact of a sexual nature between them. He told the jury that although there were differences in their testimony as to what sexual touching occurred (for example, the complainant described anal sex and the respondent denied it), each type of sexual touching they described was capable of supporting these two elements of the charge. He told the jury that it was for them to decide which of the incidents of sexual touching had occurred, as all of the essential elements of the offence had to be considered for each incident they found to have in fact occurred. [22] The trial judge then summarized the evidence relating to each alleged incident of sexual touching. While doing so, the trial judge made reference to the respondent’s evidence that the complainant got down on her knees “in a gesture that he understood to be an invitation to undo his pants”, that he “interpreted” her standing, turning, and smiling at him as an invitation to have sex with her, and that he had “no doubt” that she wanted him to engage in sex with her. [23] On the third element (element (c) above – whether the complainant consented to the sexual activity with the respondent), the trial judge set out the definition of consent as the voluntary agreement of the complainant to engage in the particular sexual activity. He instructed the jury that a complainant is not obliged to express lack of consent by words or conduct, and that silence or lack of resistance did not constitute consent. He cautioned the jury about falling prey to common stereotypes and myths concerning sexual assault and sexual assault victims. [24] The trial judge told the jury that when dealing with this third element, they were to be concerned solely with the complainant’s subjective state of mind – whether she in fact consented to the sexual activity in question. He added that the respondent’s “knowledge and appreciation of that question will be considered under the next essential element [i.e. the knowledge element] below.” [25] He then provided a review of the evidence of the respondent and the complainant as to what had occurred, adding the observation that credibility was central to the issue of whether the complainant consented. While providing that review, he referred to the respondent’s evidence that “she subsequently stood up, placed her hands upon the counter and turned around to look at him and smile. He inferred from these gestures and the fact that she had initiated oral sex a moment earlier that she was inviting him to have vaginal sex with her and consenting to his doing so.” [26] With respect to the knowledge element (element (d) above – whether the respondent knew that the complainant did not consent), the trial judge instructed the jury that if they were considering that element, it was because they were satisfied that the prior elements of the charge had been established beyond a reasonable doubt. He told the jury: This last element requires you to consider [the respondent’s] state of mind in relation to the sexual activity in question. Crown counsel must prove beyond a reasonable doubt that [the respondent] was aware that [the complainant] did not consent to the sexual activity in question when he touched her. To prove that [the respondent] was aware of [the complainant’s] lack of consent, the Crown must prove one of the following: a. That [the respondent] knew that [the complainant] did not consent to the activity in question; or b. That [the respondent] knew that there was a risk that [the complainant] did not consent to the sexual activity in question and [the respondent] proceeded in the face of that risk; or c. That [the respondent] was aware of indications that [the complainant] did not consent to the sexual activity in question, but deliberately chose to ignore them because he did not want to know the truth. [27] The trial judge did not provide a separate summary of the evidence regarding the knowledge element. He told the jury that they must review all of the evidence, including the evidence he had previously summarized, “to answer the question of [the respondent’s] state of mind at the time that he engaged in the sexual activity with [the complainant].” He invited the jury to “consider all of the evidence concerning the words exchanged between the [complainant and respondent] and their actions immediately prior to, during and immediately after the incident of sexual touching.” He told the jury that the same evidence that he had previously summarized “is relevant to your review of this last essential element.” He concluded: If you have a reasonable doubt about whether [the respondent] knew that [the complainant] did not consent to the sexual activity in question, then you must find [the respondent] not guilty of the crime of sexual assault as charged in the indictment. If you are satisfied that the Crown has proved beyond a reasonable doubt that [the respondent] knew that [the complainant] was not consenting to the sexual activity in question, you must find [the respondent] guilty of the crime of sexual assault as charged in the indictment. [28] After some deliberation, the jury returned with a question: “Can a person be so intoxicated that they cannot know of a risk of non-consent or [i]f we believe that a person is drunk enough to not consider the risk of non-consent would we then be required to not convict or acquit the charges”? [29] The trial judge provided the jury with the following response: “In answer to your question about consent, drunkenness is not a defence unless it rises to a level known to the law as automatism, and there is no evidence of automatism in this case.” [30] After further deliberation, the jury acquitted the respondent. THE ISSUES [31] The appeal raises two issues: a) Was there an error in the way the jury was instructed? b) If there was an error, was it of sufficient significance to warrant setting aside the acquittal and directing a new trial? [32] On the first issue – whether there was an error in the jury charge – a distinction should be noted between the Crown’s two submissions. The Crown’s first submission is that, in a case where the defence of honest but mistaken belief in communicated consent is unavailable, the jury should not be told that the Crown has the burden of proving the knowledge element. Rather, “the jury should be instructed that guilt is established if they are satisfied beyond a reasonable doubt that the accused intentionally touched the complainant in circumstances of a sexual nature, without her consent.” If the first submission fails, the second submission is about what else the jury must be told after it is told the Crown has the burden of proving the knowledge element. [33] In other words, the first submission locates the error in the portion of the charge that describes the Crown as having the burden of proving the knowledge element in a case where there is no air of reality to a defence of honest but mistaken belief in communicated consent. It posits that it is legally wrong to describe the Crown as having that burden in such a case. The second submission locates the error in the portion of the charge that follows; that is, in the portion that tells the jury how they should approach and what they should consider when determining whether the knowledge element is satisfied. ANALYSIS (1) The Trial Judge Did Not Err in Instructing the Jury That the Crown Was Required to Prove the Knowledge Element Because That Is a Correct Legal Description of the Crown’s Burden (a) Elements of an Offence and Jury Charges [34] A charge to a jury is aimed at ensuring that “the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues”: R. v. Cooper , [1993] 1 S.C.R. 146, at p. 163 ; R. v. Daley , 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 32. As a result, the legal components of the offence properly inform what is in the charge. [35] However, jury charges are meant to give jurors a functional understanding of what is required to adjudicate the actual issues in the specific case: R. v. Rodgerson , 2015 SCC 38, [2015] 2 S.C.R. 760, at paras. 50-52; R. v. Doucette , 2015 ONCA 583, 337 O.A.C. 109, at para. 24. It follows that a jury charge need not include reference to elements of an offence that are not in issue: R. v. MRS , 2020 ONCA 667, 396 C.C.C. (3d) 172, at para. 109. As was explained in David Watt, Watt’s Manual of Criminal Jury Instructions , 2nd ed. (Toronto: Carswell, 2015) at Author’s Note, p. xlix: Instructions on subjects that are not in issue should be avoided. To go where instruction is not required deflects the attention of the jury from the real issues, blurs the focus of the trial and risks jury confusion. The judge’s role is to decant and simplify, as much with reference to legal principles as to a review of the salient features of the evidence. Jury charges are not lectures to law students. Every chapter and every verse of an instruction may not be necessary because some elements or aspects of it are not in issue. The purpose of jury instructions is to inform the decision-maker to make an informed decision in the case they are trying. Nothing more. And nothing less. (b) The Legal Components of the Offence of Sexual Assault [36] In the case of a charge of sexual assault under s. 271 of the Criminal Code , R.S.C. 1985, c. C-46, the Crown must prove beyond a reasonable doubt that the accused committed the actus reus of the offence and had the necessary mens rea : Barton , at para. 87. [37] The Supreme Court of Canada has consistently formulated the mens rea of the offence as including the knowledge element – the requirement that the accused knew of, was wilfully blind to or was reckless about, the absence of the complainant’s consent to the sexual activity. The accused must have intentionally touched the complainant “knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”: Barton , at para. 87; R. v. J.A. , 2011 SCC 28, [2011] 2 S.C.R. 440, at para. 24; and R. v. Handy , 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 118. [38] The Crown’s burden to prove the contents of the actus reus and the mens rea of sexual assault, including the knowledge element, were most recently described by Karakatsanis J. in R. v. G.F. , 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 25 as follows: The actus reus of sexual assault requires the Crown to establish three things: (i) touching; (ii) of an objectively sexual nature; (iii) to which the complainant did not consent ... At the mens rea stage, the Crown must show that (i) the accused intentionally touched the complainant; and (ii) the accused knew that the complainant was not consenting, or was reckless or wilfully blind as to the absence of consent . [Citations omitted, emphasis added]. [39] Because these are the legal components of the offence of sexual assault, on which the Crown bears the burden, a jury would ordinarily be told this to “understand the issues involved [and] the law relating to the charge the accused is facing”: Cooper , at p. 163. These components, including the requirement that the Crown prove the knowledge element, are accordingly reflected in the two model jury instructions commonly used in Canada: Watt’s Manual of Criminal Jury Instructions , at Final 271, and the Canadian Judicial Council , “Model Jury Instruc­tions – Offence 271: Sexual Assault” (May 2019), online: National Judicial Institute <www.nji-inm.ca/index.cfm/publications/model-jury-instructions/offences/sexual-offences/offence-271-sexual-assault/>. Both model instructions start from the implicit premise that the knowledge element is part of the Crown’s burden in all cases. The Watt model varies the instruction on the knowledge element component when the defence of honest but mistaken belief in communicated consent has an air of reality to it; the CJC model instruction adds an additional instruction on the defence of honest but mistaken belief in communicated consent when there is an air of reality to the defence. Neither contemplates deleting the knowledge element component as part of the instruction if there was no air of reality to the defence. [40] However, the Crown’s first submission is that the Crown’s burden to prove the knowledge element in a charge of sexual assault is inapplicable if the defence of honest but mistaken belief in communicated consent is not available to the accused. On this argument, the knowledge element is simply not in issue whenever the defence is not available, and it is an error for the jury to be instructed that the Crown has a burden to prove it. [41] I begin the analysis of that submission with a review of the nature of the inquiry into knowledge of lack of consent at the mens rea stage of the analysis and the nature of the defence of honest but mistaken belief in communicated consent . I then turn to the Crown’s submission about the effect of the overlap between the two. (c) Mens Rea and Consent [42] Central to both the actus reus and the mens rea for sexual assault is the issue of consent, “the foundational principle upon which Canada’s sexual assault laws are based”: G.F. , at para. 1. [43] The Code defines consent for the purpose of sexual assault. Under s. 273.1(1) of the Code , consent means “the voluntary agreement of the complainant to engage in the sexual activity in question.” It means the conscious agreement of the complainant to “every sexual act in a particular encounter”: J.A. , at para. 31. Section 273.1(2) of the Code contains a non-exhaustive list of circumstances in which consent is not obtained, while s. 273.1(3) “authorizes the courts to identify additional cases in which no consent is obtained, in a manner consistent with the policies underlying the provisions of the Criminal Code ”: J.A. , at para. 29. [44] Consent, so defined, is analyzed from a different perspective at the mens rea stage than it is for the purpose of determining whether the actus reus was committed: Barton, at para. 89. [45] At the actus reus stage of the analysis, the absence of consent is determined solely by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: R. v. Ewanchuk , [1999] 1 S.C.R. 330, at para. 26; G.F. , at para. 25. The question is solely whether the complainant, in her mind, wanted sexual touching to take place. Whether or not the accused thought or perceived that the complainant was consenting is irrelevant to whether the actus reus occurred: Barton , at para. 89. [46] The mens rea stage of the analysis is typically reached after the trier of fact has concluded that the actus reus has been committed. In the sexual assault context, this means that the trier of fact has concluded that touching of a sexual nature occurred, and that the complainant did not actually, subjectively, consent within the meaning of the Code to that sexual touching. The focus then shifts to the accused’s mental state, the question being whether the accused knew of, or was wilfully blind or reckless as to, that lack of consent: Barton , at para. 87. (d) The Defence of Honest but Mistaken Belief in Communicated Consent [47] “[T]he common law recognizes a defence of mistake of fact which removes culpability for those who honestly but mistakenly believed that they had consent to touch the complainant”: Ewanchuk , at para. 42. The defence is a “negation of guilty intention”, rather than an affirmative defence – it is a “denial of mens rea ”: Ewanchuk , at paras. 43-44. [48] The defence requires that the accused had “an honest but mistaken belief that the complainant actually communicated consent, whether by words or conduct”: Barton , at para. 91 (emphasis in original). From a practical standpoint, the principal relevant considerations are the complainant’s behaviour which is said to have involved communication and the “admissible and relevant evidence explaining how the accused perceived that behaviour to communicate consent”: R. v. Park , [1995] 2 S.C.R. 836, at para. 44 (emphasis in original); Barton , at para. 91. [49] The defence is limited both by the common law and by provisions of the Code that tightly restrict “the range of mistaken beliefs an accused may lawfully hold about the complainant’s consent”: G.F. , at para. 1; J.A. , at para. 24. As a result, “[n]ot all beliefs upon which an accused might rely will exculpate him”: Ewanchuk , at para. 50. [50] For example, mistakes as to what amounts in law to consent – for example, a mistaken belief that “no”, or silence, or lack of resistance, meant “yes” – do not engage the defence: Barton , at paras. 98-100. [51] Moreover, s. 273.2 of the Code imposes additional restrictions on the applicability of the defence. It provides that a belief in consent that arose in certain ways will be unavailing. It imposes a precondition of reasonable steps to ascertain consent – “no reasonable steps, no defence”: Barton , at para. 104. And it requires evidence of words or conduct by which the complainant expressed consent. Section 273.2 provides: It is not a defence to a charge under section 271, 272 or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused’s belief arose from (i) the accused’s self-induced intoxication, (ii) the accused’s recklessness or wilful blindness, or (iii) any circumstance referred to in subsection 265(3) or 273.1(2) or (3) in which no consent is obtained; (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting; or (c) there is no evidence that the complainant’s voluntary agreement to the activity was affirmatively expressed by words or actively expressed by conduct. [52] An accused who wishes to rely on the defence of honest but mistaken belief in communicated consent must first demonstrate that there is an air of reality to it. If there is no air of reality to the defence, it is not left with the jury. If there is, the onus is on the Crown to negative the defence. If the Crown fails to do so, the accused is entitled to an acquittal. The Crown might disprove the defence by, for example, proving beyond a reasonable doubt that the accused did not take reasonable steps to determine whether the complainant was consenting or that the accused’s mistaken belief was not honestly held: Barton , at paras. 121-23. (e) The Effect of the Overlap Between the Mens Rea Requirement and the Defence [53] The Crown’s first submission that, in a case where the defence of honest but mistaken belief in communicated consent is unavailable, the Crown’s burden to prove the knowledge element of the mens rea requirement is inapplicable, is grounded in the significant overlap between the two. As the Crown puts it at various points in their factum, “ [m]ens rea with respect to non-consent becomes a contentious issue only when there is an air of reality to mistaken belief”; “there is symmetry between knowledge of non-consent and mistaken belief in consent”; “[t]he only non-culpable mental state for sexual assault is honest mistaken belief in communicated consent”; “[w]hen the defence is unavailable, it follows that the accused knew or was wilfully blind or reckless to the absence of consent”; “[k]nowledge of non-consent, a component of the mens rea for sexual assault, is established when the defence of mistaken belief in consent is unavailable”; and “knowledge of non-consent is a non-issue without mistaken belief.” [54] The Crown’s first submission may be perceived as representing the state of the law prior to Morrison . As Professor Hamish Stewart noted in “Fault and ‘Reasonable Steps’: The Troubling Implications of Morrison and Barton ” (2019) 24 Can. Crim. L. Rev. 379, at p. 381: The case law and commentary before Morrison strongly suggest that a “reasonable steps” requirement, as it applies to an offence that otherwise requires proof of knowledge of an inculpatory fact, creates an alternative route by which the Crown can prove the fault element of the offence. Instead of proving that the accused knew the inculpatory fact, the Crown could prove fault by proving that the accused failed to take reasonable steps, in the circumstances known to him at the time, to ascertain the exculpatory fact. [55] The view found support, for example, in a passage in R. v. George , 2017 SCC 38, [2017] 1 S.C.R. 1021. In that case, speaking of the offence of sexual interference contrary to s. 151 of the Criminal Code , which is subject to a statutory “mistaken belief in age” provision in s. 150.1(4), Gascon J. said, at para. 8: [T]o convict an accused person who demonstrates an “air of reality” to the mistake of age defence, the Crown must prove, beyond a reasonable doubt, either that the accused person (1) did not honestly believe the complainant was at least 16 (the subjective element); or (2) did not take “all reasonable steps” to ascertain the complainant’s age (the objective element). [Citations omitted.] [56] Moreover, the Crown argues that the view is supported by sexual assault cases where there was no air of reality to a defence of honest but mistaken belief in communicated consent, and convictions were upheld even though the jury was instructed to consider only whether the accused had engaged in intentional touching of a sexual nature without the complainant’s consent: see, e.g., R. v. Robertson , [1987] 1 S.C.R. 918. [57] On the latter point, I note that it does not necessarily follow that because a jury could be properly instructed in a particular case without reference to the knowledge element, it is always an error to instruct the jury by making reference to the knowledge element. Jury charges are reviewed functionally. There can be more than one adequate way to instruct a jury. And the reasons in Robertson make it clear that the issue the court decided was whether the defence of honest but mistaken belief in communicated consent was to be left with the jury, as Wilson J. defined the issue to be: “Should the trial judge, in every sexual assault case, instruct the jury to consider whether the accused had an honest, though mistaken, belief in consent?”: Robertson , at p. 929. She concluded that the trial judge did not err in instructing the jury without reference to the defence of honest but mistaken belief in consent as there was no air of reality to the defence: Robertson , at p. 940. [58] However, I need not resolve whether, prior to Morrison , a finding that the knowledge element was satisfied followed automatically, as a matter of law, from the failure of the accused to take reasonable steps to determine whether a complainant was communicating consent, or from the presence of another legal impediment to the defence. I am persuaded that in light of Morrison and developments since, it is not the law now. [59] I reach this conclusion for three closely related reasons. First, Morrison affirmed as a bedrock principle of criminal law, grounded in the presumption of innocence, that the negation of a defence and the establishment of the Crown’s case have a well-accepted theoretical and legal difference. This difference is to be respected even in cases where there is little practical difference between the negation of a defence and the affirmative establishment of the Crown’s burden. Morrison expressly counselled against reading the passage from George referred to above in a way that would sweep away that bedrock principle. Second, the knowledge element is part of the mens rea requirement formulated by the Supreme Court, including in cases that post-date Morrison . It is thus an essential legal element of the offence and one on which the Crown bears the burden. That legal formulation is not expressed in terms that support the conclusion that the knowledge element is an essential element of the offence only if the defence of honest but mistaken belief in communicated consent is in play. Third, the symmetry between the knowledge element and the defence that the Crown asserts, although extensive, is not complete, since, as the Crown concedes, it is possible to envisage situations when knowledge of non-consent is an issue that do not involve belief in consent. (i) Morrison Holds That Negativing a Defence Is Not the Same as Proving the Crown’s Case [60] Morrison established that the Crown negativing a defence is not legally synonymous with the Crown discharging its positive burden to prove its case: at para. 129; see also Carbone , at paras. 120-21. That legal burden remains, even if the displacement of a defence (or its unavailability) makes conviction a “virtual certainty” and if, for practical purposes in most cases, there is little distance between negativing a defence (or its unavailability) and proving the requisite mens rea : Morrison , at para. 88; Carbone , at para. 121. This proposition is fundamentally irreconcilable with the Crown’s first submission. [61] At issue in Morrison were the child luring provisions under s. 172.1 of the Code . Section 172.1(1)(b) prohibits certain specified internet communications with a person whom the accused believes is under the age of 16. Section 172.1(4) provides a defence to child luring if the accused believed that the person was 16 or over. However, this defence is not available unless the accused took reasonable steps to ascertain the age of the complainant. [62] The majority of the Supreme Court in Morrison concluded that the failure by the accused to satisfy the reasonable steps requirement does not provide a second pathway to conviction; it merely limits a defence: at paras. 80, 82, 84 and 126. In other words, while the reasonable steps requirement imposes an evidentiary burden on the accused, the Crown still bears the ultimate persuasive burden: Morrison , at paras. 84, 116 and 121. As a matter of law, an accused cannot be convicted simply for failing to establish a defence. The Crown must negate any defence that is raised and also show that all of the essential elements of the offence were proved: Morrison , at para. 90. Whether the accused is convicted or acquitted depends not on whether the accused has made out their defence, but on whether the Crown has proved all of the essential elements of the offence, including the applicable mens rea : Morrison, at paras. 116, 126. If the Crown proves that reasonable steps were not taken, the trier of fact cannot consider the defence that the accused believed the person was of legal age. But that does not relieve the Crown from its burden to prove, beyond a reasonable doubt, that the accused believed the person was not of age: Morrison , at paras. 83, 124. [63] In Carbone , at paras. 92 and 116-20, Doherty J.A. concluded for this court that even though in speaking for the Morrison majority, Moldaver J. was careful to restrict his reasons to the crime of internet luring relating to a person the accused “believed” to be under 16, the comments he made compel the same conclusion with respect to the offence of invitation to sexual touching contrary to s. 152 of the Criminal Code . Based on those comments, Doherty J.A. held that even where an accused is not entitled to a mistaken belief in age defence, the Crown is still required to prove that the accused believed the complainant was underaged. [64] Specifically, Doherty J.A. noted that although Moldaver J. stopped short of overruling George , he disapproved of the statement in it relating to mens rea , quoted above in para. 55, that where there is an air of reality to the mistake of age defence, the Crown must prove either the subjective knowledge element of the offence or an absence of reasonable steps: Carbone , at para. 117. Moldaver J. commented that “the passage in question ought not to be interpreted in a way that would sweep aside a bedrock principle of our criminal law” namely the obligation of the Crown not only to negate a defence, but to “show, on the evidence as a whole, that all of the essential elements of the offence in question have been proved beyond a reasonable doubt”: Morrison , at paras. 90-91. It bears noting that the “bedrock principle” that the Crown must prove the elements of an offence is a constitutionally-protected component of the presumption of innocence: R. v.  Oakes , [1986] 1 S.C.R. 103, at pp. 120-21; Morrison , at para. 85. [65] In a child luring case, if the Crown proves that reasonable steps were not taken, the trier of fact cannot consider the defence that the accused believed the person was of legal age. But that does not relieve the Crown of its burden to prove, beyond a reasonable doubt, that the accused believed the person was not of age: Morrison , at paras. 83, 124. Even where the defence is unavailable, the evidence as a whole may still leave gaps in the Crown’s case that could give rise to a reasonable doubt as to whether the Crown has discharged their evidentiary burden with respect to mens rea : Morrison , at para. 121. [66] This court’s decision in Carbone made clear that the positive duty on the Crown to prove each element of the offence beyond a reasonable doubt extends beyond the offence of child luring. The court set out the following steps that a trier of fact should follow when considering the offence of invitation to sexual touching, contrary to s. 152 of the Code . First, the trier must determine whether there is an air of reality to the defence established in s. 150.1(4) (belief that the complainant was 16 or older, a defence which is only available if the accused took all reasonable steps to ascertain age). If there is no air of reality to the defence, any claim that the accused believed the complainant was at least 16 must be “removed from the evidentiary mix.” The trier of fact must then still proceed to consider whether the Crown has proved that the accused had the mens rea relevant to the offence. The Crown cannot prove the requisite mens rea by disproving a mistake of age defence, but must prove the accused had the requisite state of mind: Carbone , at paras. 128-29. [67] There is no principled basis on which this court could take a different approach to the offence of sexual assault, because the bedrock principle that to secure a conviction the Crown must affirmatively prove the elements of the offence, is equally applicable to that offence. The Crown’s first submission that it is an error for a trial judge to instruct a jury that the Crown must prove the knowledge element in a case where the defence of honest but mistaken belief in communicated consent is unavailable to the accused is irreconcilable with the affirmation in Morrison of the role and importance of this bedrock principle. The analysis flowing from Morrison prevents the conclusion that the absence of the defence of honest but mistaken belief in communicated consent legally removes the burden of the Crown to prove mens rea , including the knowledge element in a sexual assault case: R. v. MacIntyre , 2019 CMAC 3, leave to appeal refused, [2019] S.C.C.A. No. 346, at paras. 51-54; see also Hamish C. Stewart, Sexual Offences in Canadian Law (Toronto: Carswell, 2021), at 3:23. (ii) The Supreme Court’s Formulation of the Mens Rea Requirement [68] In the Supreme Court’s jurisprudence, the extensive overlap between the mens rea requirement and the defence is apparent. Both address the accused’s perception of consent, as it is legally defined for the purposes of sexual assault, against the backdrop of no such consent actually having been given by the complainant. For that reason, “[t]he accused’s perception of consent is examined as part of the mens rea , including the defence of honest but mistaken belief in communicated consent”: G.F. , at para. 25; Barton , at para. 90. Other indicators of this overlap include that the defence is properly understood as a denial of mens rea : Ewanchuk , at para. 44, and that the mens rea requirement is met if the accused was wilfully blind or reckless regarding the absence of consent, just as the defence is unavailable if the accused’s belief in consent arose from the accused’s recklessness or wilful blindness: G.F. , at para. 25; Code , s. 273.2(a)(ii). [69] However, overlap is one thing. Reading a requirement to prove an element of an offence as being legally contingent upon a particular defence being raised is quite another. This is especially so since Morrison and Carbone concluded that the distinction between the negativing of a defence and the Crown’s burden to prove elements of the offence must be respected even where the displacement of a defence (or its unavailability) makes conviction a “virtual certainty” and if, for practical purposes in most cases, there is little distance between negativing a defence (or its unavailability) and proving the requisite mens rea : Morrison , at para. 88; Carbone , at para. 121. [70] Although in Ewanchuk , the knowledge element is expressed in terms that come close to suggesting it is the mirror image of the defence, the decision still makes it clear that the knowledge element is part of the mens rea requirement the Crown must prove. And, significantly, the Supreme Court’s subsequent consistent formulation of the mens rea requirement, including in decisions after Morrison , describes the burden on the Crown to show knowledge, wilful blindness or recklessness as to the absence of the complainant’s consent even in cases that go on to mention the defence. This formulation is inconsistent with the conclusion that the burden to establish the knowledge element of mens rea beyond a reasonable doubt legally disappears if the defence of honest but mistaken belief in communicated consent is not available to the accused. [71] In Ewanchuk , the Supreme Court held that as sexual assault is an offence of general intent, the Crown is only required to prove that the accused intended to touch the complainant in order to meet the basic mens rea requirement. However, Major J. went on to observe that sexual assault is only culpable if the complainant does not consent to the touching, making the defence of honest but mistaken belief in communicated consent relevant. He continued: “As such, the mens rea of sexual assault contains two elements: intention to touch and knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”: Ewanchuk , at para. 42. [72] In cases following Ewanchuk , the Supreme Court has expressed the knowledge element of the mens rea requirement as existing independently of and, in addition to, whether the defence of honest but mistaken belief is at issue, although acknowledging that they cover similar territory. In Barton , for example, Moldaver J. stated that the mens rea was intentionally touching “knowing of, or being reckless of or wilfully blind to, a lack of consent on the part of the person touched”: at para. 87. He went on to say that “[f]or purposes of the mens rea , and specifically for purposes of the defence of honest but mistaken belief in communicated consent … the focus at this stage shifts to the mental state of the accused” and whether they honestly believed the complainant communicated consent: Barton , at para. 90. And in G.F. , Karakatsanis J. described the mens rea in identical terms before going on to say that the “accused’s perception of consent is examined as part of the mens rea , including the defence of honest but mistaken belief in communicated consent”: at para. 25 (emphasis added). [73] The suggestion that the knowledge element of the Crown’s burden is not legally present when the defence of honest but mistaken belief in communicated consent is unavailable was rejected on the basis of these authorities in MacIntyre . I agree with that conclusion. In MacIntyre , the trial judge concluded there was no air of reality to a defence of honest but mistaken belief. He still instructed the panel (the court martial equivalent of a jury) that the Crown was required to prove the knowledge element, but went on to tell them that they should have “no difficulty concluding” that the knowledge element was satisfied if they believed the complainant had not consented. The panel acquitted. The Crown appealed, arguing the court martial judge was wrong to leave the knowledge element to the jury at all. Bennett J.A., speaking for the Court Martial Appeal Court of Canada, said at para. 33: First, in my view, it is currently settled law by the Supreme Court of Canada that knowledge of the absence of consent is an essential element of the offence of sexual assault as it was of the former offence of rape. Thus, the Crown's principal submission in this case — that absent an air of reality in relation to the accused's honest but mistaken belief, the Crown does not have to prove knowledge of absence of consent — must be rejected. Because knowledge of absence of consent is an essential element of the offence, the Crown must prove it beyond reasonable doubt. The Crown's submission that the mens rea of the offence is simply the intentional application of force is contrary to binding authority. (iii) Hypothetically, Knowledge of Non-Consent Could Be an Issue Even if Belief in Consent Is Not [74] As noted above, the Crown’s first submission flows from the assertion of a symmetry between the defence of honest but mistaken belief in communicated consent and the knowledge element of the mens rea requirement — where the former is absent, the latter must, as a legal certainty, always be present. [75] The Crown argues that a portion of the analysis in Carbone , when applied to the offence of sexual assault, shows that the knowledge element is the mirror image of the defence, leading to the conclusion that the absence of the latter must satisfy the former. However, the portion of the analysis in Carbone that the Crown refers to expressly allows for situations where a non-culpable state of mind could exist, even where the reasonable steps defence was unavailable; it therefore does not support the Crown’s first submission. [76] In Carbone , Doherty J.A. identified three possible states of mind an accused person could have relating to the age of a minor sexual offence complainant, where the accused does not affirmatively believe the complainant was over 16. The first category includes those who believed the complainant was under 16, or who were wilfully blind to that fact. All of the offenders in the first category would be guilty because for each of them, the requisite knowledge element would be satisfied. The second category includes those who “may have appreciated the risk that the complainant was under 16 and decided to proceed with the activity”. All of the offenders in the second category would be guilty since this state of mind describes the classic, culpable mens rea of recklessness. The third category includes those who “may never have adverted to the complainant’s age and chose to proceed with the activity.” Offenders in this category who have not adverted to the age of the particular complainant because they have made a subjective decision to treat age as irrelevant and take the risk could be said to have the subjective state of mind of reckless indifference, a form of recklessness, and would therefore be guilty: Carbone , at paras. 122-27. [77] However, and importantly, Doherty J.A. recognized that findings of reckless indifference will tend to apply to most of the people in category three, but there could be circumstances, albeit rare, where that would not be the case. He continued: “While one can imagine circumstances in which the failure to advert to the age of the complainant should not be characterized as a decision to treat the age of the complainant as irrelevant and take the risk, those circumstances will seldom occur in the real world”: Carbone , at para. 131. [78] In opposition to the Crown’s suggestion of symmetry, the respondent raised a number of hypothetical cases in which, he argued, the issue in a sexual assault case would be about whether the knowledge element was present even though honest but mistaken belief in communicated consent would not apply. In MacIntyre , Bennett J.A. postulated a hypothetical to this effect, noting that although an honest but mistaken belief was one way to disprove mens rea in a sexual assault case, it was not the only way. She described a situation in which an accused, through no fault of their own (such as involuntary intoxication) had no belief about the complainant’s consent: at para. 65. [79] The point of the hypotheticals was to show that there could be cases where the knowledge element was not dependant on whether the accused had an honest but mistaken belief in communicated consent. If that is so, it could not be legally accurate to say that the knowledge element of the offence was dependant on the defence being in play. Indeed, accepting the Crown’s first submission would foreclose consideration of this type of issue when it actually arose in a case. [80] It is not necessary to consider the validity of any of the hypotheticals offered, as the Crown fairly conceded in oral argument that it was “theoretically possible” that a scenario could arise in a sexual assault case where the defence of honest but mistaken belief in communicated consent was unavailable, but the subjective mens rea requirement, including the knowledge element, was still a live issue. Crown counsel accepted that in such a case, the trial judge would need to instruct the jury accordingly, by leaving the knowledge element of the mens rea issue with them. [81] In my view, the lack of perfect symmetry, even at a theoretical level, underscores that as a legal matter, the knowledge element is part of the mens rea and thus the Crown’s burden, independently of whether the defence of honest but mistaken belief in communicated consent is available to the accused. (f) Conclusion on Whether the Trial Judge Erred by Leaving the Knowledge Element of Mens Rea With the Jury [82] Accordingly, the trial judge did not err when he told the jury that the sexual assault charge contained four elements that the Crown had to prove beyond a reasonable doubt, including the knowledge element; that is, the requirement that the respondent knew of, was wilfully blind or was reckless as to, the complainant’s lack of consent. He did not err because, contrary to what underlies the Crown’s first submission, what the trial judge told the jury was a legally correct description of the Crown’s burden, even in a case where there was no air of reality to a defence of honest but mistaken belief in communicated consent. The knowledge element was not a non-issue, reference to which could only deflect the jury from considering the real issues in the case: R. v. Murray (1994) , 20 O.R. (3d) 156 (C.A.), at p. 168. (2) The Trial Judge Erred in the Way He Instructed the Jury to Consider the Knowledge Element [83] The fact that it was legally accurate to instruct the jury that the Crown’s burden included the knowledge element does not end the inquiry as to whether the jury charge was adequate. [84] The charge also had to ensure “the jurors would adequately understand the issues involved … and the evidence they should consider in resolving the issues”: Cooper , at p. 163. They had to understand the law to be applied to those issues and the evidence, the positions of the parties, and the evidence relevant to the positions of the parties: R. v. MacKinnon (1999), 43 O.R. (3d) 378 (C.A.), at p. 386; R. v. Jacquard , [1997] 1 S.C.R. 314, at para. 14. The trial judge had to isolate the evidence that was relevant to a particular issue: R. v. Barreira , 2020 ONCA 218, 62 C.R. (7th) 101, at para. 30. [85] While the charge to the jury is not to be scrutinized on a standard of perfection, the parties are entitled to a properly instructed jury, assessed in the context of the charge and trial as a whole: Daley , at para. 31; Jacquard , at paras. 2, 20; R. v. Alvarez , 2021 ONCA 851, at para. 80; and R. v. Jaw , 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 32. [86] In my view, having decided to instruct the jury as to the Crown’s burden on the knowledge element, the trial judge was required to ensure that the jury considered only evidence that was relevant to that issue, in a way that inoculated them from legal error. He had to ensure that any evidence of the respondent’s mistaken belief in consent was removed from the factual mix the jury considered on this issue, so as not to allow an unavailable defence in through the back door. And he had to guide the jury as to how to approach the knowledge element on the basis of the evidence they could properly consider. [87] In my view, the jury instruction did not do this. (a) The Jury Charge Must Protect Against Verdicts Based on Legal Error [88] In this case, it was incumbent on the trial judge to instruct the jury on what evidence they could consider to conclude whether the knowledge element was satisfied, given that evidence of the respondent’s belief in consent was proffered during the trial. [89] One way to illuminate that issue is to consider what a trial judge must say in instructing a jury when a defence of honest but mistaken belief in communicated consent is being left with the jury. In that situation, the trial judge must instruct the jury so that it properly considers evidence of belief in consent. The trial judge must, among other things, instruct the jury in a manner that would “inoculate the jury against mistakes of law masquerading as mistakes of fact”, such as a mistaken belief in “implied consent” arising from a lack of objection or ambiguous conduct, or a belief formed from speculation about what was going on in the complainant’s mind, as opposed to expressly communicative behaviour. The trial judge must instruct the jury on the reasonable steps precondition, and the type of evidence that can and cannot constitute such steps: Barton , at paras. 116-19. [90] Jury instructions in a case where there is no air of reality to the defence of honest but mistaken belief in communicated consent must be equally clear, but in such a case, the clarity required is that evidence of the accused’s mistaken belief in consent is not to be considered at all when the jury determines whether the accused had the necessary mens rea . The provisions of the Code that limit the defence of honest but mistaken belief in communicated consent do not cease to apply to an assertion of a mistaken belief in consent that does not meet the requirements of the defence. The Code is clear. Any belief that does not meet the requirements of s. 273.2 of the Code is not a defence – it is not exculpatory. [91] As this court held in Carbone in the case of invitation to sexual touching, “[i]f the accused fails to take reasonable steps to determine the complainant’s age, he cannot advance the claim that he believed the complainant was the required age”: Carbone , at para. 130; see also, Morrison , at paras. 83, 121 and 124. Any evidence of belief must be “removed from the evidentiary mix” in considering whether the Crown has met its burden: Carbone , at para. 129. Similarly, evidence of an accused’s mistaken belief in the complainant’s consent to sexual touching must also be removed from the evidentiary mix, if it is not within the range of beliefs in consent that “an accused may lawfully hold”: G.F. , at para. 1. [92] If it were otherwise, an accused could sidestep the stringent requirements for a defence of honest but mistaken belief in communicated consent by relying on this same belief, without reference to the restrictions imposed on it, at the mens rea stage. [93] Care must thus be taken, in a case where the defence of honest but mistaken belief in communicated consent is unavailable, not to, for example, point the jury to evidence of belief in consent in their consideration of mens rea and thus allow the defence to re-enter through the back door: MacIntyre , at para. 67. [94] Once the trial judge has ensured that evidence of belief in consent is removed from the evidentiary mix the jury will consider on the knowledge element, it may be necessary to provide the jury with additional guidance on how to approach the knowledge element. [95] Notwithstanding the legal difference between the Crown’s burden to prove elements of the offence and the non-availability of the defence of honest but mistaken belief in communicated consent, in some cases the circumstances that lead to the conclusion that there is no air of reality to the defence are, practically speaking, the same as those that prove the knowledge element. In other words, in those cases, there is little practical difference between what displaces the defence and what satisfies the knowledge element of the mens rea requirement: Carbone , at para. 121. The jury must be instructed in such a way that it is not misled into seeing more of a distinction than properly exists. [96] One way of doing so is by means of a “little difficulty” instruction, as discussed in the Alberta Court of Appeal decision in Barton ( R. v. Barton , 2017 ABCA 216, 354 C.C.C. (3d) 245, rev’d on other grounds, 2019 SCC 33, [2019] 2 S.C.R. 579). Although this aspect of the decision was not addressed on appeal to the Supreme Court, it is nevertheless instructive. At footnote 105, the Court of Appeal said: Where mistaken belief is not a live issue, this raises the question whether a trial judge should instruct the jury (providing it is satisfied that all the required actus reus elements were met and the judge has properly outlined these) that: ‘If you are satisfied that the Crown has proven beyond a reasonable doubt that the complainant did not consent to that sexual activity, you should have little difficulty in concluding that the accused knew or was wilfully blind to the fact that the complainant was not consenting to the sexual activity in question or was reckless and chose to take the risk.’ Should more be required, then the jury instructions should identify what it is that the Crown must then prove to bring home to the accused culpability based on actual knowledge or its equivalent, wilful blindness or recklessness. [97] In MacIntyre , the court picked up this suggestion. Bennett J.A. said, at para. 64: In consent-or-no-consent cases (including this case, as discussed below), if the trier of fact accepts the complainant's evidence that there is no consent, the knowledge element is easily proven. This supports the suggestion in footnote 105 of Barton ABCA that in the absence of a mistake of fact defence, juries may be told that if they accept the evidence of a complainant on the issue of consent, they will have little difficulty finding the element of knowledge proved . [Emphasis added.] [98] In sum, to guide the jury on the knowledge element in a case where the defence of honest but mistaken belief in communicated consent is unavailable, the trial judge should proceed as follows: a. The jury should be instructed that, as a matter of law, the accused cannot rely on a defence that the accused mistakenly believed the complainant consented to the sexual activity. Therefore, the jury is to proceed on the factual premise that the accused did not affirmatively believe that the complainant was consenting or communicating consent. b. The jury should be instructed that they should not rely on evidence if it is only relevant in supporting an inference that the accused believed that the complainant was consenting or had communicated consent, and the trial judge should provide guidance in this regard by identifying for the jury the type of evidence it should not consider. c. If there is an air of reality to a defence that the accused did not know of the lack of the complainant’s consent on a basis other than a belief in consent (for example, the type of situation envisaged in the MacIntyre hypothetical), the jury should be directed to the evidence that they should consider on this issue. d. Where there is no air of reality to the defence of honest but mistaken belief in communicated consent, and no air of reality to a defence that the accused did not know of the absence of consent by the complainant on another basis, the trial judge may tell the jury that it should not be difficult for them to find that the accused knew that the complainant was not consenting, or was reckless or wilfully blind to the absence of consent. (b) The Instructions in This Case [99] In this case, the jury was instructed that they should consider all the evidence – the entire interaction – on the question of whether the knowledge element was proven, including evidence that the trial judge had previously summarized. They were told it was all relevant to the issue of whether the knowledge element was satisfied. This included references to the respondent’s evidence that he interpreted the complainant looking and smiling at him, and standing and turning around, as her invitation to him to engage in vaginal intercourse with her, causing him to have no doubt that this was what she wanted, and to infer that she was consenting. [100] This was evidence of the respondent’s belief in consent. It was also evidence of a mistaken belief, if the jury was addressing the elements in the order the trial judge had instructed. To be considering the knowledge element, they would have already concluded beyond a reasonable doubt that the third element was satisfied; that is, that the complainant had not actually consented. [101] The jury was not told that the evidence of belief was not exculpatory or a defence, or that it must be removed from the evidentiary mix. Rather, the jury was pointed to it and told it could be considered. [102] The effect of the trial judge’s charge was to leave evidence of mistaken belief in consent with the jury and invite them to consider it on the issue of the respondent’s “state of mind in relation to the sexual activity … [whether he] was aware that [the complainant] did not consent to the sexual activity in question when he touched her.” [103] The trial judge did not instruct the jury that there were any limits on when a belief in consent can be lawfully held and when it can have exculpatory effect. Therefore, even viewing the charge as a whole, there is no basis to conclude the jury would have understood those limits from the instructions they were given. While the trial judge did instruct the jury on consent at the actus reus stage, by cautioning them about stereotypes and myths regarding sexual assault, this was not sufficient to make clear that beliefs of the respondent about consent, at the mens rea stage, could not properly be considered exculpatory. As noted above, the Code tightly restricts “the range of mistaken beliefs an accused may lawfully hold about the complainant’s consent” and “[n]ot all beliefs upon which an accused might rely will exculpate him”: G.F. , at para. 1; Ewanchuk , at para. 50; Code , s. 273.2(a)-(c). The jury was not told in the initial charge that there were any restrictions on the exculpatory nature of mistaken beliefs, depending on what the belief was and how it arose. In effect, they were invited to consider evidence of a mistaken belief in consent which the parties agreed would not have exculpatory effect because there was no air of reality to the defence of honest but mistaken belief in communicated consent that could be based on that evidence. [104] The jury’s question, about the effect of intoxication, underscores the concern. The fact that the question was asked shows that the limits on when a belief in consent may be exculpatory had not been communicated. Although the intoxication question was answered, the more general concern of what the jury might have considered it could do with evidence of the respondent’s belief in consent remained unresolved. [105] Given that there was no air of reality to the defence of honest but mistaken belief in communicated consent, the trial judge had to give an instruction that did not risk the jury considering evidence of belief in consent. As the court pointed out in MacIntyre , it is an error to repackage the defence of honest but mistaken belief in communicated consent as an element of the offence by, for example, pointing the jury to evidence of the accused’s belief in consent on the question of whether the mens rea has been established. To do so introduces the defence improperly through the back door: MacIntyre , at para. 67. This error did not occur in MacIntyre , because the trial judge did not point the panel to evidence of belief in consent, but instead told them they should have no trouble finding the knowledge requirement satisfied (if they found there was actually no consent, the main issue in the case). But the error identified in MacIntyre is exactly what occurred here. [106] Moreover, the trial judge did not provide the jury with guidance as to how to proceed with the evidence they could properly consider. He did not, for example, give an instruction that, based on the evidence they could consider, they should have “little difficulty” in finding the knowledge element satisfied. Nor did he identify what more the Crown had to prove to satisfy the knowledge element. [107] The instructions directed the jury to evidence of belief in consent, improperly introducing a defence that was not to be left with the jury. The jury instruction did not inoculate the jury against giving effect to legally ineffective beliefs. Nor did it guide the jury on what it could do with the evidence that it could properly consider. In my view, the charge was legally flawed. (3) The Legal Errors in the Jury Charge Require a New Trial [108] Where an error in a jury charge might reasonably, in the concrete reality of the case, have had a material bearing on an acquittal, such that the verdict would not necessarily have been the same as if the jury was properly instructed, a new trial should be directed: R. v. Graveline , 2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-16. [109] The error in the jury charge, in these circumstances, meets that test. The trial judge failed to limit the jury’s consideration of mistaken beliefs that would not actually negate the respondent’s mens rea or otherwise guide them on the evidence they could properly consider on the knowledge element. This error in the jury charge may reasonably have had a material bearing on the jury’s ultimate decision to acquit. The jury’s question suggests that they had reached the knowledge element in their deliberations, and the errors were central to a proper consideration of that issue. CONCLUSION [110] I would allow the appeal, set aside the acquittal, and direct a new trial. Released: January 13, 2022 “C.W.H.” “B. Zarnett J.A.” “I agree. C.W. Hourigan J.A.” “I agree. David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Drungas v. Hamilton (City), 2022 ONCA 16 DATE: 20220114 DOCKET: C68895 Doherty, Tulloch and Thorburn JJ.A. BETWEEN Hristos Drungas Plaintiff (Appellant) and The Corporation of the City of Hamilton Defendant (Respondent) Hristos Drungas, appearing in person Stefan Juzkiw, for the appellant Daniell F. Bartley, for the respondent Heard: January 7, 2022 by video conference On appeal from the order of Justice L. Sheard of the Superior Court of Justice, dated August 16, 2019, striking the appellant’s statement of claim. REASONS FOR DECISION [1] The respondent, the City of Hamilton, moved for an order striking the appellant’s statement of claim and, alternatively, for an order dismissing the appellant’s action. The motion judge was satisfied the appellant’s action could not go forward for several reasons, any one of which would have justified the order made. [2] The motion judge’s reasons demonstrate that she carefully considered the various arguments advanced by the parties before her. We agree with her analysis and her conclusions that the statement of claim should be struck and, alternatively, that if the appellant’s claim survived, the action should be dismissed. [3] In particular, and in response to the thrust of the argument on appeal, we agree with the motion judge that the facts as pleaded do not establish a breach of the Accessibility for Ontarians with Disabilities Act, 2005 , S.O. 2005, c.11 . Nor does the claim provide any basis to find that a breach of the Act could give rise to a civil cause of action against the City by the appellant. [4] The reasonable apprehension of bias argument is without merit. It was not pursued by Mr. Juzkiw in oral argument. [5] The appellant has appealed the costs ordered on the motion. Although the appellant is required to obtain leave to appeal costs, we have considered his submissions with respect to costs on the merits. The appellant did not have the assistance of counsel when he filed his material on appeal. [6] The costs order made by the motion judge, which addresses the costs of the action, was reasonable and we see no reason to interfere with it. [7] The respondent is entitled to costs on the appeal. In all the circumstances, we are satisfied that the respondent should have costs in the amount of $3,000, inclusive of disbursements and all relevant taxes. “Doherty J.A.” “M. Tulloch J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Camsal Inc. v. Penner International Inc., 2022 ONCA 20 DATE: 20220113 DOCKET: C69252 Huscroft, Trotter and Coroza JJ.A. BETWEEN Camsal Inc. Applicant (Respondent) and Penner International Inc. Respondent (Appellant) Michael McWilliams and Tamara Watson, for the appellant Jordan Diacur and Michael Bordin, for the respondent Michael Beeforth, for the interveners 213748 Ontario Inc. o/a Peace Transportation, 2232665 Ontario Inc. o/a D’Alliance Motors and Roadish Transport Inc. Heard: January 11, 2022 by video conference On appeal from the order of Justice Antonio Skarica of the Superior Court of Justice, dated February 24, 2021. REASONS FOR DECISION [1] The appellant argues that the application judge erred in finding that the respondent was free to sell the property in question to a third party despite the right of first refusal the appellant had pursuant to the terms of its lease of that property. The appellant argues, further, that the application judge erred by implying a term into the right of first refusal limiting it to a single use. [2] We disagree. [3] We see no extricable error in the application judge’s analysis. Thus, in the absence of a palpable and overriding error, his interpretation of the lease is entitled to deference: Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633. The appellant has failed to establish any such error. [4] By its terms, the right of first refusal permitted the appellant to submit an offer to purchase the property upon the same terms and conditions as any offer received by the respondent. The application judge found that the respondent duly informed the appellant of the offer it had received from the interveners. The appellant then submitted an offer to purchase on identical terms, including a buyer’s financing condition, which gave the appellant 30 days to obtain suitable financing. Twenty-nine days later, the appellant sought a two-month extension of the buyer’s condition. The respondent refused. The appellant then advised the respondent that it would not be waiving the condition and requested the return of its deposit. Consequently, the agreement of purchase and sale expired in accordance with its terms. [5] The application judge applied the proper interpretive principles and read the contract as a whole. The application judge did not imply any terms into the right of first refusal. He interpreted the right of first refusal as being exercisable only once. This interpretation is commercially reasonable and there is no basis for this court to interfere with it. Whether the appellant had notice of the subsequent unconditional agreement of purchase and sale entered into by the respondent is irrelevant, as the right of first refusal was already spent. [6] The appeal is dismissed. The respondent is entitled to costs in the agreed amount of $16,000, all inclusive. No costs order is made concerning the interveners. “Grant Huscroft J.A.” “Gary Trotter J.A.” “S. Coroza J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. U.K., 2022 ONCA 21 DATE: 20220112 DOCKET: M53093 (C68076) Lauwers J.A. (Motion Judge) BETWEEN Her Majesty the Queen Respondent (Responding Party) and U.K. Appellant (Applicant) Mark C. Halfyard, for the applicant Amy Alyea, for the responding party Heard: January 11, 2022 by video conference REASONS FOR DECISION [1] On November 6, 2019, a jury found the applicant guilty of sexual assault. The trial judge sentenced him to two years less a day incarceration, followed by two years of probation, together with ancillary orders. The trial judge recommended that he be allowed to serve his sentence at the Ontario Correctional Institute in Brampton. [2] Under the release order of Miller J.A., dated December 16, 2021, the applicant was released on bail pending appeal. His sister is his surety in the amount of $60,000, without deposit. He has been on bail without material variations since then. [3] Among the applicant’s bail conditions are that he must remain in the Province of Ontario, reside at a certain location, and surrender his passports and “not apply for any travel documents.” [4] While he was on bail before trial, the applicant was allowed to leave Canada twice, once to travel to Norway for three weeks for a wedding, and another time to travel to Pakistan for a month to attend another family wedding. He was also permitted to go to Montreal for a week for employment purposes. He returned to Ontario without incident. [5] After he was convicted but before he was sentenced, the applicant requested permission to travel to Pakistan to visit his family. The application judge, Stribopoulos J., refused this request, even though the Crown had consented. [6] Although the application judge acknowledged that the applicant had been permitted to travel before his conviction, he noted that “the circumstances have now changed. [The applicant] no longer benefits from the presumption of innocence. He has been found guilty of a very serious criminal offence and faces a lengthy period of imprisonment.” In the application judge’s view, at that point a penitentiary term seemed “rather likely.” As Justice MacPherson observed in R. v. Patterson , [2000] O.J. 3189 (C.A.), at para. 11: Before trial, an accused person might reject flight because of the role optimism and hope play in the decision-making process. However, once convictions are entered, for [the accused] … the reality of lengthy incarceration must be a bitter pill to swallow. When optimism and hope recede, thoughts of flight might well advance. [7] The application judge added the following: “In my view, despite his lack of any prior criminal record, the fact that [the applicant] has been found guilty and faces a lengthy sentence of imprisonment changes the calculus. For someone in his circumstances, $10,000 may seem like a very small price to pay to avoid a lengthy period of imprisonment.” [8] The application judge acknowledged that there were many ties between the applicant and Canada, but found that the details about his Canadian situation and circumstances in Pakistan were sparse. For these reasons, he refused to vary bail to allow the applicant to travel to Pakistan. [9] The applicant again requests a variation, but on a different basis. He asks to be permitted to go to Pakistan to resell a container load of automotive parts that he has shipped there, which is scheduled to arrive on January 15, 2022. He wishes to retrieve the shipped automotive parts and then to sell them in order to supplement his income as an automobile mechanic, which has declined significantly as a result of COVID-19. His affidavit states: “I am requesting a variation to my current bail order to allow me to travel to Pakistan for approximately a one-month period, between January 12, 2022 to February 12, 2022, and to changes to my residency clause during that period, and to permit me to retrieve my passport from the officer-in-charge”. He agrees to provide a detailed itinerary to the officer-in-charge in advance of the trip. He adds that his surety is aware of the request and has agreed to continue to act even though her $60,000 bail would be at risk. [10] The applicant argues that the shortcomings in his previous bail variation application have now been remedied. [11] The Crown argues that the application judge’s reasons continue to have weight and that this court should refuse the bail variation. [12] It is common ground that the two main issues are whether the applicant would return without incident after the trip to Pakistan, and whether the public interest balance favours the variation. [13] The first issue addresses the concern that the applicant might be a flight risk. The Crown acknowledges that the applicant has close ties to Canada. However, the applicant has dual citizenship in Canada and in Pakistan. Although he has strong Canadian connections, he also has significant connections in Pakistan. The inference the Crown invites is that the applicant could easily just stay in Pakistan. She points out that there is no extradition treaty between Canada and Pakistan and if the applicant refuses to return, nothing can be done. [14] The Crown notes that the value of the shipment of automobile parts is $90,000. According to the applicant, these parts will typically sell for a 50 percent profit in Pakistan. In light of those numbers, the current bail amount of $60,000 does not look like much of a flight disincentive, even though it is a much larger amount than the $10,000 proffered at the previous post-conviction bail variation hearing. The Crown agrees that her flight concerns would be mitigated to some extent by an increase in the amount of the bail. Finally, she notes that there is no great necessity for the applicant to go to Pakistan. His brother, who works with him at his shop here could go, and the applicant has relatives in Pakistan who could also assist him. [15] On the public interest issue, the Crown argues that the offence is a serious one and the sentence is also serious. The Crown relies on the decision of Thorburn J.A. in R. v. Sousa , 2020 ONCA 432, in which a bail variation was denied for an applicant convicted of a serious and violent sexual assault. She adds that the merits of the appeal are arguable but not strong. The Crown submits that it is open to this court to reconsider the merits, a proposition with which the applicant agrees. [16] The applicant argues that the calculus presented to this court is quite different than the one before the application judge. Without disputing that this is both a serious charge and a serious offence, he points out that the application judge believed it likely that the eventual sentence would involve penitentiary time. It did not. In fact, it is expected that the applicant will serve no more than eight months in jail, assuming that his appeal is dismissed. It is unlikely that this sentence would create a sufficiently strong incentive for the applicant to abscond and abandon his life in Canada. [17] As for the public interest balance, the applicant points out that Sousa involved a violent sexual assault on a stranger for which the applicant received a ten-year-sentence. Such an assault poses residual public safety concerns, but does not resemble the assault in this case. The applicant has complied with his bail conditions throughout. The applicant agrees that it is open to this court to increase the bail amount to enhance the pressure on the applicant to return to Canada. [18] I do not believe that the applicant poses a serious flight risk, but I am unable to say that there is no such risk. Accordingly, I would increase the amount of the bail to $125,000. I do not believe that the public interest grounds are overwhelming in this case, as they were in Sousa . In particular, I have no residual public safety concerns about the applicant. [19] I would therefore vary the release order as requested, except for the bail amount, which I would increase to $125,000. Order accordingly. “P. Lauwers J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Evans, 2022 ONCA 23 DATE: 20220113 DOCKET: C68816 Miller, Zarnett and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and Deon Evans Appellant Nicolas M. Rouleau and Jeff Carolin, for the appellant Matthew Asma, for the respondent Heard: January 6, 2022 by video conference On appeal from the convictions entered by Justice Tamarin M. Dunnet of the Superior Court of Justice on November 15, 2013. REASONS FOR DECISION [1] The appellant moved to Canada from Guyana when he was 12 years old, and later obtained permanent resident status. [2] In November 2013, the appellant pleaded guilty to two counts of robbery committed in 2011, when he was 18 years old. [3] The appellant was told by his trial counsel that he would receive a lower sentence by pleading guilty than would likely be imposed if he was found guilty after trial, and that trial counsel would request a total sentence of 30 months, which after credit for time served, would result in the appellant spending no further time in custody. And, as he told the appellant he would do upon a guilty plea, the appellant’s trial counsel asked the trial judge to split a total sentence of 30 months between the two counts, as sentences that were less than two years per count would give the appellant a “fighting chance” from an immigration perspective. The trial judge gave effect to this request, and the appellant received sentences of 15 months per count which, after credit for pre-trial custody, amounted to an effective sentence of time served. [4] In actuality, the guilty pleas, convictions and sentences provided no “fighting chance” from an immigration perspective. The convictions rendered the appellant inadmissible to Canada and made him subject to a removal order. As the sentences he received exceeded six months per count, the appellant would have no right to appeal any removal order. [5] Asserting that he pleaded guilty without full awareness of these collateral immigration consequences, and that he suffered prejudice by doing so, the appellant asks that his convictions be set aside, and that proceedings against him be stayed or a new trial directed. [6] At the conclusion of oral argument, we allowed the appeal with reasons to follow. These are those reasons. [7] To set aside the guilty pleas, the appellant must satisfy two criteria: (a) that the pleas were uninformed in the sense that he was misinformed or uninformed about their immigration consequences; and (b) that he suffered subjective prejudice, in the sense that there is a “reasonable possibility that [he] would have either (1) opted for a trial and pleaded not guilty; or (2) pleaded guilty, but with different conditions”: R. v. Wong , 2018 SCC 25, [2018] 1 S.C.R. 696, at paras. 3-6, 33-34 and 36. In order to assess the veracity of the appellant’s claim that he suffered subjective prejudice, the court can look to objective, contemporaneous evidence. “The inquiry is therefore subjective to the accused, but allows for an objective assessment of the credibility of the accused’s subjective claim”: Wong , at paras. 6, 26. [8] In order to meet these criteria, the appellant filed fresh evidence including his own affidavits. The Crown agrees that the fresh evidence should be admitted, and we do so. [9] The Crown also agrees that the appellant has satisfied the first criterion of the test for setting aside the guilty pleas. The appellant was not aware that convictions based on the guilty pleas rendered him inadmissible to Canada, with no right to appeal a removal order based on the convictions. He was led to believe that keeping his sentences for each count to under two years would be of significance to future immigration consequences. In fact, there was no beneficial significance, from an immigration perspective, to any sentence that was over six months; any such sentence meant the appellant would not have any right to appeal a removal order. [10] On the basis of the evidence and the Crown’s concession, we conclude that the first criterion of the test for setting aside the guilty pleas has been satisfied. [11] We also conclude that the appellant has satisfied the second criterion of the test. [12] The appellant’s affidavit evidence is that had he been informed of the relevant immigration consequences, he would not have pleaded guilty and, instead, would have taken all available steps in an effort to stay with his family in Canada, including pleading not guilty, electing to stand trial, and appealing any guilty verdict. [13] The credibility of that assertion is challenged. The Crown argues that the appellant’s trial counsel told the appellant there may be immigration consequences and that he had no expertise in immigration law. As a consequence, the appellant must have been motivated to plead guilty more by the desire to immediately end his time in custody rather than by what might happen to his immigration status. As well, the Crown points to the appellant’s failure to take prompt steps to retain immigration counsel in 2016, after the appellant was notified of the risk of a removal order, and to follow the advice of immigration counsel to retain criminal counsel. [14] We are not persuaded by these arguments. Although trial counsel did qualify his advice and although the appellant was aware that there might be immigration consequences, it is common ground that the appellant was misinformed as to those consequences and led to believe that there would be a benefit — a “fighting chance” — from an immigration perspective to pleading guilty and receiving the sentence he did, when there was no benefit. Nor do we take, from the appellant’s conduct post-2016, which ultimately resulted in the retainer of immigration counsel and of counsel to bring this appeal, that the appellant was unconcerned about being removed from Canada. [15] The credibility of the appellant’s assertion is supported by certain objective matters, including the following: (a) The appellant’s trial counsel had been of the view that the appellant had a strong defence to the charges he was facing, as he had strong grounds to resist the admission of a confession the appellant had made to the police. The trial judge held the confession to be admissible; it was shortly after that occurred that trial counsel engaged in discussions with the Crown that led to the guilty pleas. Trial counsel had told the appellant that he thought there were strong grounds to appeal the ruling that admitted the confession. Accordingly, from the appellant’s perspective, if he had been fully aware of the immigration consequences of a guilty plea, there would be a reason why he might pursue the “upside” of not pleading guilty with the hope that if his counsel was right, he could ultimately avoid any immigration consequences from a conviction and resulting sentence. (b) The parties agree that at the time of the guilty pleas, the appellant had spent 30 months in pre-trial custody, and thus had 45 months of credit for pre-trial custody. The parties also agree that the sentence that he would have received were he convicted after trial would likely have been four to five years, less pre-trial custody. The “downside” to proceeding to trial was the same from an immigration perspective as the guilty pleas, and was limited in terms of additional time that the appellant might have to spend in custody. The appellant may have been willing to proceed to trial and risk the downside of an additional 3 to 15 months in custody if it provided the possible upside of avoiding conviction and thus avoiding any immigration consequences. (c) The appellant’s life, family, and friends were all in Canada. He no longer had any close family or friends in Guyana, to which he would be deported. Accordingly, he had strong reasons to wish to avoid deportation and to follow a course of action that had a prospect of avoiding it. [16] Assessing the credibility of the appellant’s evidence against the objective factors, we are satisfied that there is a reasonable possibility that, if properly informed, he would have followed an alternative course rather than pleading guilty. [17] For these reasons, we allow the appeal, set aside the convictions, and order a new trial. The Crown has advised that if the appeal is allowed, it does not view prosecuting the appellant again to be in the public interest given that: (i) the sentences imposed have been served; (ii) he has not re-offended; and (iii) there are extreme pressures on court resources as a result of the pandemic. Accordingly, in the interests of justice, we exercise our discretion under s. 686(8) of the Criminal Code , R.S.C. 1985, c. C-46 and stay further proceedings against the appellant. “B.W. Miller J.A.” “ B. Zarnett J.A.” “S. Coroza J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 539(1), (2), (3) or (4) of the Criminal Code shall continue. These sections of the Criminal Code provide: 539(1)          Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry (a) may, if application therefor is made by the prosecutor, and (b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (c) he or she is discharged; or (d) if he or she is ordered to stand trial, the trial is ended. (2)     Where an accused is not represented by counsel at a preliminary inquiry, the justice holding the inquiry shall, prior to the commencement of the taking of evidence at the inquiry, inform the accused of his right to make application under subsection (1). (3)     Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction (4)     [Repealed, 2005, c. 32, s. 18(2).] R.S., 1985, c. C-46, s. 539; R.S., 1985, c. 27 (1st Supp.), s.97; 2005, c. 32, s. 18. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Adem, 2022 ONCA 24 DATE: 20220113 DOCKET: C69549 & C69555 van Rensburg, Paciocco, and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and Samir Adem and Salman Ahmed Appellants R. Craig Bottomley and Andrea VanderHeyden, for the appellant Samir Adem Ariel Herscovitch, for the appellant Salman Ahmed Gavin MacDonald, for the respondent Heard: January 10, 2022 by video conference On appeal from the order of Justice Suhail A.Q. Akhtar of the Superior Court of Justice, dated June 3, 2021 granting certiorari setting aside the order of Justice Michael Callaghan of the Ontario Court of Justice, dated November 27, 2020. REASONS FOR DECISION [1] A preliminary inquiry judge committed Samir Adem and Salman Ahmed to trial on charges of second degree murder, contrary to s. 231(7) of the Criminal Code , R.S.C. 1985, c. C-46. The Crown had sought their committal on charges of first degree murder, pursuant to the constructive first degree murder provision in s. 231(5)(e) of the Criminal Code , on the theory that they murdered the victim while committing the offence of unlawful confinement against him, contrary to s. 279 of the Criminal Code . The preliminary inquiry judge declined to commit on first degree murder, concluding that although the evidence established a prima facie case against Mr. Adem and Mr. Ahmed for the offence of murder, he was “unable to find a reasonable inference [that the victim] was forcibly confined”. In coming to this conclusion, he found that there was “an evidentiary gap which leaves the inference unsupportable”. He therefore concluded that the Crown had not led “sufficient evidence upon which a properly instructed jury could reasonably infer that Samir Adem and Salman Ahmed are guilty of the first degree murder of [the victim] by operation of s. 231(5)(e)”. [2] The Crown brought a successful application for judicial review in which the reviewing judge found that the preliminary inquiry judge committed each of the three forms of jurisdictional error identified by Major J. in R. v. Sazant , 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 25, namely, (1) he misunderstood the elements of the offence, (2) he preferred an inference favourable to the accused over an inference favourable to the Crown, and (3) he failed to consider the whole of the evidence. The reviewing judge quashed the preliminary inquiry judge’s order to discharge the first degree murder charge and directed the preliminary inquiry judge to commit Mr. Adem and Mr. Ahmed on that charge. [3] After oral argument, we allowed Mr. Adem and Mr. Ahmed’s appeal from the reviewing judge’s decision, with reasons to follow. These are our reasons for concluding that the reviewing judge erred in finding that the preliminary inquiry judge committed jurisdictional error. In our view, the reviewing judge erroneously substituted his own view of the evidence for that of the preliminary inquiry judge, which he was not entitled to do, after incorrectly identifying jurisdictional errors in the preliminary inquiry judge’s decision. [4] In providing these reasons we will be circumspect in referring to the specific evidence, as it is unnecessary to recount it to explain our decision, and we want to avoid undermining the publication ban that is in force relating to the evidence provided during the preliminary inquiry. Suffice it to say that the Crown identified preliminary inquiry evidence before us that was arguably capable of yielding a reasonable conclusion that the victim was subject to a separate and distinct unlawful confinement at the time he was shot to death. However, even if the preliminary inquiry judge erred in finding that no such evidence existed, this was not a jurisdictional error, but instead, an error committed within his jurisdiction. As Major J. reaffirmed in R. v. DesChamplain , 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 23: [I]t is not a jurisdictional error for the preliminary inquiry judge, after considering the whole of the evidence and where there is an absence of direct evidence on each essential element of the offence, to erroneously conclude that the totality of the evidence (direct and circumstantial) is insufficient to meet the test for committal and to consequently discharge the accused under s. 548(1)(b): see Arcuri , supra , at paras. 21-23; Russell , supra , at para. 26. [5] Although the reviewing judge quoted from this passage from DesChamplain and correctly expressed the limitations of his own jurisdiction to interfere in the preliminary inquiry judge’s decision, as indicated, he went on to err when identifying jurisdictional errors. [6] First, his conclusion that the preliminary inquiry judge misunderstood the elements of the offence of unlawful confinement, thereby failing to evaluate the Crown’s evidence against the correct position in law, cannot stand. In the course of his decision, the preliminary inquiry judge correctly identified the elements of the offence. In finding that the preliminary inquiry judge nonetheless misunderstood those elements, the reviewing judge focused on a passage in which the preliminary inquiry judge listed evidence that was not available on the record. When that passage is read in context it is evident that the preliminary inquiry judge was not misidentifying missing elements of the offence, but instead illustrating the kind of evidence that could have filled the evidentiary gap he found relating to the elements he had correctly identified. [7] Second, the reviewing judge’s conclusion that the preliminary inquiry judge ignored a reasonable inference favourable to the Crown mischaracterizes his decision. The preliminary inquiry judge refused to commit Mr. Adem and Mr. Ahmed to trial on first degree murder based on his conclusion that there was no evidence from which an inference of unlawful confinement could be drawn, not because he preferred a competing inference that favoured the defence. [8] Moreover, the reviewing judge based his finding that the preliminary inquiry judge erroneously preferred an inference favourable to the defence to an inference favourable to the Crown on his own conclusion that there was evidence that supported an inference of unlawful confinement. If such reasoning is correct, a jurisdictional error would occur in any case where the reviewing judge identifies an inference that would enable committal that the preliminary inquiry judge failed to identify. Such an approach would defeat the distinction between jurisdictional errors and those ordinary errors that occur where the preliminary inquiry judge mistakenly concludes that there is insufficient evidence for committal. Put simply, in order to commit jurisdictional error based on drawing inferences in favour of the defence over those in favour of the Crown, a preliminary inquiry judge must engage in weighing competing inferences to determine which inference is more compelling. The preliminary inquiry judge did not do so in this case. [9] Third, the reviewing judge’s conclusion that the preliminary inquiry judge failed to consider the whole of the evidence is predicated on the failure by the preliminary inquiry judge to refer expressly when describing the gap in the evidence to evidence that the reviewing judge believed could fill that gap. However, the preliminary inquiry judge furnished a comprehensive articulation of his duty to consider the whole of the evidence. The preliminary inquiry judge also referred on more than one occasion in the course of his decision to the evidence that the reviewing judge erroneously concluded that he failed to consider. When the whole of the preliminary inquiry judge’s decision is examined, it is evident that he did not mention this evidence when describing the gap in the Crown’s case for committal on the charge of first degree murder because he did not find that this evidence supported an inference of unlawful confinement. If this conclusion by the preliminary inquiry judge was an error, it was the very form of non-jurisdictional error that the reviewing judge had earlier conceded he could not interfere with, namely, a finding that the Crown’s evidence was insufficient. [10] For these reasons, we allowed the appeal, quashed the decision of the review judge, and reinstated the committal for trial on second degree murder of both appellants. “K. van Rensburg J.A.” “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Pickering (Re), 2022 ONCA 26 DATE: 20220118 DOCKET: C69472 Paciocco, Nordheimer and Sossin JJ.A. IN THE MATTER OF:  Sarah Pickering AN APPEAL UNDER PART XX.1 OF THE CODE Jeff Marshman, for the appellant Nicholas Hay, for the respondent, Attorney General of Ontario Gavin S. MacKenzie, for the respondent, Ontario Shores Centre for Mental Health Sciences Heard: January 12, 2022 by video conference On appeal from the disposition of the Ontario Review Board, dated March 4, 2021 with reasons dated March 31, 2021. REASONS FOR DECISION [1] Ms. Pickering appeals from the disposition of the Ontario Review Board that continued the detention order against her. The appellant submits that the Board erred in not awarding an absolute discharge. In the alternative, the appellant submits that the Board erred in not awarding her a conditional discharge. In the further alternative, the appellant asks for a new hearing. For the following reasons, the appeal is dismissed. [2] The appellant has been under the jurisdiction of the Board since February 2020 when she was found not criminally responsible (“NCR”) with respect to offences of assault with a weapon and possession of a weapon dangerous to the public peace. [3] At this most recent review, the Board found that the appellant continues to pose a significant threat to the safety of the public. The appellant challenges that conclusion. However, in our view, there was a sufficient evidentiary basis for it. The evidence establishes that the appellant suffers from a schizophrenic illness which requires medication to control it. Unfortunately, the appellant does not yet fully accept that she has such an illness. This lack of acceptance poses a concern regarding the appellant’s willingness to continue medication for her illness absent supervision. Without that medication, the appellant is likely to decompensate quickly and become a danger to others. We note, on this point, that the appellant is currently unable to consent to treatment on her own. Rather, her aunt operates as her substitute decision maker for such purposes. [4] There is also a concern that, without proper supervision, the appellant will commence using substances, such as drugs and alcohol, that will accelerate the decompensation of her mental state. It was the use of such substances that contributed to the conduct underlying the index offences. There is also evidence that the appellant continues to harbour some level of persecutory delusions regarding her parents, who were the subjects of the assaults that led to the appellant’s convictions. Her lack of insight into her condition greatly increases the risk that she poses if she does not maintain her medication. [5] In our view, many of the submissions made on behalf of the appellant fail to recognize that her progress, which she relies upon as indicative of her potential conduct if she is in the community, occurred while she was under the direct supervision and control of the hospital. The appellant has not, as yet, had the experience of living in the community in a controlled setting that could be used as an introduction to assessing how she will cope under indirect supervision. Along with her underdeveloped insight into her mental illness, the risks associated with substance abuse, and what may well be the continued delusions she maintains relating to her parents, the absence of a record of success in the community materially weakens her challenge to the reasonableness of the Board’s decision. [6] These considerations also undercut the appellant’s request for a conditional discharge. Among other things, there is no evidence as to where the appellant would reside if she was permitted to live in the community that would have the requisite control and supervision. For example, it is not clear that she could return to her parent’s home, given that they were the victims of the original offences, notwithstanding that they continue to support her. [7] The Board appreciated the steps that the appellant has taken to address her illness and we would commend her on the progress she has made. However, the Board agreed with the psychiatrist that, at the time the disposition now under review was made, it was premature to permit the appellant unsupervised and unrestrained access to the community. The appellant has failed to establish that the decision of the Board in this regard is an unreasonable one. We note, on this point, that the detention order granted provides for the appellant to enjoy privileges as recommended by the hospital. [8] We also note that the next annual review for the appellant is in February. The Board will have that opportunity to further evaluate the progress of the appellant and the continuing need for a detention order. The Board will also be in a better position to decide, if the opportunity for community living is appropriate at that point, what the best terms and conditions are to permit that step to be taken while ensuring the safety of the public. [9] In the end result, the Board’s conclusion was a reasonable one based on the evidence. It is entitled to deference from this court. [10] The appeal is dismissed. “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Gallant v. 556614 Ontario Inc., 2022 ONCA 27 DATE: 20220114 DOCKET: C69236 Huscroft, Trotter and Coroza JJ.A. BETWEEN Barry James Gallant Plaintiff (Appellant) and 556614 Ontario Inc. and Miranda Bailey also known as Miranda Wendover Bailey Defendants ( Respondents ) Kevin Sherkin, for the appellant Benjamin E. Jefferies, for the respondent Miranda Bailey Heard: January 13, 2022 by video conference On appeal from the order of Justice Michael N. Varpio of the Superior Court of Justice, dated March 1, 2021. REASONS FOR DECISION [1] The appellant argues that the motion judge erred in finding that the respondent’s obligations as guarantor on the mortgage loan by the appellant to the numbered company 556614 Ontario Inc. ended on June 28, 2014, and that she was therefore not bound by subsequent extensions of the mortgage, made without notice to her. [2] We disagree. [3] The motion judge properly considered all of the documents that formed the parties’ agreement, including the standard terms, the mortgage agreement, and the mortgage schedule. It was conceded that if the standard terms applied, the respondent was liable to pay on the guarantee. Thus, the outcome turned on whether the standard terms were modified by the mortgage agreement. [4] The motion judge found that they were. Although the mortgage schedule does not refer to a specific period of time, in setting out the guarantor’s obligations it refers to “the dates and times and in the manner above limited”. It was open to the motion judge to find that this limited the guarantor’s obligation in accordance with the terms set out in the mortgage agreement, thus modifying the standard terms. As a result, the duration of the guarantee was limited to the 12-month period set out in the mortgage agreement. [5] We see no palpable and overriding error in the motion judge’s decision. His interpretation is reasonable and entitled to deference in this court. [6] Accordingly, the appeal is dismissed. [7] The respondent is entitled to costs in the agreed amount of $6,000, all inclusive. “Grant Huscroft J.A.” “Gary Trotter J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Rootenberg, 2022 ONCA 28 DATE: 20220114 DOCKET: M53075 (C67988) Brown J.A. (Motion Judge) BETWEEN Her Majesty the Queen Respondent/Responding Party and Shaun Rootenberg Appellant/Applicant Bryan Badali, for the applicant Nicolas de Montigny, for the responding party Heard: January 7, 2022 by video conference ENDORSEMENT OVERVIEW [1] The applicant, Shaun Rootenberg, applies under s. 684(1) of the Criminal Code , R.S.C. 1985, c. C-46, for the appointment of counsel. [2] The basic facts of this case are set out in the trial judge’s Reasons for Judgment (2019 ONSC 4145), Decision Reopening Stay of Proceedings Application (2020 ONSC 171), and Reasons for Sentence (2020 ONSC 5928). MacPherson J.A. also provided an overview of the case in his reasons denying bail pending appeal: R. v. Rootenberg (October 7, 2020), Toronto, M51295 (C67988) (Ont. C.A.). [3] The applicant has exhausted his efforts to obtain legal aid for his appeal. [4] Pursuant to s. 684, a court may assign counsel where, in its opinion, “it appears desirable in the interests of justice that the accused should have legal assistance and where it appears that the accused has not sufficient means to obtain that assistance.” The jurisprudence requires an applicant to demonstrate the following: (i) the appeal is arguable; (ii) the appointment of counsel is necessary, having regard to whether the applicant is capable of effectively advancing the grounds of appeal without a lawyer and whether the court will be able to properly decide the appeal without the assistance of defence counsel; and (iii) it appears the applicant lacks sufficient means to obtain such legal assistance: R. v. Brown , 2018 ONCA 9, at paras. 7-8. [5] The Crown opposes the application, taking the position that the applicant has failed to establish elements (i) and (ii). AGRUABILITY [6] Defence counsel, in his opinion letter to Legal Aid Ontario (the “Opinion Letter”), identified three grounds of appeal: 1. Unreasonable verdict: The trial judge convicted the applicant of one count of “fraud over $5000” pursuant to s. 380(1) of the Criminal Code . Although the trial judge was not persuaded beyond a reasonable doubt that the applicant defrauded the complainant by “deceit” or “falsehood”, she was persuaded that he had done so by “other fraudulent means”, within the meaning of s. 380(1). The applicant contends that result was the product of inconsistent reasoning by the trial judge and inconsistent with certain factual findings she made; 2. Error in dismissing stay application: The applicant had sought to stay the criminal proceedings against him on the basis that strip searches conducted of him during pre-trial custody – namely, searches when taken from and returned to the detention centre and searches upon leaving the institution’s kitchen where he worked – violated his rights under s. 8 of the Canadian Charter of Rights and Freedoms . The trial judge gave extensive reasons for dismissing the stay application. Although defence counsel acknowledges that “[t]here has been little jurisprudence addressing the use of strip searches in a detention centre or correctional facility”, the applicant plans to argue that the trial judge’s analysis was deficient and that she erred in the balance she struck between the applicant’s privacy rights and the safety and security concerns of the detention facility; 3. Error in imposing a harsh and excessive sentence and in failing to award additional credits for pre-sentence detention: The Crown sought a 6 to 7-year prison term; the defence argued for a 3.5 to 4-year term. The sentencing judge imposed a 6-year prison term, against which she gave Summers credit for the applicant’s pre-sentence custody. In rejecting the applicant’s submission for enhanced Duncan credits, as they were then called, the sentencing judge took into account, in part, that his work on the kitchen range had resulted in fewer restrictions on his movement in the institution. In her reasons, the sentencing judge also explained why she would not reduce the sentence on the basis of the principles in R. v. Nasogaluak , 2010 SCC 6, [2010] 1 S.C.R. 206 , or award any Downes credit for the conditions faced by the applicant while on judicial interim release. The applicant intends to argue on appeal that the sentencing judge erred by failing to grant him Duncan and Downes credits. [7] The Crown submits that there is insufficient merit to any of the applicant’s proposed grounds of appeal and, as a result, the applicant has not established that his appeal is arguable. [8] In his reasons denying the applicant bail pending appeal, MacPherson J.A. wrote: “Although I cannot say that the applicant’s proposed appeal is frivolous, I do say that, to my eyes, it looks very weak.” Applicant’s counsel fairly points out that those comments were made about differently framed grounds of appeal, not those described in the Opinion Letter, which the applicant now intends to advance. [9] Although the three grounds of appeal identified in the Opinion Letter strike me as weak, I cannot say they are not arguable for the purposes of a s. 684 application. NECESSITY [10] The applicant is a university graduate, although he failed to provide details of his university studies in his affidavit in support of this application. [11] The applicant is familiar with the basic workings of the banking and property financing systems. Prior to the conviction under appeal, the applicant had been convicted of uttering forged documents (2006) and several fraud-related offences (2009), which included defrauding his brother of $1.8 million. It is clear from the facts found by the trial judge that the applicant is familiar at least with the basics of the banking and property financing systems. [12] In his affidavit in support of this application, the applicant described himself as a “business consultant”. He deposed that while on interim release he performed consulting work for a medical marijuana company. Although his affidavit does not provide particulars of his employment history, from the Reasons for Judgment it appears that prior to committing the offence under appeal the applicant was involved in developing technology-related business ventures. [13] In his affidavit, the applicant asserts that he does “not feel equipped to advance the grounds of appeal myself.” However, his conduct to date strongly indicates that the applicant is a well-educated and sophisticated individual. [14] While the applicant does not have formal legal training, the first ground of appeal he advances – unreasonable verdict – is not complicated or factually complex. The size of the record would be manageable by a self-represented appellant. As well, the trial judge gave extensive reasons for conviction that provide the applicant with a focused “target” for his submissions. [15] However, the second and third grounds of appeal, which are based on the legal implications of common strip searches that were conducted on the applicant in the institutions in which he has been detained, contain a significant legal component. The second ground of appeal is novel. Combined, those factors lead me to conclude that the appointment of state-funded counsel is necessary to achieve fair and effective appellate review of the second and third grounds of appeal. Yet, I see no practical way to separate the first ground of appeal from the rest since the second ground of appeal also falls within the ambit of the conviction appeal. Given that circumstance, I think the most practical way to achieve the interests of justice is to appoint counsel to advance all three grounds of appeal. DISPOSITION [16] For the reasons set out above, I conclude that the interests of justice warrant the appointment of counsel to advance the three grounds of appeal identified in the Opinion Letter. An order shall go granting the application to that extent. Mr. Badali is prepared to act for the applicant on the appeal. “David Brown J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: United States v. Akinbobola, 2022 ONCA 29 DATE: 20220120 DOCKET: C68781 MacPherson, Roberts and Miller JJ.A. IN THE MATTER OF an application for judicial review pursuant to s. 57 of the Extradition Act , S.C. 1999, c. 18 BETWEEN The Minister of Justice of Canada and Attorney General of Canada (on behalf of the United States of America) Respondent and Tony Akinbobola Applicant Jeff Marshman, for the applicant Rebecca Sewell and Roy Lee, for the respondent Heard: September 29, 2021 by video conference On application for judicial review of the surrender order of the Minister of Justice, dated October 26, 2020. B.W. Miller J.A.: [1] The United States of America seeks extradition of the applicant for prosecution. The applicant is alleged to have conspired with others to defraud elderly victims of hundreds of thousands of dollars through a sweepstakes scheme. In earlier proceedings, this Court concluded there was sufficient evidence to justify the applicant’s committal for extradition. The Minister of Justice then ordered the applicant surrendered to the United States. [2] The applicant brings this application for judicial review of the surrender decision on the basis that the Minister of Justice erred in his assessment of whether extradition would violate the applicant’s right to remain in Canada under s. 6 of the Charter of Rights and Freedoms , as well as his right not to be deprived of liberty except in accordance with principles of fundamental justice, as provided by s. 7 of the Charter . The applicant also argues that his surrender would be otherwise unjust or oppressive, and the Minister’s decision to surrender him was therefore unreasonable. [3] For the reasons given below, I would dismiss the application. A. History of Proceedings [4] The sweepstakes scheme is alleged to have caused losses of over $900,000 to victims, who were primarily elderly residents in the state of Texas. Victims would be called and told that they had won a sweepstakes. They would be instructed to call the applicant, who would convince the victims to deposit a fraudulent cheque of $8,000, and then send cash or money orders to him to facilitate deposit of their much larger “prize.” The applicant was not the originator of the scheme, but is alleged to have been one of several people hired to prepare the sweepstakes letters, take calls from the victims, and receive and forward the funds. The applicant is alleged to have operated entirely from Ontario, from March to October 2015. [5] The applicant was arrested in 2018. He was initially discharged following a committal hearing in 2019, but the discharge was successfully appealed to this Court, which committed him for extradition. Following committal, and after receiving submissions from the applicant, the Minister of Justice ordered the applicant to be surrendered to the United States. [6] The Minister’s reasons considered whether the decision to prefer extradition over domestic prosecution infringed the applicant’s mobility rights under s. 6(1) of the Charter . He also considered whether the applicant’s surrender would infringe the applicant’s s. 7 rights, or otherwise be unjust or oppressive. Taking into account all of the circumstances of the applicant’s case and Canada’s international commitments, the Minister concluded that the applicant ought to be surrendered. B. Issues on judicial review [7] The applicant argues that the Minister committed the following errors: 1. Concluding that surrendering the applicant would not constitute an unjustifiable infringement of his right to remain in Canada under s. 6 of the Charter ; 2. Not concluding that surrendering the applicant to face a likely sentence of 24-30 years would be contrary to principles of fundamental justice and therefore violate his rights under s. 7 of the Charter ; and 3. Concluding that surrendering the applicant would not be otherwise unjust or oppressive in the circumstances. C. The Standard of Review [8] Section 57 of the Extradition Act , S.C. 1999, c. 18, provides a statutory right of judicial review of the Minister’s surrender order. The Minister’s decision, including the determination that surrender would not be a violation of the Charter and would not be otherwise unjust or oppressive under s. 44(1)(a) of the Extradition Act , is afforded substantial deference and assessed using the standard of reasonableness due to the Minister’s expertise in relation to Canada’s international obligations: Romania v. Boros , 2020 ONCA 216, 150 O.R. (3d) 158. The decision to surrender is an exercise of discretion, and the reviewing court is not entitled to re-weigh the facts and substitute its own view. If the Minister considered the relevant facts and reached a reasonable conclusion based on those facts, the decision must be upheld: Lake v. Canada (Minister of Justice) , 2008 SCC 23, [2008] 1 S.C.R. 761, at paras. 2, 26, 34, 38, and 41. D. Analysis (1) S. 6(1) of the Charter – the right to remain in Canada [9] The right of Canadian citizens to remain in Canada is protected by s. 6(1) of the Charter , which provides: “[e]very citizen of Canada has the right to enter, remain in and leave Canada.” In United States v. Cotroni , [1989] 1 S.C.R. 1469, the Supreme Court determined that extradition is a prima facie limitation on the right to remain in Canada. However, the Court stated at p. 1481 of Cotroni that extradition “lies at the outer edges of the core values” of s. 6(1), and at p. 1483 that “extradition will be generally warranted under s. 1 of the Charter as a reasonable limitation of the right to remain in Canada”, given the pressing and substantial objectives of extradition: “(1) protecting the public against crime through its investigation; (2) bringing fugitives to justice for the proper determination of their criminal liability; (3) ensuring, through international cooperation, that national boundaries do not serve as a means of escape from the rule of law”: Sriskandarajah v. United States of America , 2012 SCC 70, [2012] 3 S.C.R. 609, at para. 10. [10] The Minister’s discretion to extradite is not unfettered, and the Minister must consider whether it would be appropriate to prosecute domestically instead of ordering surrender. The analysis of whether the limit of s. 6(1) rights occasioned by a particular extradition is justified under s. 1 uses the same criteria – known as the Cotroni factors – as the non- Charter analysis for determining whether a domestic prosecution would be preferable to extradition: Cotroni , at pp. 1497-98. [11] The applicant argued that only two of the Cotroni factors favoured surrender – that the victims reside primarily in the United States, and American authorities played a major role in the investigation into the alleged scheme – and that the remainder favoured domestic prosecution. The Minister disagreed, focusing his decision on the Cotroni factors he considered most persuasive: · The impact of the offence was experienced in the U.S.; · American law enforcement played the major role in the development of the case; · The U.S. laid charges; · The U.S. has the most comprehensive case and is the most effective jurisdiction in which to proceed with a prosecution; · The U.S. is ready to proceed to trial; · Seven of the nine witnesses reside in the U.S.; · Seven other accused are involved, two of whom are fugitives from justice. The others, excluding the applicant, have been or are being tried in the U.S. [12] The applicant argues that the Minister erred in law in not considering in this analysis the potential disparity in sentencing between the U.S. and Canada for similar offences. The applicant argues that he faces a potential sentence in the U.S. ranging from 24-30 years, while the sentencing range in Canada for equivalent offences would be 2-3 years. [13] I do not agree that the Minister erred in this respect. The applicant is correct that the severity of sentence is included in the non-exhaustive list of relevant factors set out in Cotroni . However, as the Supreme Court held in Sriskandarajah at para. 22, Cotroni sets out “a non-formalistic test that grants flexibility to the Minister’s decision.” The Minister is “not required to provide a detailed analysis for every factor. An explanation based on what the Minister considers the most persuasive factors will be sufficient”: Lake , at para 46. [14] The argument that the Minister overlooked the sentencing differential is readily countered by considering the structure of the Minister’s reasons. Before addressing the s. 6(1) argument, the Minister first addressed the applicant’s arguments that his surrender would violate his rights under s. 7 of the Charter . Among those arguments was the argument that surrender in the face of the sentencing disparity would be contrary to the principles of fundamental justice. The Minister reasoned that it would not be. (I address the substance of that argument below, in reviewing the Minister’s s. 7 reasons.) As the Crown argues, having considered the sentencing disparity argument at length in the s. 7 analysis, and having rejected the argument, the Minister was not required to repeat the analysis in the s. 6(1) reasons, or even expressly refer to it. It was sufficient for the Minister to have stated that he considered all of the Cotroni factors and to note the applicant’s argument that only two Cotroni factors favoured surrender, and that all of the others – which would include the sentencing disparity – favoured domestic prosecution. It is clear, reading the reasons as a whole, that the Minister considered and rejected the argument that a balancing of the Cotroni factors – including sentencing disparity – favoured domestic prosecution. The Minister did not commit the error of law advanced by the applicant. (2) S. 7 – deprivation of liberty contrary to the principles of fundamental justice [15] The applicant’s second argument is that the Minister erred in concluding that his surrender in the face of the potential sentencing disparity would be a deprivation of liberty contrary to the principles of fundamental justice and would thus violate his rights under s. 7 of the Charter . [16] The applicant is a 51-year-old convention refugee from Nigeria, who has lived a productive and pro-social life in Canada for 20 years. He is married, with an 11-year-old child. The applicant argues that his alleged role in the sweepstakes scam was minor, time-limited, and non-violent. It is therefore unconscionable, he argues, that he could face a sentence of 24-30 years, particularly given that the sentence range for a comparable crime committed in Canada would be 2-3 years. [17] The Minister did not characterize the matter in the same way. First, with respect to the sentencing disparity, the Minister concluded, based on advice from the Public Prosecution Service of Canada and the office of the Attorney General of Ontario, that the applicant would likely receive a global sentence in Canada between 6 and 8 years. The Minister also noted that although U.S. sentencing guidelines indicate a sentence range of approximately 24-30 years, that range presumes the imposition of consecutive rather than concurrent sentences. However, the Minister was advised by the U.S. Department of Justice that the decision to impose consecutive sentences is discretionary, and should multiple sentences be imposed they would likely be concurrent. Additionally, the Minister noted that the other individuals alleged to have been involved in the same criminal enterprise as the applicant were sentenced, after entering guilty pleas, to between 8 and 14 years imprisonment. [18] Nevertheless, the Minister acknowledged that the applicant could receive a sentence far in excess of what he would receive in Canada. The Minister noted, however, that in s. 7 analysis sentencing disparity is decisive only in exceptional circumstances: Canada (Justice) v. Fischbacher, 2009 SCC 46, [2009] 3 S.C.R. 170. A sentence is not unjust or oppressive simply because the applicant would have received a lesser sentence had he been prosecuted domestically: USA v. Ranga , 2012 BCCA 82, [2012] B.C.W.L.D. 5379, at para. 9. As this Court held in France v. Diab , 2014 ONCA 374, 120 O.R. (3d) 174, at para. 202, the test for refusing surrender on s. 7 grounds is strict, “and only precludes surrender in cases of a ‘very exceptional nature’ where surrender to the requesting state would ‘shock the conscience’ of Canadians and be ‘simply unacceptable’” (citations omitted). [19] The Minister did not accept the applicant’s characterization of his role in the alleged offence as minor, despite the fact that he is not alleged to have been the originating or organizing mind behind the scheme. The Minister considered the basic principles of the legal system supporting surrender: extradition is based on principles of comity and fairness to cooperating states; Canada ought not to be a safe haven for fugitives from justice; and justice is best served in the jurisdiction where the crime was allegedly committed and where the harms of that crime were experienced. [20] The applicant asserts that this was not a reasonable conclusion, and that allowing the applicant to face a potential sentence of 24-30 years would shock the conscience of Canadians. However, the standard for setting aside the decision of the Minister as a violation of s. 7 is demanding, and it is not satisfied by a sentencing disparity of this nature. As this Court held in United States v. Viscomi , 2019 ONCA 490, 146 O.R. (3d) 145, at para. 46, “the determination of whether a potential sentence is so severe as to be fundamentally unjust, is not established by a simple quantitative comparison of the relative lengths of foreign and domestic sentence ranges.” And as in Viscomi , it is significant that the applicant has not identified any case law in which the length of the foreign sentence was found to constitute such an extreme punishment that it infringed s. 7. I would not allow the application on this ground. (3) Extradition Act , s. 44(1)(a) - Unjust or oppressive [21] The applicant argues that rejection of the Charter arguments is not dispositive of the application because s. 44(1)(a) of the Extradition Act requires the Minister to refuse surrender where it would be “unjust or oppressive having regard to all the relevant circumstances”, and that circumstances that do not amount to a violation of s. 6 or s. 7 of the Charter may nevertheless be sufficiently unjust and oppressive to require the Minister to refuse surrender under s. 44(1)(a). [22] The Minister retains discretion to refuse surrender on the basis that it would be unjust and oppressive even where no Charter breach is alleged or established: Fischbacher , at para. 39. It is therefore theoretically possible for circumstances short of a Charter violation to ground a s. 44(1)(a) refusal, although the applicant was not able to supply any examples of a court on judicial review having found so. On this application, the applicant has simply repeated the arguments made under s. 6(1) and s. 7 of the Charter – that the Minister’s decision is unreasonable because it would be unjust and oppressive to order surrender where an applicant faces a potential sentencing disparity of the magnitude faced by this applicant. This is essentially an invitation to this court to reweigh the factors considered by the Minister and come to a different conclusion. There is no basis for this court to do so. This ground of review is not established. DISPOSITION [23] I would dismiss the application for judicial review. Released: January 20, 2022 “JCM” “B.W. Miller J.A.” “I agree. J.C. MacPherson J.A.” “I agree. L.B. Roberts J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Scott v. Forjani, 2022 ONCA 30 DATE: 20220119 DOCKET: C69335 Doherty, Tulloch and Thorburn JJ.A. BETWEEN George Leslie Scott and Harriet Brav-Baum Plaintiffs/Defendants by Counterclaim (Respondents in Appeal) and Shoreh Forjani a.k.a. Shoren Konstantin Defendant/Plaintiff by Counterclaim (Appellant in Appeal) Hossein Niroomand, for the appellant Gregory Weedon, for the respondents Heard: January 6, 2022 by video conference On appeal from the judgment of Justice James F. Diamond of the Superior Court of Justice, dated March 18, 2021 and reported at 2021 ONSC 1996. REASONS FOR DECISION [1] The appellant agreed to purchase the respondents’ property for $1,450,000. Under the terms of the Agreement of Purchase and Sale (“APS”), the transaction would close some 13 months later. [2] The appellant eventually refused to close. She alleged the respondents had failed to disclose certain latent defects and had failed to maintain the property. [3] The respondents relisted the property and eventually sold it for $1,120,000. [4] The respondents sued the appellant for failing to close the transaction. They sought: · forfeiture of the $72,500 deposit; · damages reflecting the difference between the price the appellant had agreed to pay ($1,450,000) and the price the respondents were eventually able to obtain for the property ($1,120,000); and · certain legal expenses. [5] The respondents first moved for forfeiture of the appellant’s deposit, claiming the appellant had acted in bad faith when she did not close the transaction. Leiper J. held the appellant had breached the APS and acted in bad faith. She ordered the deposit forfeited. The appellant did not appeal from the order of Leiper J., although it appears she has challenged that order in a separate motion that is not before this court. [6] After Leiper J. determined the appellant had breached the APS, the respondents moved for summary judgment on the issue of damages. The respondents argued they were entitled to the difference between the price at which the appellant had agreed to purchase the property and the market value of the property when the respondents actually sold it. The respondents argued that the price at which they sold the property was an accurate reflection of its market value. The appellant maintained the respondents had failed to demonstrate any damages arising out of the appellant’s failure to close the transaction. The appellant also advanced a counterclaim. That counterclaim was not part of the summary judgment motion. [7] The motion judge had only one issue before him – did the respondents establish their damages and, more specifically, had the respondents failed to mitigate their damages when they sold the property for considerably less than the amount the appellant had agreed to pay for the property? [8] The motion judge’s determination of the sole issue before him turned on whether the price at which the respondents sold the property ($1,120,000) reflected the true value at the time of that sale. The appellant tendered affidavits from three “experts” who provided opinions indicating the value of the property was well above the price at which the respondents had eventually sold the property. The appellant chose not to lead any evidence about the qualifications or experience of those “experts”. [9] The motion judge declined to give the opinions of the appellant’s “experts” any weight. He held, that without evidence of their experience and background, he could not give their opinions any evidentiary value. The motion judge went on to consider the rest of the evidence adduced on the motion. He concluded, at para. 44: It is clear from the record that market forces, and not anything done or not done by the plaintiffs [respondents], dictated the sale price of the property in the fall of 2018. The value of the property is typically what a purchaser is willing to pay for it. Poor market conditions were responsible for the reduced purchase price in this case. There is no evidence to the contrary, and the best and most reliable evidence is what actually happened from July to November 2018. [10] The motion judge proceeded to grant judgment in the amount claimed. [11] The appellant submits the motion judge erred in law by ruling the affidavits of the “experts” inadmissible. As I read the motion judge’s reasons, he did not rule the affidavits inadmissible, but rather concluded that he could give no weight to those opinions without any evidence setting out the “experts’” experience and training. [12] Parties are required to put their best evidentiary foot forward on summary judgment motions. The appellant failed to do so. It was open to the motion judge to conclude the evidence offered by the appellant on the issue of the value of the property at the relevant time had no probative force. That finding left only the evidence of the respondents, most notably the evidence of the actual price at which the property was sold. The motion judge made a finding as to the value of the property based primarily on that evidence. [13] Counsel for the appellant also argued that the motion judge erred in drawing an adverse inference from the appellant’s refusal to allow one of her witnesses to answer questions about his expertise and qualifications. Counsel submits the appellant was unrepresented when she refused to allow the witness to answer the questions and that the trial judge should have taken that into account before drawing an adverse inference against her. [14] The appellant offered the affidavit of the “expert” to support her claim that the respondents sold the property well under market value. As a matter of common sense, it is plain and obvious that the “expert’s” experience and training would be relevant to the weight to be assigned to the opinion. The appellant refused to allow the witness to answer questions that were obviously relevant to the weight to be attached to the opinion offered by that witness. The most obvious explanation for the refusal to answer the question is that the answer would not help the appellant’s claim the property was sold under value. The logic of the adverse inference drawn from the appellant’s refusal to allow the witness to answer those questions was not dependent on whether the appellant was legally trained. [15] The appeal is dismissed. Funds in the amount of $308,568.84, presently being held in trust by the Accountant of the Superior Court, pursuant to an order of this court, are to be released to counsel for the respondents forthwith. [16] The respondents are entitled to their costs of the appeal in the amount of $15,000, “all in”. Counsel agree that the $15,000 attributable to costs is to come from the $308,568.84 held in trust, and is not in addition to that amount. “Doherty J.A.” “M. Tulloch 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. V.N., 2022 ONCA 31 DATE: 20220117 DOCKET: C67766 Paciocco, Nordheimer and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and V.N. Appellant David Anber, for the appellant Lisa Joyal, for the respondent Heard: January 14, 2022 by video conference On appeal from the conviction entered by Justice Norman D. Boxall of the Ontario Court of Justice on December 3, 2018. REASONS FOR DECISION [1] On December 3, 2018, Mr. N pleaded guilty to possessing and accessing child pornography, and received a sentence of 14 months’ imprisonment, followed by 2 years’ probation. He now asks this court to set aside his guilty plea and the ensuing convictions on the basis that his pleas were uninformed. Mr. N claims that at the time his pleas were entered, he was unaware of legally relevant collateral consequences that bear on sufficiently serious legal interests; specifically, he claims that upon conviction he was unaware that he would be subject to an order to comply with the Sexual Offenders Information Registry Act for life, pursuant to s. 490.013(2.1) of the Criminal Code , R.S.C. 1985, c. C-46 (“SOIRA order”), and would be ineligible to apply for a criminal record suspension, pursuant to the Criminal Records Act , R.S.C. 1985, c. C-47. He asserts that had he been aware of these collateral consequences, he would not have pleaded guilty. [2] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons. [3] We do not need to address the Crown’s submission that Mr. N’s plea could not be rendered uninformed as the collateral consequences he identifies do not bear on sufficiently serious legal interests: R. v. Wong , 2018 SCC 25, [2018] 1 S.C.R. 696. Mr. N’s appeal must fail because, when the whole of the evidence is considered, he has not presented credible evidence establishing a reasonable possibility that he would not have pleaded guilty had he been aware of these collateral consequences. [4] During cross-examination on his affidavit filed in support of this appeal, Mr. N acknowledged that his “three very big concerns” before deciding to plead related to his wish to get home to his family as soon as possible, whether any defences were available to him, and his wish to receive the lowest possible sentence. The case against Mr. N was overwhelming and left no room for defences, and he was so advised by trial counsel. His pleas of guilty addressed the remaining concerns. It is unlikely, given that his “very big concerns” were addressed including by the pleas he entered, that he would not have pleaded guilty had he been aware of the collateral consequences he now identifies. [5] Moreover, the duration of the SOIRA order came up twice during the sentencing hearing. On both occasions it was made clear that the SOIRA order would be for life. First, the trial judge discussed the issue with counsel at the outset of sentencing submissions. At the closing of submissions, Mr. N was asked by the trial judge whether he had anything to say. He expressed his remorse but said nothing about the SOIRA order that was about to be imposed. Second, the trial judge discussed the duration of the SOIRA order with counsel when he was about to impose the order. At that time, Mr. N’s trial counsel was given the opportunity to comment on the order but declined to do so. Had the implication of the SOIRA order been material to Mr. N when he entered the pleas, he or his trial counsel would have made this known to the court. [6] With respect to his ineligibility for a record suspension, prior to entering his pleas Mr. N signed written plea instructions that recited, “I understand that as a result of my plea I will have a criminal record”. There can be no doubt that if the possibility of a criminal record suspension was of importance to Mr. N’s decision to plead guilty, he would have raised it at that time, but he did not do so. The first mention of eligibility for a record suspension between Mr. N and his trial counsel occurred after he was sentenced, notwithstanding that Mr. N. had raised other issues with trial counsel before deciding to plead guilty. In all of the circumstances, there is no credible basis for finding a reasonable possibility that had Mr. N known he would be ineligible to apply for a record suspension, he would not have pleaded guilty. [7] In these circumstances Mr. N has not met the onus he bears. It is for these reasons that his appeal was dismissed. “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Ashkani, 2022 ONCA 34 DATE: 20220119 DOCKET: C66770 Tulloch, Pardu and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Shiva Ashkani Appellant Shiva Ashkani, in person Nicole Rivers, for the respondent Heard: January 11, 2022 by video conference On appeal from the conviction entered on December 12, 2017 by Justice A.J. O’Marra of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant, who held herself out as a registered nurse, both qualified and physician supervised as a medical cosmetician to inject Botox and collagen fillers, was found guilty after trial of having committed a number of assaultive offences that resulted in injuries to a number of victims. Following a trial by judge alone, she was found guilty of fraud under $5000 by misrepresentation, three counts of assault with a weapon (a syringe), aggravated assault, assault causing bodily harm, assault, and threatening bodily harm. She was sentenced to a total sentence of two years less a day with a three-year probation period to follow. [2] In her appeal, the appellant claims that her trial counsel provided ineffective assistance. She bases this principally on two grounds; first, that her counsel failed to respect her wish for a jury trial, and second, that her counsel refused to permit her to testify on her own behalf. She also claims that her trial counsel failed to take her mental health challenges into account. [3] We do not accept these submissions. [4] In order to succeed on an appeal based on an allegation of ineffective assistance of counsel, an appellant must establish the facts upon which the allegation is based on a balance of probabilities: R. v. Archer (2005), 202 C.C.C. (3d) 60 (Ont. C.A.) at para. 119. The appellant has not done this with respect to either the allegation that her trial counsel ignored her wish to be tried by a jury or that he refused to permit her to testify. [5] We note that the appellant did initially elect a jury trial but re-elected on the day of trial. She provides no details in her affidavit of any conversations that support her position. Mr. Mills, on the other hand, states in his affidavit that they discussed the matter in advance of the trial and before re-election. On cross-examination, Mr. Mills clarified that this discussion took place on the morning of trial. He expressed the view in his affidavit that a judge alone would be more receptive to the argument that the complainants consented to the treatments not because of the appellant’s representations as to her credentials but because of the price charged and the convenience of treatment in a non-clinical setting. The appellant was present in the courtroom at the time of re-election, did not object to the waiver of the re-reading of the indictment and expressed no disagreement with the re-election. [6] The appellant also fails to establish the factual basis for her claim that her former lawyer refused to permit her to testify. Once again, her allegations in this regard are vague and lack specificity, unlike the facts set out in Mr. Mills’ affidavit. [7] Mr. Mills explained, on cross-examination, that one of the factors leading him to advise her not to take the stand on her own behalf was that doing so would open her up to cross-examination on her prior conviction for aggravated assault. Second, he was of the view that the appellant had a tendency to be disruptive and this would not help her. Third, she was also inclined to raise irrelevant issues. Mr. Mills did acknowledge that she was reluctant but said that she took his advice and made the decision not to testify. In our view, Mr. Mills’ reasons for advising her not to testify on her own behalf were well founded and the appellant has not established that his advice was outside the range of professional judgment. [8] The appellant also claims that her counsel did not take adequate account of her mental health issues. This too is unfounded. Counsel was aware that the appellant had mental health challenges, that she was being treated, and that, according to a letter from her psychiatrist, was showing improvement. While her challenges required patience on his part, his experience was that she did understand the process and he had no basis to think that plea of NCR or a finding that she was unfit to stand trial would have been available. Indeed, assessments conducted between the trial and the sentencing confirmed this. [9] The appeal is dismissed. “M. Tulloch J.A.” “G. Pardu J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Naccarato v. Naccarato, 2022 ONCA 35 DATE: 20220117 DOCKET: C68945 Huscroft, Trotter and Coroza JJ.A. BETWEEN Kristy Frances Naccarato Applicant (Respondent) and Dino Naccarato Respondent (Respondent) Matthew Kersten, for the appellant Sutherland Law R. Avery Zeidman, for the respondent Dino Naccarato Annamaria Perruccio, for the respondent Kristy Frances Naccarato [1] Heard: January 14, 2022 by video conference On appeal from the order of Justice Peter A. Douglas of the Superior Court of Justice, dated December 2, 2020, with reasons at 2020 ONSC 7442. REASONS FOR DECISION [1] The appellant, a law firm, represented Ms. Kristy Frances Naccarato in family law proceedings against the respondent Mr. Dino Naccarato. Ms. Naccarato promised to pay the appellant’s solicitor fees from her entitlement to funds from the sale of the matrimonial home and she executed an irrevocable Authorization and Direction regarding payment. The home was sold. The proceeds of the sale were held in trust. After trial, the trial judge concluded that a net amount was owed to the respondent Mr. Naccarato, to be paid from Ms. Naccarato’s share of the proceeds of the sale of the home. The trial judge also ordered Ms. Naccarato to pay the respondent Mr. Naccarato $96,230.11 in costs forthwith. [2] A dispute then arose regarding entitlement to the remaining funds that were being held in trust from the sale of the home. The trial judge succinctly described the nature dispute in the following way: There can be no dispute that the monies remaining in trust ($96,230.11), are [Ms. Naccarato’s] monies. The issues are to whom these monies should be paid and in [satisfaction] of what obligation. [The appellant claims entitlement to the funds in satisfaction of its unpaid fees owing by [Ms. Naccarato], while [respondent Mr. Naccarato] claims entitlement in satisfaction of his ordered entitlement to costs. Payment out will diminish [Ms. Naccarato’s] obligation to one claimant or the other. [3] The appellant then moved for a charging order under s. 34 of the Solicitors Act , R.S.O. 1990, c. S.15, and the respondent Mr. Naccarato moved for an order amending the trial judge’s trial and costs orders to reflect that he was entitled to secure the costs awarded to him against the proceeds being held in trust. [4] The trial judge heard both motions. First, he dismissed the appellant’s motion for a charging order, concluding that the appellant did not meet the test for a charging order as the appellant was not “instrumental” in recovering or preserving property for Ms. Naccarato. Second, the trial judge found that the issue of security for trial costs was before him both at trial and during cost submissions, but that through inadvertence, it was not dealt with. Pursuant to r. 25(19)(c) of the Family Law Rules , O. Reg. 114/99, he amended the trial and costs orders to provide that the balance remaining after payment be retained in trust pending agreement between the parties or order of the court and to provide for the payment of costs to the respondent Mr. Naccarato from the monies in trust. [5] The appellant raises two issues on appeal. [6] First, it argues that the trial judge erred in finding that the appellant was not “instrumental” in the preservation/recovery of Ms. Naccarato’s entitlement to the remaining net proceeds of the sale of the former matrimonial home. We disagree. [7] The trial judge referenced s. 34(1) of the Solicitors Act and identified the correct test. The trial judge concluded that the appellant was not instrumental in recovering or preserving the funds from the sale of the home because there was never an issue regarding ownership of the property; there was no need to recover or preserve the property as it was always registered solely in Ms. Naccarato’s name. The trial judge also found that even if he was wrong on the issue of “instrumentality” he would not have granted the order or lien in the circumstances of the case. A s. 34 order is a discretionary order. We see no error in the trial judge’s exercise of his discretion and would dismiss this ground of appeal. [8] Second, the appellant contends that the trial judge erred in his application of r. 25(19)(c) of the Family Law Rules because the respondent Mr. Naccarato did not seek such relief before the trial judge in any material or pleadings. [9] We do not accept the appellant’s submission. Rule 25(19)(c) of the Family Law Rules permits a court to change an order that “needs to be changed to deal with a matter that was before the court but that it did not decide” . [10] In the present case, the trial judge found that the issue of security for costs was before him during the trial and that through obvious inadvertence he did not rule on the issue. We see no basis to interfere with these findings. Having found that he inadvertently did not deal with the issue that was before the court, the trial judge’s decision to amend pursuant to r. 25(19)(c) was appropriate and consistent with the primary objective of the Family Law Rules which is to enable the court to deal with cases justly. We see no merit to this ground of appeal. [11] For these reasons, the appeal is dismissed. The respondent Mr. Naccarato is entitled to costs in the amount of $8,500 all inclusive. “Grant Huscroft J.A.” “Gary Trotter J.A.” “S. Coroza J.A.” [1] Annamaria Perruccio appeared but made no written or oral submissions on behalf of the respondent Kristy Frances Naccarato.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Hawryluk, 2022 ONCA 36 DATE: 20220117 DOCKET: C65003 Tulloch, Hourigan and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and James Hawryluk Appellant James Hawryluk, acting in person Louis Strezos, appearing as duty counsel David Quayat, for the respondent Heard: November 2, 2021 by video conference On appeal from the sentence imposed on January 23, 2018 by Justice Jane E. Kelly of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] On April 23, 2016, officers of the Toronto Police Service executed a search warrant at the appellant’s apartment. Before executing the warrant, the police arrested a male coming out of the apartment, who said that he had purchased four cannabis pills from the appellant. The police executed the warrant and found, among other items, a shotgun and 114 rounds of ammunition. The appellant was subsequently charged with drugs and firearms offences. [2] On January 22, 2018, the appellant was acquitted of the firearm offences, and one of the drug-related offences. He was found guilty of trafficking in marihuana and granted an absolute discharge. The sentencing judge also imposed an order under s. 109 of the Criminal Code , R.S.C. 1985, c. C-46 prohibiting the appellant from possessing firearms and made an order forfeiting the shotgun. She also imposed a victim fine surcharge of $200 with 24 months to pay. [3] The appellant now seeks leave to appeal his sentence, and more specifically, the automatic ancillary s. 109(1) prohibition order attached to the finding of guilt for trafficking in marijuana, and he asks that the ancillary forfeiture order be modified to exclude the firearm. The appellant further asks that in the event he cannot possess the firearm, that it be transferred to a family member who is legally entitled to possess the firearm. And finally, in the alternative, if the appeal is dismissed, that it be without prejudice to the appellant to bring an application in the future under s. 113(1) of the Criminal Code . [4] The appellant is Métis and asserts his s. 35 constitutional right to hunt for sustenance: R. v. Powley , 2003 SCC 43, [2003] 2 S.C.R. 207. Duty counsel for the appellant argued that the sentencing judge erred by failing to consider s. 113(1)(a) of the Criminal Code which provides an exemption to prohibition orders where the person subject to the order requires a firearm or restricted weapon in order to hunt for sustenance. Duty counsel further submits that the matter should be remitted to a competent authority to consider whether a s. 113 order should be granted. [5] In oral submissions, the appellant explained that he wishes to hunt for sustenance when visiting his family who are currently living in rural areas in different parts of Canada. The appellant also submits that he is considering permanently moving to a rural area in the near future and would require the firearm to hunt for sustenance. He further explained that the firearm has personal sentimental value and asked to have the firearm transferred to a family member in the event he is not permitted to keep it. [6] The Crown opposes the request and argues that the sentencing judge did not commit any errors in principle that justify this court’s interference. [7] We do not find that the sentencing judge committed any errors in principle that warrant appellate interference. A sentencing judge is not required to consider s. 113 when imposing a s. 109 order. There were sufficient reasons to order the forfeiture of the shotgun: as pointed out by the Crown, the appellant resides in a city and does not require the use of a shotgun at present. The appellant is free to bring an application under s. 113 before a competent authority whenever he chooses, and, in our view, nothing in the wording of s. 113 suggests that the dismissal of the appeal would preclude the appellant from bringing such an application. [8] Section 113 reads as follows: 113 (1) Where a person who is or will be a person against whom a prohibition order is made establishes to the satisfaction of a competent authority that (a) the person needs a firearm or restricted weapon to hunt or trap in order to sustain the person or the person’s family, or (b) a prohibition order against the person would constitute a virtual prohibition against employment in the only vocation open to the person, the competent authority may, notwithstanding that the person is or will be subject to a prohibition order, make an order authorizing a chief firearms officer or the Registrar to issue, in accordance with such terms and conditions as the competent authority considers appropriate, an authorization, a licence or a registration certificate, as the case may be, to the person for sustenance or employment purposes. 113 (5) In this section, competent authority means the competent authority that made or has jurisdiction to make the prohibition order. [9] In the present case, the competent authority is the Superior Court of Justice. Contrary to duty counsel’s concerns, nothing precludes the appellant from bringing an application seeking an exception under s. 113 before a judge of that court. [10] Accordingly, leave to appeal sentence is granted. The appeal is dismissed on all issues but one. The victim surcharge of $200 is set aside, as the relevant statutory provision has been found unconstitutional: see R. v. Boudreault , 2018 SCC 58, [2018] 3 S.C.R. 599; R. v. Stockton , 2019 ONCA 300. “M. Tulloch J.A.” “C.W. Hourigan J.A.” “Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Boucher, 2022 ONCA 40 DATE: 20220120 DOCKET: C65137 Watt, Benotto and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Jason Boucher Appellant Richard Posner and Alexander Ostroff , for the appellant Jennifer Trehearne , for the respondent Heard: May 20, 2021 by video conference On appeal from the conviction entered by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting with a jury, on June 14, 2017. Watt J.A.: [1] Scott Savoy had a business. He operated his business from his home, a basement apartment. His customers came to his place of business. At all hours of the day and night. They bought what he had for sale. Crack cocaine. [2] Scott Savoy was careful in his business dealings. About whom he admitted to his apartment. And to whom he sold crack cocaine. [3] Jason Boucher was a customer of Scott Savoy. He bought crack cocaine from Mr. Savoy. On occasion, they partied together in the basement apartment. Smoking and drinking. [4] Early one February morning several years ago, Scott Savoy died in his apartment. He died because someone had beaten and strangled him. Jason Boucher was the last person seen with Scott Savoy when Mr. Savoy was last seen alive. [5] A jury found Jason Boucher guilty of second degree murder arising out of the death of Scott Savoy. [6] Jason Boucher appeals his conviction. These reasons explain why I have concluded that his appeal should be dismissed and his conviction affirmed. The Background Facts [7] The central issue at the appellant’s trial was the identity of the deceased’s killer. It was common ground at trial that the deceased was killed early in the morning of February 1, 2015. No one gave direct evidence about the circumstances in which the deceased was killed. The case for the Crown consisted of evidence of: i. opportunity; ii. statements made by the appellant during recorded interviews with investigators; iii. after-the-fact conduct; and iv. a bloodstain containing the deceased’s blood on the appellant’s coat sleeve. [8] The position of the defence at trial was that some unknown person had been admitted to the deceased’s apartment and killed the deceased while the appellant was passed out from the effects of alcohol and drug consumption. [9] The appellant did not testify at trial, nor call any witnesses in his defence. [10] An overview of the evidence adduced at trial will furnish the background necessary to understand the grounds of appeal advanced and how I propose that they be resolved. The Principals and Their Relationship [11] The deceased lived in the basement apartment of a house owned by a married couple who occupied the other floors of the residence with their two adult sons. The deceased’s mobility was restricted. Sometimes, he used crutches or a cane to move around. He had an electric scooter he used outside to travel longer distances. Friends often took him shopping and to various appointments. He was awaiting a hip transplant when he was killed. [12] In addition to his trafficking business, the deceased abused alcohol and drugs, including crack cocaine and fentanyl. Often, he drank, got high, and socialized with his friends in his apartment. [13] The appellant was also addicted to alcohol and drugs. He bought drugs from the deceased, who, on occasion, would front the appellant the drugs and collect payment later. Despite his addictions, the appellant worked at a body shop, often under the influence of drugs. He and the deceased were friends. The Drug Business [14] The deceased’s place of business, his basement apartment, was accessible from the exterior of the house through a set of double doors on the side of the house. These doors gave access to a foyer where the deceased kept his electric scooter. A set of stairs led from the foyer to the main floor in the house. And a second set of stairs led to the basement. [15] The deceased’s apartment was generally organized with everything in its place. He kept his drugs and money in different hiding places throughout the apartment. He often misplaced his drugs and his cash. This annoyed the deceased who would frequently accuse his guests of theft, only to find what he was looking for later where he had left it earlier. [16] The deceased kept the door to his apartment and the exterior double doors locked. He always verified the identity of anyone who came to the exterior doors of the house. Either he or a friend would go upstairs to determine who was outside. The deceased’s business had no fixed hours of operation. Purchasers could bang on the doors at any time of the day or night. On weekdays and on weekends. Residents upstairs would often hear loud voices, of people, including the deceased, yelling in his apartment. And of some visitors being thrown out of the apartment. The Furnace Repair [17] During the morning of January 31, 2015, the adult sons of the homeowners entered the deceased’s apartment to fix the furnace. Other men were in or arrived at the apartment while the furnace repairs progressed. When someone came to the outside door, the deceased walked upstairs and admitted the visitors to his apartment. More Visitors [18] Around 6 p.m., Kerry Burnett, a friend of the deceased, came to the apartment. She cooked dinner for the deceased and socialized with him. Another woman, who was already in the apartment, admitted Ms. Burnett. At twenty-minute intervals, more drug purchasers would arrive. Each would stay a few minutes, smoke a “puff”, then leave the apartment. [19] Around 11:30 p.m. or midnight, the appellant and two others arrived at the deceased’s apartment. They brought some beer with them. The appellant repaid the deceased money that he owed him and bought more drugs from him. The men smoked, drank beer, and socialized with the deceased. The appellant’s companions left about 30 minutes or an hour after they had arrived. Nobody else came into the apartment. The Last Visitor [20] Around 1:30 or 1:45 a.m., Kerry Burnett called a taxi to take her home. The appellant escorted her upstairs and locked the door as she left. The only persons left in the apartment when Ms. Burnett departed were the appellant and the deceased. [21] No one saw, spoke to, or heard from the deceased again. The Rent Collectors [22] At different times over the next two days, the adult sons of the owners of the house where the deceased lived tried to collect the monthly rent from the deceased. No one answered the door. On February 1, 2015, when they were outside shovelling snow, the brothers noticed that the double doors had blown open. They locked them from the inside. The Friends’ Inquiries [23] Later the same day, a friend of the deceased knocked on the door at the side of the house. He had brought a sandwich for the deceased. No one answered the door. He left the sandwich inside a barbeque that was outdoors. He called the deceased’s cellphone, but his call was directed to voicemail. The same friend returned the following day with another friend. Again, no answer at the door. The sandwich remained in the barbeque. Finding the Body [24] The deceased was scheduled to have hip surgery on February 4, 2015. Two of his friends went over to his apartment that day. Unable to get any response to their knocks, they persuaded the owners’ sons to break open the outside and inside doors. The deceased was on the kitchen floor, a bit of blood under his head. Footprints were visible on the floor. The apartment was uncharacteristically messy. Part of the couch had been ripped open. [25] One of the landlords’ sons called 911 and began CPR. The deceased’s shirt was already moved upward on his chest. The Scene [26] First responders found the deceased lying faceup on the kitchen floor. Red marks were apparent on his neck as was blood in his left ear. Two crackpipes sat on a table, beer cans and Gatorade containers were strewn on the floor. Police found no money, except for a few coins. No drugs. And no keys. The apartment was in disarray. Furniture had been knocked over and couch cushions pulled up. A photograph had been crumpled and torn. The Footwear Impressions [27] The lead forensic investigator, Det. Cst. Greavette, found several footwear impressions on the kitchen floor. Some could be seen with the naked eye, others required the application of powder or a reagent to make them visible. Two of the eight footwear impressions had been made when wet blood on the bottom of a pair of shoes had come into contact with the floor. One of these impressions was close to the body of the deceased, the other further away. No evidence was given about the state of the blood on the floor when the body was discovered. On previous days, it had snowed. [28] Several people were in the deceased’s apartment after the 911 call. Paramedics. Police officers. The deceased’s friends and the landlords’ sons who discovered the body. And later, the coroner, pathologist, and body removal personnel. Police obtained impressions of the footwear worn by some but not all of those who attended. By comparison to the impressions on the floor, police eliminated first responders and investigators as the source of the impressions. [29] Forensic analysis could not determine the size of the shoe that left the impression, nor whether it was a complete or only partial image. The appellant provided police with the shoes he said he had been wearing at the deceased’s apartment. Those shoes did not create the bloody impressions on the kitchen floor. [30] The forensic pathologist who conducted the post-mortem on the deceased noticed some parallel lines on the deceased’s neck. The pattern was similar to the tread pattern on the footwear impression in blood on the floor. But any pattern with the same number of parallel lines could be similar. The Cause of Death [31] The deceased died from blunt force injury and manual strangulation. During the attack leading to his death, blood from the deceased would be transferred to his assailant. A drop of the deceased’s blood was found on the appellant’s coat sleeve. Blood can be transferred during CPR. The Appellant Calls the Police [32] On February 9, 2015, eight days after the deceased was killed, the appellant called the police. He left a voicemail message for one of the investigating officers. The appellant identified himself and the deceased and left a phone number at which the officer could reach him. The appellant said he wanted to meet the officer. He explained that he had “a lot of pertinent information” about the death of the deceased because he had been there, although he was not sure that he was involved. [33] About a half hour later, the appellant called again. He spoke to another officer. He told her that he woke up at the deceased’s place. He had been the last to leave. He presumed the deceased was dead and that he (the appellant) was involved. The appellant explained that he was going to his father’s place to say goodbye. He wanted to meet the police at a McDonald’s restaurant at 2:30 p.m. that afternoon. The Meeting at McDonald’s [34] Two police officers met the appellant at McDonald’s. They bought him some food and spoke with him. The officers then drove the appellant back to 41 Division where he participated in a videotaped interview with one of the investigating officers. [35] On the way from McDonald’s to 41 Division, the appellant told the officers that he had been “there that night” and was “pretty sure” that he was involved, even though he couldn’t remember “a lot”. He explained that when he gets drunk, he does “stupid shit”. He said that he was prepared to make “a full and honest confession” about what he’d done in his life and what he’d done “regarding the events” that he was being questioned about. [36] The escorting officers cautioned the appellant that he could be charged with murder. He responded “I am a hundred percent certain, regardless of any memory or anything else, I’m pretty sure I’m guilty of the charges that are presented in front of me and the charges that I’m facing, whether my recollection is great or not”. He claimed not to remember what had occurred and provided no details of any events that resulted in the death of the deceased. The Appellant’s Version of Events [37] About an hour after he had met police at McDonald’s, the appellant was interviewed at 41 Division by D/S Ryan, the officer for whom he had left his original message. The appellant confirmed that he had been on a bender since he had finished work on the preceding Friday. He had consumed large quantities of alcohol and drugs, including that morning prior to meeting police at McDonald’s. He repeated what he told officers earlier about suffering from a serious ear infection that required treatment. [38] The appellant provided a lengthy, rambling and, at times, disjointed account to D/S Ryan. He repeatedly talked over the officer despite the officer’s persistent attempts to ask questions. In essence, the appellant’s account was that he had passed out after drinking and taking drugs with the deceased. When he woke up the following morning, the deceased was dead. The appellant realized that he was “involved”, but did not know what, if anything, he had done. The appellant referred to his narrative at different times as “recollections”, “dreams”, and “images”, but declined to disclose their content. [39] The appellant told D/S Ryan that, when he woke up, he saw the deceased lying dead on the kitchen floor. He thought the deceased might have died from a drug overdose. He claimed to have checked the deceased’s neck and wrist for vital signs and attempted CPR without success. [40] At the end of the interview with D/S Ryan, the appellant was arrested on a charge of second degree murder. Shortly thereafter, officers took the appellant to a local hospital. There, a doctor removed a piece of black rubber from an earbud that had been embedded in the appellant’s ear. The appellant also received Valium to manage his high and to alleviate the effects of drug withdrawal. [41] Police escorted the appellant from the hospital back to 41 Division after the removal of the earbud component from his ear and the dosage of Valium. A second police officer from the Homicide Squad interviewed the appellant. The interview, like that with D/S Ryan, was video recorded. [42] The appellant told Det. Singh that he and his stepbrother, Paul Duck, went to the deceased’s apartment a couple of times on January 31, 2015. They had been on a drug and alcohol bender from the previous day. During one of their visits, the deceased’s landlord was repairing the furnace. The appellant owed the deceased $80 for drugs the deceased had sold him earlier. The appellant wanted to buy more crack cocaine. He, Duck and a friend of Duck’s returned to the deceased’s apartment later. They brought a case of beer. The appellant paid the deceased the money he owed him, together with $20 in interest, and bought more crack cocaine. He smoked crack cocaine and drank some vodka and tall boy cans of beer. The appellant remained after Duck and his friend left so that he (the appellant) could “hook up” with Ms. Burnett who was also there. [43] The appellant told the police that the deceased’s drug dealer showed up to collect payment. At first, the deceased could not find his money or drugs. When he found them, the deceased paid what he owed and the dealer left. The appellant, the deceased and Ms. Burnett then smoked more crack cocaine in the stairwell. The appellant wanted to leave when Ms. Burnett left, but the deceased persuaded him to stay in case the dealer returned. Later, according to the appellant, the deceased had another tantrum when he couldn’t find his drugs. He accused the appellant and Ms. Burnett of stealing them. They “tore his place apart” before the deceased found the drugs in the room where he kept his scooter. The deceased cut a chunk from his supply for the appellant, another for someone who “was on her way over”. [44] After he consumed some more alcohol and drugs, the appellant told police that he passed out on the deceased’s sofa. When he awakened at 6 a.m., the appellant drank some vodka and “smoked a blast” of crack cocaine. He headed towards the kitchen where he saw the deceased lying on his back wearing only his shirt and underwear. The deceased’s head and face were purple, his tongue was sticking out, and he was not breathing. The appellant thought the deceased had overdosed. He drank some more beer and vodka, did a few “blasts” of crack cocaine and left. He locked the apartment door, left the key on the stairs next to the scooter, and left. The Forensic Evidence [45] Forensic investigators did not find the appellant’s DNA under the deceased’s fingernails, nor the deceased’s DNA on the appellant or his clothing except for a drop a blood from the deceased on the sleeve of the appellant’s jacket. The appellant told police that he had only three sets of Lululemon clothing and two pairs of shoes. He wore one set of clothing when he met the police and brought the other two sets with him to their meeting eight days after the deceased was killed. Apart from the shoes that he was wearing, which did not match the footwear impressions on the floor in the deceased’s kitchen, the appellant said his only other footwear was his work boots. The After-the-Fact Conduct [46] The appellant explained to investigators that, after he found the deceased dead on the floor in his kitchen, he drank some of the deceased’s alcohol and smoked some of his crack cocaine. The appellant did not call 911. Instead, he left the apartment, locked the door behind him, and disposed of the key. He called the police eight days later. The Grounds of Appeal [47] The appellant advances five grounds of appeal that he submits warrant a new trial. He says that: i. the trial judge erred in failing to give the jury a modified W.(D.) instruction about the exculpatory effect of evidence of the footwear impression and the neck injury; ii. the trial judge erred in failing to correct improprieties in the trial Crown’s closing address which invited the jury to speculate in concluding guilt had been established; iii. the trial judge erred in admitting the appellant’s references to dreams, flashbacks, recollections, and images in his police interviews; iv. the trial judge erred in his instructions to the jury on the evidentiary value of the appellant’s dreams; and v. the jury’s verdict is unreasonable. Ground #1: The W.(D.) Instruction [48] The first ground of appeal alleges non-direction about footwear impression evidence received at trial. A brief summary about some features of that evidence, coupled with a reference to the positions of the parties at trial, will provide the background necessary to evaluate the merits of the claim. The Evidence in Issue [49] The deceased’s body was lying on the kitchen floor of his apartment. On the same floor, two impressions created by wet blood transferred from the soles of shoes were detected and examined. One impression was adjacent to the deceased’s body, the other, further away. The impressions had been left at or around the time the deceased was killed. Several persons were in and out of the apartment when and after the body was found. No one gave evidence about the state of the blood (wet, dry, or drying) at the time. Although police examined and eliminated the footwear worn by many who were present, all of the footwear was not examined. The shoes the appellant told police that he was wearing the night the deceased was killed were eliminated as the source of the footwear impressions. The size of the shoe that made the two impressions could not be determined. [50] A pattern of parallel lines also appeared on the deceased’s neck. The pattern was similar to that in the footwear impression on the kitchen floor. But there was nothing unique about either pattern. The forensic pathologist, who conducted the post-mortem examination of the deceased and had visited the deceased’s apartment, considered that any parallel impression could be similar to the pattern he saw on the deceased’s neck. The Positions of the Parties at Trial [51] The trial judge distributed drafts of his proposed charge to counsel. He sought their input about its contents. Neither Crown nor defence counsel made any complaint about the proposed instructions on the evidence of footwear impressions. [52] The trial judge’s final instructions extended over parts of two days. As the judge was about to begin on the second day, defence counsel (not counsel on appeal) asked the trial judge to include “a W.(D.) instruction on the footwear impressions”. Counsel asked that the trial judge direct the jury that if they found that the footwear impressions had been made by the deceased’s killer, or had a reasonable doubt on that issue, the appellant should be found not guilty. [53] The trial judge discussed the request with counsel. He declined to give the instruction. The trial judge pointed out that the W.(D.) instruction referred to the evidence as a whole, not to individual items of evidence. In addition, he was satisfied that the balance of the charge was sufficient to ensure the jury’s appreciation of the consequences of a reasonable doubt about the appellant as the source of the footwear impressions. The Arguments on Appeal [54] The appellant begins by pointing out that the trial judge gave a W.(D.) instruction concerning the exculpatory parts of the appellant’s police interviews. He told the jury that if they had a reasonable doubt about the truth of the appellant’s disclaimers of responsibility, they should find the appellant not guilty. The trial judge should have given the same instruction when asked to do so in connection with the equally exculpatory footwear impression evidence. [55] The authorities establish that the principles in W.(D.) extend to exculpatory or potentially exculpatory evidence from sources other than an accused where credibility findings are required. It follows, according to the appellant, that a modified W.(D.) instruction becomes essential where, on a vital issue, the jury is required to make findings of credibility or reliability on conflicting evidence. [56] In this case, the appellant continues, the footwear impression evidence was relevant to the central issue at trial, the identity of the killer. And the evidence was exculpatory. The impressions were left at the time of the killing. No evidence was given that the blood remained wet when the body was found. The similarities between the impressions on the floor and those on the deceased’s neck were a “robust indicator” that the same person – the killer – left both. And this was not the appellant. Even if he had discarded his shoes, the size differential between his shoe size and the dimensions of the impressions made it clear that he was not their author. [57] The appellant contends that the omission of the direction requested created a substantial risk that the jury would approach its task in an all or nothing manner. Even if the jury did not believe this evidence, it could have raised a reasonable doubt about the appellant’s guilt. Yet, without a direction pointing this out, this is not the kind of reasoning jurors would apply. The failure to provide the instruction was a serious legal error requiring direction of a new trial. [58] The respondent supports the trial judge’s conclusion that the requested instruction, raised for the first-time mid-charge, was not required. A W.(D.) instruction ensures that the jury understands the relationship between credibility and proof beyond a reasonable doubt. As trial counsel conceded, no issue of credibility arose in connection with the footwear impression evidence. The only issue of credibility was whether the jury believed the appellant’s claim that he turned over the shoes he was actually wearing when the deceased died. And the trial judge gave a W.(D.) instruction on the appellant’s credibility. [59] The issue on which trial counsel sought a modified W.(D.) instruction was not a vital issue. A finding in the appellant’s favour did not require an acquittal. Even if the jury found or had a reasonable doubt whether the footwear impressions were made by the perpetrator, there remained a body of evidence that casts substantial doubt on the appellant’s claim that he turned over the relevant footwear to police. [60] In addition, the respondent says the argument advanced here was not what was urged at trial, which fastened exclusively on the footwear impressions on the kitchen floor. The issue raised here is equally not one involving credibility, thus implicating the need for a W.(D.) instruction. Further, such an instruction would have the effect of isolating this item of evidence and subjecting it, rather than the evidence as a whole, to the legal standard of proof. [61] The respondent argues that the charge, taken as a whole, made clear to the jury the burden and standard of proof and the relationship between credibility and proof beyond a reasonable doubt. The charge explained that the standard of proof beyond a reasonable doubt applied to the evidence as a whole, not to individual items of evidence. What had to be established beyond a reasonable doubt before a finding of guilt could be made was the essential elements of the offence charged, second degree murder. The trial judge repeated the W.(D.) formula twice in connection with the appellant’s exculpatory statements during his police interviews. Further, the trial judge pointed out the circumstantial nature of the case for the Crown and the requirement that the appellant’s guilt must be the only reasonable inference available from that evidence before a finding of guilt could be made. The jury was properly instructed. The Governing Principles [62] Several principles inform my decision on this ground of appeal. None excite controversy. [63] To establish the guilt of an accused of an offence, the Crown must prove the accused committed the essential elements of that offence beyond a reasonable doubt: R. v. Morin , [1988] 2 S.C.R. 345, at pp. 361-362; R. v. D.(B.) , 2011 ONCA 51, 266 C.C.C. (3d) 197, at para. 96. Nothing more is required. But nothing less will do. [64] To determine whether the Crown has proven the essential elements of an offence beyond a reasonable doubt, the trier of fact considers the whole of the evidence. It is the whole of the evidence that must meet the standard of proof settled upon the Crown. Not individual items of evidence. The jury is not to examine the individual items of evidence piecemeal by reference to the criminal standard of proof. Nor is the jury to apply the criminal standard of proof to each individual item of evidence. And it is legally wrong for a judge to instruct them to do either: Morin , at p. 354; R. v. Stewart , [1977] 2 S.C.R. 748, at pp. 759-761; R. v. Ménard , [1998] 2 S.C.R. 109, at para. 23; R. v. White , [1998] 2 S.C.R. 72, at paras. 56-57; Thomas v. The Queen , [1972] NZLR 34 (C.A.), at pp. 36, 37. [65] Sometimes, issues of credibility arise between evidence tendered by the Crown and that tendered or relied upon by the defence. Where credibility is an essential issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the ultimate burden of the Crown to prove the guilt of the accused to the criminal standard of proof. It is uncontroversial that a general instruction on reasonable doubt that pays no heed to its relationship to credibility, or the lack of credibility of the witnesses, leaves open too great a possibility of confusion or misunderstanding: R. v. S.(J.H.) , 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 8. [66] The well-known formula in R. v. W.(D.) , [1991] 1 S.C.R. 742, at pp. 757-758, unpacks for the benefit of a jury what reasonable doubt means in the context of evaluating conflicting testimonial accounts. This alerts the jury to the “credibility contest” error. The teaching of W.(D.) for trial judges is that they are required to impress on the jury that the burden never shifts from the Crown to prove every element of the offence, but no more, beyond a reasonable doubt: S.(J.H.) , at para. 9. [67] The message from W.(D.) is straightforward. A trial judge must make it crystal clear to the jury that the burden of proof never shifts from the Crown to prove every essential element of the offence beyond a reasonable doubt: S.(J.H.) , at para. 13. In any case where credibility is important, the trial judge must ensure not to leave the jury with the impression that, to make its decision, it had (simply) to choose between competing versions of events. Nothing said or left unsaid should leave the impression with the jury that an accused’s lack of credibility is the equivalent of proof of guilt beyond a reasonable doubt: S.(J.H.) , at para. 13, citing R. v. Avetysan , 2000 SCC 56, [2000] 2 S.C.R. 745, at para. 19. [68] Of importance in assessing the applicability of W.(D.) are the opening words of one of its critical passages: In a case where credibility is important Sometimes, credibility is not important, as where no one questions the sincerity of the relevant defence evidence. Thus the need for a W.(D.) instruction is questionable: R. v. McClenaghan , 2010 ABCA 222, 258 C.C.C. (3d) 178, at paras. 26, 29, 31, leave to appeal refused, [2010] S.C.C.A. No. 353. [69] A trial judge is not required to relate their instructions on reasonable doubt to specific pieces of evidence. It is of no moment whether the evidence is consistent with the defence or Crown’s theory of the case. A thorough instruction on reasonable doubt and a direction on the approach to circumstantial evidence may meet what is required: R. v. R.(M.) (2005), 195 C.C.C. (3d) 26 (Ont. C.A.), at para. 46. [70] In D.(B.) the appellant challenged her conviction of incest on the ground that the trial judge had erred in failing to give a modified W.(D.) instruction where there was conflicting testimony between Crown and defence witnesses. The specific error alleged was a failure to relate the burden of proof to exculpatory evidence adduced on behalf of the appellant. The exculpatory evidence was the testimony of the appellant’s son who testified that the appellant’s co-accused was his stepfather, not his brother (thus not the appellant’s son) as alleged by the Crown. In other words, the evidence on both sides was testimonial. Credibility determinations were in play. [71] The D.(B.) court reiterated the basic principle that the standard of proof beyond a reasonable doubt is not to be applied piecemeal to individual or categories of evidence, rather to the evidence as a whole: D.(B.) , at para. 96. The Crown is not required to prove or disprove beyond a reasonable doubt any single fact, or any item of evidence, unless that fact or item of evidence is an essential element of the offence or of a defence. Different considerations emerge when conflicting evidence is adduced on an essential element and the jury must make credibility findings about that conflicting evidence: D.(B.) , at para. 96. [72] The circumstances in D.(B.) involves sworn testimony by a defence witness who contradicted the testimony of witnesses called for the Crown. The court extended the principles of W.(D.) beyond the paradigmatic he/she said cases, to cases in which the accused does not testify but other defence evidence is adduced contradicting the case for the Crown and/or conflicting evidence favourable to the defence emerges in the Crown’s case and the jury must make credibility findings as a result: D.(B.) , at para. 105. The court concluded that where, on a vital issue, credibility findings are required between conflicting evidence called by the defence, or arising out of evidence favourable to the defence in the case for the Crown, the trial judge must relate the concept of reasonable of doubt to those credibility findings. The instructions must make it clear that the jury does not have to believe the defence evidence on the vital issue. If the conflicting evidence leaves the jury with a reasonable doubt about the accused’s guilt, the jury must return a verdict of not guilty: D.(B.) , at para. 114. The Principles Applied [73] As I will explain, I would not give effect to this ground of appeal. [74] The principal issue for the jury to determine at the appellant’s trial was whether the Crown had proven beyond a reasonable doubt that it was the appellant who killed the deceased. The case for the Crown consisted of several strands of circumstantial evidence. Among those strands was evidence that, by his own admission, the appellant was the last person seen with the deceased when the deceased was last seen alive, in the place where the deceased was killed, and was also there alone when the deceased was found dead. On its own, this can be powerful evidence pointing to the appellant as the deceased’s killer. In addition, expert evidence identified a drop of the deceased’s blood on the sleeve of the appellant’s clothing. Evidence of after-the-fact conduct disclosed that the appellant did not call 911, locked the deceased’s apartment from the outside with a key, and, it could be inferred, got rid of the key. [75] The defence position at trial was a denial of any involvement in the killing. The appellant relied upon some portions of his police interviews conducted on and after his arrest. He also invoked evidence about a footwear impression found in blood on the floor in the kitchen where the body of the deceased was also found. This impression did not match the tread pattern on the shoes the appellant told police eight days later that he was wearing the night the deceased was killed. That there was not a match was not contested at trial although the evidence did not indicate whether the impression observed was a full or only a partial impression. [76] The appellant’s position at trial, repeated here in terms not advanced at trial, was that this footwear impression evidence was exculpatory, relevant to the vital issue of identity, and should have attracted a W.(D.) instruction on its own. [77] The criminal standard of proof applies to the evidence taken as a whole, not to individual items of evidence taken in isolation from the balance of the evidence. It follows from this foundational principle that it is wrong for a trial judge to instruct a jury, in express terms or by necessary implication, that they are to scrutinize individual items of evidence individually and apart from the rest and are to apply the criminal standard of proof to each item and acquit if the evidence falls short of that standard. Instructions along these lines are wrong for two reasons. The standard of proof applies to the evidence taken as a whole, which is often greater than the sum of its individual parts, not to individual items of evidence few if any of which could meet such a standard. Second, while a jury should be instructed to consider each piece of evidence carefully, a case is not decided by a series of separate and exclusive judgments on each item of evidence. Nor is it decided by asking what does that item of evidence prove, or does it prove guilt. It is the cumulative effect of the evidence that requires evaluation and assessment in light of the criminal standard of proof. [78] As a matter of general principle, it is wrong for a trial judge to invite a jury to apply the criminal standard of proof to an individual item of evidence and to acquit if that evidence fails to prove guilt beyond a reasonable doubt where that item of evidence is not dispositive of guilt or proof of an essential element of the offence charged. [79] In this case, the first issue the trial judge framed for the jury to decide was whether the appellant caused the death of the deceased. After defining the issue and explaining what the Crown had to establish beyond a reasonable doubt to prove it, the trial judge reviewed the essential features of the evidence that were relevant to the jury’s decision on that issue. The evidentiary catalogue included the appellant’s denials in the recorded police interviews and the forensic evidence eliminating the appellant’s shoes as the source of the bloodied footwear impressions. The trial judge left this issue of participation or authorship to the jury, explaining the consequences of the findings available to them, including that which followed a reasonable doubt on the issue – a finding of not guilty. [80] From these instructions, the jury would understand their obligation to consider the evidence as a whole in deciding whether the Crown had proven beyond a reasonable doubt that the appellant killed the deceased. In addition, the jury would understand that among the items of evidence that were relevant to their decision, thus to whether the Crown had proven this essential element of the offence beyond a reasonable doubt, was the evidence that excluded the appellant’s footwear as the source of the bloodied footwear impression. And they would also understand that a reasonable doubt arising from this evidence as a whole required them to find the appellant not guilty. [81] In this case, I am satisfied that the trial judge’s instructions to the jury were sufficient as they were given to apprise the jury about the impact of the footwear impression evidence on their decision on the threshold issue of whether the Crown had proven beyond a reasonable doubt that the appellant killed the deceased. [82] The authorities the appellant invokes in support of his submission that a discrete W.(D.) instruction was required for the footwear impression evidence are readily distinguishable and of no assistance in these circumstances. [83] The authorities the appellant summons require a W.(D.) instruction where, on a vital issue, credibility findings are required between conflicting evidence called by the defence or arising out of the case for the Crown favourable to the defence. It is in these circumstances that the trial judge must relate the concept of reasonable doubt to these credibility findings to ensure that the jury understands that they need not believe the defence evidence on that vital issue. Rather it is sufficient if the conflicting evidence leaves them in a reasonable doubt on the vital issue in the context of the evidence taken as a whole. [84] In this case, the footwear impression evidence was uncontroversial: the impressions were not created by the shoes the appellant produced for the police eight days after the deceased was killed. No credibility findings were required, except in connection with the appellant’s assertion that those were the shoes he was in fact wearing when the deceased was killed. The trial judge on at least two occasions included a W.(D.) instruction in connection with the appellant’s denial of involvement. By their verdict, the jury did not believe or have a reasonable doubt about the appellant’s denial. A further instruction related specifically to the footwear impression evidence was not required, but, even if required, would have made no difference in the result. Ground #2: The Closing Address of the Crown [85] This ground of appeal focuses on a single passage in the closing address of the trial Crown (not counsel on appeal). The appellant says that the trial Crown invited the jury to engage in speculative and prejudicial reasoning in reaching their verdict. [86] A brief reference to the relevant portion of the closing address and the position of counsel at trial will provide the framework necessary to ground the discussion that follows. The Closing Address [87] In her closing address, the trial Crown made this submission: Remember that Mr. Boucher had already taken steps to avoid any connection with what happened to Scott Savoy. Specifically, he did not call 9-1-1, he did not report Scott Savoy’s death at a later time, he locked the door to Scott’s apartment and then removed the keys… It’s a reasonable inference that Mr. Boucher took another step to avoid being linked to Scott’s death by getting rid of the shoes he was wearing when he killed Scott. [88] The trial Crown relied on four instances of after-the-fact conduct as relevant evidence for the jury to consider in determining whether the Crown had established that the appellant killed the deceased: i. the failure to call 911; ii. the minimal, if any, effort to perform CPR; iii. locking the apartment door and disposing of the key on leaving the apartment; and iv. taking the deceased’s drugs and money from his apartment. This conduct all took place on February 1, 2015, the day the deceased was killed. The Defence Position [89] Defence counsel urged the jury to accept the appellant’s explanation for this conduct. He did not object to or suggest any ameliorative response to the closing address of the Crown. The Arguments on Appeal [90] The appellant contends that the trial Crown invited the jury to speculate and engage in prejudicial reasoning. It was improper, the appellant says, for Crown counsel to invite the jury to infer the appellant destroyed evidence by getting rid of the shoes he wore at the time of the killing before arranging his meeting with the police eight days later. [91] The submission made by the trial Crown was improper, the appellant urges, for three reasons. It was unsupported by the evidence, the product of pure speculation to fill in an evidentiary gap. It was dangerous because it had been included in the closing address. This tempted the jury to view this evidence as an additional item of after-the-fact conduct evidence relevant on the critical issue of the appellant’s responsibility for the killing. And it was unfair because the footwear evidence which counsel attacked was “powerful” exculpatory evidence due to the disparity between the size of the impression and of the appellant’s shoes. As a consequence, a miscarriage of justice occurred and can only be remedied by an order for a new trial. [92] The respondent points out that the case for the Crown was entirely circumstantial. It included four items of evidence of after-the-fact conduct all of which took place on the day on which the deceased was killed. Defence counsel focused on the same four items and urged the jury to accept the appellant’s explanation for them as disclosed in his police interviews: the appellant was a drug addict with a criminal record and was the last person seen with the deceased when the deceased was last seen alive. Neither lawyer made a submission that the footwear evidence should be considered as evidence of after-the-fact conduct. [93] In another part of her closing address, the respondent contends, the trial Crown argued that there were reasons to disbelieve the appellant’s claim that the shoes he turned over to police were those that he wore when the deceased was killed. The trial Crown submitted that the appellant had done or failed to do several other things to distance himself from the killing. Thus, the trial Crown submitted, it was a reasonable inference that the appellant would get rid of the shoes he wore on the date of the killing, rather than wear them to an arranged meeting with the police. All the more so, the trial Crown said, when the appellant admitted getting rid of his socks. [94] The respondent invites our consideration of two other aspects of the trial proceedings as indicative of the absence of any actual or apparent unfairness arising from the trial Crown’s closing, thus no miscarriage of justice having occurred. Defence counsel did not object to the trial Crown’s closing address. And in the instructions to the jury on evidence of after-the-fact conduct and its relevance to the jury’s decision on the appellant’s participation in the killing of the deceased, the trial judge made no reference to disposal of the shoes. Thus, the jury would understand that the Crown was not relying on it as evidence of after-the-fact conduct on the issue of the identity of the appellant as the deceased’s killer. The Governing Principles [95] An improper closing address by Crown counsel is among the many trial irregularities that can affect the actual or apparent fairness of a criminal jury trial, thus cause or contribute to a miscarriage of justice. The gravity of these irregularities, among them improper closings, is a variable, not a constant. Each requires an individual evaluation according to its unique circumstances: R. v. Khan , 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 74. [96] If a trial judge concludes that an irregularity has occurred in the closing address of Crown counsel, and that irregularity has jeopardized the actual or apparent fairness of the trial, the trial judge must consider all the circumstances. This requires a balancing of the interests of the accused against several other considerations, among them, the public interest: R. v. Al-Enzi , 2014 ONCA 569, 121 O.R. (3d) 583, at para. 63. [97] The remedies available to a trial judge when an irregularity such as an improper closing by Crown counsel occurs at a jury trial vary according to the nature and quality of the error or combination of errors. The trial judge is in a privileged position in choosing the appropriate remedy. In most situations, an irregularity in a closing address may be remedied by a limiting instruction: R. v. Rose , [1998] 3 S.C.R. 262, at para. 125. Although the discretion about remedial choice is not absolute, the decision is owed significant deference and is not to be routinely second-guessed on appeal: Al-Enzi , at para. 64. [98] An important factor in our ex post facto evaluation of what is now said to have been a fatal wounding of the fairness of the trial proceedings is the position of defence counsel when the source of the alleged unfairness arose: Khan , at para. 85. The failure of experienced defence counsel to object to a trial event now said to have compromised the actual and apparent fairness of the trial may toll heavily against the claim of unfairness viewed through the lens of an adverse verdict. [99] The subject-matter of the trial Crown’s submission – the destruction or disposal of evidence linking the appellant to the killing – is evidence of after-the-fact conduct. Circumstantial evidence of after-the-fact conduct may assist in proof of an accused’s participation in a prior offence. It is also relevant to impugn the credibility of the accused: R. v. Jaw , 2009 SCC 42, [2009] 3 S.C.R. 26, at para. 39, citing White , at para. 26; R. v. Barton , 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 154. The Principles Applied [100] In combination, several reasons persuade me that this ground of appeal cannot be sustained. [101] To begin, I am not satisfied that the submission about which the appellant complains invokes speculative reasoning and, as a result, was improper. [102] The line between inference and speculation is often not readily identifiable. What one would characterize as speculation, another would assess as inference. In this case, the appellant was the last person with the deceased when the deceased was last seen alive. The deceased was killed at that place when the appellant was present. No sign of forced entry was apparent until those who came to check on him broke in. Footwear impressions in blood were visible on the floor near the deceased’s lifeless body. [103] The appellant took several steps to distance himself from any involvement in the deceased’s death. He did not call 911. He made only minimal attempts at CPR. He locked the apartment and disposed of the key. He bought new socks. He did not contact police until eight days after the death of the deceased. All of these steps occurred after the deceased was killed. In combination, this evidence was relevant to the credibility of the appellant’s account to police which included his statement about then wearing the same shoes that he had worn the night the deceased was killed. It could also furnish a foundation for an inference of disposal of the footwear actually worn at that time. [104] Second, neither Crown counsel nor the trial judge suggested that disposal of the footwear actually worn at the time the deceased was killed was an item of evidence of after-the-fact conduct that the jury could consider in deciding whether the Crown had proven beyond a reasonable doubt that it was the appellant who killed the deceased. Nor was it left as relevant to the credibility of the appellant’s disclaimer of responsibility for the deceased’s death. [105] Third, and relatedly, the trial Crown and the trial judge limited the evidence of after-the-fact conduct to evidence that the appellant did not call 911, made a minimal if any effort at CPR, and locked the door and disposed of the key to impede efforts to contact the deceased. And each restricted evidentiary use to the issue of whether the appellant caused the deceased’s death. This limitation ensured that the scope of the after-the-fact evidence did not extend to disposal of the footwear and that its evidentiary use did not reach the appellant’s credibility. Thus, Crown counsel’s submission was removed from consideration on the issue of identity and the relevance of the evidence of after-the-fact conduct was limited in a matter that enured to the appellant’s benefit. [106] A final point concerns the position of defence counsel at trial. As an ear and eye witness to the proceedings and vigilant in his protection of the appellant’s interests, trial counsel did not object to Crown counsel’s closing address. Failure of objection is not dispositive of the claim of impropriety now advanced, but it delivers a telling blow to the claim now made of actual and apparent unfairness caused by the closing submission. Grounds #3 and #4: Dreams, Flashbacks, Recollections and Images [107] The appellant advances two grounds of appeal in connection with his references to dreams, flashbacks, recollections and images in his police interviews on and after arrest. The first has to do with the admissibility of those references, more specifically, with the failure of the trial judge to edit those references from the recordings the jury heard. The second concerns the correctness of the trial judge’s instructions about how the jury could use those references in their deliberations. [108] For discussion purposes, I will deal with these related issues as a single ground of appeal beginning with a brief background about how they emerged and were determined at trial. The Procedural Background [109] Prior to jury selection, Crown counsel sought a ruling permitting her to introduce evidence of a total of six statements made by the appellant before and after his arrest on February 9, 2015. The statements began with a voicemail the appellant left for D/S Ryan asking to meet with the police about his involvement in the deceased’s death and concluded with statements made shortly after his videotaped interview with Det. Singh. [110] The trial judge found each of the statements was voluntary, a ruling not challenged on appeal, thus admissible subject to editing. An issue then arose about editing in the videotaped interview with Det. Singh at 41 Division. Counsel were unable to resolve the issue themselves, thus turned to the trial judge for assistance. The Application at Trial [111] The issue that divided counsel was whether what the appellant characterized variously as memories, recollections, flashbacks, vivid images and dreams about what happened to the deceased should be excised from the interview as it would be played and admitted as an exhibit for the jury. [112] Defence counsel sought editing on the ground of lack of relevance. His argument was twofold. The appellant told the police that he was unsure whether the images he had of relevant events were actual recollections of what occurred or simply dreams. The jury would be in no better position to decide about their authenticity. It followed, counsel said, that the references to dreams were irrelevant. And since the appellant never said what the images were, even if the jury were to find that what the appellant said were recollections and not dreams, the jury could not draw any inferences of culpable conduct because of the lack of detail. This left only speculation, which also warranted exclusion for want of relevance. The Ruling of the Trial Judge [113] At the conclusion of argument, the trial judge held that the references were admissible. [114] The trial judge reasoned that in assessing the meaning to be assigned to this evidence, it was appropriate to consider the entirety of the appellant’s statements to the police on February 9, 2015. The issue to be resolved was what inferences the jury could draw from the appellant’s remarks. An available inference, the trial judge considered, was what the appellant described as images were, in fact, recollections. The jury could also conclude that what was said was an implicit acknowledgment by the appellant of involvement of the death of the deceased. This was a piece of evidence the jury could consider, together with the balance of the evidence, in determining whether the appellant killed the deceased. [115] In written reasons released later, the trial judge acknowledged that the evidence supported two inferences: i. that the images were not recollections, only dreams; and ii. that the images were actual recollections or memories of what had happened to the deceased. He added that despite the lack of specifics, the evidence could ground an inference of culpable involvement in the death of the deceased. The Jury Instructions [116] The trial judge provided drafts of his proposed instructions for counsel to review and discuss at pre-charge conferences. He described the positions of the parties in these terms: The parties take different positions in relation to what Mr. Boucher said about the images. The defence says that on a reading of everything that Mr. Boucher said in this respect it is clear that what he was talking about were merely dreams; the Crown says, again on a reading of everything that Mr. Boucher said, that they were more than dreams, that Mr. Boucher was having recollections. [117] After this introduction, the trial judge continued: Throughout Mr. Boucher’s statements there were many, many exchanges in relation to what he recalled or what he may have merely dreamed. I don’t propose to pick and choose among those exchanges. You have listened to the recordings of the statements. You will have those recordings and the transcripts of them with you in your jury room. It is for you to assess what Mr. Boucher said, to decide what he meant, and to determine what the significance of it all is. I would caution you, of course, to be careful not to, as it were, cherry-pick his statements. Rather, you must carefully consider the entirety of what he said in this regard. Unless you decide that the images that Mr. Boucher was talking about were more than dreams, that they were actual recollections, you cannot take what he said about them into account in deciding this case. To put it another way, if they were merely dreams, then even if they made him feel guilty they are irrelevant in relation to whether he is the person who caused Scott Savoy’s death and you must set them aside. One thing I want to be clear about. As I have said, Mr. Boucher repeatedly declined to reveal the contents of these images. He had a constitutional right to decline to answer Singh’s questions in that respect. Every one of us has the right to decline to answer questions put to us by a police officer, whether or not we are charged with an offence. That is, each of us has the right to silence. The exercise of that right cannot give rise to an adverse inference against a person who exercises it. To draw some sort of adverse inference against a person who is exercising a constitutional right would turn that right into a trap. It would make the right something that you exercise at your peril. So, the fact that Mr. Boucher declined to tell Detective Singh what the images were is of no significance. What Mr. Boucher did say about the images, however, is something you can take into account in relation to whether the image were dreams or recollections, and in relation to whether they were about doing something in relation to what happened to Scott Savoy. As I have said, you have the parties’ positions in that regard. It is for you to say, based on your careful assessment of the entirety of Mr. Boucher’s statements. The Arguments on Appeal [118] The appellant sought excision at trial on three grounds. He contended that there was no basis upon which the images were recollections, as opposed to dreams, thus they were irrelevant. He argued that even if the images were recollections, they remained irrelevant because they lacked any reference to harming the deceased. And, the appellant urged, use of the appellant’s refusal to disclose the content of his images violated his right to silence. [119] The appellant says that the references to the various terms were prejudicial. This is particularly so in connection with the term “dreams”. While a reference to dreams may be admitted as part of the narrative, it cannot be received as an admission of guilt in the absence of evidence of adoption of which there was none. [120] In his instructions to the jury, the appellant submits, the trial judge was wrong to provide the jury with a binary choice – dreams or recollections. The effect of this direction was that if the jury found that the appellant’s remarks were recollections, this was tantamount to a finding of guilt. The instruction should have included a reference to reasonable doubt, even if the jury was satisfied that what was said was a recollection and not a dream. [121] The respondent says that where an issue arises about the reliability or truth of a statement made by an accused to a person in authority, it is for the jury to determine the issue. A statement should only be excluded where it appears that the statement, as a whole, is so plainly the product of fantasy or delusion that it bears no relation to the evidence. To determine whether the appellant was actually recounting memories as opposed to dreams could only be decided in conjunction with all the other evidence adduced at trial. And that was a question to be decided by the jury. [122] In addition, the respondent urges, the appellant has not articulated any prejudice caused by the reception of this evidence. Modern jurors would know well that dreams were not real, not reflective of reality. And the trial judge cautioned the jury that the appellant’s refusal to disclose any details could not be used against him. [123] In his instructions to the jury, the respondent says, the trial judge did not direct the jury that they had to choose whether the images the appellant spoke about were dreams or recollections. The instruction was that unless the jury made a specific finding that the images were recollections, they were to discard the evidence, assigning it no role in their decision. As a result, a finding that the images were dreams, or uncertainty about whether they were recollections, would mean to the jury that this evidence could not be used in deciding whether the appellant killed the deceased. The Governing Principles [124] Several basic principles guide our evaluation and determination of this ground of appeal. [125] As a matter of general principle, a statement or record of interview of an accused tendered in evidence by the Crown and found to be voluntary may be edited to excise parts that are irrelevant to the issues in play at trial or unfairly prejudicial to the accused: R. v. Beatty , [1944] S.C.R. 73, at p. 76; R. v. Holcomb (1973), 12 C.C.C. (2d) 417 (N.B.S.C., A.D.), at pp. 420-421, aff’d [1973] S.C.R. vi. [126] A trial judge who admits a statement or record of interview that requires editing must ensure not only that irrelevant or unnecessarily prejudicial contents are excised, but also make certain that what remains retains its proper meaning when considered in relation to the whole of the statement: R. v. Kanester , [1966] 4 C.C.C. 231 (B.C.C.A.), at pp. 244-245, rev’d on other grounds, [1966] S.C.R. v. [127] When evidence of a statement or police interview of an accused is received at trial, it is for the jury, as the exclusive trier of fact, to determine the weight to be assigned to it. This includes whether some, none, or all of its contents are true or reliable: R. v. Hodgson , [1998] 2 S.C.R. 449, at para. 21; R. v. McAloon (1959), 124 C.C.C. 182 (Ont. C.A.), at pp. 185-187. [128] The final point concerns the admissibility of forms of expression other than traditional speech. Various forms of artistic expression, such as poems and songs, are not necessarily probative of the truth of what is expressed. The motives underlying the expression may be many. Sometimes, reciting what the author actually did is one of them. But not always. Yet these forms of expression may be capable of significant prejudice, as for example where their contents reveal a factual congruity or resemblance to what their author is alleged to have done: R. v. Terry , [1996] 2 S.C.R. 207, at para. 29. [129] Evidence of some forms of artistic expression may be received as part of the narrative, a link in the chain of inferences tending to establish guilt. The strength of the link is for the jury to decide based on the cogency of the available inferences. These forms of artistic expression should not be considered in isolation as direct proof of any conduct to which they may refer and require careful jury instructions to ensure no improper use: Terry , at para. 30. [130] Where the subject matter narrated is a dream, it too may give rise to different inferences if its contents are revealed in evidence. The limited value of a dream narrated in evidence would be apparent to a 21st century lay trier of fact. Nothing said or left unsaid in jury instructions about dreams should leave the impression with the jury that they could be treated as an admission of guilt: Terry , at para. 31. The Principles Applied [131] I would not accede to either aspect of this ground of appeal. I am satisfied that the trial judge did not err in failing to edit the references to dreams, flashbacks, recollections, and images in the police interviews of the appellant. Nor am I persuaded that the jury instructions about the use of this evidence reflect an error. [132] Prior to jury selection, the Crown asked the trial judge to determine the admissibility of what the appellant said to various police officers on six different occasions on the day of his arrest. The trial judge conducted a voir dire . At its conclusion, the judge was satisfied that anything said by the appellant on any of those six separate occasions was voluntary, thus admissible in evidence as part of the Crown’s case-in-chief and available for impeachment purposes should the appellant testify and say something different than what he had told police. So far as I can determine, defence counsel did not seek exclusion of this otherwise admissible evidence on the basis that its prejudicial effect exceeded its probative value. [133] Defence counsel then sought excision of references to the images the appellant claimed to have experienced. The argument advanced was grounded on lack of relevance: i. the lack of any basis upon which the jury could conclude that the images were recollections or memories of events rather than dreams; and ii. even if the images were recollections or memories, the absence of any detail about harming the deceased deprived them of any probative value. The appellant also contended that to use the appellant’s failure to provide details of the contents of the images violated his right to silence. [134] Editing otherwise admissible evidence involves the exercise of discretion. As an exercise of discretion, it falls to be decided in the unique circumstances of the case in which it arises. Absent an error of law or principle, a material misapprehension of the evidence, or a decision that is plainly unreasonable, the trial judge’s conclusion is entitled to significant deference in this court. No error has been demonstrated. [135] In this case, the appellant used various terms to describe what he told police about the circumstances surrounding his involvement with the deceased contemporaneous with his death. As the trier of fact, the jury was not bound by how the appellant chose to characterize the events he described. The jury was entitled to draw their own inferences from the various statements taken as a whole in the context of the other evidence adduced at trial. The appellant’s descriptors did not pre-empt the jury’s authority. [136] Recasting the argument as an error in settling the balance between probative value and prejudicial effect does not assist the appellant. This too involves an exercise of case-specific judicial discretion which is subject to deference in this court. The language of images, dreams, flashbacks, and recollections is not itself inherently prejudicial or apt to mislead a 21st century Canadian jury who can be presumed to know the difference among the terms and between fantasy and reality. This is not the same as the prejudice apt to arise when a symmetry exists between the words used in some forms of artistic expression, such as a poem or a song, and the circumstances of the offence with which an appellant is charged. [137] Nor do the jury instructions reflect error. [138] The trial judge made it clear to the jury that unless they found what the appellant said about the circumstances surrounding the death of the deceased were his actual recollections, they could not use what the appellant said as evidence in deciding whether the Crown had proven beyond a reasonable doubt that he killed the deceased. If the jury concluded that what the appellant said were merely dreams, they were irrelevant and had to be put aside in deciding whether the appellant killed the deceased. [139] To ensure that the jury attached no significance to the failure to provide any specifics of events surrounding the death of the deceased, the trial judge explained to the jury that: i. the appellant had a constitutional right to decline to answer questions seeking details and not to provide details; ii. the exercise of that right cannot support an adverse inference against the appellant; and iii. the failure of the appellant to provide details was of no significance to the jury’s decision. [140] These grounds of appeal fail. Ground #5: Unreasonable Verdict [141] The final ground of appeal alleges that the jury’s verdict was unreasonable and not supported by the evidence adduced at trial. No further reference to the evidence is necessary in order to evaluate the merits of this claim. A brief summary of the positions of counsel will provide an adequate framework for the discussion that follows. The Arguments on Appeal [142] The appellant characterizes the case for the Crown at trial as composed entirely of circumstantial evidence. This is so because the appellant’s statements about dreams and flashbacks during the police interviews were not admissible as admissions of guilt. They constituted part of the narrative of relevant events, but evidence admitted as narrative does not establish the truth of what is said. It follows that, in assessing whether the verdict rendered at trial was unreasonable or unsupported by the evidence, the issue to be resolved here is whether the evidence, as a whole, was such that the jury, acting judicially, could reasonably be satisfied that the appellant’s guilt was the only reasonable inference arising from the whole of the evidence. [143] The appellant contends that the evidence adduced at trial cannot meet the standard required of it to resist an allegation of unreasonableness. The Crown relied on evidence of opportunity, motive, and after-the-fact conduct to prove the appellant’s guilt. The appellant was the last person seen with the deceased when the deceased was last seen alive. On its own, this does not establish that the appellant killed the deceased. The motive alleged was the possibility of animus arising out of the deceased’s allegations about his drugs being stolen. But this was a constant refrain from the deceased when he couldn’t immediately find where he had hidden his drugs in his apartment. Nor was it unique to the appellant. And the evidence of the appellant’s after-the-fact conduct – taking steps to distance himself from the unlawful killing of the deceased – was consistent with what would be expected of a drug addict with a previous criminal record. [144] However, the appellant continues, the balance of the evidence must also be included in the analysis. The deceased was a drug trafficker whose trade was conducted in his apartment. Customers attended at all hours of the day and night. The deceased indicated that he was expecting someone, a female, to arrive later. And he wanted the appellant to remain in case his own supplier returned. The bloodied footwear impression was small, inconsistent with the appellant’s shoe size, and not made by the shoes the appellant voluntarily surrendered to police on arrest. The appellant’s DNA was not found under the nails of the deceased, despite evidence that a violent struggle preceded the deceased’s death. And the single bloodstain on the appellant’s sleeve was consistent with his failed attempt at CPR. The totality of the evidence gave rise to inferences other than guilt. The verdict was unreasonable. [145] The respondent resists the claim of unreasonableness in the jury’s verdict. The totality of the evidence met the standard required of it to establish guilt. The assertion of unreasonableness should fail. [146] Evidence that an accused was the last person seen with the deceased when the deceased was last seen alive varies in its cogency. Admittedly, on its own, evidence that an accused was the last person seen with the deceased when the deceased was last seen alive would fall short of proving that the accused caused the deceased’s death. But that is not this case. Here, there is much more. The deceased was killed in the very place where they were seen together. A significant struggle preceded the deceased’s death, something that the appellant was unlikely to sleep through. The deceased, a cautious man in his drug dealings, was unlikely to have admitted anyone he didn’t know or trust. No signs of forced entry were visible apart from those taken when the deceased’s body was discovered. [147] In addition to the evidence of near exclusive opportunity, the appellant’s after-the-fact conduct enhanced the probative value of the evidence of the circumstances in which the appellant and deceased were last seen together. The appellant did not call 911. He made, at best, a minimal effort at CPR. He locked the door to delay discovery of the body and disposed of the key. And it was open to the jury to conclude that he either consumed or stole the deceased’s drug cache and took his money. The finding of guilt was reasonable and supported by the evidence. The Governing Principles [148] No serious dispute arises about the principles we are to apply in our assessment and determination of this ground of appeal. Needless to say, the controversy between the parties has to do with the result the application of those principles compels. [149] Section 686(1)(a)(i) of the Criminal Code , R.S.C., 1985, c. C-46, permits a court of appeal to allow an appeal from conviction if the court is satisfied that the verdict is unreasonable or cannot be supported by the evidence received at trial. The question, as framed by the enabling provision, is whether the verdict is unreasonable on the evidence admitted at trial, not whether it is unjustified on that same evidence: R. v. Corbett , [1975] 2 S.C.R. 275, at p. 282. See also, R. v. Yebes , [1987] 2 S.C.R. 168, at pp. 185-186. [150] The test an appellate court applies in its response to a claim that a trial verdict is unreasonable or unsupported by the evidence is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. The inquiry requires the reviewing court to determine what verdicts a reasonable jury, properly instructed, could judicially have rendered by reviewing, analyzing, and, within the limits of appellate disadvantage, weighing the evidence. This involves not only objective, but also subjective assessments: R. v. Biniaris , 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36. [151] A verdict is unreasonable or unsupportable on the evidence if the verdict is one that a properly instructed jury, acting judicially, could not reasonably have rendered: R. v. H.(W.) , 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26, citing Yebes , at p. 185 and Biniaris , at para. 36. [152] In a case like this where the evidence received at trial is wholly or substantially circumstantial, the question to be answered when the verdict is challenged as unreasonable is whether the trier of fact, acting judicially, could reasonably be satisfied that the appellant’s guilt was the only reasonable inference available on the totality of the evidence: R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, citing Yebes , at p. 186. The circumstantial evidence does not have to totally exclude other “conceivable inferences”. Likewise, a verdict is not unreasonable simply because the alternatives did not cause the jury to have a reasonable doubt about the appellant’s guilt. For it is fundamentally for the trier of fact to decide whether any proposed alternative way of looking at the case was reasonable enough to raise a doubt about the accused’s guilt: Villaroman , at para. 56. [153] To succeed on a claim of unreasonable verdict under s. 686(1)(a)(i) of the Criminal Code , an appellant must persuade the appellate court that no properly instructed jury, acting judicially, could reasonably have found the appellant’s guilt established: R. v. Arias-Jackson , 2007 SCC 52, [2007] 3 S.C.R. 514, at para. 2. [154] Two further points require brief mention before turning to the application of the controlling principles to the evidence adduced at trial. [155] The first has to do with the value of evidence that an accused was the last person seen with the deceased when the deceased was last seen alive in proving the accused’s guilt for killing the deceased. [156] Without more, evidence that an accused was the last person seen with the deceased when the deceased was last seen alive, is not sufficient to establish the accused’s guilt on a charge of murdering the deceased: R. v. Stevens (1984), 11 C.C.C. (3d) 518 (Ont. C.A.), at p. 534, leave to appeal refused, 15 W.C.B. 157. However, the probative value of this evidence varies with the circumstances in which the accused and deceased were last seen together. As for example, in a case of child murder where the accused and deceased child were last seen together in a motor vehicle of the deceased, who was a stranger to the child, a short distance from where the body of the child was found: Stevens , at p. 535. Evidence of the accused after-the-fact conduct may also be important in enhancing the cogency of the last living sighting evidence: Stevens , at p. 533. [157] The second has to do with a factor we may consider in assessing the merits of the appellant’s allegations of unreasonableness in the verdict rendered. We are entitled to consider the appellant’s failure to testify in the face of the circumstantial case arrayed against him, thus his failure to provide the basis for an alternative inference inconsistent with guilt: R. v. George-Nurse , 2018 ONCA 515, 362 C.C.C. (3d) 76, at para. 33, aff’d 2019 SCC 12. The Principles Applied [158] This ground of appeal lacks persuasive force. [159] In my assessment of this ground of appeal, I acknowledge that the case for the Crown at trial was entirely circumstantial. As a result, the evidence, considered as a whole, was required to satisfy the jury that the appellant’s guilt was the only reasonable inference available on that evidence. The evidence did not have to exclude all inferences, as for example, all conceivable inferences, only reasonable inferences based on the evidence or lack of evidence inconsistent with guilt. And, it was fundamentally for the trier of fact to decide whether any alternative inference was reasonable enough to raise a reasonable doubt about the appellant’s guilt. [160] In this case, the evidence adduced permitted the jury to make several findings of fact. [161] The appellant was the last person seen with the deceased when the deceased was last seen alive at about 2:00 a.m. on February 1, 2015. At that time, the appellant and deceased were alone in the deceased’s apartment. The deceased was killed in that same apartment, apparently the result of a concerted and violent attack. The appellant was there at the time. The deceased was a drug dealer. His place of business was his apartment. He kept the door locked. He admitted only those he knew and trusted. The appellant was the only person in the apartment with the deceased’s body. There were no signs of forced entry. The appellant had the deceased’s blood on the sleeve of his jacket. For all practical purposes, the appellant’s opportunity to kill the deceased was exclusive. [162] In addition, evidence of the appellant’s after-the-fact conduct enhanced the probative value of the evidence of near exclusive opportunity. The appellant did not call 911. His attempts at CPR were minimal. He locked the door to the apartment and disposed of the key, delaying discovery of the body of the deceased and putting some distance between his presence and the discovery of the deceased’s death. He gave inconsistent accounts about whether the apartment door was locked or unlocked when he left. And he had been involved in a dispute with the deceased about missing drugs earlier that same evening or morning. Some aspects of his police interviews could be considered inculpatory admissions. [163] The evidence I have just marshalled, as a whole, afforded a basis on which the jury, acting judicially, could reasonably be satisfied that the appellant’s guilt was the only reasonable inference available on that evidence. The evidence about the footwear impression does not mandate a contrary conclusion. After all, the evidence did not reveal whether the print was partial or complete and the similarity between the footwear and neck impression was, at best, tenuous. And whether the appellant was truthful about the shoes he surrendered depended on his credibility in a case in which he did not testify. Disposition [164] For these reasons, I would dismiss the appeal. Released: January 20, 2022 “D.W.” “David Watt J.A.” “I agree. M.L. Benotto J.A.” “I agree. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Zhan (Re), 2022 ONCA 42 DATE: 20220119 DOCKET: C69200 Fairburn A.C.J.O., Feldman and Harvison Young JJ.A. IN THE MATTER OF: Tiun Hui (Jeff) Zhan AN APPEAL UNDER PART XX.1 OF THE CODE Anita Szigeti and Maya Kotob, for the appellant Michael Dineen, for the respondent Heard and delivered orally: December 3, 2021 On appeal against the disposition of the Ontario Review Board, dated February 4, 2021. REASONS FOR DECISION [1] In January 2021, the ORB concluded that a conditional discharge order was not appropriate for the appellant at this time. Although there was no dispute as to his risk to safety, the appellant submits that this order was incorrect and unreasonable because his risk factors could be safely managed under the rubric of a properly crafted conditional discharge. We do not agree and would dismiss the appeal for the following reasons. [2] In 2010, while on probation, the appellant attacked and fatally stabbed a stranger on the street in Glasgow, Scotland, responding to voices telling him the man was a zombie who would kill him. He was subsequently diagnosed with schizophrenia and treated with anti-psychotic medication. He was detained in a hospital in Scotland until February 2019, when he was repatriated to Canada and came under the jurisdiction of the Ontario Review Board. [3] In January 2021, in accepting the hospital’s recommendation, the ORB found that, although the issue of significant threat was not contested at the hearing, there was ample evidence to support such a finding. The appellant suffered from a major mental illness and had significant history of failing to comply with treatment and failing to comply with supervisory orders prior to confinement. The Board noted that although the appellant had a very positive reporting year, he had only been discharged into the community a few days before the hearing and after many years of confinement, and it was unknown how he would react to the new stressors of life in the community. [4] The Board specifically considered and rejected the appellant’s submission that a conditional discharge was the least onerous and restrictive disposition available. It thoroughly considered the evidence before it. The Board stressed that the appellant had a tendency to minimize negatives and overemphasize positives, which supported the view that he might not fully grasp the impact of negative stressors as he adjusted to life in the community, which could result in decompensation. [5] Put another way, his treatment team was concerned that he could be slow to detect or acknowledge any problems arising from the additional stresses of his new independence. Given the demonstrated risk that the appellant could pose to the public if his symptoms returned and his documented history of minimizing negatives and overemphasizing positives, the ability to return him quickly to the hospital during the period of adjustment was important. In our view, the Board’s reasons met the reasonableness standard. We do not agree with the appellant that the Board discounted or did not meaningfully consider or analyze much of the evidence that is favourable to him. Both the treatment team and the Board seriously considered this. [6] We do not agree that the concerns expressed by the hospital and accepted by the Board were speculative. They were well documented in the record. The Board accepted and reiterated the significant and enormous progress the appellant has made. In the context of the risks to public safety, however, it was within the range of reasonable outcomes to continue the detention order to offer a window of opportunity to test him in the community. The fact that he had been living in the community for only a few days at the time of his Board hearing was critical to its determination. The Board’s refusal to order a conditional discharge in January 2021 was reasonable and the appeal is therefore dismissed. “Fairburn A.C.J.O.” “K. Feldman 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. G.F., 2022 ONCA 44 DATE: 20220121 DOCKET: C65125 & C65126 Watt, Pardu and Nordheimer JJ.A. BETWEEN Her Majesty the Queen Respondent and G.F. and R.B. Appellants Richard Posner and Alexander Ostroff, for the appellants Philippe G. Cowle, for the respondent Heard: in writing On appeal from the sentences imposed by Justice Edward J. Koke of the Superior Court of Justice on September 6, 2017, with reasons reported at 2017 ONSC 5203. REASONS FOR DECISION [1] On June 9, 2016, the appellants were convicted of sexual assault of the complainant, C.R. On September 6, 2017, G.F. was sentenced to three and one‑half years’ incarceration and R.B. was sentenced to three years’ incarceration. On June 14, 2019, this court allowed their appeal against conviction and ordered a new trial. [1] As a result, this court did not address the appellants’ sentence appeal. The Crown then successfully sought leave to appeal that decision to the Supreme Court of Canada. On May 14, 2021, that appeal was allowed, and the appellants’ convictions were restored. [2] Consequently, this court is now called upon to hear and decide the sentence appeals. For reasons that need not be detailed, the parties’ written submissions, that were filed a few months ago, were only recently received by the panel. [2] The facts underlying the convictions are set out in detail in this court’s earlier reasons and in the reasons of the Supreme Court of Canada. They do not need to be repeated in detail. The appellants were convicted of engaging in the sexual assault of a 16-year-old complainant at a campground. The complainant was there with her parents and her younger brother. Her parents and the appellants were friends. The complainant had been provided with alcohol by G.F. and was intoxicated at the time of the sexual assault. [3] In terms of personal background, G.F. was born in the United Kingdom and immigrated to Canada when he was six years old. He never sought Canadian citizenship. He was 42 years old at the time of the offence. He had no criminal record. R.B., upon her graduation from high school, entered the workforce and always maintained gainful employment. She was 38 years old at the time of the offence. She also had no criminal record. [4] In his reasons for sentence, the trial judge noted that both counsel agreed that deterrence and denunciation are primary objectives in sentencing for offences such as those committed by the appellants. In terms of aggravating circumstances, the trial judge noted: · the complainant was only 16 years old, and both of the appellants were more than twice her age; · the complainant was under the influence of alcohol and most of the alcohol she drank was given to her by G.F. without the consent or approval of her parents; · the sexual activity was a violation of trust. The complainant’s parents trusted that their 16-year-old daughter would be treated with respect and consideration when they agreed to let her sleep in the trailer with the two appellants; · the sexual activity took place without any protection. This naturally gave rise to concerns about STIs and pregnancy; and · the extent of the sexual activity was not “low-end conduct”. The appellants manipulated the complainant into several physical positions, over the course of some time, and the complainant was “completely objectified and degraded as a sexual object”. [5] In terms of mitigating factors, the trial judge noted that neither of the appellants had a criminal record; they did not have any history of inappropriate conduct with young persons; and they were both hardworking individuals. The trial judge was concerned, however, by the fact that neither of the appellants had accepted any responsibility for their conduct. [6] The Crown had sought a four year custodial sentence for G.F., and a three year custodial sentence for R.B. The appellants both sought two year suspended sentences, with three years’ probation. As earlier noted, the trial judge imposed a sentence of three and one-half years on G.F. and three years on R.B. [7] The appellants raise a number of complaints with respect to the trial judge’s approach to the sentences. These include: · the trial judge used his own personal objection to the type of conduct involved, that is, group sexual activity along with sexual activity involving persons of very different ages, to increase the sentence; · the trial judge’s use of the appellants’ failure to take responsibility penalized them for maintaining their innocence; · the trial judge erred in finding that there was a breach of trust involved in this case; · the trial judge did not adequately distinguish between the appellants’ relative culpability; · the trial judge erred by failing to consider collateral immigration consequences for G.F.; · the trial judge erred by failing to consider collateral consequences for R.B. involving her history of mental health issues; and · the sentences were outside the range for similarly situated offenders. [8] We do not accept any of these complaints. In particular, while we accept that some of the language used by the trial judge in describing the sexual activity was inappropriate and unnecessary, we do not view it as having impacted the ultimate sentences imposed. We believe that it was open to the trial judge to find that there was an element of a breach of trust in this case given the particular circumstances. In that regard, we note that trust relationships can arise in varied circumstances and they fall along a spectrum: R. v. Friesen , 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 125. The immigration consequences were not ones that could have driven the appropriate sentence down to the point where they would have had any impact. Immigration consequences cannot be used to justify the imposition of inappropriate and artificial sentences: R. v. Pham , 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 15. [9] In advancing their argument about similarly situated offenders, the appellants have relied on case law that does not reflect facts that are similar to the ones here. The Crown points to a collection of different cases more closely resembling the facts of this case, which justify a sentence in the range of three to four years. It is this reality that often makes reference to other cases of limited use in determining an appropriate sentence. What is important is that the sentences imposed in this case are clearly far from being “demonstrably unfit”. [10] An appellate court may only interfere with a sentence if the sentencing judge erred in principle, failed to consider a relevant factor or erroneously considered an aggravating or mitigating factor, and the error had an impact on the sentence: R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. The appellants have failed to show that any of these errors occurred in this case. [11] In our view, the trial judge imposed sentences that were proportionate to the activities underlying the offences committed. His differentiation between the two appellants in terms of sentencing was reasonable and is entitled to deference. [12] While we would grant leave to appeal the sentences, the appeals are dismissed. “David Watt J.A.” “G. Pardu J.A.” “I.V.B. Nordheimer J.A.” [1] R. v. G.F. , 2019 ONCA 493, 146 O.R. (3d) 289. [2] R. v. G.F. , 2021 SCC 20, 404 C.C.C. (3d) 1.

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. H.K., 2022 ONCA 45 DATE: 20220120 DOCKET: C68669 Tulloch, Hourigan and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and H.K. Appellant H.K., acting in person Mark Ertel, appearing as duty counsel Philippe Cowle, for the respondent Heard: November 4, 2021 by video conference On appeal from the convictions entered on May 8, 2020 and the sentence imposed on September 3, 2020 by Justice Ann Alder of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant was convicted of various offences arising out of a sexual assault. He received a global sentence of three years, to be served consecutive to a sentence he is serving for previous convictions. [2] The appellant’s notice of appeal argues the trial judge erred in two respects. First, the trial judge failed to resolve conflicting evidence on the critical issue of consent. Second, the sentence imposed was excessive because it failed to properly take into account the sentencing principle of totality. [3] In oral submissions, duty counsel informed the court that the appellant did not wish to advance any arguments regarding his sentence appeal. Accordingly, leave to appeal the sentence was denied. At the conclusion of the hearing, we dismissed the appeal, with reasons to follow. We now provide our reasons. Background Facts [4] The facts that form the basis of the convictions are as follows. The appellant and complainant were in a romantic relationship. In January 2019, the complainant took a trip to Miami, Florida with her sister. On her return layover, the complainant, her sister, and the appellant argued over the phone over the complainant’s lack of contact with the appellant during the trip. The complainant returned to her parents’ house from the airport, but later went to the appellant’s residence at the appellant’s request. The pair argued again, and the appellant accused her of infidelity. He also looked at her cellphone and found a photo of the complainant and her sister with two men during the Miami trip. [5] The complainant testified that she believed the appellant began to get violent after seeing the photo. The complainant could not clearly recall the order in which the events that followed occurred, and she offered inconsistent and shifting testimony on the order of the events. [6] The appellant gave the complainant an ultimatum: she could either be slapped by him or she could leave. The complainant agreed to receive the slaps and testified that she did so out of fear and in an attempt to fix the situation and their relationship. [7] At another point in the evening, the appellant either removed the complainant’s clothes or had her remove her own clothes. She could not recall clearly whether he continued to hit her. She testified the appellant digitally penetrated her vagina, and then they had sexual intercourse. She testified that she felt she had no choice but to engage in sexual intercourse with the appellant because she was scared that he was angry and violent, and she was upset and crying. At still another point in the evening, the appellant began punching the complainant in the ribs and around her tailbone. The appellant was angry, and the complainant was crying. The appellant offered to call 911 given the force of the strikes, but she declined because she did not want to involve the police. [8] The complainant eventually fell asleep and was woken by the appellant grabbing her and throwing her into the bathtub, which was filled with water. The appellant instructed her to remove her pajamas. He handed her a hairbrush with a hand towel wrapped around the handle and instructed her to clean the inside of herself with it. She attempted to comply out of fear of the appellant. [9] The complainant testified that the next thing she remembered was waking up the next morning to the appellant again throwing her in the bathtub, which was again filled with water. The appellant told her that he would look at the photo every morning to remind himself of her infidelity. The appellant then cut off some of her hair, and then proceeded to urinate on her. He made her insert her fingers in her vagina with the urine in the water. She complied because she felt “completely powerless”. [10] Over the course of the incidents, the appellant would give the complainant an ultimatum: either she could comply with his demands or she could leave. The complainant testified that she complied because she hoped that compliance would make him stop or would fix the issue. [11] The following day, the complainant left the appellant’s house without some of her belongings, including her phone. She went to her sister’s house. The complainant and her sister returned to the appellant’s residence and tried to get her belongings back but were unsuccessful. The complainant’s sister contacted the police, who took reports, statements, and photographs. The complainant was then taken to the hospital, where X-rays revealed some bruising. [12] Following the complainant’s departure from the appellant’s house, he sent the complainant numerous text messages admitting to the facts of the sexual assault and apologizing; however, his text messages also stated that the complainant agreed to the acts that occurred and that the complainant voluntarily agreed to stay rather than leave. Decision Below [13] The appellant was convicted of two counts of assault for punching the complainant in the ribs and tailbone area. The force of the strikes was corroborated by evidence presented by the complainant’s sister, the hospital records, photos, and the appellant’s text messages. The trial judge accepted the complainant’s testimony that she did not agree to being struck. While the complainant may have told the appellant at times that “she would do anything to stay”, this does not amount to consent to each act which occurred. [14] The appellant was also convicted of sexual assault with a weapon and fail to comply for the hairbrush incident. Despite the complainant’s inability to recall whether the punching occurred before this incident or not, the trial judge accepted the complainant’s account of the events. The trial judge also considered the digital penetration of the complainant and the sexual intercourse that followed as part of the context informing whether the complainant had subjectively consented to the hairbrush incident. Though the appellant was acquitted of sexual assault for the digital penetration and sexual intercourse on the basis that the Crown failed to establish an absence of consent or acquiescence as a result of the application of force or threats or the fear of force, the trial judge noted that these acts involved control, harassment, and some violence, and were relevant to her analysis. The trial judge considered the events leading up to the complainant’s attendance at the appellant’s home. She also considered the complainant’s statement that she would do anything to salvage the relationship and the fact that the complainant did not leave when given ultimatums to either stay and comply or leave. Having regard to all the evidence, the trial judge concluded the complainant did not consent to the hairbrush incident and convicted the appellant of sexual assault with a weapon. As the appellant was at the time subject to a recognizance prohibiting the possession of weapons, he was also convicted for fail to comply. [15] Finally, the appellant was convicted of sexual assault for coercing the complainant to insert her fingers in her vagina after he urinated on her and cut her hair. The trial judge accepted the complainant’s testimony that she again complied out of fear of further violence. She therefore did not consent to the act. [16] As stated earlier, the appellant was given a global sentence of three years’ in custody. Issue on Appeal [17] The appellant argues that the trial judge failed to resolve conflicting evidence on the critical issue of consent. Duty counsel argues that the trial judge treated the credibility assessment in a piecemeal manner. Duty counsel contends that the trial judge did not find the complainant to be credible generally: the complainant’s evidence changed from her examination-in-chief, to her cross-examination, and at times also in her re-examination. Yet, in assessing the complainant’s credibility on the offences for which the appellant was ultimately found guilty, the trial judge failed to consider inconsistencies in the complainant’s evidence on other counts. The trial judge also failed to consider the complainant’s evidence that she had consented to some acts that she would not have otherwise because she had consumed prescription drugs earlier that day. The failure to resolve these issues with the complainant’s evidence amounts to an insufficiency of reasons which warrants appellate intervention. We do not agree. [18] The Supreme Court of Canada, in R. v. G.F ., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 81-82, clearly circumscribes the parameters of appellate intervention and the heightened deference owed to a trial judge’s credibility findings: [81]  … a trial judge’s findings of credibility deserve particular deference. While the law requires some articulation of the reasons for those findings, it also recognizes that in our system of justice the trial judge is the fact finder and has the benefit of the intangible impact of conducting the trial. Sometimes, credibility findings are made simpler by, for example, objective, independent evidence. Corroborative evidence can support the finding of a lack of voluntary consent, but it is of course not required, nor always available. Frequently, particularly in a sexual assault case where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings of credibility can be more challenging. Mindful of the presumption of innocence and the Crown’s burden to prove guilt beyond a reasonable doubt, a trial judge strives to explain why a complainant is found to be credible, or why the accused is found not to be credible, or why the evidence does not raise a reasonable doubt. [82]   Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility. The jurisprudence often stresses the distinction between reliability and credibility, equating reliability with the witness’ ability to observe, recall, and recount events accurately, and referring to credibility as the witness’ sincerity or honesty. However, under a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns. … [Citations omitted.] [19] We reject duty counsel’s argument that heightened deference to a trial judge’s credibility findings is only owed if the trial judge has found the complainant to be generally credible. A trier of fact is entitled to accept some, none, or all of the evidence given by a witness. The trial judge in this case conducted a thorough and detailed analysis of the entire evidence. She considered where the complainant’s evidence was consistent or corroborated by other evidence, and she explained where the complainant’s evidence was unreliable. This is entirely consistent with her role as the trier of fact. [20] Duty counsel also argues that, having found issues with the complainant’s evidence about some of the allegations, the trial judge was required to consider whether those weaknesses undermined the complainant’s evidence on other allegations. Duty counsel further suggested that had the trial judge stated in her reasons that she was accepting the complainant’s evidence notwithstanding issues with her evidence on other allegations, the trial judge’s credibility findings would be entitled to deference as stated in G.F . [21] Respectfully, this submission misunderstands the instruction in G.F . G.F . requires appellate courts to take a practical approach to reviewing a trial judge’s reasons. There is no magic incantation required of trial judges. Reading the trial judge’s reasons as a whole, there is no basis on which we find that they were insufficient so as to be inscrutable or incapable of meaningful appellate review. The trial judge’s reasons were careful and nuanced. She explained why she did not accept some of the complainant’s evidence and why she did accept other parts of the complainant’s evidence. Moreover, the trial judge did not consider the complainant’s evidence alone but also had regard to corroborating evidence by other witnesses, photos, and text messages. [22] In our view, the trial judge made no error in her analysis. Disposition [23] For the foregoing reasons, the appeal from the convictions is dismissed. “M. Tulloch J.A.” “C.W. Hourigan J.A.” “L. Sossin J.A.”

WARNING T he motion judge presiding over this hearing 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. T.M., 2022 ONCA 46 DATE: 20220119 DOCKET: M52958 (C70015) Tulloch J.A. (Motion Judge) BETWEEN Her Majesty the Queen Respondent and T.M. Appellant/Applicant Katie Heathcote, agent for counsel for the applicant Craig Harper, for the respondent Heard: November 24, 2021 by video conference REASONS FOR DECISION [1] On April 7, 2021, following a judge-alone trial in the Superior Court of Justice, the applicant, T.M., was convicted of sexually assaulting his intimate partner and choking her to overcome resistance to the offence. He was sentenced to four years’ imprisonment. [2] The applicant now seeks release pending appeal on the basis of an alleged misapprehension of evidence, and, more particularly, that the trial judge made substantial errors in her assessment of the evidence and in her credibility assessment. [3] The Crown disagrees and opposes the applicant’s release on the basis that the pending appeal is frivolous, as well as on the tertiary ground that it would be contrary to the public interest. Facts [4] At the applicant’s trial, the court heard evidence from the complainant and a police officer. The defence called no evidence. The Crown and defence agreed that if the trial judge accepted the Crown’s evidence, then the offences would have been made out. [5] The underlying facts as found by the trial judge and on which the convictions are based are as follows. The complainant and the applicant were involved in a domestic intimate relationship from sometime in 2014 or 2015 to August 2016. On July 5, 2016, the complainant’s father passed away, and the funeral was held on July 7, 2016. On July 9, 2016, two days after the complainant’s father’s funeral, she was in her bedroom resting when the applicant entered the bedroom and told her that he wanted her to be “more of a girlfriend to him” and more attentive. The complainant indicated to the applicant that she wanted to be left alone, but the applicant would not take “no” for an answer. [6] The applicant tried to take off the complainant’s yoga pants and a black spaghetti-strap shirt. He forced her legs open and pushed himself on top of her. Her pants were ripped in the struggle. The complainant was crying and said “please don’t do this to me”. The applicant had his hand around her neck and pinned her down, so she was not able to breathe. She testified that she felt absolutely defeated. [7] The applicant penetrated the complainant vaginally. He was not satisfied and told her to turn around. She said no. The applicant, in response to her refusal, punched her in the side of her body and forced her to turn around by her hair. This caused the left side of her face to hit the wall. He tried to bite the complainant’s face but bit her hand instead. He then forced anal sex on her. She stated that it hurt, and she did not know how long this lasted. The complainant had sore ribs but did not receive medical attention. [8] The applicant did not testify. The Applicant’s Criminal Antecedents [9] The applicant has a long criminal record, dating back to 1985, as well as a history of violence against domestic partners. The offences for which he has been previously convicted include offences of violence, such as assaults, assault causing bodily harm, crimes of dishonesty (theft and public mischief), participation in a criminal organization, illegal transfer of a firearm, possession of proceeds obtained by crime, failure to comply with court orders while on release (four convictions), and failure to comply with probation. [10] Of particular relevance to this application for release pending appeal, are the applicant’s previous convictions for very serious assaults against intimate partners. There are two sets of such convictions, all of which involved different intimate partners and different time frames. [11] The first convictions against an intimate partner involves a set of offences committed between 2002 and 2010, which resulted in convictions in 2013 for assault, aggravated assault, assault with a weapon, and uttering threats. The underlying facts for this first series of offences involved the applicant striking the complainant with a piece of wood which caused the complainant’s arm to be fractured. He was also convicted of choking the complainant, and of grabbing and throwing her on the bed. This series of offences resulted in ongoing physical difficulties to the complainant. [12] The second set of offences involving an intimate partner resulted in the applicant being convicted of assault causing bodily harm on October 16, 2018. On February 25, 2018, the complainant returned home from church to find the applicant in her residence. They engaged in a verbal argument. Without warning, the applicant punched the complainant directly in the face, knocking her unconscious. She regained consciousness as he dragged her across the kitchen floor by her ankles. The applicant proceeded to choke her with his hands around her neck, and then placed her in a bear hug from the front, making it extremely difficulty for her to breathe. He pushed her up against the kitchen cupboards, causing her to strike the back of her head on the cupboard handle. He then began choking her around her neck again. Throughout the assault, he made threatening comments to her, and she lost consciousness at least one time. This offence occurred while the applicant was on bail pending trial for the instant offences. His sister was his surety at that time. The applicant pled guilty. Proposed Sureties [13] In this application for release pending appeal, the applicant has submitted a proposed plan of release, in which he proposes as sureties his sister as well as his new wife, who he has been married to since June 13, 2021. None of the affidavits of the proposed sureties for this application referenced the applicant’s criminal record or addressed his past breaches of court orders. They did not address what would be different this time around, after the applicant has been convicted for yet another series of offences involving another intimate partner. Analysis [14] An application for release pending appeal is governed by s. 679(3) of the Criminal Code , R.S.C. 1985, c. C-46. The applicant must satisfy the court 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. [15] The applicant bears the burden of meeting each criterion on a balance of probabilities. As the applicant has now been convicted, he no longer benefits from the presumption of innocence: R. v. Oland , 2017 SCC 17, [2017] 1 S.C.R. 250, at para. 35. Section 679 (3)(a): The Appeal is Not Frivolous [16] The “not frivolous” test is a very low bar: Oland , at para. 20. It is not, however, non-existent. The applicant must provide an outline of his argument supported by legal authority and a factual underpinning so that the court can determine whether the applicant has met the burden under s. 679(3)(a). In essence, the applicant must show the proposed appeal raises arguable issues: R. v. Manasseri , 2013 ONCA 647, 312 C.C.C. (3d) 132, at para. 38. If a judge is unable to determine on the record before the court if the onus has been met, the applicant has not established his or her onus of proof that the appeal is not frivolous. [17] The applicant submits that the trial judge misapprehended the evidence, and as such, the appeal is arguable. I disagree. A close examination of the applicant’s proposed ground of appeal within the context of the evidentiary narrative leads to the conclusion that there is no merit to this ground of appeal. The legal test for a misapprehension of evidence was succinctly stated by this court in the case of R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), at p. 541: Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict… If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction. [18] The Supreme Court of Canada in the case of R. v. Lohrer , 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2, clarified the test for misapprehension of evidence as enunciated in Morrissey : Morrissey , it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. [19] The basis of the applicant’s argument is in an affidavit by a lawyer, Arden Ross, who asserts that he reviewed the trial notes of the applicant’s trial counsel as they pertain to the complainant’s evidence. From that review, he concludes that the complainant’s evidence is irreconcilable, as the complainant gave evidence indicating that the applicant remained “inside” of her while he punched her side and grabbed her by the hair, forcing her to turn over onto her stomach during the described sexual assault. [20] The trial judge dealt directly with this submission and the concerns raised by the defence. She considered the totality of the evidence, and she addressed the concerns and perceived inconsistencies: The defence in submissions takes issue with the chronology of these events and questions whether all of those things she described could be happening at once, such as the forced vaginal intercourse; the hand around her throat, the punch to her side, the attempt to bite her face. The difficulty with this submission is that this was not put to the witness. She maintained in her evidence that all of these events took place and some inconsistency in her evidence as to whether the accused was standing or on the bed with her when he was forcing anal intercourse, and whether her top was ripped off or just ripped does not detract from her evidence overall. Her evidence in relation to the incidents of July 9th, 2016, is detailed and straightforward, and any minor inconsistencies do not concern any material issues. [21] In my view, this is a complete answer to the applicant’s ground of appeal based on a misapprehension of the evidence. It is clear from the above excerpt that the trial judge understood the concerns raised by the defence, she turned her mind to the complainant’s evidence on the issue in concern, and she addressed the fact that the complainant was not cross-examined on the perceived inconsistencies with this portion of the evidence. It is clear that the trial judge considered the defence arguments in her weighing and assessment of the credibility and reliability of complainant’s evidence, and in the end, she was satisfied beyond a reasonable doubt that the Crown had discharged its burden of proof. [22] In my view, the applicant’s proposed ground of appeal does not go to the substance of the evidence. The sole issue at trial was the credibility and reliability of the complainant’s evidence. The complainant was the only witness who testified on the issues pertaining to the elements of sexual assault that the Crown was required to prove. The applicant chose not to call any evidence, which was his right. Unfortunately for him, the only credible evidence which the trial judge was left with to determine the guilt or innocence of the applicant was the unimpeached evidence of the complainant. [23] The proposed ground of appeal which the applicant has couched under the rubric of a “misapprehension of the evidence” goes to the detail rather than the substance of the evidence and was clearly not material, but rather peripheral, to the reasoning of the trial judge. The trial judge gave very clear and detailed reasons why she accepted the evidence of the complainant, and why she was not left with any reasonable doubt by the arguments of the defence. In my view, the very low test of “not frivolous” has not been met by the applicant in this case. Section 679(3)(c): Detention is Not Necessary in the Public Interest [24] Furthermore, even if the ground of appeal were arguable, I find that pursuant to s. 679(3)(c), the applicant has not discharged his onus of establishing that his detention pending his appeal is not warranted in the public’s interest. [25] An assessment of the public interest requires an assessment of public safety and public confidence in the administration of justice. [26] “Public safety” involves an assessment of the secondary ground concerns governing pre-trial release under s. 515(10)(b). As explained in R. v. Stojanovski , 2020 ONCA 285, at para. 18, bail will be denied if the following conditions are met: (i) the individual must pose a “substantial likelihood” of committing an offence or interfering with the administration of justice; (ii) the “substantial likelihood” must endanger the “protection or safety of the public”; and (iii) the individual’s detention must be “necessary” for public safety. A history of breaching court orders is an “important factor in gauging” how an applicant will perform on bail: R. v. L.D ., 2021 ONCA 786. [27] Public safety concerns, standing alone, can justify refusing bail in the public interest. As pointed out earlier, the applicant has a significant criminal record for violence and for breaching court orders. In addition, he now has two sets of convictions for intimate partner violence, one of which was committed while on bail and awaiting trial for the instant charges. By virtue of the applicant’s criminal antecedents, there is a clear indication that the applicant poses a substantial likelihood of committing a subsequent offence, which could endanger the protection or safety of the public. As such, I am satisfied that the applicant’s detention is necessary for public safety. [28] The second category, “public confidence,” requires an assessment and balancing of the competing interests of enforceability and reviewability. The interest of enforceability is assessed with a view to the seriousness of the crime: the more serious the crime, the greater the risk that the public’s confidence in the administration of justice will be undermined if the person convicted is released on bail pending appeal: R. v. T.S.D. , 2020 ONCA 773, at para. 52; Oland , at para. 37. The reviewability interest considers the strength of the appeal, having regard to the general legal plausibility and evidentiary support for the proposed grounds of the appeal: T.S.D. , at para. 56; Oland , at paras. 40 and 44. [29] In my view, the enforceability interest is significant in this case and overrides the reviewability interest. The applicant was convicted of a very serious and violent sexual assault against his intimate partner. He also has a history of intimate partner violence and of breaching court orders. [30] I acknowledge that, more likely than not, the appeal will be heard before the applicant has served his sentence, and as such, the interest of reviewability militates in favour of release pending appeal. However, as I explained earlier in these reasons, in my view there is no prospect of success on this appeal, as the proposed ground of appeal lacks merit. [31] Accordingly, the public interest in maintaining confidence in the administration of justice militates in favour of enforceability in this case. Disposition [32] For these reasons, the application for release pending appeal is dismissed. “M. Tulloch J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Laurentide Kitchens Inc. v. Homestars Inc., 2022 ONCA 48 DATE: 20220124 DOCKET: C69229 Benotto, Huscroft and Miller JJ.A. BETWEEN Laurentide Kitchens Inc. Plaintiff (Appellant) and Homestars Inc. Defendant (Respondent) and BETWEEN DOCKET: C69287 Lucvaa Ltd. Plaintiff (Appellant) and Homestars Inc. Defendant (Respondent) Gavin J. Tighe and Daria Risteska, for the appellants Maanit Zemel, for the respondent Heard: November 29, 2021 On appeal from the order of L.S. Ntoukas, Administrative Judge of the Small Claims Court, dated February 17, 2021. Benotto J.A. : [1] Does the Administrative Judge of the Small Claims Court have jurisdiction to make an order under s. 137.1 of the Courts of Justice Act , R.S.O. 1990, c. C.43 (“ CJA ”) ? [1] The appellants submit that she does not because the issue was determined by this court in Bruyea v. Canada (Veteran Affairs) , 2019 ONCA 599, 439 D.L.R. (4th) 193. The respondent submits that the jurisdiction issue decided in Bruyea was limited to deputy judges of the Small Claims Court and does not extend to the Administrative Judge. [2] Two appeals, heard together, raised this issue. For the reasons that follow, I would allow the appeals. I conclude that the Administrative Judge of the Small Claims Court does not have jurisdiction to make an order under s. 137.1. That jurisdiction lies only with a Superior Court judge. BACKGROUND (1) The defamation actions [3] The respondent Homestars Inc. operates a website, on which consumers post reviews of contractors and providers of home improvement services. Negative reviews were posted against the appellants Lucvaa Ltd. and Laurentide Kitchens Inc. On May 30, 2018, Lucvaa and Laurentide Kitchens sued Homestars in Small Claims Court. [4] Homestars brought motions against each appellant to dismiss their actions under s. 137.1 of the CJA . The motions were scheduled to be heard before a deputy judge on April 30, 2019. (2) Bruyea is released [5] Two and a half months after the motions were scheduled, the decision in Bruyea was released. This court concluded that deputy judges do not have the jurisdiction to make orders under s. 137.1 of the CJA. Deputy judges are lawyers who are appointed by the regional senior judge of the Superior Court, with the approval of the Attorney General, usually for a term of three years. Bruyea has been followed by this court in other cases which have confirmed that only Superior Court judges can make orders under s. 137.1. (3) Application to the Superior Court [6] Homestars applied to the Superior Court and sought to have a Superior Court judge assigned to hear the motion. Under the CJA s. 22(3), all Superior Court judges are also judges of the Small Claims Court. On October 17, 2019, the matter came before a Superior Court judge in civil practice court. He endorsed the record that the action would remain in Small Claims Court and “an administrative judge of the Small Claims Court should hear these motions”. [7] There is one Administrative Judge of the Small Claims Court. As will be discussed below, this was a position created by the legislature in 2017. (4) Decision of the Administrative Judge [8] On February 27, 2020, the motions came before the Administrative Judge. The appellants challenged her jurisdiction, and it was argued as a preliminary matter. [9] In her written reasons, released a year later on February 17, 2021, the Administrative Judge concluded that the Superior Court judge’s endorsement settled the issue of jurisdiction, and she would hear the motions when the court resumed operations. The appellants appeal this order. STATUTORY AND JURISPRUDENTIAL BACKGROUND [10] There are statutory and jurisprudential principles that frame the issue of jurisdiction. (5) Statutory principles [11] The statutory framework is found in ss. 137.1, 87.2 and 24 of the CJA. Section 137.1 [12] Section 137.1 was enacted in 2015 to promote and protect freedom of expression on matters of public interest by allowing a defendant to move at an early stage to dismiss proceedings that adversely affect that expression. The section is as follows: Dismissal of proceeding that limits debate Purposes 137.1 (1) The purposes of this section and sections 137.2 to 137.5 are, (a) to encourage individuals to express themselves on matters of public interest; (b) to promote broad participation in debates on matters of public interest; (c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and (d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. 2015, c. 23, s. 3. Definition, “expression” (2) In this section, “expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity. 2015, c. 23, s. 3. Order to dismiss (3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. 2015, c. 23, s. 3. No dismissal (4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that, (a) there are grounds to believe that, (i) the proceeding has substantial merit, and (ii) the moving party has no valid defence in the proceeding; and (b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. 2015, c. 23, s. 3. No further steps in proceeding (5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of. 2015, c. 23, s. 3. No amendment to pleadings (6) Unless a judge orders otherwise, the responding party shall not be permitted to amend his or her pleadings in the proceeding, (a) in order to prevent or avoid an order under this section dismissing the proceeding; or (b) if the proceeding is dismissed under this section, in order to continue the proceeding. 2015, c. 23, s. 3. Costs on dismissal (7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. 2015, c. 23, s. 3. Costs if motion to dismiss denied (8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances. 2015, c. 23, s. 3. Damages (9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate. 2015, c. 23, s. 3. [13] As provided for under s. 137.2(2), the s. 137.1 motion is to be heard within 60 days after the notice of motion is filed with the court. Section 137.1(5) provides that the s. 137.1 motion stays the underlying defamation action until the motion has been finally determined, including on appeal. Section 137.1 also provides provisions for the imposition of costs and damages. [14] The detailed process to determine whether a s. 137.1 motion will succeed involves a framework and a shifting burden that was described in 1704604 Ontario Ltd. v. Pointes Protection Association , 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 18: In brief, s. 137.1 places an initial burden on the moving party – the defendant in a lawsuit – to satisfy the judge that the proceeding arises from an expression relating to a matter of public interest. Once that showing is made, the burden shifts to the responding party – the plaintiff – to satisfy the motion judge that there are grounds to believe the proceeding has substantial merit and the moving party has no valid defence , and that the public interest in permitting the proceeding to continue outweighs the public interest in protecting the expression . If the responding party cannot satisfy the motion judge that it has met its burden, then the s. 137.1 motion will be granted, and the underlying proceeding will be consequently dismissed. It is important to recognize that the final weighing exercise under s. 137.1(4)(b) is the fundamental crux of the analysis … legislative debates emphasized balancing and proportionality between the public interest in allowing meritorious lawsuits to proceed and the public interest in protecting expression on matters of public interest. Section 137.1(4)(b) is intended to optimize that balance. [Emphasis added.] [15] The evidence before the motion judge must comply with the section to establish the expression of public interest, the merits of the claim, the validity of the defences and then the proper balancing and proportionality between public interest in allowing the matter to proceed and protecting expression. This typically involves an exchange of affidavits, cross-examinations and extensive submissions. Sections 87.2 and 24 [16] In 2017, the Burden Reduction Act , 2017, S.O. 2017, c. 2 amended the CJA to create the position of Small Claims Court Administrative Judge. Ten years earlier, the Civil Justice Reform Project had recommended that an administrative judge be appointed to ensure that trial and settlement conferences lists were properly organized in the Small Claims Court. The official debates refer to “creating the position of Small Claims Court administrative judge to improve our Small Claims Court processes and ensure that any dispute, big or small, is handled fairly and smoothly by our courts”. [2] [17] When the Burden Reduction Act was passed, s. 87.2 was added to the CJA : Small Claims Court Administrative Judge 87.2 (1) The Lieutenant Governor in Council may, on the recommendation of the Attorney General, appoint a person who meets the qualifications set out in subsection 42 (2) as Small Claims Court Administrative Judge. 2017, c. 2, Sched. 2, s. 18 . [18] The qualifications in s. 42(2) are those for a provincial court judge. [19] Section 24 of the CJA was also amended to add the Administrative Judge in s. 24(2)(c): Composition of court for hearings 24 (1) A proceeding in the Small Claims Court shall be heard and determined by one judge of the Superior Court of Justice. R.S.O. 1990, c. C.43, s. 24 (1); 1996, c. 25, s. 9 (17). Other judicial officials who may preside (2) Despite subsection (1), a proceeding in the Small Claims Court may also be heard and determined by, (a)  a provincial judge who was assigned to the Provincial Court (Civil Division) immediately before the 1st day of September, 1990; (b)  a deputy judge appointed under section 32 ; or (c)  the Small Claims Court Administrative Judge appointed under section 87.2 . 2017, c. 2, Sched. 2, s. 3 . (6) Jurisprudential principles [20] This court has considered ss. 327.1 and 24(1) and (2) of the CJA in connection with the jurisdiction to make the order in question here. [21] In practice, virtually all matters in the Small Claims Court are heard by deputy judges. In Bruyea the issue before this court was whether a deputy judge of the Small Claims Court has jurisdiction to make an order under s. 137.1 . Writing for the court in Bruyea , Nordheimer J.A. reviewed the structure of the Small Claims Court and the specific provisions of s. 137.1. At para. 12, he wrote the following: Of importance for the current issue is the wording of s. 137.1(3) that reads: On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. [Emphasis added.] Subsections 137.1(4), (6), (7), (8) and (9) also all refer to “judge”. [22] Nordheimer J.A. concluded that the use of the word “judge” without reference to “deputy judge” was a clear marker that deputy judges do not have jurisdiction to make the order. He found at para. 26 that “the Small Claims Court must find its jurisdiction in a statute” and therefore “[a]bsent express statutory authority, the Small Claims [C]ourt has no jurisdiction”. [23] Bruyea was referred to by this court in Nanda v. McEwan , 2020 ONCA 431, where the Chief Justice concluded, at para. 12, that only a Superior Court judge had jurisdiction to make the order: Subsequent to the motion judge’s decision, this court held in Bruyea v. Canada (Veteran Affairs) , 2019 ONCA 599, 147 O.R. (3d) 84 , that a deputy judge of the Small Claims Court has no jurisdiction to make an order under s. 137.1 , as that jurisdiction rests with a “judge”, meaning a Superior Court judge. [24] In Ontario College of Teachers v. Bouragba , 2021 ONCA 508, at paras. 6-8, this court, in considering the proper appeal route for a s. 137.1 order, also confirmed that only a Superior Court judge has jurisdiction to make the order: Mr. Bouragba submits that an appeal of the Order lies to this court pursuant to CJA s. 6(1) (d), which states that “an appeal lies to the Court of Appeal from … (d) an order made under section 137.1 .” We disagree. An order “made under section 137.1 ” within the meaning of CJA s. 6(1)(d) is an order made by a “judge” of the Superior Court of Justice. This is clear from the language of s. 137.1 , which authorizes a “judge” to make orders that: (i) dismiss a proceeding ( s. 137.1(3) ); (ii) refuse to dismiss a proceeding ( s. 137.1(4) ); (iii) amend a pleading ( s. 137.1(6) ); (iv) award costs (s. 137.1(7) and (8); or award damages to the moving party (s. 137.1(9)). [Emphasis added.] ISSUE ON APPEAL [25] The issue on appeal is whether the Administrative Judge of the Small Claims Court has jurisdiction to make an order pursuant to s. 137.1 of the CJA . [3] [4] ANALYSIS [26] I come to the conclusion the Administrative Judge does not have the authority to make an order under s. 137.1. I say this for three reasons: (i) the authority was not given by statute; (ii) this court has determined that only Superior Court judges have the jurisdiction; and (iii) the s. 137.1 process is not consistent with the rules and procedures in the Small Claims Court. [27] I will address each reason in turn. (7) No statutory authority [28] In 2017, the Burden Reduction Act amended the CJA to create the position of Administrative Judge. Section 137.1 had been in effect for two years. Although the legislature made other consequential amendments to the CJA to reflect this change, the legislature did not amend s. 137.1(3) to include the Administrative Judge. For ease of reference, s. 137.1(3) provides: On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. [Emphasis added.] [29] The respondent submits that this does not matter because, in effect, the Administrative Judge should be considered a provincial court judge. The CJA provides that her qualifications and compensation for the position are the same as a provincial court judge. Section 87.2(1) provides that the Administrative Judge must meet “the qualifications set out in subsection 42(2) ”, which are the qualifications for a provincial court judge. Section 87.2(7) of the CJA provides that the Administrative Judge is “deemed to be a provincial judge” for purposes of compensation: Compensation (7) The salary, pension benefits, other benefits and allowances of the Small Claims Court Administrative Judge are subject to the recommendations of the Provincial Judges Remuneration Commission and, for the purpose, the Small Claims Court Administrative Judge is deemed to be a provincial judge under the framework agreement set out in the Schedule to this Act. 2017, c. 2, Sched. 2, s. 18 . [Emphasis added.] [30] The reference to ss. 42(2) and 87.2(7) does not assist the respondent. On the contrary, these amendments show that the legislature was alive to changes that were required as a result of s. 87.2 and chose not to amend the definition of judge in s. 137.1(3). This is a marker of an intent to omit the jurisdiction. By providing that the Administrative Judge have the same qualifications and be paid in accordance with provincial court judges, the Legislature did not expand jurisdiction to s. 137.1. Rather, for purposes of compensation only, the Administrative Judge is “deemed to be” a provincial court judge. [31] The respondent further submits that s. 24(2) provides the authority for the Administrative Judge to make orders under s. 137.1. For ease of reference, I include the relevant portion of the section again: (2) Despite subsection (1), a proceeding in the Small Claims Court may also be heard and determined by, (a)  a provincial judge who was assigned to the Provincial Court (Civil Division) immediately before the 1st day of September, 1990; [5] (b)  a deputy judge appointed under section 32 ; or (c)  the Small Claims Court Administrative Judge appointed under section 87.2 . 2017, c. 2, Sched. 2, s. 3 . [32] The respondent submits that the words “may also be heard and determined by” give the Administrative Judge authority to make orders under s. 137.1. [33] I do not agree. [34] First, s. 24 does not confer the authority to make orders under s. 137.1. Note that “deputy judges” are also included in s. 24(2)(b). If the respondent’s submission were correct, jurisdiction would also be conferred on deputy judges. We know from the analysis in Bruyea that deputy judges do not have jurisdiction. [35] Second, the respondent’s position would effectively expand the Administrative Judge’s authority beyond that of the Small Claims Court. For example, she would have the power to grant injunctions or appoint receivers. This too was considered and definitively dealt with in Bruyea , at paras. 17 and 18: Further, if one was to accede to the suggestion that the use of the term “judge” in the CJA was intended to include deputy judges, then that result creates difficulties with respect to other sections of the CJA . One such section is s. 101(1) of the CJA which reads: In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a j udge of the court to be just or convenient to do so. [Emphasis added.] Since the Small Claims Court is a branch of the Superior Court of Justice, if the term “judge” includes deputy judges, then s. 101(1) would give authority to deputy judges to grant injunctions or appoint receivers. To my knowledge, it has never been suggested that the Small Claims Court has ever had jurisdiction to grant interlocutory injunctions or to appoint receivers, nor am I aware of any case where the Small Claims Court has purported to exercise that jurisdiction. Indeed, in 936464 Ontario Ltd c.o.b. Plumbhouse Plumbing & Heating v. Mungo Bear Ltd. (2003), 74 O.R. (3d) 45 (Div. Ct.), it was concluded that the Small Claims Court is not empowered to grant “any other form of equitable relief, such as injunctions”: at para. 29. [36] This reasoning with respect to deputy judges applies equally to the Administrative Judge. (8) This court’s decisions have settled the issue [37] The respondent submits that Bruyea is limited to deputy judges and does not apply to the Administrative Judge. As I have outlined, the analysis in Bruyea is equally applicable to the Administrative Judge. [38] In any event, post- Bruyea this court has stated that only Superior Court judges have the jurisdiction to make orders under s. 137.1: see Nanda v. McEwan , at para. 12 and Ontario College of Teachers , at para. 7 . [39] The Administrative Judge is not a Superior Court judge. [40] The respondent submitted that the endorsement of the Superior Court judge conferred jurisdiction on the Administrative Judge. I do not agree. In light of the jurisprudence, he had no authority to do so. In any event, it is clear from the record that the attendance in – what is usually – a busy practice court involved scheduling. The jurisdiction issue was not brought to his attention. [41] I turn to the final reason that the Administrative Judge lacks jurisdiction. (9) Section 137.1 and the Rules of the Small Claims Court [42] A third reason confirms my view that the legislature did not intend to confer jurisdiction on the Administrative Judge. The s. 137.1 process is not consistent with the rules and procedures in the Small Claims Court. [43] The Small Claims Court is a branch of the Superior Court of Justice. The court embodies the foundations of access to justice: informality, affordability, timely resolution, accessibility for self-represented people and active judicial engagement. By providing access to justice, the court has an important role in the administration of justice for the province. The court handles nearly half of the civil disputes in the province. It provides a cost-effective forum for civil disputes involving less than $35,000. To achieve these objectives, all questions of fact and law are to be determined in a summary way. Rule 1.03(1) of the Rules of the Small Claims Court , under the CJA , provides: These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice Act. O. Reg. 258/98, r. 1.03 (1). [44] These hallmarks of the Small Claims Court, as enshrined in its rules, are incompatible with the provisions of s. 137.1. A s. 137.1 analysis requires the detailed process of shifting burdens with respect to merits, proportionality and public interest, which involves exchange of affidavits and cross-examinations. Motions are not encouraged in the Small Claims Court. The Rules of Small Claims Court do not provide for cross-examination on affidavits. Under s. 137.1, costs of an unsuccessful motion are presumptively full indemnity. The limit on costs for a motion in Small Claims Court, absent special circumstances, is $100. The limit on costs after trial is 15% of the award. Small Claims Court jurisdiction is limited to $35,000. Contrary to these limits of Small Claims Court, s. 137.1 provides extensive powers with respect to damages. [45] The s. 137.1 motion must be heard within 60 days and stays the underlying action. Appeals go directly to the Court of Appeal. This does not comply with r. 1.03.(1) of the Rules of the Small Claims Court . [46] The Small Claims Court provides timely justice to litigants in matters under $35,000. I conclude that the legislature did not intend to inject complex interim proceedings into its summary process. Doing so would frustrate the objectives of the Rules of the Small Claims Court . CONCLUSION [47] For these reasons, the appeals are allowed with costs to the appellants in the amount of $15,000 all inclusive. Released: January 24, 2022 “MLB” “M.L. Benotto J.A.” “I agree Grant Huscroft J.A.” “I agree B.W. Miller J.A.” [1] Commonly referred to as the “Anti-SLAPP” provision. [2] Official Report of Debates (Hansard) October 5, 2016 [3] The respondent had submitted that the order under appeal was interlocutory and so the proper appeal route was to the Divisional Court. Because the issue engaged jurisdiction, the panel heard the appeal. [4] The respondent has framed the issue before this court as “disrespectful” to the Administrative Judge personally because it implies that she is not “real judge”. These submissions were ill founded. The issue is a question of law: jurisdiction. [5] This provision is of no moment since currently there are no such provincial court judges.

COURT OF APPEAL FOR ONTARIO CITATION: Bouji v. Poonai, 2022 ONCA 49 DATE: 20220124 DOCKET: C69210 Strathy C.J.O., Harvison Young and Zarnett JJ.A. BETWEEN Hedia Bouji also known as Linda Bouji Plaintiff (Respondent) and Karrunawatti Poonai also known as Kay Poonai also known as Kay Persaud Defendant (Appellant) Eugene J. Bhattacharya and Mary Rodriguez, for the appellant Madeleine Dusseault, for the respondent Heard: January 17, 2022 by video conference On appeal from the judgment of Justice Frederick L. Myers of the Superior Court of Justice, dated February 1, 2021, with reasons reported at 2021 ONSC 771. REASONS FOR DECISION [1] The appellant appeals from a summary judgment that ordered her to pay the respondent $200,000, together with interest, under a promissory note dated August 31, 2016 and a related oral agreement that provided for interest on that note. [2] In 2016, the appellant introduced the respondent to an opportunity to invest $400,000 and acquire shares in Metrozen (Canada) Inc. (“Metrozen”) which had a real estate project located in Scarborough, Ontario. The appellant was told by the principal of Metrozen that the funds were required to bring a mortgage on the project back into good standing and to help keep it current. [3] The respondent was prepared to invest $200,000, but only if the appellant invested the same amount. The appellant agreed to do so, but as she did not have that amount on hand, the respondent agreed to advance it on her behalf. The motion judge found that the agreement between the appellant and respondent was that the appellant would receive three percent of the shares of Metrozen, and the respondent seven percent; the respondent’s larger percentage of shares was because she was putting up funds for the appellant. [4] On May 31, 2016, the parties went together to the respondent’s bank to arrange for the $400,000, and then to Metrozen’s lawyer, who deposited the funds into his trust account. In return, two documents were provided: (i) a note dated May 31, 2016 (the “Metrozen Note”) by which Metrozen and its principal promised to pay the respondent’s corporation $400,000 by December 1, 2016; and (ii) a Share Agreement whereby Metrozen and its principal agreed that seven percent of the shares of Metrozen would be transferred to the respondent’s corporation and the balance of the shares would be pledged as security for repayment under the Metrozen Note. Although the appellant is not mentioned in the Metrozen Note or Share Agreement, she witnessed the execution of both. No document mentioning the appellant’s three percent was provided by Metrozen. [5] On August 31, 2016, the parties executed, before a notary, the promissory note which is the subject of this action (the “August Note”). Under it, the appellant promised to pay to the respondent the sum of $200,000. The August Note recited that this amount had been loaned to the appellant by the respondent to purchase three percent of the shares of “metro ZEN [ sic ] for the project located at 189-195 Milner Avenue, Scarborough, Ontario.” [6] The parties later discovered that the funds that had been advanced on May 31, 2016 were misappropriated by Metrozen or its principal. The funds did not go into the Metrozen project, and neither of the parties received any shares in Metrozen or any payments from it in return for the advance. [7] The appellant paid interest to the respondent on the August Note at an orally agreed-upon rate until September 2018. From 2016 to the time she stopped making payments, the appellant sent numerous texts and emails to the respondent that acknowledged her indebtedness under the August Note. [8] In 2019, the respondent commenced an action against the appellant to recover on the August Note and the oral agreement for interest. The respondent then successfully moved for summary judgment. [9] The motion judge rejected the appellant’s argument that there were genuine issues that required a trial. He specifically considered, and rejected, that genuine issues were raised by the three defences advanced by the appellant: (a) that the failure of the respondent to ensure both that the funds advanced went into the Metrozen project and that the appellant received shares in Metrozen meant there was no consideration for the August Note; (b) that repayment of the August Note was conditional upon the funds being used for Metrozen’s project and the appellant’s receipt of shares in Metrozen; and (c) that the August Note should be rescinded on the basis of misrepresentations made by the respondent that the appellant would receive an equal number of shares in Metrozen to those received by the respondent. [10] The motion judge found that the consideration for the August Note was the advance of funds, which had undoubtedly taken place. He found that since the appellant had attended with the respondent at Metrozen’s lawyer’s office to make the advance, participated in all steps, and had witnessed the documents Metrozen provided in return, she could not contend that her obligations to the respondent under the August Note, signed three months later, were somehow conditional on the way the funds would be handled by Metrozen or its lawyer, or on Metrozen fulfilling its obligations to deliver shares. He noted that neither party had control over Metrozen performing its obligations and that neither the appellant nor the respondent received the shares to which they were entitled. And he found that the appellant’s contention that there had been a misrepresentation by the respondent that the shares she was to receive would be equal to the percentage to be received by the appellant was foreclosed by the terms of the August Note that set out the appellant’s percentage and by the appellant’s knowledge of what had been provided by Metrozen on May 31, 2016. [11] On appeal, the appellant advances three arguments: (a) the motion judge failed to consider all of the evidence, specifically the transcripts of the cross-examinations of the parties, and thereby committed an error of law; (b) the motion judge failed to give adequate reasons as to why he declined to make credibility findings; and (c) the motion judge made palpable and overriding errors of fact. [12] With respect to the first two arguments, the appellant primarily relies on the statements of the motion judge that the respondent had met her burden through the documents and that he could interpret the August Note based simply on the timeline without making an express credibility finding. The appellant urges us to find that the motion judge did not consider the cross-examinations of the parties that had been conducted, and that his reasons are inadequate to explain why he was declining to make a credibility finding. [13] We reject these arguments. [14] The motion judge was not required to mention each item of evidence; we do not conclude from the absence of an express reference to the cross-examinations that he did not consider them. For example, the appellant places reliance on a statement in the respondent’s cross-examination to the effect that the parties were to be equal partners in the transaction. However, the reference is clear that the respondent meant that both would be equally responsible for the sum advanced to Metrozen. The respondent went on to explain that she was to receive a greater percentage of shares because she was advancing the appellant’s portion for her. There is nothing in this exchange inconsistent with the trial judge’s findings or that would suggest he lost sight of, or did not consider, this evidence. [15] Nor are the reasons inadequate, as they permit meaningful appellate review: R. v. R.E.M. , 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 30, 57. The motion judge explained why he could determine the issues without a credibility finding, namely that the documentary record was clear. Moreover, in addition to making the statements the appellant points to about why the case could be decided without an express credibility determination, the motion judge also indicated that the outcome would be no different if he decided the matter on the basis of credibility. He stated that, “if I viewed it otherwise, the contemporaneous texts and emails from the [appellant] make the outcome clear and deprives her defences and evidence of credibility” and “[i]f I was not able to decide the case on the written record, I would have no hesitation rejecting the [appellant’s] evidence and arguments in face of her own documents, documented knowledge, and participation throughout.” The motion judge gave detailed reasons for his conclusions. [16] Nor are we persuaded that the motion judge made any palpable and overriding errors of fact. [17] The divergence complained of by the appellant between the motion judge’s finding that she was “promised” a commission by Metrozen that was never paid, and the appellant’s evidence that she was “offered” a commission but never received it, is more superficial than real and could have no impact on the outcome. [18] We see no merit to the appellant’s complaint that the motion judge erred in finding there was a “deal” that the appellant was to receive three percent of the shares of Metrozen and the respondent seven percent. There was evidence to support that finding, including evidence of the respondent, documents that referenced the respondent’s seven percent that were witnessed by the appellant, and the reference to the appellant’s three percent in the August Note. The motion judge was alive, in making this finding, to the fact that Metrozen’s documents did not refer to the appellant’s three percent. But he appropriately considered that since the appellant participated in all the arrangements with Metrozen and witnessed documents, and since she signed the August Note, this did not detract from the appellant’s liability to the respondent, especially given that Metrozen misappropriated the advance and never delivered any shares to anyone. [19] Nor is there merit to the appellant’s complaint about the motion judge’s observation that by August 2019, the appellant was formulating her defence to payment of the amount due under the August Note. We see no error in that observation that could have affected the outcome. By that date, the appellant had ceased making payments under the August Note after having repeatedly acknowledged her liability to do so. [20] Accordingly, the appeal is dismissed. [21] If the parties are unable to agree on costs, they may make written submissions not exceeding three pages. The respondent’s submission should be delivered within ten days of the release of these reasons; the appellant’s submission should be delivered within ten days of those of the respondent. “G.R. Strathy C.J.O.” “A. Harvison Young J.A.” “B. Zarnett J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. L.L., 2022 ONCA 50 DATE: 20220124 DOCKET: C67740 Gillese, Brown and Coroza JJ.A. BETWEEN Her Majesty the Queen Respondent and L.L. Appellant Jon Doody and Fady Mansour, for the appellant Hannah Freeman, for the respondent Heard: December 14, 2021 On appeal from the convictions entered by Justice Rick Leroy of the Superior Court of Justice on May 29, 2019. REASONS FOR DECISION OVERVIEW [1] The appellant was convicted of sexual touching of a person under the age of 16, invitation to sexual touching, sexual touching while in a position of trust, and uttering a death threat. The last three convictions were stayed pursuant to the principle in R. v. Kienapple , [1975] 1 S.C.R. 729, 15 C.C.C. (2d) 524. The appellant appeals from his conviction. [2] The focus of the appellant’s appeal is narrow. The appellant argues that the trial judge’s use of a short statement he made to the police was tainted by legal error. BACKGROUND [3] The convictions stemmed from allegations made by the appellant’s stepdaughter. She alleged that her stepfather had committed a very large number of sexual offences over a period of eight years, starting when she was 11 years old and ending as she was approaching the age of 19. [4] The complainant alleged that her stepfather committed the sexual offences at different family residences, as well as in his truck when he was driving his stepdaughter around on various matters. The trial judge stated that the complainant described about 468 incidents of sexual intercourse in the appellant’s truck, starting when she was 11 or 12 years old. Many of the incidents in the truck involved the appellant paying the complainant for sex, what the trial judge described in his reasons as the “truck routine”. [5] The complainant testified that the last sexual offence took place on July 8, 2014 when she was 18 years old. She recalled the specific date because the first anniversary of her relationship with her boyfriend was approaching. According to the complainant, the appellant asked her to work with him on a driveway sealing job. He picked her up in his truck. After finishing the job, he drove the complainant to a rural road, where he stopped the truck on the side of the road and asked whether she wanted to perform fellatio. She declined. The appellant then offered the complainant $50; she declined and asked for more compensation. The appellant agreed, went to the passenger side and engaged in sexual intercourse with the complainant. As put by the trial judge in his reasons: “They dressed and [the appellant] handed [the complainant] the sum of $100 and said ‘Nice doing business.’” He then drove the complainant home. THE APPELLANT’S STATEMENT [6] The complainant and her mother testified at the trial; the appellant did not. However, the trial judge admitted into evidence a very short statement the appellant had made to the police. [7] The statement arose in the following way. Charges for the offences against the complainant were first laid in Québec. A decision was then made to charge the appellant in Ontario. OPP Detective Jason Cholette left a message with the appellant, identifying himself and requesting a call back. The appellant returned the call. Detective Cholette advised him that there were grounds for his arrest and attempted to arrange for the appellant’s arrest and release. In the course of his conversation with Detective Cholette, the appellant made the following statement, as recorded by the officer in his notebook and as repeated by the trial judge in his reasons: She is 19 not 10. I was sleeping with aunt, wife’s sister. She was trying to get $4,000 from me. (hereafter the “Statement”) [1] [8] The voluntariness of the appellant’s Statement was admitted. The trial judge was satisfied that the Statement had been made and the officer’s notes “captured the main thrust.” The trial judge rejected the defence submission that the Statement reflected the appellant’s spontaneous reaction when first confronted with the complainant’s allegations because by that time the appellant was already immersed in criminal proceedings in Québec regarding the same issues and therefore knew about the allegations. [9] At trial, the defence submitted that the Statement was exculpatory in that the appellant admitted to sexual activity when the complainant was 19 years old, not younger. Although that admission might not be entirely helpful for the appellant, it was a sign of his credibility. While the conduct admitted might be morally problematic, it was not a criminal offence as it concerned conduct when the complainant was 19 years old. [10] The Crown argued that the Statement was not exculpatory but one that confirmed the complainant’s testimony that she had sexual relations with the appellant that continued beyond her 18 th birthday. The Crown submitted that it would not be reasonable for the court to reject the complainant’s evidence about sexual relations with the appellant prior to the age of 18 but use the Statement to confirm her testimony about sexual relations after she turned 18 years old. The Crown submitted: There has been no part of the narrative whatsoever to suggest that all of a sudden, at the age of 18, [the complainant] experienced some turn in her relationship with [the appellant], not from [the complainant], and not from any of the other witnesses. To the contrary, this evidence supports what the Crown has submitted to the Court on repeated occasions, that there was a continuing pattern of inappropriate sexual abuse – Well, all sexual abuse is inappropriate, but sexual abuse by [the appellant] to [the complainant]. The fact that it continued, and that [the appellant] indicates that it was somehow consensual after the age of 18 adds nothing to any of the exculpatory aspects of the defence that he did not raise. My friend invites Your Honour to employ common sense, and the standard legally is beyond a reasonable doubt, but common sense does not lend to the finding that, all of a sudden, [the appellant], at the age of 18, started having sex with his stepdaughter, who he raised from the age – from the time that she was prepubescent. That defies common sense, Your Honour. THE TRIAL JUDGE’S REASONS [11] The trial judge performed an extensive review and assessment of the evidence from the complainant and her mother. He was “not persuaded to the legal standard” by a number of the complainant’s allegations – including the quid pro quo incidents, the morning assaults, and rampant sexual assault in the home – due to uncertainties and inconsistencies in the complainant’s testimony, as well as the difficulty conceiving how the appellant evaded random detection given the large number of the allegations of sexual misconduct (approximately 1,339) made against him. The trial judge stated: “My conclusions and uncertainty logically raise issues about the stand-alone reliability and credibility of this portion of [the complainant’s] evidence that was shown to be unreliable.” [12] The trial judge continued by considering the effect of the Statement made by the appellant on his credibility assessment, stating: That said the admission of sexual intercourse in [the complainant’s] 19 th year in my view substantially rehabilitates such concerns for reliance on [the complainant’s] assertions about previous transactional sexual activity in the truck on the side of the road on the passenger side floor. As unlikely as it is that [the appellant] and [the complainant] would even have the conversation, let alone sexual intercourse, if there was not an earlier routine is persuasive, circumstantial, corroborative evidence of an earlier routine. That this was a first such incident is implausible. But for a routine of sexual engagement for pay this one-off incident is inconceivable . It would mean: 1.       They converted a safe life-long parent/child relationship on its head in a moment’s whim. 2.       That [the complainant] would consent, let alone consider sexual intercourse with her stepfather with whom she had safely resided in and travelled hundreds of times to and from work, access and town on a whim. 3.       From her perspective she had the wits to negotiate about consideration for sexual favour in circumstances that would have been astonishing and traumatizing; and 4.       [The complainant] was about to celebrate her first anniversary with her boyfriend. This was the last thing she would tolerate as a first-time occurrence. Notwithstanding my conclusions regarding the other allegations relative to the criminal standard of proof as noted, it does not mean the evidence is untrue. The burden of the Crown is closer to certainty than a balance of probabilities. [The appellant] is presumed innocent. [F]or the reasons stated, I am not sure whether [the appellant] committed the criminal acts attributed to him other than those reported in the truck. I accept as true [the complainant’s] central memories of [the appellant] sexually abusing her in the truck before she turned 16. I accept that the sexual abuse in the truck involved fellatio, cunnilingus and sexual intercourse and the one time [the appellant] threatened [the complainant’s] life were she to disclose. GROUNDS OF APPEAL [13] The appellant submits the trial judge made two main reversible errors in his use of the Statement. [14] First, the trial judge improperly used the Statement to infer that since the appellant acknowledged having sexual relations with the complainant after she turned 19, he must have had sexual relations with her before that age. According to the appellant, that inference was the product of impermissible propensity reasoning and the application of stereotypical assumptions. [15] The second error was the failure of the trial judge to treat the Statement as exculpatory in part and conduct a proper analysis in accordance with the principles in R. v. W.(D.) , [1991] 1 S.C.R. 742. FIRST GROUND OF APPEAL: IMPERMISSIBLE REASONING ERRORS [16] The appellant submits that the trial judge’s reasoning ran afoul of three basic rules: i. The general rule against propensity reasoning. One rationale for the general rule excluding evidence about an accused’s bad character or propensity to have done acts of a discreditable nature on occasions other than those for which the accused is charged is the risk that the trier of fact might convict the accused based on bad personhood or infer guilt from general disposition or propensity, the so-called “moral prejudice” risk: R. v. Handy , 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31; ii. The rule that judges must avoid speculative reasoning that invokes “common-sense” assumptions that are not grounded in the evidence or appropriately supported by judicial notice: R. v. JC , 2021 ONCA 131, 70 C.R. (7 th ) 38, at para. 58; and iii. The rule that factual findings, including determinations of credibility, cannot be based on stereotypical inferences about human behaviour. It is an error of law to rely on stereotypes or erroneous common-sense assumptions about how a sexual offence complainant is expected to act, to either bolster or compromise their credibility and equally wrong to draw inferences from stereotypes about the way accused persons are expected to act: JC , at para. 63. [17] We are not persuaded that the trial judge ran afoul of any of those rules. [18] Appellate review requires a functional and contextual reading of a trial judge’s reasons, reading them in context and as a whole, in light of the live issues at trial, and without finely parsing the reasons in a search for error: R. v. G.F. , 2021 SCC 20, 71 C.R. (7 th ) 1, at para. 69. When read in that way, we do not see the trial judge’s use of the Statement as tainted by reversible error. [19] We do not read the trial judge’s reasons as concluding that since the appellant admitted to a sexual encounter with the complainant when she was 19 years old, he therefore had a propensity to engage in discreditable conduct from which one could infer that he had committed the alleged acts against the complainant when she was underaged. [20] Nor do we read his reasons as engaging speculative reasoning that invokes “common-sense” assumptions not grounded in the evidence or using stereotypical inferences about human behaviour to make credibility determinations. As this court explained in JC , the rule against ungrounded common-sense assumptions does not prevent a trial judge from relying upon common sense or human experience to identify inferences that arise from the evidence. Instead, the rule prohibits judges from using common sense or human experience to introduce new considerations, not grounded in the evidence, into the decision-making process, including considerations about human behaviour: JC , at paras. 59-61. For its part, the rule against stereotypical inferences only prohibits inferences that are based on stereotype or “prejudicial generalizations”: JC , at para. 65. [21] As we read his reasons, the trial judge used the Statement as part of his evidence-based credibility assessment. Towards the start of his assessment of the evidence, the trial judge summarized the significance of the Statement on his credibility assessment: the appellant’s “acknowledgement of the sexual encounter after [the complainant] attained the age of 18 years is strong circumstantial corroborative evidence supporting the inference of the truck routine [the complainant] alleges.” [22] Later in his reasons, the trial judge explained why he reached the conclusion that the incident admitted by the appellant in his Statement was not a one-off incident but the result of a multi-year routine of sexual engagement that the complainant had described in her evidence. As set out in the portion of his reasons reproduced at para. 12 above, the trial judge provided several reasons why he thought it was “inconceivable”, or improbable, that the admitted incident was a one-off incident. Those reasons were grounded in the evidence about the nature of the relationship between the appellant and the complainant, as described by the complainant in her evidence at trial. His use of the Statement to support the credibility of the complainant’s testimony about the sexual assaults in the truck was grounded in the evidence, not a product of speculative or other prohibited reasoning. SECOND GROUND OF APPEAL: FAILURE TO CONDUCT A PROPER W.(D.) ANALYSIS [23] The appellant submits that the trial judge failed to recognize that the Statement had an exculpatory aspect, in that the appellant stated that the complainant was 19 years old, not 10, when he had a sexual encounter with her. As a result, the trial judge failed to perform a proper W.(D.) analysis. [24] We see no such error. The trial judge expressly recognized that the Statement was “partially exculpatory.” However, the trial judge attached “little weight” to the exculpatory aspect of the Statement as he regarded it more as “an alternate narrative” – namely, that the complainant was of age when consensual intercourse occurred – than a denial of the charges against him. It was open to the trial judge to assess the Statement in that way: Justice David Watt, Watt’s Manual of Criminal Evidence 2021 (Toronto: Thomson Reuters, 2021), at §37.06. [25] As well, the trial judge found that because the Statement by the appellant when first confronted by Det. Cholette was not spontaneous, the circumstances surrounding the making of the Statement stripped it of any significant value to the appellant. We see no error in this reasoning. It was open to the trial judge to give the exculpatory portion minimal weight due to its lack of spontaneity. An exculpatory statement provided to the Detective after he had already been charged by the police in Quebec was not likely to be of much significant value. [26] Further, the trial judge clearly stated that the appellant was presumed innocent. Indeed, the trial judge was not prepared to accept that the allegations against the appellant involving conduct in the residences and the “quid pro quo” instances of sexual favours in return for rides into town or lunch money had been proved beyond a reasonable doubt. [27] While the elements of the trial judge’s W.(D.) analysis are found in different parts of his reasons, when read as a whole the reasons disclose a proper W.(D.) analysis. The reasons make it clear that the trial judge did not accept the appellant’s admission in the Statement of sexual intercourse as credible evidence denying the allegations against him or raising a reasonable doubt. As he stated in his reasons: “The circumstances are such that very little weight can be attached to the statement [as] evidence of an alternate narrative.” Later in his reasons the trial judge completed his W.(D.) analysis, explaining why he was convinced beyond a reasonable doubt of the appellant’s guilt with respect to the incidents in the truck – namely, the appellant’s Statement confirmed the complainant’s evidence of a lengthy history of sexual offences against her in the truck, often accompanied by the payment of money. DISPOSITION [28] For the reasons set forth above, the appeal is dismissed. “E.E. Gillese J.A.” “David Brown J.A.” “S. Coroza J.A.” [1] The transcript and officer’s notes record the first part of the Statement as: “She was 19 not 10.” At trial, Detective Cholette explained the context in which the appellant made the Statement: I thanked him for calling me back, and I advised him that there was grounds for his arrest in regards to sexual assault allegations brought forward by [the complainant]. I advised him that if he would turn himself in that he would be released on a recognizance with a deposit, as he lives out of province, which is a practice for us, instead of just a promise to appear, if he attended. And if he wished not to attend, that I would seek a warrant for his arrest. At that point, [the appellant] started speaking very quickly and started saying all sorts of things. I made a couple notes in my book. I didn’t get the full – all – everything that he was saying because it was numerous just things, I guess. Some of the two that I – that I had – that I remember directly because it related in regards to my investigation was one of them stated that she was 19 years old, not 10. He continued to speak, and then one that I actually got in quotes, which is exactly what he had said, was, “I was sleeping with her aunt, wife’s sister.”, end quote. At that point, I stopped [the appellant], immediately. I sort of talked over him, and I advised him and cautioned him that what he says could be used in court. At that point, he acknowledged, and then stated another statement in regards to she was trying to get $4,000. So, everything that he was saying within those – just the statements that I had mentioned within my notes kind of corroborated what the investigation or some of the videos that I watched and what [the complainant] was saying, so he was providing an inculpatory statement against himself, which I tried to actually help him – cut him off, and I even advised him not to speak anymore, and if he had a lawyer, currently, as he was previously charged in Quebec, that he should bring the phone number with him when he comes into the detachment to turn himself in. [Emphasis added.]

COURT OF APPEAL FOR ONTARIO CITATION: Canada Mortgage and Housing Corporation v. Hart, 2022 ONCA 51 DATE: 20220124 DOCKET: C69014 Strathy C.J.O., Harvison Young and Zarnett JJ.A. BETWEEN Canada Mortgage and Housing Corporation Plaintiff (Respondent) and Melissa Hart and Patricia Hart Defendants (Appellants) Melissa Hart, acting in person No one appearing for the appellant, Patricia Hart Ian Houle, for the respondent Heard: January 18, 2022 by video conference On appeal from the order of Justice Antonio Skarica of the Superior Court of Justice, dated November 25, 2020. REASONS FOR DECISION [1] The appellant, Melissa Hart, has not demonstrated error in the motion judge’s dismissal of her motion pursuant to r. 59.06(2), seeking to set aside the respondent’s judgment against her on the ground of fraud or of facts arising or discovered after the judgment was granted. [2] She admits that the statement of claim was served on her in September 2010. She failed to defend and default judgment was obtained in 2010. The respondent took enforcement action and various amounts were recovered from the appellant between 2012 and 2018. The appellant was aware of the judgment, but took no steps to set it aside for many years. She commenced two separate actions against the respondent in 2017 and 2018, claiming damages as a result of the enforcement of the mortgage and the judgment. Both actions, which were based on substantially the same facts as she now relies upon, were dismissed under r. 2.1.01 as frivolous and vexatious. [3] We agree with the motion judge that the appellant failed to move with any diligence to set aside the default judgment and on that basis alone, we would dismiss the appeal. We agree however, that the appellant failed to identify any factual basis on which the judgment could be set aside on the basis of fraud or subsequently discovered facts. It is not enough to allege fraud, as the appellant repeatedly does. There must be cogent evidence to support fraud and she has adduced no such evidence. [4] The appeal is dismissed with costs to the respondent fixed at $5,000, inclusive of disbursements and all applicable taxes. “G.R. Strathy C.J.O.” “A. Harvison Young J.A.” “B. Zarnett J.A.”

COUR D’APPEL DE L’ONTARIO RÉFÉRENCE : Amrane c. Ontario (Enseignement supérieur et de la formation professionnelle), 2022 ONCA 52 DATE : 20220124 DOSSIER : C68452 Les juges Roberts, Harvison Young et Tzimas ( ad hoc ) ENTRE Tahar Amrane Demandeur/Partie intimée (Appelant) et Ministère de l’Enseignement supérieur et de la Formation professionnelle Défendeur/Auteur de la motion (Intimé) Tahar Amrane, en personne Daniel Mayer, pour l ’intimé Date de l’audience : le 25 novembre 2021 En appel de l’ordonnance de la juge Andra Pollak de la cour supérieure de justice de l’Ontario, en date du 11 mai 2020, dont les motifs figurent à 2020 ONSC 2200. INSCRIPTION [1] L’appel porte sur une ordonnance radiant la déclaration de l’appelant sans autorisation de modification et rejetant son action en vertu des règles 21 et 25 des Règles de procédure civile , R.R.O. 1990, Règl. 194, suite à la motion de l’intimé. [2] Dans sa déclaration, l’appelant présente des allégations de mauvais traitements infligés contre lui et d’autres étudiants par certains professeurs et par l’Université York, o ù il poursuivait ses études. [3] Il a porté ses plaintes au sein des instances administratives de l’Université York, mais celles-ci furent rejetées. Son action antérieure contre l’Université York fut aussi rejetée, ainsi que son appel à la Cour divisionnaire. Puisque l’intimé refuse d’intervenir dans sa dispute avec l’Université York, l’appelant a intenté cette action. [4] En tant que remèdes, l’appelant réclame des dommages-intérêts et demande que l’intimé soit obligé d’entreprendre une enquête sur ses plaintes et les affaires de l’Université York, et d’établir un tribunal indépendant de l’Université York pour entendre des plaintes de tous les étudiants universitaires. [5] La juge des motions a accueilli la motion de l’intimé pour radier la déclaration de l’appelant et rejeter son action. Elle a conclu qu’il était évident et manifeste que la déclaration de l’appelant ne révélait aucune demande raisonnable et a refusé de l’autoriser d’amender sa déclaration. [6] L’appelant répète les arguments que la juge des motions a rejetés. Nous ne percevons aucune erreur qui nous permettrait d’accueillir l’appel. L’intimé n’a pas de devoir de diligence envers les étudiants d’institutions postsecondaires en ce qui concerne des plaintes universitaires et administratives comme celles de l’appelant. En outre, l’intimé ne peut pas intervenir pour régler des décisions de gestion et d’administration interne de l’Université York, institution universitaire autonome. La décision d’immuniser les institutions universitaires est une décision de politique générale fondamentale qui ne peut pas faire l’objet d’un recours en justice. En tout état de cause, l’intimé n’est pas responsable pour des actions de l’Université York. Cette cour ne peut l’obliger ni d’intervenir dans les affaires internes universitaires ni d’établir un régime indépendant pour entendre des plaintes quelconques. [7] L’appel est donc rejeté. [8] L’appelant devrait payer à l’intimé des dépens de 2 000 $, y compris tous débours et taxes applicables. « L.B. Roberts j.c.a. » « A. Harvison Young j.c.a. » « E. Ria Tzimas, J. (ad hoc) »

COUR D’APPEL DE L’ONTARIO RÉFÉRENCE : Amrane c. Girlando, 2022 ONCA 53 DATE : 20220124 DOSSIER : C69193 Les juges Roberts, Harvison Young et Tzimas ( ad hoc ) ENTRE Tahar Amrane Demandeur/Partie intimée (Appelant) et Daniel Girlando Défendeur/Auteur de la motion (Intimé) Tahar Amrane, en personne Mathieu Bélanger, pour l’intimé Date de l’audience : 25 novembre 2021 En appel de l’ordonnance de la juge Andra Pollak de la Cour supérieure de l’Ontario, en date du 31 décembre 2020. MOTIFS DE LA COUR [1] L’appelant, Tahar Amrane, porte en appel la décision de la juge Pollak. Elle a donné suite à la motion par écrit de l’intimé, a radié la déclaration de l’appelant sans autorisation de la modifier et a rejeté son action. [2] L’appelant a intenté son action contre l’intimé, avocat d’une partie opposée que l’appelant poursuivait dans deux instances judiciaires séparées. L’appelant base son action contre l’intimé sur les allégations que l’intimé n’a pas répondu à ses courriels concernant la planification d’une séance de médiation dans ces deux instances, et que l’intimé a violé ses droits constitutionnels en appelant sa tunique « un habit », méprisant sa religion et sa culture. [3] La juge des motions a conclu que l’intimé n’avait aucune obligation de diligence envers l’appelant. En l’absence d’une telle obligation, qui fonde une cause d’action en négligence, elle a conclu que la déclaration de l’appelant était radicalement et irrémédiablement défectueuse, de sorte qu’aucune modification de la déclaration ne servirait pas à corriger les défauts de l’action telle que plaidée par l’appelant. Elle a également conclu que la doctrine de l’immunité absolue empêchait l’appelant d’établir une cause d’action en délit contre l’intimé. Finalement, la juge des motions a conclu que puisque les dommages-intérêts réclamés contre l’intimé n’étaient pas reliés à un manquement causé par l’intimé, l’appelant ne pouvait pas établir une cause d’action contre l’intimé. [4] L’appelant a répété les arguments qu’il a présentés devant la juge des motions devant cette court. Il a expliqué que la juge des motions n’a pas pris en considération les faits, les preuves, les doctrines, la jurisprudence, l’ordre éthique et déontologique qui règlemente les avocats, et la Charte canadienne des droits et libertés . Il essaie de lier le prétendu profond manque de respect démontré envers lui par l’intimé à une relation de proximité, ce qu’il a décrit comme une proximité plutôt morale. En même temps, il reconnaît que l’intimé ne le représentait pas. [5] Dans le cadre d’un appel concernant une ordonnance de radiation d’une déclaration en vertu de l’article 21.01(1)(b) des Règles de procédure civile , R.R.O., règl. 194, la norme de contrôle est celle de la décision correcte. En ce qui concerne la décision de la juge de motion de ne pas autoriser la modification de la déclaration, il s’agit d’une décision discrétionnaire. En l’absence d’une erreur manifeste et dominante ou d’un exercice déraisonnable de cette discrétion, une cour d’appel ne peut pas intervenir : voir Conway v. The Law Society of Upper Canada , 2016 ONCA 72, 395 D.L.R. (4th) 100, au para. 16; et Mortazavi v. University of Toronto , 2013 ONCA 655, au para. 3. [6] Malgré ses arguments bien présentés, l’appelant n’a pas réussi à démontrer d'erreurs dans la décision de la juge des motions qui permettent l’intervention de cette cour. [7] La juge des motions a appliqué des principes de droit bien établis. La règle 21.01(1)(b) permet à une partie dans une action de demander à un ou une juge, par voie de motion, qu’un acte de procédure soit radié parce qu’il ne révèle pas une cause d’action bien fondée. En l’espèce, l’appelant n’a pas établi une cause d’action bien fondée contre l’intimé. [8] En rendant sa décision, la juge des motions a bien compris les arguments de l’appelant. Dans son analyse des arguments, elle n’a fait aucune erreur de fait ni de droit qui permet l’intervention de cette cour. [9] L’appel est donc rejeté avec dépens de 1 900 $, y compris tous débours et taxes applicables, en faveur de l’intimé. « L.B. Roberts j.c.a. » « A. Harvison Young j.c.a. » « E. Ria Tzimas, J. (ad hoc) »

COUR D’APPEL DE L’ONTARIO RÉFÉRENCE : Amrane c. Abraham, 2022 ONCA 54 DATE : 20220124 DOSSIER : M52696 (C68905) Les juges Roberts, juge Harvison Young et Tzimas ( ad hoc ) ENTRE Tahar Amrane Requérant et Carolee Abraham Intimée Tahar Amrane, en personne Nicholas Rolfe, pour l ’intimée Date de l’audience : le 25 novembre 2021 INSCRIPTION [1] Le requérant, Tahar Amrane, présente cette motion pour réviser la décision de la juge Thorburn. Elle a rejeté la motion du requérant pour proroger le délai de réviser la décision de la juge Benotto. La juge Benotto avait rejeté sa motion en prorogation de délai pour mettre son appel en état. [2] L’appel du requérant porte sur une ordonnance du 12 novembre 2020, rejetant sa poursuite en vertu des règles 21 et 25 des Règles de procédure civile , R.R.O. 1990, Règl. 194, suite à la motion de l’intimée, Carolee Abraham. [3] La poursuite du requérant est contre l’intimée, en tant qu’employée de la ville de Toronto. Elle se base principalement sur les allégations concernant des services de la ville de Toronto disponibles en français : d’autres employés (pas Mme Abraham) ne lui ont pas fourni de services en français ou des services fournis étaient inadéquats et tardifs. Le requérant s’appuie sur plusieurs articles de la Charte canadienne des droits et libertés pour réclamer des dommages-intérêts et des dommages punitifs. La juge de première instance avait déterminé que la poursuite n’avait aucune chance de succès, et qu’elle était frivole et vexatoire. [4] Le 15 décembre 2020, le requérant en a interjeté appel. Le requérant n’a pas mis son appel en état selon le délai prescrit par les règles. Par conséquent, le 17 mars 2021, le greffier de cette cour a rejeté son appel pour retard. [5] Le 6 mai 2021, la juge Benotto a rejeté la motion du requérant pour proroger le délai pour mettre son appel en état. Elle a considéré tous les facteurs pertinents et, comme la juge de première instance, elle a conclu que la poursuite n’avait aucune chance de succès pour les motifs suivants: 1. Le requérant n’a fourni aucune preuve qu’il avait l’intention de faire appel dans le délai requis. 2. Le délai est long et il n’y a pas d’explication pour le retard. 3. La justice de l’affaire exige que la prorogation soit refusée. L’appel n’a pas de mérite parce que : a. Un individu ne peut être responsable des dommages en vertu de la Charte : voir Vancouver (Ville) c. Ward , 2010 CSC 27, [2010] 2 R.C.S. 28. b. La poursuite contre la ville est interdite par la Loi de 2006 sur la cité de Toronto , L.O. 2006, c. 11, annexe A ; et aussi par la Loi de 1997 sur le programme Ontario au travail , L.O. 1997, c. 25, annexe A . [6] Le 22 juillet 2021, la juge Thorburn a rejeté la motion du requérant pour une prorogation de délai pour réviser la décision de la juge Benotto, en concluant que : En vertu du fait que la déclaration qui était devant la juge Benotto et qui est devant moi est contre l’individu Carolee Abraham seul, qu’un individu ne peut être responsable des dommages en vertu de la Charte , la justice de l’affaire exigeait que la prorogation soit refusée par la juge Benotto et la demande de délai pour réviser la décision est donc rejetée. [7] La juge Thorburn a fini par déterminer que l’action n’aurait pas eu la moindre chance de succès. Dans ses motifs, elle explique que « … même si M. Amrane avait procédé contre la ville de Toronto, une telle poursuite contre la ville est interdite par la Loi de 2006 sur la cité de Toronto , L.O. 2006, c. 11, annexe A et la Loi de 1997 sur le programme Ontario au travail , L.O. 1997, c. 25. » [8] Le requérant répète devant nous les mêmes arguments que les juges Benotto et Thorburn ont rejetés et nous prie de les trancher de nouveau. Ce n’est pas notre rôle. En ce qui concerne la révision, l’intervention permissible de cette cour est circonscrite. [9] Une motion au tribunal pour réviser une décision rendue par une juge unique de cette cour est autorisée par s. 7(5), Loi sur les tribunaux judiciaires , L.R.O. 1990, Chapitre C.43. Une révision n’est pas une détermination de novo . De plus, cette cour ne doit pas intervenir dans les décisions discrétionnaires, comme celles qui touchent les prorogations de délai, qu’en l’absence d’erreur de droit ou principe: Machado v. Ontario Hockey Association, 2019 ONCA 210, au par. 9. [10] Le requérant n’a pas précisé aucune erreur commise, soit par la juge Benotto ou la juge Thorburn, qui pourrait justifier l’intervention de cette cour. [11] La motion est donc rejetée. [12] Le requérant devrait payer à l’intimée des dépens de 2 000 $, y compris tous débours et taxes applicables. « L.B. Roberts j.c.a. » « A. Harvison Young j.c.a. » « E. Ria Tzimas, J. (ad hoc) »

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Momprevil, 2022 ONCA 56 DATE: 20220125 DOCKET: C69648 Tulloch, Pardu and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Bernard Momprevil Appellant Bernard Momprevil, self-represented Avene Derwa, for the respondent the Ministry of the Attorney General Brian Whitehead and Jason Kirsh, for the respondent the Ministry of the Solicitor General Heard: January 13, 2022 via video conference On appeal from the order of Justice Robert L. Maranger of the Superior Court of Justice dated February 1, 2021. REASONS FOR DECISION [1] Mr. Momprevil appeals from the dismissal of his application, alleging that the prosecution amounted to an abuse of process and that the application judge erred in dismissing his habeas corpus application. He argues that his detention was unlawful because although he was originally arrested on three charges, a new information was sworn adding ten more charges. He says because he was never arrested on the new charges, he cannot be detained on them. Further, he did not receive the detention review hearings mandated by s. 525 of the Criminal Code , R.S.C. 1985, c. C-46, after 90 days in custody. The appellant thus argues that his detention was not lawful and he should have been released from custody. [2] The appellant was initially arrested on December 10, 2019. He was offered a bail hearing on December 13, but requested an adjournment, and was not ready for a bail hearing on shortly following dates. On December 23, 2019 the appellant told the presiding justice: “Well, we’re not going for bail, Your Honour.” The appellant’s lawyer wanted to have discussions with the Crown and to review disclosure so the matter was adjourned from time to time. On January 28, 2020 the appellant indicated that he wanted to swear an affidavit he had composed himself and give it to the Crown, and then go ahead with a bail hearing after the Crown had had a chance to review his affidavit. He was considering either hiring a new lawyer or appearing on his own behalf at a bail hearing with the assistance of duty counsel at some date in the future. He was accordingly scheduled for a bail hearing on February 5, 2020 but requested an adjournment. His counsel got off the record. A bail hearing was set for February 25, 2020, with or without counsel. He asked for and was granted an adjournment on that date. After notice from the custodial institution to the court about a detention review, a detention review was initially scheduled for March 16, 2020 but was postponed. This was at the outset of the COVID pandemic and there was some disruption of court proceedings. A bail hearing was held on April 14 and 16, 2020 and he was ordered detained. The correctional institution made a second request for a detention review on April 29, 2020. This was not scheduled, likely because of the recent bail hearing. The custodial institution did not request a further detention review 90 days after the bail hearing. The appellant’s counsel and the court planned to deal with a detention review on September 4, 2020 as the appellant was already scheduled to be in court that day. The matter was adjourned to September 29, 2020, when the appellant’s counsel withdrew. [3] The appellant brought an application for habeas corpus challenging his continued detention. The application was heard and dismissed on February 1, 2021. The application judge did not accept the appellant’s arguments regarding the replacement information and concluded that there was no loss of jurisdiction over the appellant. There were other concerns expressed by the appellant; for example, the appellant contends that the police were wrong to arrest him. The application judge was not persuaded that these concerns rose to the level of an abuse of process justifying a stay of proceedings. [4] He noted that the appellant had been in custody for a lengthy period and that the matter of detention reviews had to some extent fallen through the cracks, given the exigencies of COVID, the resulting closure of the courts, the appellant’s changes of counsel, together with his applications alleging abuse of process and other matters. He observed that a detention review should have been held in the fall of 2020. [5] The application judge, after considering R. v. Pomfret , 63 Man. R. (2d) 226 (C.A.), and R. v. Myers , 2019 SCC 18, [2019] 2 S.C.R. 105, held that the failure to hold a detention review hearing in accordance with s. 525 of the Criminal Code in itself did not render the appellant’s detention unlawful, but that the remedy for that failure was to offer the appellant an immediate detention review. The appellant was not willing to proceed with an immediate review. The matter was adjourned to assignment court on February 5, 2021. The detention review was conducted on February 17, 2021 and the continued detention was held to be justified. On November 1, 2021 following a further bail review, release was denied. [6] The Crown has opposed release throughout and has indicated that it contemplates bringing dangerous offender proceedings if the accused is convicted. [7] The trial was set for January 2022, but we are advised that it has now been adjourned, with new counsel for the appellant attempting to set a date for the trial. [8] We do not accept the appellant’s arguments on appeal. The replacement information [9] Firstly, dealing with the replacement information, the appellant was lawfully before the court on the initial information, and was physically present in the court. His presence enabled the presiding judge to deal with the replacement information which was not alleged to be defective: R. v. Wilson , 2015 SKCA 58, at para. 14; R. v. David Lindsay (David-Kevin: Lindsay) , 2006 BCCA 150, 265 D.L.R. (4th) 193, at para. 20. As noted in Wilson , at para. 28: “Where an information has been laid and the accused comes before the court by any means, the court has jurisdiction.” The absence of process to compel the presence of the accused on the second information does not render that information a nullity: R. v. Ladouceur , 2013 ONCA 328, 298 C.C.C. (3d) 414, at paras. 22-23. [10] The Crown relied on s. 523(1.1) at the hearing before the application judge: Criminal Code . This section essentially provides that if a person charged with an offence is the subject of a new information which charges the same offence or an included offence while the accused is subject to an order for detention, then that detention order applies to the new information. [11] However, the record before us does not clearly establish whether or not the appellant was the subject of any detention order at the time the new information was sworn, although he must have been remanded in custody. We have not had the benefit of full argument on the interpretation of “order for detention” in s. 523(1.1): Criminal Code . In any event, for the reasons already given, we need not embark on that inquiry in this appeal as the presiding justice had jurisdiction over the person of the appellant. Detention review hearings [12] Section 525 of the Criminal Code provides that a custodial institution shall apply to a judge to fix a date for a hearing to determine whether or not an accused should be released from custody if the trial has not commenced within 90 days from the date the accused is initially taken before a justice under s. 503, or where there has been a previous detention review order or order detaining the accused, the date of the latter decision. The section stipulates that the person having custody of the detained adult shall make the application immediately after the expiry of the ninety days. [13] The court must set a hearing date to determine whether the continued detention of the accused is necessary to ensure the attendance of the accused, for the protection or safety of the public, or to maintain public confidence in the administration of justice. New evidence about changed circumstance of an accused, the impact of the passage of time, and any unreasonable delay are relevant factors. A detention review judge may make orders to expedite the trial: Myers , at para. 4. [14] As noted in Myers , at para. 24, the purpose of s. 525 of the Criminal Code is to prevent accused persons from languishing in pretrial custody, and to require judicial oversight of lengthy pretrial detention at specified intervals. While the Supreme Court indicated that a trial court must act to provide a detention review without delay, there is no suggestion that the detention of an accused automatically becomes unlawful, solely because of the expiry of the 90-day period. As Justice Gary Trotter notes in The Law of Bail in Canada , 3rd ed. (Toronto: Carswell, 2010), at §8:44: the mere expiration of the requisite time period does not automatically lead to release by way of habeas corpus….Courts further held that, to obtain relief by way of habeas corpus , the accused must also demonstrate oppressive or unreasonable delay in bringing the matter to court or a delay of such magnitude that one could infer deliberation or design on the part of the custodian. [Footnotes omitted.] [15] The court must act promptly to set a hearing date for the first available date, although adjournments might sometimes be necessary to promote the interests of justice and the purposes underlying the statutory provision: Trotter, at §8:40 [16] The court in Myers cannot have been unaware of R. v. Pomfret and in any event did not overrule it. In Pomfret , Huband J.A. observed, at p. 59: I do not think that the continued detention of an accused becomes unlawful, ipso facto , by virtue of the effluxion of the 90-day period. The accused is held in jail by virtue of the initial warrant of committal. It has no fixed termination date, and does not become spent by the mere passage of time. The keeper of the jail is commanded to keep the accused in custody “until he is delivered by due course of law”. The Criminal Code of Canada contemplates that the warrant for committal will continue extant after the 90-day period has run its course. By the very terms of s. 525, the application for bail review cannot be made until after the 90 days has expired, and it is obvious that the application itself might not be heard for some time thereafter. In short, the warrant for committal does not automatically lapse due to the effluxion of time. [17] In Pomfret , the court observed that a jailer unwilling to proceed with the required s. 525 hearing could be compelled to proceed by way of mandamus: Criminal Code . [18] We agree with the reasoning in Pomfret that the detention does not become unlawful solely on the basis that the 90-day period has passed without a detention review. [19] As the application judge noted, the appellant should have had a detention review hearing by the fall of 2020, well before the return date of his habeas corpus application on February 1, 2021. We agree, however, that the appropriate remedy for this failure was an immediate detention review hearing, an offer the appellant expressly declined. The detention review hearing ultimately took place on February 17, 2021. [20] The accused has raised other issues about the reasonableness of his arrest and the quality of the investigation. These grounds were not pursued in detail and the application judge did not err in concluding that oblique references to these issues did not justify a stay of proceedings before trial as it was not a matter of the “clearest of cases” justifying a stay for abuse of process: R. v. Babos , 2014 SCC 16, [2014] 1 S.C.R. 309, at para 31. [21] Accordingly, the appeal is dismissed. “M. Tulloch J.A.” “G. Pardu J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Extreme Venture Partners Fund I LP v. Varma, 2022 ONCA 57 DATE: 20220121 DOCKET: C67057, C67062, C67364 & C67376 Hourigan, Huscroft and Coroza JJ.A. BETWEEN DOCKET: C67057 Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir and Kenneth Teslia Plaintiffs/Defendants by Counterclaim (Respondents) and Amar Varma , Sundeep Madra , Varma Holdco Inc. , Madra Holdco Inc. , Chamath Palihapitiya , El Investco I Inc. , Extreme Venture Partners Annex Fund I LP, and EVP GP Annex Fund I Inc. Defendants/ Plaintiffs by Counterclaim ( Appellants / Respondents ) AND BETWEEN: DOCKET: C67062 Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir And Kenneth Teslia Plaintiffs/Defendants by Counterclaim (Respondents/Appellants by Cross-Appeal) and Amar Varma , Sundeep Madra , Varma Holdco Inc. , Madra Holdco Inc. , Chamath Palihapitiya, El Investco I Inc., Extreme Venture Partners Annex Fund I LP, EVP GP Annex Fund I Inc., Cassels Brock & Blackwell LLP, and Seven Hills Group LLC Defendants/Plaintiffs by Counterclaim ( Appellants / Respondents by Cross-Appeal ) AND BETWEEN: DOCKET: C67364 Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir And Kenneth Teslia Plaintiffs/Defendants by Counterclaim (Respondents) and Amar Varma , Sundeep Madra , Varma Holdco Inc., Madra Holdco Inc. , Chamath Palihapitiya, El Investco I Inc., Extreme Venture Partners Annex Fund I LP, EVP GP Annex Fund I Inc., Cassels Brock & Blackwell LLP, and Seven Hills Group LLC Defendants/Plaintiffs by Counterclaim ( Appellants ) AND BETWEEN: DOCKET: C67376 Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir And Kenneth Teslia Plaintiffs (Respondents) and Amar Varma, Sundeep Madra, Varma Holdco Inc., Madra Holdco Inc., Chamath Palihapitiya , El Investco I Inc. , Extreme Venture Partners Annex Fund I LP, EVP GP Annex Fund I Inc., Cassels Brock & Blackwell LLP, and Seven Hills Group LLC Defendants ( Appellants ) Jonathan Lisus, Crawford Smith, Nadia Campion, Vlad Calina and John Carlo Mastrangelo, for the appellants Amar Varma, Sundeep Mandra, Varma Holdco Inc. and Madra Holdco Inc. Andrew Brodkin, David E. Lederman and Daniel Cappe, for the appellants Chamath Palihapitiya and El Investco 1 Inc. Won J. Kim, Megan B. McPhee, Aris Gyamfi and Rachael Sider, for the respondents Heard: in writing On appeal from the orders of Justice Barbara A. Conway of the Superior Court of Justice, dated May 14, 2019, July 24, 2019, and February 4, 2020, and the judgment of Justice Barbara A. Conway of the Superior Court of Justice, dated May 14, 2019. ENDORSEMENT [1] On December 1, 2021 we released Reasons for Decision wherein the Respondents − Extreme Venture Partners Fund I LP, EVP GP Inc., Ravinder Kumar Sharma, Imran Bashir, and Kenneth Teslia − were successful in resisting an appeal commenced by Amar Varma and Sundeep Madra, along with their respective holding companies, Varma Holdco Inc. and Madra Holdco Inc (“Madra Holdco”), collectively the "Varma/Madra Appellants." They were also successful on the appeal commenced by Chamath Palihapitiya and his holding company, El Investco 1 Inc. collectively the “Palihapitiya Appellants”. In addition, the Respondents succeeded on their cross-appeal. [2] We invited the parties to make written submissions on the issue of costs if they were unable to reach an agreement. All parties filed written submissions and on January 6, 2022 we awarded the Respondents their costs of the appeals in the total amount of $300,000. The Palihapitiya Appellants and Varma/Madra Appellants were each ordered to pay $150,000 of the total costs award. [3] On January 10, 2022, counsel for the Respondents wrote to the court and sought a variation of the trial costs award. Counsel submitted that because his clients succeeded on their cross-appeal, they beat their Rule 49 settlement offer and were entitled to a costs award on a higher scale: Rules of Civil Procedure , R.R.O. 1990, Reg. 194. Counsel for the Palihapitiya Appellants, writing on behalf of all the appellants, opposed the request. [4] Even assuming we have the authority to vary our decision, we decline to do so. The Respondents did not appeal or seek leave to appeal the trial costs, even though they knew that they would beat their Rule 49 settlement offer if they succeeded on their cross appeal: Rules of Civil Procedure . Further, the Respondents did not include a request to vary the trial costs award in their notice of cross-appeal or in their supplementary notice of cross-appeal. Finally, the Respondents did not raise the issue in oral argument or in their written submissions on costs. [5] The request for a variation is denied. “C.W. Hourigan J.A.” “Grant Huscroft J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 2650971 Ontario Inc. v. Shameti, 2022 ONCA 62 DATE: 20220124 DOCKET: C69565 Pardu, Roberts and Miller JJ.A. BETWEEN 2650971 Ontario Inc. and Kouraj Rahimi-Aloughareh a.k.a. Cyrus Rahimi Applicants (Respondents) and Durim Shameti and Anila Shameti Respondents (Appellants) Harneet Singh and Obaidul Hoque, for the appellants Michael A. Katzman, for the respondents Heard: January 20, 2022 by video conference On appeal from the judgment of Justice Jana Steele of the Superior Court of Justice dated June 1, 2021. REASONS FOR DECISION [1] This is an appeal from a judgment ordering the sale of a property that the parties had purchased for renovation and resale (“the investment property”) in furtherance of the parties’ joint venture. [2] There was no dispute that both sides made financial contributions to the down payment on the investment property. The investment property was purchased, and title was taken in the names of the appellants, who are spouses. The application judge found that the investment property was held by the appellants as bare trustees for the benefit of the corporate respondent, 2650971 Ontario Inc., or for the three parties to the joint venture, the respondent, Mr. Rahimi, and the appellants. [3] The parties’ joint venture foundered. The respondents brought an application for declaratory relief respecting the title to and ownership of the investment property, and an order for partition and sale. The application judge made an order for the sale of the investment property and a reference to a Master (now Associate Justice) of the Superior Court to determine the apportionment of the sales proceeds and the disposition of costs as between the parties. [4] The disposition of this appeal turns on a preliminary jurisdictional issue. Section 7 of the Partition Act , R.S.O. 1990, c. P.4, provides that “[a]n appeal lies to the Divisional Court from any order made under this Act.” On August 3, 2021, the Executive Legal Officer of this court alerted the parties to the possible jurisdictional issue that s. 7 of the Partition Act may apply to this appeal such that the appeal lies to the Divisional Court, and asked them to be prepared to address the preliminary issue concerning this court’s jurisdiction to hear the appeal. [5] The appellants maintain that this court has jurisdiction to hear this appeal because the application judge’s judgment finally disposed of the application. The order for sale of the investment property was only part of the relief sought by the respondents. As the issue of partition and sale was intertwined with other issues that were finally disposed of, this court has jurisdiction to hear the appeal. [6] The respondents acknowledge that this appeal lies within the jurisdiction of the Divisional Court; however, they have no objection if this court agrees to hear the appeal. [7] We do not agree that this court has jurisdiction to hear this appeal. The parties cannot confer jurisdiction on this court by agreement. [8] Section 7 of the Partition Act plainly stipulates that an appeal from an order made under the Act lies to the Divisional Court. The judgment under appeal clearly ordered the sale of the parties’ investment property pursuant to the Partition Act . This remedy was expressly sought in the respondents’ application. That the respondents also included other issues and heads of relief in their application does not alter the fact that the judgment made was with respect to matters that fall squarely under the Partition Act: Webster v. Groszman , 2021 ONCA 55, at para. 8. [9] As a result, in accordance with s. 7 of the Partition Act , an appeal from the judgment lies to the Divisional Court. This court has no jurisdiction to hear the appeal. Disposition [10] The appeal is therefore quashed. [11] The appellants shall pay the respondents their appeal costs in the amount of $12,000.00, inclusive of disbursements and applicable taxes. “G. Pardu J.A.” “L.B. Roberts J.A.” “B.W. Miller J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. M.M., 2022 ONCA 63 DATE: 20220126 DOCKET: C68124 Paciocco, Nordheimer and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and M.M. Appellant Howard L. Krongold , for the appellant Gregory Furmaniuk , for the respondent Heard: January 13, 2022 by video conference On appeal from the conviction entered by Justice Ronald A. Minard of the Ontario Court of Justice, on September 20, 2019 . Sossin J.A.: OVERVIEW [1] After a five-day trial, the appellant was convicted of sexual interference and sexual assault of a 14-year-old complainant. [2] The appellant was sentenced to 14 months in custody, along with a DNA order under ss. 487.04 and 487.051(1) of the Criminal Code , R.S.C. 1985, c. C-46, an order under s. 490.013(2)(b) of the Code to comply with the Sex Offender Information Registration Act for 20 years, and prohibitions against possessing weapons and contacting the complainant. [3] The complainant was a friend of the appellant’s daughter. She alleged that the assault took place at a construction site where the appellant worked and where he had arranged for the complainant to work for the day. [4] During a recess in the trial, the trial judge was approached by Linda Pearson, a sitting justice of the peace. The justice of the peace had access to the area behind the courtroom reserved for judges and court staff. She approached the trial judge there. No one witnessed the exchange between the trial judge and the justice of the peace, but the justice of the peace had advised trial Crown of her intention to approach the trial judge. [5] According to the trial judge, the justice of the peace informed him that she was the mother of M.M.’s ex-spouse and the grandmother of M.M.’s three children. She sought the trial judge’s “blessing” to attend the trial. The trial judge answered that anyone was free to observe the trial in the courtroom. The justice of the peace left the judge’s chambers, but returned shortly after to tell the trial judge he could “carry on” without her because M.M. did not want her watching his trial. [6] Upon resuming, the appellant sought a mistrial on the basis that the ex parte discussion between the justice of the peace and the trial judge gave rise to a reasonable apprehension of bias. [7] The trial judge dismissed the application for a mistrial. He acknowledged that the discussion with the justice of the peace had been unfortunate and should not have occurred, but concluded that he was able to disabuse himself of the encounter. [8] In convicting the appellant, the trial judge applied the framework articulated in R. v. W.(D. ) , [1991] 1 S.C.R. 742. When considering the first branch of the W.(D. ) framework, the trial judge rejected the appellant’s evidence denying the substance of the complainant’s allegations. Specifically, the trial judge rejected the appellant’s explanation for sending late night text messages to the complainant, noting that the appellant agreed with the suggestion that texting the complainant in that way and at that time was “not normal”. [9] The trial judge then briefly considered the second branch of the W.(D.) framework, where he concluded that he was not left in a reasonable doubt by the accused’s testimony. Finally, when considering the third branch of the W.(D.) framework, the trial judge concluded that the complainant’s evidence was sufficiently credible and reliable to prove the case against the appellant beyond a reasonable doubt. ANALYSIS [10] In his Notice of Appeal, the appellant raised two grounds of appeal relating to the conviction: first, that the trial judge erred in not granting the application for a mistrial based on a reasonable apprehension of bias in light of his ex parte discussions with the justice of the peace; and second, that the trial judge erred in the application of the W.(D.) framework. [11] In oral submissions, the appellant stated he is no longer advancing the ground of appeal relating to the trial judge’s application of the W.(D.) framework, and is now pursuing only the ground of appeal relating to the mistrial. [12] The Notice of Appeal also included an appeal against the sentence imposed but this ground of appeal was not pursued by the appellant. A. Did the Trial Judge err in dismissing the application for a mistrial? [13] The appellant argues that the trial judge erred in finding that his ex parte discussion with the justice of the peace did not lead to a reasonable apprehension of bias. While the appellant takes no issue with the actual impartiality of the trial judge and acknowledges the high burden to displace the presumption of impartiality, he contends that a reasonable person would conclude that the trial judge would not decide the case fairly based, in part, on the following elements of the ex parte discussion: · the communication was with a judicial officer of the same court and took place in the area of the courthouse reserved for judicial officers and court staff; · there was no reason for the justice of the peace to approach the trial judge other than to communicate her discernable interest in the case; · the ex parte communication took place during the trial; and · the appellant faced serious charges where his credibility was a central issue in the trial. [14] In short, the appellant argues that the justice of the peace inserted herself into the trial in a way that “destroyed the appearance of fairness.” [15] The Crown opposed the application for a mistrial, and argues before this court that the trial judge responded appropriately to a situation which was not of his making by taking remedial steps to preserve fairness. These included putting his entire recollection of the encounters on the record and inviting submissions from the parties on whether the encounters created a reasonable apprehension of bias. (1) The Reasonable Apprehension of Bias Principle [16] The application for a mistrial turned on whether the encounter between the justice of the peace and the trial judge gave rise to a reasonable apprehension of bias, when considered as a whole and in all of the circumstances. [17] The reasonable apprehension of bias is a principle of fairness. It relates not to the propriety of a judge’s or a third party’s conduct, but rather to whether, in the eyes of a reasonable observer, the accused is able to receive a fair trial in light of such conduct. [18] The test for a reasonable apprehension of bias is long-standing, and was first set out by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board , [1978] 1 S.C.R. 369, at p. 394 (dissenting): what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. [Citation omitted.] [19] The inquiry into whether a decision-maker’s conduct creates a reasonable apprehension of bias, as a result, is inherently contextual and fact-specific. Further, a presumption of impartiality, not easily displaced, imposes a high burden on the party alleging bias: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) , 2015 SCC 25, [2015] 2 S.C.R. 282, at paras. 25-26. [20] At the outset of his reasons dismissing the application for a mistrial, the trial judge reiterated the principle that justice must not only be done but be seen to be done. With this principle in mind, he put the question before him this way: “[W]ould the reasonable person out there knowing the facts conclude that circumstances that happened were sufficiently inappropriate that it compromises at least the latter portion of that principle, that justice must be seen to be done[?]” [21] In my view, the trial judge properly instructed himself on the test to be applied on a mistrial application. He correctly focused his inquiry on the appearance of bias and the paramount importance of fairness to the appellant. (2) Applying the Reasonable Apprehension of Bias Principle in this Case [22] Applying the principle set out above to this case, it is important to highlight that both parties agree that the trial judge did not act improperly when approached by the justice of the peace. [23] The trial judge acknowledged that he was caught off guard by the encounter, and that he had never been approached in this way during a trial over his 26-27 years on the bench. He stated that, in hindsight, counsel for the Crown should have advised the justice of the peace not to speak with him in the midst of trial, and that it was not appropriate for her to attend. The trial judge also conceded that, although she had the right to do so, he himself should have advised the justice of the peace that it would be “unwise” for her to attend the trial given her position and relationship with the appellant. [24] While he might have acted differently with the benefit of hindsight, the trial judge concluded that, as an experienced jurist, the encounters would in no way influence his ability to disabuse his mind of what had occurred and uphold the presumption of innocence to which the appellant was entitled. [25] Finally, the trial judge considered the practical implications of a potential mistrial. He noted the additional delay which a mistrial would create. He highlighted the difficulty experienced by the complainant, who was then in the midst of testifying, and the risk that a new trial, including the requirement to testify again before a different judge, would significantly worsen her emotional state. [26] Weighing all of these factors, the trial judge concluded that the encounter was “unfortunate” and “should not have occurred”, but it did not compromise the fairness of the trial, and that the application for a mistrial should be dismissed. [27] Neither party was able to cite a case where a judge’s ex parte communication with another judicial officer was directly at issue. Rather, each party relies on cases involving ex parte communications between judges and counsel, parties or others. [28] The Crown relies on R. v. Arnold , [2000] O.J. No. 3749 (C.A.), in which this court affirmed a lower court decision finding no reasonable apprehension of bias where a judge had communicated with Crown counsel outside the presence of the defence. In that case, the application judge concluded that it is not the mere fact of an ex parte communication that gives rise to a reasonable apprehension of bias but rather the content of such communication. Specifically, citing the judgment of McLachlin and Major JJ. in R. v. Curragh Inc. , [1997] 1 S.C.R. 537, at para. 104 (dissenting, but not on this point), the application judge found that the content did not create the appearance of bias because it would not sway the court to one party’s position. [29] By contrast, this court found a reasonable apprehension of bias in R. v. C.D.H. , 2015 ONCA 102, 125 O.R. (3d) 225, where a trial judge had an ex parte conversation with the investigating police officer, because the content of that conversation involved a specific view expressed by the trial judge that appeared adverse to the complainant in the alleged crime. [30] While I accept the importance of considering whether the content of ex parte communications may create the appearance of favouring one party over another, there are circumstances where the mere fact of ex parte communications may itself create an appearance of bias. Where, as here, a judicial officer approaches a judge in order to make the judge aware of her personal interest in the case, the appearance of impartiality may be in doubt, depending on how the trial judge responds. [31] In this case, had her conduct stood alone, the actions of justice of the peace may well have given rise to an appearance of bias. The content of the justice of the peace’s comments revealed both that she had a vested interest in the case as the grandmother of the appellant’s children, and an acrimonious relationship with the appellant. A reasonable person could certainly see this communication as swaying the trial judge to disfavour the appellant in a case where credibility would be a significant issue. [32] However, as indicated, while a third party’s conduct may be relevant to the analysis, the focus of the inquiry into a reasonable apprehension of bias is the conduct of the judge. In this case, had the trial judge done nothing but acknowledge this encounter, a reasonable apprehension of bias may well have remained. [33] The trial judge did not, however, do nothing in the face of these encounters. Rather, he took deliberate steps to mitigate the appearance of unfairness that this unwelcome encounter might have caused, including the following: · he put his recollection of the two encounters with the justice of the peace on the record within minutes of the second encounter; · he heard and considered submissions from counsel on whether the encounters justified a mistrial; and · he explained in his reasons why he believed he could remain impartial notwithstanding the encounters. [34] The trial judge reasoned that, while the encounter may mean that the appellant would not receive a perfect trial, it would not mean, when viewed from the perspective of a reasonable observer, that the appellant would not receive a fair trial. [35] The justice of the peace’s decision to approach the trial judge in the midst of the trial to make her interest in the case known showed a concerning lapse of judgment on her part. In light of the remedial steps subsequently taken by the trial judge, however, a reasonable observer would not be more likely than not to conclude that the trial judge was biased. [36] Therefore, the trial judge did not err in dismissing the application for a mistrial. DISPOSITION [37] For the reasons set out above, there was no error by the trial judge in his dismissal of the appellant’s application for a mistrial. [38] Accordingly, the appeal is dismissed. Released: January 26, 2022 “David M. Paciocco J.A.” “L. Sossin J.A.” “I agree. David M. Paciocco J.A.” “I agree. I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Homes of Distinction (2002) Inc. v. Adili, 2022 ONCA 64 DATE: 20220126 DOCKET: C69392, C68726 & C68728 Huscroft, Trotter and Coroza JJ.A. DOCKET: C69392 BETWEEN Homes of Distinction (2002) Inc. Plaintiff (Respondent) and Elisa Angela Adili and the Toronto-Dominion Bank Defendants ( Appellant ) AND BETWEEN Elisa Angela Adili Plaintiff by Counterclaim (Appellant) and Homes of Distinction (2002) Inc. Defendant to the Counterclaim (Respondent) DOCKET: C68726 BETWEEN Anthony Adili and Elisa Angela Adili Plaintiffs (Appellants) and Homes of Distinction (2002) Inc. , Roberto Venier and City of Hamilton Defendants ( Respondents ) AND BETWEEN Homes of Distinction (2002) Inc., and Roberto Venier Plaintiffs by Counterclaim (Respondents) and Anthony Adili and Elisa Angela Adili Defendants to the Counterclaim (Appellants) DOCKET: C68728 BETWEEN Anthony Adili and Elisa Angela Adili Plaintiffs (Appellants) and Homes of Distinction Inc. , Roberto Venier and City of Hamilton Defendants ( Respondents ) AND BETWEEN Homes of Distinction Inc., and Roberto Venier Plaintiffs by Counterclaim (Respondents) and Anthony Adili and Elisa Angela Adili Defendants to the Counterclaim (Appellants) Daniel Fridmar, for the appellants David Thompson and Michael Grant, for the respondents Heard: January 12, 2022 by video conference On appeal from the judgment of Justice Richard A. Lococo of the Superior Court of Justice, dated September 16, 2020, with reasons reported at 2020 ONSC 5344. REASONS FOR DECISION [1] In 2007, the appellants decided to renovate their home. They contracted with the respondent, a builder who carried on business as Homes of Distinction (2002) Inc. (“HoD 2002”). The builder’s principal is the respondent Roberto Venier. [1] [2] The parties reached an oral agreement for the project in the spring of 2008. Regrettably, the relationship between the parties fell apart during the project and by 2010, HoD 2002 withdrew its services and registered a construction lien on the property to secure outstanding payments for work completed. For their part, the appellants advised HoD 2002 that the contract was terminated and alleged that its work was deficient and non-compliant with the Ontario Building Code , O. Reg. 332/12. The appellants hired other contractors to complete the renovation and to rectify some of the alleged deficiencies. [3] Litigation ensued. The respondents commenced a construction lien action and sought to recover from the appellants the balance claimed as owing. The appellants denied they owed anything and brought their own action, alleging incomplete and deficient work and seeking over $1,450,000 from the respondents for amounts they incurred or would need to incur to complete the project and rectify the respondents’ work. The appellants also claimed that the City of Hamilton was negligent because its building department personnel were involved in issuing a building permit and inspecting the project. [2] [4] The actions were heard over 43 days at trial. Ultimately, the trial judge found the appellants liable to the respondents for most of the amount claimed. The trial judge dismissed the Adilis’ claims against the respondents and the City. [5] First, the trial judge found that there was an oral contract between HoD 2002 and the appellants. Second, the trial judge found the parties had not agreed to an enhanced standard of construction that went beyond the requirement to perform work in “a good and workmanlike manner” and meet the mandatory requirements in the Building Code . Third, he found that “there was no meeting of the minds with respect to the specific level of the allowances” but that “the parties’ agreement contemplated some reasonable limit” for expenditures, and that excesses of these amounts would be the appellants’ responsibility as an “extra”. Fourth, he found that the appellants breached the building contract by not paying. Finally, he found that the respondents had not breached the contract and, after reviewing the evidence, held that the respondents were not liable for alleged deficiencies. [3] [6] On appeal, the appellants advance several arguments. [7] First, the trial judge made a palpable and overriding error in disregarding uncontroverted expert evidence that HoD 2002 breached the Ontario Building Code when finding that HoD 2002 complied with the standard of construction required by the building contract. We disagree. [8] At trial, the appellants proffered the expert evidence of Giancarlo Lancia whom they retained to provide opinion evidence with respect to engineering and Building Code matters. Mr. Lancia’s evidence was the lynchpin of the appellants’ argument regarding structural deficiencies and Building Code non-compliance. The respondents challenged this evidence and proffered their own engineering expert. In the end, the trial judge found that Mr. Lancia had assumed an advocacy role for the appellants which he found was “inconsistent with his role as an independent expert witness.” In contrast, he found that the respondents’ expert was independent and preferred the evidence of the respondents’ expert. [9] We see no palpable and overriding error in the trial judge’s treatment of the expert evidence. The trial judge provided cogent reasons for why he discounted the evidence of Mr. Lancia. As we see it, the trial judge placed little to no weight on Mr. Lancia’s evidence about Building Code violations. That was his call to make and his credibility findings attract deference. In the end, the trial judge assessed Mr. Lancia’s credibility and reliability in the context of the evidence as a whole and concluded that he was less reliable than the respondents’ expert. We cannot intervene simply because the appellants ask us to weigh the evidence differently and arrive at alternative factual findings: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 58. [10] Mr. Lancia’s opinion evidence was a significant aspect of the appellants’ case. The trial judge’s conclusion that the appellants had not proven the Building Code breaches as asserted flowed naturally from the adverse finding he made against their expert. [11] We find no merit to this first ground of appeal. [12] Second, the appellants argue that the trial judge erred in relying on a previous contract that the parties had entered into in 1995 when interpreting the scope of allowances in the present building contract. We are not persuaded by these submissions. [13] We see no error in the trial judge’s reliance on the evidence of the 1995 contract. The trial judge held that there was “no meeting of the minds” as to the specific level of allowances for the construction components set out in the contract. However, he found that given the parties’ previous experience in 1995, he was satisfied that the parties contemplated some reasonable limit on the extent to which allowances on various construction components were included in the contract price. In our view, the trial judge was entitled to consider the fact that the parties had used allowances in the 1995 agreement in understanding their common knowledge and intentions alongside the other evidence he considered. [14] Finally, the appellants contend that the trial judge made a palpable and overriding error in calculating the respondents’ damages. They argue that the trial judge awarded the respondents double recovery in the final calculation of damages by excluding the appellants’ payments for work not covered by the contract (the excluded invoices), but at the same time allowing the costs of those items back into the damages award by way of the respondents’ spreadsheet calculations. [15] We do not accept this submission. The trial judge heard and rejected the appellants’ argument that these invoices should be included in the amount calculated as already paid to the respondents. He clearly accepted Mr. Venier’s evidence on damages, including the spreadsheet the appellant challenges. The trial judge was entitled to accept the respondents’ calculations as reasonable based on all the evidence before him. We are not persuaded that we should intervene in the trial judge’s assessment of damages. [16] In conclusion, we reject the arguments advanced by the appellants. The appellants’ submissions are a request for this court to redo the careful work and analysis of a trial judge who presided over a highly contentious trial that took 43 days. That is not our function. There is simply no basis to interfere with the trial judge’s conclusions which were all firmly anchored in the evidence. [17] Although there were other grounds of appeal advanced in their amended notices of appeal, they were not pursued in the appellant’s factum nor pressed in oral argument. We see no merit in any of these other grounds. [18] For these reasons, the appeal is dismissed. We fix costs in favour of the respondents in the agreed upon amount of $30,000 all inclusive. “Grant Huscroft J.A.” “Gary Trotter J.A.” “S. Coroza J.A.” [1] In these reasons, the three respondents are referred to collectively; however, for clarity, the building contract was formed between the Adilis and HoD 2002 specifically. Homes of Distinction Inc. is a related dormant company. [2] This claim was dismissed at trial. The appellants’ appeal against the City of Hamilton has been abandoned. [3] The trial judge did, however, grant a credit to the Adilis based on what HoD 2002 had already offered them – $27,238 for incomplete items and $20,000 as an allowance for deficiencies. The trial judge subtracted this from the total amount owing to HoD 2002.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Glasner, 2022 ONCA 65 DATE: 20220127 DOCKET: C68891 Feldman, MacPherson and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Salim Richard Glasner Appellant Tony Paciocco, for the appellant Allyson Ratsoy, for the respondent Heard: January 20, 2022 by video conference On appeal from the convictions entered on May 30, 2019 and the sentence imposed on December 4, 2019 by Justice Hugh R. McLean of the Superior Court of Justice. REASONS FOR DECISION [1] At the conclusion of a two day trial in Ottawa in May 2019, the trial judge found the appellant guilty of six drug related charges in an eight count indictment – possession for the purpose of trafficking (heroin and fentanyl); possession for the purpose of trafficking (oxycodone); possession for the purpose of trafficking (carfentanil); two counts of possession of proceeds under $5,000; and breach of recognizance for failure to keep the peace and be of good behaviour. The appellant received a global sentence of seven years for these offences. The appellant appeals from the convictions. [2] The Ottawa Police Service Drug Unit started surveillance at an Ottawa dwelling in July and August 2017. During surveillance, police observed some activity that was consistent with drug transactions, including short duration visits at the dwelling. They specifically observed the appellant outside but near the house engaging in transactions consistent with drug trafficking. [3] On August 23, 2017, the police executed a warrant at the dwelling and found four adults inside. The police testified that the appellant and Tara Dawache were in the northeast bedroom, the appellant’s uncle Richard Glasner was in another bedroom, and Daniel Sevigny was downstairs. [4] In the northeast bedroom, the police found quantities of heroin, fentanyl and carfentanil. Also in the room was an envelope addressed to the appellant at that address from a government institution. The police testified that both male and female clothing and shoes were found in this room. [5] In the same bedroom, the police testified that they also found a pink backpack containing drugs. They also found baggies, $1,610 and Ms. Dawache’s identification. [6] Downstairs, the police found heroin, fentanyl, buprenorphine and four scales (two operable). The police testified that they also found US $141. [7] The trial judge convicted the appellant on six counts in the eight count indictment. He acquitted him of breach of recognizance for possession of drug paraphernalia and one count of possession of buprenorphine for the purpose of trafficking because Mr. Sevigny had a licence to obtain the drug, he was present in the house, and the drug was found near him. [8] The trial judge delivered brief oral reasons almost immediately after hearing counsels’ closing submissions. [9] The appellant appeals his convictions on two bases. [10] First, the appellant contends that the trial judge erred by failing to provide sufficient reasons to permit meaningful appellate review. [11] This is, as it should be, a difficult ground for an appellant to establish. The test for establishing it was articulated by McLachlin C.J. in R. v. R.E.M. , 2008 SCC 51, at para. 55: The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveal the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. [12] After engaging in the process mandated by the Chief Justice, we cannot say that the trial judge’s reasons in this case are insufficient. The reasons are brief (five pages) but that alone cannot be a subject of criticism. This was a short trial (about one and a half days of testimony) with five Crown police witnesses and no evidence called by the defence. And, more importantly in our view, “the trial judge appears to have seized the substance of the critical issues on the trial” as instructed by the Supreme Court in R.E.M . [13] The evidence was overwhelming that drug transactions were taking place inside and very near the dwelling. The drugs and drug equipment inside the house and the police observations of activity inside and near the house confirm this. [14] As well, the evidence supported the conclusion that it was the appellant who was engaged in the drug activities taking place inside and outside the house. It was not contested that the appellant lived in the house and police testified they found men’s clothing and shoes in the bedroom. Police found an envelope addressed to the appellant at the dwelling and they testified that a bag of drugs was found directly on top of the envelope. Over several days of surveillance, numerous people attended the residence for short visits which a police expert testified were consistent with drug trafficking. And outside but near the house, the police saw the appellant engaging in transactions consistent with drug trafficking. [15] Second, the appellant submits that the trial judge erred by failing to properly apply the law of possession for possession-based offences. He says that for all forms of possession (personal, constructive, joint), it is necessary to prove beyond a reasonable doubt both knowledge of the presence of the property in question and at least some measure of control over it: see R. v. Morelli , 2010 SCC 8, at para. 15. [16] The appellant asserts that the trial judge was silent on the control component of the test. He says that the trial judge spoke in terms of “necessary indicia of possession of the drugs” but never uses the word “control” or provides reasons that suggest he is grappling with this component of the test for possession. Given that there appeared to be several (as many as four) occupants of the house, the appellant argues that this omission amounts to an error of law. [17] We do not accept this submission. The police surveillance evidence established that the appellant was engaged in what looked like drug transactions outside but near the house and that he was present inside the house when people would come to it, enter, and leave soon after with what appeared to be a clenched fist consistent with a drug purchase. Moreover, drugs were found in a bedroom, with the appellant present in it, with men’s clothing and shoes and an envelope with his name on it. As well, downstairs the police found a card with the appellant’s name and date of birth written on it. [18] Given all this evidence, it is obvious that the appellant both possessed and controlled the drugs. It is true that the other occupants of the house, especially Tara Dawache, might also have possessed the drugs. Possession might have been joint, for at least some of the drugs. However, joint possession is inclusionary, not exclusionary, because two or more people can have knowledge and control over the property in question. [19] In summary, the trial judge’s reasons, albeit brief, adequately address the two central issues at the trial – was unlawful drug activity taking place at the dwelling and was the appellant involved in that activity. [20] With respect to count two in the indictment, the Crown concedes that the appeal should be allowed. There was no evidence that the appellant had knowledge and control of the oxycodone pills found in the pink backpack in the bedroom. The backpack contained Ms. Dawache’s identification and the surveillance did not establish that the appellant had ever been seen carrying it. [21] The appeal is allowed with respect to count two in the indictment and the conviction is set aside. On all the other counts, the appeal is dismissed. Although the notice of appeal with respect to sentence was filed, the appellant made no submissions on sentence. Accordingly, we would dismiss the sentence appeal. “K. Feldman J.A.” “J.C. MacPherson J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66 DATE: 20220127 DOCKET: C69194 Huscroft, Trotter and Coroza JJ.A. BETWEEN Tallman Truck Centre Limited Plaintiff (Appellant) and K.S.P. Holdings Inc. and Secure Capital Advisors Inc. Defendants ( Respondent ) J. Thomas Curry, Dena N. Varah and Sean Lewis, for the appellant Jeffrey E. Feiner, for the respondent Heard: January 10, 2022 by videoconference On appeal from the order of Justice Frederick L. Myers of the Superior Court of Justice, dated February 8, 2021, with reasons reported at 2021 ONSC 984. REASONS FOR DECISION [1] Tallman Truck Centre Limited (“Tallman”) appeals from an order staying its action on the basis that it failed to immediately disclose to one defendant, K.S.P. Holdings Inc. (“K.S.P.”), that it had entered into a settlement agreement with the other defendant, Secure Capital Advisors Inc. (“Secure”). Under this settlement agreement, Secure reversed its pleaded position and joined cause with Tallman. The agreement was not disclosed until three weeks after it was made. K.S.P. successfully moved to stay the action, based on the principles in Handley Estate v. DTE Industries Limited , 2018 ONCA 324, 421 D.L.R. (4th) 636. [2] The following reasons explain why we dismiss Tallman’s appeal. Background [3] In the underlying action, Tallman sought to enforce a right of first refusal against K.S.P. in the context of a complex real estate transaction. It claimed damages against Secure in relation to a leaseback agreement that it alleged existed between the defendants, which they both denied in their pleadings. [4] Tallman brought a summary judgement motion for specific performance of the right of first refusal against K.S.P. In the lead up to this motion, and unbeknownst to K.S.P., Tallman engaged in settlement discussions with Secure, whereby Secure would support Tallman’s summary judgment motion by providing affidavit evidence in which it acknowledged the existence of the leaseback arrangement. In return, Tallman agreed to discontinue the claim against Secure. Additionally, in the event that the summary judgment motion was unsuccessful, and the action continued, Secure had a “continuing obligation to provide support and cooperation to Tallman throughout the Litigation.” Only then would it receive a full and final release, which was being held in escrow by Tallman’s counsel (not counsel on appeal). [5] The timing of these events is important. The summary judgment motion was scheduled to be heard in December of 2018. In the Spring of 2018, counsel for K.S.P. attempted to contact Secure’s counsel to ascertain whether Secure could provide helpful evidence to K.S.P. concerning the alleged leaseback arrangement, consistent with their pleaded positions. Counsel for Secure did not respond. As it turned out, Secure was in discussions with Tallman. [6] On April 12, 2018, Tallman’s counsel drafted an affidavit for the principal of Secure to swear, in which he acknowledged the existence of a leaseback arrangement. On May 14, 2018, Secure returned a marked-up copy of the draft. The final version was sworn on May 22, 2018 and was held by counsel for Secure. [7] The terms of the settlement between Tallman and Secure were formally reduced to writing in a document prepared by Tallman and sent to Secure on June 6, 2018. On June 7, 2018, Secure’s counsel provided written acceptance of the agreement. The motion judge described the upshot of the agreement as follows: “Secure was no longer adverse in interest to the plaintiff. Rather, to obtain its bargained-for release, the quality of its continuing support of the plaintiff was subject to the plaintiff’s approval.” [8] On June 7, 2018, Secure’s counsel served his client’s affidavit in a responding motion record. The affidavit purported to be sworn “ in response to the motion for summary judgment brought by the plaintiff” (emphasis added). In reality, it was sworn in support of the motion. On June 8, 2018, Tallman attempted to discontinue the action against Secure on a “without costs and with prejudice” basis. For technical reasons, the notice of discontinuance was not accepted by the court. Tallman filed another version of this document on June 13, 2018. By June 19, 2018, the notice of discontinuance had still not been accepted by the court. Because pleadings were closed, the consent of K.S.P. was required. Tallman sought K.S.P.’s consent, still not having disclosed the settlement agreement. [9] By this point in time, counsel for K.S.P. suspected that a settlement had been reached between Tallman and Secure. He wrote to Tallman’s counsel on June 21, 2018, asking for confirmation of this fact. On June 24, 2018, Tallman’s counsel wrote to K.S.P., but did not disclose the settlement agreement. Counsel was more focused on keeping up its end of the bargain with Secure, writing: “In my view, there is no proper basis for you to withhold your consent” to the filing of the notice of discontinuance. [10] The settlement agreement was finally disclosed on June 27, 2018, three weeks after it was signed by the parties. Apparently, the resistance to earlier disclosure came from Secure’s counsel. Tallman’s counsel eventually persuaded Secure’s counsel that the agreement should be disclosed, not because they were legally obliged to do so, but because it would be tactically advantageous. In a June 27, 2018 email to K.S.P.’s counsel, Tallman’s lawyer provided a copy of the June 7, 2018 agreement. He advised, “We will not be producing any of the other documents you have requested in this regard.” Tallman’s counsel held back the release it held in escrow pursuant to the written settlement agreement. Tallman disclosed the document only after being ordered to do so following a contested motion before a Master. [11] On the motion to stay the proceedings, counsel for K.S.P. asserted that there was at least an oral agreement as of May 22, 2018 that should have been immediately disclosed. The motion judge did not necessarily reject this submission; instead, he preferred to base his decision on the June 7, 2018 written agreement. He said, “I am therefore not to be taken as finding that there was no disclosable agreement prior to June 7, 2018. I simply choose not to decide that question as it is not necessary in this case.” Discussion [12] Tallman submits that the motion judge erred in the following ways. He mischaracterized the nature of the dispute between the parties and erred in finding that the settlement agreement changed the entire litigation landscape between the parties. He erred in finding that the settlement agreement was not disclosed immediately, as contemplated in Handley . He erred in finding that Handley applied to the Pierringer -type agreement in this case, and in finding that the factual circumstances fell within the ambit of Handley . Lastly, to the extent that the facts of this case crossed the line drawn in Handley , the motion judge erred in failing to impose a more measured remedial response, short of a stay of proceedings. [13] We reject these submissions. [14] In his oral submissions, Mr. Curry on behalf of Tallman, submits that the motion judge mischaracterized the degree to which the positions of K.S.P. and Secure were mutually antagonistic. This led the motion judge to erroneously find that Secure’s change of position was sufficient to constitute a change to the litigation landscape, as contemplated in Handley and earlier cases: see Aecon Buildings v. Stephenson Engineering Limited , 2010 ONCA 898, 328 D.L.R. (4th) 488, leave to appeal refused, [2011] S.C.C.A. No. 84; Laudon v. Roberts , 2009 ONCA 383, 308 D.L.R. (4th) 422, at para. 39, leave to appeal refused, [2009] S.C.C.A. No. 304. [15] We do not accept this submission. This basis for challenging the motion judge’s decision was not included in Tallman’s Notice of Appeal. Moreover, Tallman’s factum appears to acknowledge there was such a change, but insists that disclosure had been adequate. [16] In any event, the motion judge did not misapprehend the nature of the relationship between the defendants. Although there were no cross-claims between K.S.P. and Secure (their dispute having been addressed in earlier litigation that settled), Secure’s realignment with Tallman was a dramatic change from K.S.P.’s perspective. As the motion judge said: [A]fter the settlement between the plaintiff and Secure, Secure reversed its position and went from opposing the plaintiff to supporting the plaintiff’s claim. It is no longer submitting a position in the litigation that is adverse in interest to the plaintiff. . . . On June 7, 2018, Secure’s counsel provided a written acceptance. From that point onward at least, Secure was no longer adverse in interest to the plaintiff. Rather, to obtained its bargained-for release, the quality of its continuing support of the plaintiff was subject to the plaintiff’s approval. [17] It was open to the motion judge to make these findings. The lack of cross-claims between the defendants was not a necessary condition to the application of Handley . [18] Tallman submits that it did make disclosure – “functional disclosure” – of the settlement agreement on June 8, 2018 when it served its notice of discontinuance on counsel for K.S.P. Combined with the delivery of Secure’s affidavit (which disingenuously purported to respond to the summary judgment motion), the change in the litigation landscape would have been obvious to K.S.P. [19] It was open to the motion judge to reject this proposition. The motion judge credited K.S.P.’s counsel for his astuteness in realizing that something was amiss when Tallman served the notice of discontinuance. However, he observed, “[b]ut a settlement can have any number of terms.” As he explained: In my view, in serving Secure's responding motion record and then the notice of discontinuance, the plaintiff and Secure made no disclosure of any settlement agreement. They took steps in the litigation that would lead experienced litigants to infer the existence of a settlement of some kind. That is not disclosure of an agreement that changes the litigation landscape. Even if KSP's counsel could be said to have been told enough to discern that there was a settlement, nothing in the documents delivered by the plaintiff and Secure disclosed the existence of a litigation agreement under which Secure was obligated to provide ongoing support to the plaintiff's satisfaction. KSP's counsel was left to divine the nature of the settlement instead of being told about it forthrightly and immediately. [Emphasis added.] [20] We agree with the motion judge that an obligation of such importance cannot turn on hints offered by opposing counsel. This would leave the matter to guesswork, an especially hazardous situation where counsel is less experienced or when parties are self-represented. [21] Moreover, this submission does not sit well with the position expressed by Tallman’s counsel at the time – i.e., that it was not legally required to disclose the settlement agreement. There was no evidence that service of the notice of discontinuance and the delivery of the Secure affidavit were meant to function as disclosure. Consequently, even if there were such a thing as “functional disclosure” in this context, in this case it would have amounted to “unintentional functional disclosure.” This is untenable. In reality, the existence of the settlement agreement only became apparent when the parties were in the process of implementing it. [22] Although counsel for K.S.P. suspected that a settlement had been reached, he had no idea about the terms of the settlement. As counsel for K.S.P. submitted on appeal, without disclosure of the agreement, he would not have known that the affidavit produced by Secure was “a negotiated piece of evidence.” Moreover, while the notice of discontinuance appeared to signal Secure’s departure from the litigation, Secure remained heavily invested in the case by virtue of its contractual obligation to assist Tallman – the release was being held in escrow, its delivery being contingent on Secure’s performance in its new role. All of this was unknown to K.S.P. until three weeks after Tallman and Secure signed their agreement. [23] Tallman submits that the motion judge erred by applying Handley (which involved a Mary Carter agreement) to the Pierringer -type of agreement in this case. We disagree. The motion judge quoted the following passage from para. 39 of Handley : “The obligation of immediate disclosure is not limited to pure Mary Carter or Pierringer agreements. The disclosure obligation extends to any agreement between or amongst parties to a lawsuit that has the effect of changing the adversarial position of the parties set out in their pleadings into a cooperative one” (emphasis added). As the motion judge said, “That describes exactly what has happened here.” [24] More broadly, Mr. Curry submits that the litigation conduct in this case does not approach the level contemplated by Handley . He submits that Handley is aimed at rooting out “shams”, and correcting failures of justice. He contends that this case falls far short of that standard. He relies on the short period of time that elapsed between the settlement agreement being signed and its disclosure – just three weeks. He also relies on the motion judge’s finding that Tallman’s counsel had not acted for nefarious reasons; at worst, they appeared to be oblivious to the obligation to immediately disclose the settlement agreement. [25] We agree with the motion judge’s rejection of this submission. He was aware that Handley involved a “sham process” that had been perpetuated for as long as five years. However, he found that the presentation of Secure’s affidavit was also “a sham” and “studded with pretense.” It was open to the motion judge to make these findings. As he noted, although the failure to immediately disclose a settlement agreement may adversely affect other parties to the litigation, judges may also be impacted. As he wrote: I, for one, read the evidence before I read the parties’ factums. In preparing for the motion, due to the misleading manner of presentation , I would not have known at the outset, as required , that the defendant Secure was on the plaintiff’s side pursuant to a settlement agreement that requires its support to the plaintiff’s satisfaction. [Emphasis added.] [26] We also reject the submission that the three-week period between reaching the agreement and disclosing it was negligible and ought not to be caught by the immediate disclosure rule. The standard is “immediate”; it is not “eventually” or “when it is convenient”. As the motion judge said: “The rules really can’t be any clearer. Where an agreement involves a party switching sides from its pleaded position, it must be disclosed as soon as it is made.” Here, Tallman and Secure attempted to implement the settlement agreement before disclosing it to K.S.P. More troubling, it is unclear on this record whether Tallman would have disclosed the agreement had K.S.P.’s counsel not asked for it. Even then, it was disclosed for tactical reasons, not in observance of a legal obligation. [27] Lastly, Tallman submits that, to the extent that this case crossed the line in the Handley , it did not warrant a stay of proceedings. He relies on the fact that the missteps of Tallman’s counsel were not taken in bad faith, the delay was comparatively brief, and K.S.P. suffered no prejudice as a result of what happened. [28] This argument was firmly rejected in Aecon , in which MacFarland J.A. held, at para. 16: “Any failure of compliance amounts to an abuse of process and must result in consequences of the most serious nature for the defaulting party.” Reinforcing this principle, in Handley , Brown J.A. confirmed that, “[t]he only remedy to redress the wrong of the abuse of process is to stay the claim asserted by the defaulting, non-disclosing party”: at para. 45. This remedy is designed to achieve justice between the parties. But it does more than that – it also enables the court to enforce and control its own process by deterring future breaches of this well-established rule. Conclusion and Disposition [29] The appeal is dismissed. K.S.P. is entitled to costs in the amount of $25,000 inclusive of disbursements and HST. “Grant Huscroft J.A.” “Gary Trotter J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Hall (Re), 2022 ONCA 67 DATE: 20220125 DOCKET: C69706 Feldman, MacPherson and Thorburn JJ.A. IN THE MATTER OF: Martin Hall AN APPEAL UNDER PART XX.1 OF THE CODE Suzan E. Fraser, for the appellant Nicolas de Montigny, for the respondent Attorney General of Ontario Leisha Senko, for the respondent The Person in Charge of the Centre for Addiction and Mental Health Heard: January 21, 2022 by video conference On appeal against the disposition of the Ontario Review Board dated June 21, 2021, with reasons dated July 7, 2021. REASONS FOR DECISION [1] The appellant, Martin Hall, appeals the disposition of the Ontario Review Board (the “Board”) dated June 21, 2021, which ordered his continued detention at the Centre for Addiction and Mental Health (“CAMH”) with hospital and community privileges, including permission to live in the community in accommodation approved by the person in charge. [2] The appellant, who is 38 years old, has been under the jurisdiction of the Board since 2006 when he was found not criminally responsible on account of mental disorder on charges of assault and carrying a concealed weapon. He suffers from schizoaffective disorder as well as alcohol, cannabis and cocaine addictions. He had no criminal record before the commission of these offences. The facts giving rise to the convictions in 2006 were that the appellant, without provocation, punched an acquaintance in the face and, upon arrest, was found to be in possession of a large knife, two smaller knives, a steel bar, and a small propane torch. [3] The appellant was subject to detention orders (2007-2009), conditional discharges (2009-2014), and detention orders (2015-2021). For the most part, in recent years the appellant has resided in the community in a supportive subsidized bachelor apartment operated by HouseLink and has been assisted by a CAMH Forensic Outpatient Services team. [4] In its annual review disposition dated June 21, 2021 and the Reasons for Disposition dated July 7, 2021, the Board continued its recent pattern of dispositions. The Board said: The Board finds that the necessary and appropriate disposition is a continuation of the detention order. The Board finds that it is necessary that the hospital have the ability to approve residence so that the treatment team is able to provide necessary supervision and monitoring as well as to ensure that Mr. Hall is not subject to unnecessary stress potentially leading to decompensation. [5] Section 672.78 of the Criminal Code provides that a court of appeal may set aside a Board disposition if it is, inter alia , “unreasonable or cannot be supported by the evidence”. In R. v. Owen , 2003 SCC 33, at para. 33, the court said that this standard means that the Board’s reasons must be able to withstand a “somewhat probing examination” to determine whether the decision is justifiable, transparent and intelligible. [6] The appellant submits that the Board’s decision is unreasonable and should be set aside and replaced by an absolute discharge. In support of this position, the appellant advances two arguments. [7] First, the appellant contends that the Board’s finding of significant threat to public safety was not properly justified in its Reasons for Disposition and is unreasonable. [8] We do not accept this submission. The Board carefully reviewed the whole record, and especially the testimony of Dr. Ali, the appellant’s treating psychiatrist. Dr. Ali noted that there has been some improvement in the appellant’s health. However: Although, Mr. Hall has not acted out aggressively since the time of the index offences, the evidence is that the reasons for this is the supervision and support provided by his treatment team. The Board finds Dr. Ali’s opinion that, absent the supervision of the Board, Mr. Hall would fall away from treatment and decompensate, develop symptomology similar to that at the time of the index offences when his paranoia resulted in his arming himself with numerous weapons and seriously assaulting a friend without provocation, is not speculation and is supported by the evidence. [9] Dr. Ali therefore concluded that a conditional discharge was insufficient to manage the appellant’s risk and that the hospital needed to approve his housing to ensure adequate supervision and medication compliance. Based on our review of the record, this strikes us as an entirely reasonable conclusion. [10] Second, the appellant submits that the Board erred by not asking the parties to return with evidence about the sufficiency of the Mental Health Act , R.S.O. 1990, c. M.7, committal provisions to bring the appellant to hospital if a conditional discharge order was made and he decompensated: see Blake (Re) , 2021 ONCA 230, at paras. 33-37. [11] We disagree. The Board heard extensive evidence on the adequacy of the Mental Health Act to manage the appellant’s risk under a conditional discharge order. The Board’s finding was that he would not be able to be held in hospital long enough if he was required to be brought in because he was decompensating. No further evidence was required. [12] The appeal is dismissed. “K. Feldman J.A.” “J.C. MacPherson J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Pal v. Bhatia, 2022 ONCA 68 DATE: 20220125 DOCKET: C69436 Pardu, Roberts and Miller JJ.A. BETWEEN Arun Pal Applicant (Respondent) and Tanya Bhatia Respondent (Appellant) Michael H. Tweyman, for the appellant Arun Pal, acting in person Heard: January 21, 2022 by video conference On appeal from the order of Justice Jayne E. Hughes of the Superior Court of Justice dated April 6, 2021, with reasons reported at 2021 ONSC 2483. REASONS FOR DECISION [1] This appeal concerns minor modifications made to a final order respecting parenting and child support issues. The parties separated in 2013 after less than five years of marriage. Their only child, A., is now 11 years old. Since their separation, the parties have been embroiled in high conflict litigation. [2] A final court order was made on September 15, 2015 (“the September 15, 2015 order”). The respondent initiated a motion to change the September 15, 2015 order in September 2017, raising compliance issues, particularly in relation to his parenting time with A. The proceedings were closely case managed by the motion judge who made a series of temporary orders to reduce the exposure of A. to parental conflict and assist the parties in coming to a resolution of their dispute. At the motion judge’s direction, the Office of the Children’s Lawyer prepared an updated report to account for A.’s age and new stage of development. [3] With the consent of the parties, the motion judge ordered the matter to proceed by summary judgment before her, explaining the impetus for the order in her endorsement of September 29, 2020, as follows: Both parties and counsel for the Respondent Mother, Reginald McLean, agree that this is not a matter that should proceed to trial. The parties reached agreement on the principles of a parenting plan on a number of occasions with the assistance of the court and counsel but have been unable to finalize the specific terms of the Minutes of Settlement. I agree with counsel’s assessment that it is essentially tweaking and tinkering but the parties have been unable to conclude a final agreement. It is agreed that none of the tweaking and tinkering impacts the Applicant Father’s child support obligation, and the maximum principles had been reviewed and is understood by the parties. To save further time and expense, and to avoid the damage to the co-parenting relationship of the parties a trial is likely to cause, the parties have agreed that the matter should be scheduled for a summary judgment motion. [Emphasis added.] [4] Both parties sought minor amendments to the September 15, 2015 order. The motion judge made minor amendments to the respondent’s parenting time, to child support, and to the shared Christmas holiday schedule. Given the mixed success on the issues, the motion judge made no order as to costs. [5] The appellant raises the following issues on appeal: i. The motion judge erred in making any change to the September 15, 2015 order without addressing the threshold issue of material change in circumstances. ii. The motion judge erred in deciding the matter after being the case management judge and hearing a settlement conference. iii. The motion judge erred in failing to give effect to the parties’ admissions regarding regular parenting time at the first appearance on the motion. iv. The motion judge erred in failing to give proper weight to the child’s views and preferences. [6] We do not accept these submissions. [7] The first two issues have no merit and ignore the parties’ express consent to the procedure followed by the motion judge. There was no unfairness or prejudice. Rather, this was a sensible and practical way to proceed, given the motion judge’s long involvement in this matter and the minor nature of the amendments that both parties had requested. [8] As already indicated, the parties agreed that the motion judge should determine by way of summary judgment the very few issues that were outstanding in order to avoid the cost and delay of a trial and further damage to their co‑parenting relationship. We do not accept the appellant’s submission that she merely “acquiesced” or was “dragged along”. That is not what happened. [9] The appellant was represented at all times by counsel (not appeal counsel) who never made any objection to proceeding by way of summary judgment or before the motion judge. Nor did he raise any issue about a material change in circumstances or any other impediment to the motion judge determining the motion. On the contrary, he gave the appellant’s consent to proceed in this manner and then sought amendments to the September 15, 2015 order on her behalf. [10] With respect to the third and fourth issues, the motion judge made no error. There was no firm agreement between the parties on the respondent’s parenting time before the motion was determined and, in any event, the motion judge was not bound by the parties’ negotiations. She had to consider what was in A.’s best interests, particularly in the context of high-conflict litigation where, as the motion judge noted, the parties “had been struggling for many months to finalize the terms of a final order and had reached an impasse.” [11] The motion judge’s decision on the merits is unassailable. She carefully reviewed the parties’ respective submissions on each of the issues presented for determination. Her reasons on each issue show a sensitive and practical approach grounded in the evidence, relevant legal principle, and pointedly, A.’s best interests. Her decision was clearly designed to provide A. with the consistency that both parties agreed was important and to reduce his exposure to the conflict between his parents. We see no error in her conclusions. [12] The respondent has brought a motion to submit fresh evidence. It does not affect the outcome of this appeal. We do not admit it. [13] For these reasons, we dismiss the appeal. [14] The respondent does not seek any costs. We order no costs of the appeal. “G. Pardu J.A.” “L.B. Roberts J.A.” “B.W. Miller 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.H., 2022 ONCA 69 DATE: 20220127 DOCKET: C68425 Paciocco, Nordheimer and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and R.H. Appellant Mellington Godoy, for the appellant Jennifer Epstein, for the respondent Heard: January 12, 2022 by video conference On appeal from the convictions entered by Justice Kevin B. Phillips of the Superior Court of Justice on January 24, 2020. Nordheimer J.A.: [1] R.H. appeals from his conviction for sexual assault. He was also convicted of other offences including assault causing bodily harm, mischief, and uttering threats. However, his appeal is solely with respect to the sexual assault offence. A. Background [2] The facts underlying the offences are somewhat unusual. The appellant and the complainant were in a relationship. At the time of the offences, the appellant was using drugs, including crack cocaine, which caused him to have paranoid hallucinations. Uncontested testimony from the complainant established that these hallucinations led the appellant to believe that the complainant was having sexual intercourse with other men while the appellant was with the complainant. [3] More specifically, the appellant would be lying in bed with the complainant and would become convinced that the complainant was, then and there, having intercourse with another man. In an effort to convince the appellant that this was not occurring, the complainant would allow the appellant to touch her vagina so that he would be assured that no act of intercourse was taking place. [4] The complainant testified that it was not the physical act of the appellant touching her vagina that made her uncomfortable. Rather, it was the appellant’s accusations that she was being unfaithful that bothered her. The complainant was consistent, both during examination in chief and cross-examination, that she allowed the appellant to touch her and that she did not feel that she had been sexually assaulted. The complainant also said that every time she and the appellant had sex, it was consensual. B. the trial judge’s reasons [5] With respect to the sexual assault offence, the trial judge concluded that the complainant’s agreement to permit the appellant to touch her sexually was invalid. He said that any consent in this context was “an illusion”. The trial judge based his conclusion on the history of violence in the relationship. More specifically, the trial judge said: [R.H.] would’ve understood full well that he had a form of control over her; that he had injected so much violence into this relationship, that when his partner acquiesced to him investigating her vagina to satisfy himself that other men were not then presently engaged in sex or had not recently been, he was being allowed to do so because he had a form of power over the complainant, brought about by his violent treatment of her. C. Analysis [6] In my view, the trial judge erred in reaching the conclusion that he did. In so concluding, I do not mean to suggest that such a conclusion would not be open to a trial judge to reach on the particular facts of any given case. It may well be that a trial judge could conclude, even in the absence of specific threatening conduct attached to an act of sexual touching, that based on the totality of the evidence of the conduct between the parties, the voluntariness of a complainant’s subjective agreement to that act of sexual touching was vitiated by the control that the accused person exercised through violence and intimidation within their relationship. Put simply, if a complainant agrees to sexual touching because of an operating fear of past acts of violence, their subjective agreement to sexual activity will be vitiated. [7] The problem that arises in this case is that neither counsel argued this route to a conviction. This case was not litigated as a vitiation of consent case. The contest was about the factual question of whether the complainant subjectively agreed to the charged sexual activity. [8] The Crown’s position was that the complainant was a difficult and reluctant witness at trial who downplayed in her testimony the actions of the appellant towards her. The Crown sought to have the trial judge make his finding of fact relating to her subjective consent based on a statement the complainant gave to the police, that was ultimately admitted at trial under the principles from R. v. B. (K.G.) , [1993] 1 S.C.R. 740 (the “ KGB statement”). Unlike her evidence at trial that the touching was consensual, in her police statement the complainant said that the touching had upset her. She also said, in response to a leading question from the interviewing officer, that she had not wanted the touching to happen. [9] The Crown argued that the complainant’s evidence, through the police statement, should be preferred to the complainant’s evidence at trial. The Crown continued by asserting that the fact that the complainant said, in her police statement, that the touching bothered her constituted a violation of the complainant’s sexual integrity. The Crown concluded by asserting that the fact that the complainant said at trial, and contrary to her police statement, that all of the touching was consensual, should be rejected and should not raise a reasonable doubt. [10] In response, the defence argued that the complainant’s police statement was suspect because, at the time, the complainant had a motive to fabricate her allegations. This arose, in part, from the complainant’s concern for her children and the possible involvement of the Children’s Aid Society. The complainant was very concerned about the possible loss of her children. She wanted to deflect any concerns about what was going on in the relationship, as it impacted on the children and her ability to care for them, entirely onto the appellant. [11] As a consequence, the defence argued that the complainant’s evidence from her police statement should be approached with caution and with scepticism. Notably, the defence did not make any specific submissions regarding the sexual assault offence, other than to say, in reliance on the complainant’s trial testimony, that the Crown failed to negate consent beyond a reasonable doubt. [12] The trial judge, because of the inconsistent accounts provided by the complainant, was left in a reasonable doubt relating to whether she subjectively consented. This led him to move on to consider whether that consent had been vitiated. [13] I have already set out the vitiated consent theory the trial judge used to convict the appellant of the sexual assault offence. This theory was never advanced by either of the parties, nor did the trial judge raise it with the parties. In convicting on this basis in these circumstances, he visited an unfairness on the appellant. That unfairness has two parts. One is that raising this issue for the first time after evidence and argument were completed did not allow for either counsel, but especially defence counsel, to make any submissions as to the validity of that theory, on the facts of the case. It did not permit counsel the opportunity to provide case authorities on the subject, nor did it permit counsel to refer to evidence that might impact on that theory. [14] This latter concern leads to the second part of the unfairness. Not only was there no indication that this was a route that might be taken to a conviction on the sexual assault offence, as I will explain, the manner in which the Crown presented the case suggested it would not be. Defence counsel was therefore misled in terms of his conduct of the defence. It is almost certain that had it been known that this theory was a live route to conviction, the defence would have explored the issue with the complainant during the course of her cross-examination. [15] This is not a fanciful or speculative concern in this case. In the course of the examination in chief of the complainant, Crown counsel addressed the sexual assault offence. In particular, the following exchange took place: Q.      So, do you remember whether it was otherwise in terms of your pants coming down, that’s [ sic ] it’s not simply you doing it, but whether he did it as well? A.      What I said for him, that if he thought that something was going on, to check. So, I did allow permission. Q.      Did he ever do it without your permission? A.      No. I don’t feel as if [R.H.] has ever sexually assaulted me. [16] Those answers were helpful to the defence. However, Crown counsel left things there, without asking any questions relating to the integrity of the permission the complaint gave. In light of that exchange, and the absence of any indication in the KGB statement that the complainant was concerned about the risk of violence when the accused touched her sexually, it is understandable why defence counsel would not address voluntariness issues in his cross-examination. In particular, there would be no reason for defence counsel to engage with the complainant on the subject of whether her stated consent was actually no consent because of the nature of her relationship with the appellant and the history of violence. Simply put, Crown counsel had not gone there, so why would defence counsel do so? I would add, on this point, that because of the differences between the complainant’s police statement and her evidence at trial, Crown counsel had been permitted to cross-examine the complainant pursuant to s. 9(2) of the Canada Evidence Act , R.S.C., 1985, c. C-5. [17] The parties do not dispute that the absence of consent is subjective and is to be determined by reference to the complainant’s subjective internal state of mind towards the touching, at the time it occurred: R. v. Ewanchuk , [1999] 1 S.C.R. 330, at para. 26. However, to be legally effective, consent must be freely given. At the risk of stating the obvious, the complainant will be the primary source of their subjective view of whether they gave consent. The complainant will also be the primary source for determining whether any apparent consent was freely given. However, the complainant’s view is not the end of the inquiry. For policy reasons, the law may render apparent consent as legally ineffective: R. v. G.F. , 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 34. [18] All of these principles highlight the need for the issue of consent, and its legal effect, to be canvassed at the trial. This will be especially so where the legal effect of the subjective consent is a live issue. It was not in this case. Consequently, the issue was not canvassed by counsel, either in their questioning of the complainant or in their submissions at the conclusion of the trial. That reality renders the subsequent reliance by the trial judge on the lack of a legally effective consent, leading to a conviction for sexual assault, fundamentally unfair to the appellant. [19] The Crown responds to these concerns by pointing out that the trier of fact is not confined to the Crown’s theory in determining liability. To quote the Crown’s factum: “A conviction may be based on an alternative theory of liability not advanced by the Crown so long as it falls within the wording of the indictment and is supported by the evidence”. [20] While that is undoubtedly true as a general principle, its application is not without constraint. In particular, that principle does not address the corresponding principle of trial fairness. An accused person is entitled to know the case that they are being asked to meet. It is fundamentally unfair to convict an accused person on a theory of which they are entirely unaware, and to which they have not had the opportunity to respond. On this point, I note that in two of the cases that the Crown relied on for its principle that a conviction can rest on an alternative theory, both this court and the Supreme Court of Canada made it clear that the defence was aware of the alternative theory on which the convictions ultimately rested: R. v. Groot (1998), 41 O.R. (3d) 280 (C.A.), at para. 25, aff’d [1999] 3 S.C.R. 664; R. v. Pickton , 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 21. Consequently, there was no unfairness to the accused in those two cases. [21] In contrast, this court concluded in R. v. Ranger (2003), 67 O.R. (3d) 1 (C.A.), that unfairness to the accused had occurred where the trial judge instructed the jury on a route to conviction that had not been advanced by the Crown and which the defence did not know would be available. Specifically, Charron J.A. said, at para. 162: In these circumstances, it cannot be said that the appellant was not materially prejudiced by the trial judge's failure to notify counsel of his intention to charge the jury on this additional theory of liability before counsel's final address to the jury. [22] This case was argued by both sides on the issue whether the complainant had consented to the sexual touching. It was not argued that the complainant was incapable of consenting because of the history of her relationship with the appellant. As a result, that issue was not explored by counsel during the course of the trial. For example, Crown counsel acknowledges in her factum that the complainant was never asked what she thought might happen if she denied the appellant the opportunity to inspect her vagina. [23] As I have said, it is fundamentally unfair to convict an accused person on a basis of which they are unaware and which they have not had an opportunity to respond. It denies the accused person their constitutional right to make full answer and defence: R. v. Mills , [1999] 3 S.C.R. 668, at para. 69. At the very least, when the trial judge became aware that he might convict on that basis, he ought to have alerted counsel to that possibility and asked for their submissions. That did not happen. [24] The appellant was prejudiced by the trial judge’s adoption of a route to conviction of which he was unaware. The appellant was denied trial fairness. The conviction on the count of sexual assault must be set aside. D. Conclusion [25] The appeal is allowed and the conviction for sexual assault (count #2) is set aside. A new trial is ordered on that count alone. Released: January 27, 2022 “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “I agree. David M. Paciocco J.A.” “I agree. Sossin J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)     For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. M.P.L., 2022 ONCA 70 DATE: 20220125 DOCKET: C68633 Fairburn A.C.J.O., Gillese and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and M.P.L. Applicant (Appellant) Phillip Dinis, for the appellant Brett Cohen, for the respondent Heard: January 24, 2022 by video conference On appeal from the convictions entered on October 2, 2019 by Justice R. John Harper of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant was found guilty of 10 offences for sexually abusing his former partner’s daughter who was 8 to 9 years old at the time. The abuse involved touching, oral sex, mutual masturbation, and attempted anal intercourse. [2] Pursuant to s. 715.1 of the Criminal Code , the victim adopted the contents of a video statement she gave to the police, in which she detailed the appellant’s escalating sexual behaviour towards her. The trial judge found the victim to be a very compelling and articulate witness; she displayed a verbal ability well beyond her years. Her evidence was not undermined in cross-examination; indeed, the trial judge found that, “In many respects her evidence was enhanced.” [3] The victim’s mother and grandmother testified about living arrangements at the house and the victim’s subsequent disclosure. The evidence painted a picture of hostility and violence in the household. The trial judge found that the victim lived in “rational fear.” Moreover, there was animosity between the appellant and the grandmother. [4] The appellant testified and denied all allegations. In the course of his evidence, he portrayed the victim’s grandmother as controlling and crazy, and the victim’s mother as a crazy person who had tried to kill him. After the victim’s disclosure, the appellant moved in with another woman. He shared his view about the victim’s mother and grandmother. This information made his new partner fearful, both for herself and for her own children. Yet, the appellant did not tell her that the victim’s grandmother lived across the street. In cross-examination, it was suggested to him that he was keeping it a secret. The appellant disagreed that it was a secret; he said it just never came up. Based on his new partner’s evidence, the trial judge found that the appellant spent many hours in the garage where, through a window, and undetected, he could see into the grandmother’s living room, and could see the victim when she came for visits. [5] The trial judge gave detailed reasons for accepting the victim’s evidence and equally detailed reasons for rejecting the appellant’s evidence. He found that it did not raise a reasonable doubt. [6] The appellant submits that the trial judge erred in admitting irrelevant and prejudicial evidence relating to the appellant’s use of pornography on his cell phone. He also submits that the trial judge erred in admitting the evidence concerning the location of the grandmother’s house and the time the appellant spent in his new partner’s garage. We do not accept these submissions. [7] The pornography evidence was relevant to a material issue. The victim testified that the appellant showed her pornographic images on his cellphone for the purpose of teaching her how to perform oral sex on him. Evidence concerning the appellant’s use of pornography in other contexts tended to support the victim’s evidence that the appellant accessed this content on his phone. There was no objection to the admission of this evidence. Moreover, the trial judge did not use this evidence for any prohibited propensity purpose. [8] Similarly, we see no error in the admission or use of the evidence concerning the appellant’s time spent in the garage. The trial judge restricted his use of this evidence to an assessment of the appellant’s credibility, focusing on the fact that, after telling his new partner about the hostility that the victim’s mother and grandmother harboured for him, he did not tell his new partner that the grandmother lived across the street. The trial judge inferred that the appellant kept this to himself so that he could continue to watch the victim when she visited her grandmother across the street. [9] The appellant further submits that the trial was unfair because the Crown was permitted to cross-examine three of its own witnesses without first establishing the threshold requirements in s. 9(2) of the Canada Evidence Act . He submits that this was achieved through the guise of attempting to refresh the memories of these witnesses by having them review their police statements. [10] We do not accept this submission. Although the procedure for having the witnesses refresh their memories might have been somewhat relaxed, there was no objection from defence counsel at trial. In the circumstances, it was appropriate that these witnesses be given the opportunity to review their statements. Contrary to the appellant’s submissions, cross-examination did not follow; instead, proper examinations-in-chief continued. In any event, nothing prejudicial or inadmissible was elicited. [11] The appeal is dismissed. “Fairburn A.C.J.O.” “E.E. Gillese J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: K.K. v. M.M., 2022 ONCA 72 DATE: 20220126 DOCKET: C69393 Paciocco, Nordheimer and Coroza JJ.A. BETWEEN K.K. Applicant (Appellant) and M.M. Respondent (Respondent) Gary S. Joseph, for the appellant Aida Pasha, for the respondent Heard: September 3, 2021 by video conference On appeal from the order of Justice Cynthia Petersen of the Superior Court of Justice, dated April 9, 2021, with reasons dated June 1, 2021 and reported at 2021 ONSC 3975. By the Court: OVERVIEW [1] The parties married in 2003 and separated in 2012. Regrettably, following separation they engaged in high-conflict litigation involving their children, V.K., and J.K. The trial judge described this case as a heartbreaking saga of family violence and parental alienation. [2] At the time of trial, the children were living in separate residences – J.K. with the appellant and visiting the respondent’s (his mother) house on weekends, and V.K. with the respondent. [3] After a 19-day trial, the trial judge directed that the children’s principal residence would be with the respondent, reversing the status quo living arrangement for J.K. The trial judge directed that the respondent would have sole responsibility for making all day-to-day and significant decisions without being required to consult the appellant. The order also addressed issues of child support, section 7 expenses under the Federal Child Support Guidelines , SOR/97-175, travel restrictions, and restricted contact. [4] On appeal, the appellant’s focus is on his son J.K. He submits that J.K.’s primary residence should be with him and that the trial judge erred by reversing the status quo that had remained in place for six and a half years before trial. The appellant requests that the final order of the trial judge be stayed , that J.K. be returned to his care, and that the respondent’s parenting time for both children revert to the status quo before trial. [5] In support of his submission, the appellant’s written materials alleged several legal errors, which were narrowed down by counsel in oral submissions to the following two complaints: 1. The trial judge erred in her application of the best interests test as set out in s. 16 of the Divorce Act , R.S.C., 1985, c. 3 (2nd Supp.). 2. The trial judge failed to meaningfully consider the recommendations of Dr. Goldstein, a court-appointed assessor who had prepared reports during the litigation pursuant to s. 30 of the Children’s Law Reform Act , R.S.O. 1990, c. C.12 (“CLRA”). [6] At the end of the hearing, the appeal was dismissed, with reasons to follow. These are those reasons. BACKGROUND FACTS [7] The parties were married in India. They immigrated to Canada so that the appellant could practice medicine. The family initially lived in Newfoundland and then Ontario. The parties separated in November 2012. The appellant filed an application issued on January 3, 2013 and the respondent filed her answer on February 27, 2013. [8] Prior to trial, the parties had approximately 40 court appearances at motions and conferences. During the litigation, several pre-trial orders about the children’s primary residence were made. Importantly, sole custody of the children was granted to the appellant father based on an interim finding of a motion judge of parental alienation by the respondent mother in March 2014. [1] [9] In making the interim finding of parental alienation, the motion judge relied on the expert evidence of a court-appointed assessor named Dr. Sol Goldstein pursuant to s. 30 of the CLRA . Dr. Goldstein provided opinion evidence that V.K. had been alienated from the appellant by the respondent and that both V.K. and the respondent conspired to alienate J.K. from the appellant. Dr. Goldstein expressed the view that V.K.’s mental health was being seriously compromised by the respondent’s influence. He recommended the immediate removal of the children from the respondent’s care. [10] Once the interim finding of parental alienation had been made, for the next six and a half years, the children resided with the appellant and the respondent had only limited parenting time, including lengthy periods of no contact or communication with her children. [11] The trial did not start until November 30, 2020. At trial, the appellant intended to call Dr. Goldstein as a witness to testify about the assessment he was appointed to conduct. However, Dr. Goldstein did not appear for trial despite being served with a summons to attend by the appellant. The appellant did not ask for an order from the trial judge compelling the doctor to attend. Instead, he sought to admit Dr. Goldstein’s s. 30 CLRA reports into evidence and asked the trial judge to give weight to the opinions and recommendations contained in them. For her part, the respondent objected to the admissibility of Dr. Goldstein’s assessment reports and letters. This objection was based on findings of the College of Physician and Surgeons (“CPSO”) arising from complaints that she filed against him. Among other things, the respondent sought to admit a copy of a decision of the Inquiries, Complaints and Reports (“ICR”) Committee of the CPSO dated April 16, 2018, pertaining to one of her complaints. The decision set out that the ICR Committee had serious concerns about Dr. Goldstein’s approach to the s. 30 assessment in this case. The appellant objected to the introduction of this material, citing s. 36(3) of the Regulated Health Professions Act , 1991, S.O. 1991, c. 18 (“ RHPA ”) which makes records of regulatory proceedings at the CPSO and decisions made in them inadmissible in civil proceedings. The trial judge held that the prohibition did not apply in this case and that no weight would be given to Dr. Goldstein’s opinions or recommendations. [12] During trial, the parties focused on the allocation of parental decision-making, the question of with whom the children should primarily reside, and the question of parental alienation. [2] [13] After an exhaustive and lengthy review of the evidence, the trial judge found that the appellant was not a credible witness. In contrast, the trial judge found that the respondent was credible and that she had not engaged in alienating conduct, but instead was the target of vilification and the victim of parental alienation created by the appellant. [14] The trial judge concluded that there was “an abundance of evidence that both children have been subjected to verbal, emotional and psychological abuse by the [appellant]” and “that the physical, emotional and psychological safety, security and well-being of both children would best be fostered if they were living together in [the respondent’s] home.” FRESH EVIDENCE [15] At the outset of the hearing, the appellant attempted to file fresh evidence allegedly relating to the determination of the issues under appeal. [16] The fresh evidence, an affidavit proffered by the appellant, purports to show that the respondent is wilfully breaching the final order of the trial judge and is undermining the appellant’s relationship with J.K. The appellant argues that it is not unusual in this type of high-conflict case for this court to receive updated information on appeal with respect to matters that relate to the best interests of the children. He submits that the wilful breaches by the respondent are an overarching concern on this appeal. For her part, the respondent submits that she has taken her responsibility as the decision-making parent very seriously. She contends she has used her discretion in the best interests of the child. Where she had concerns about specific details of the order and its effect on the child, she sought relief in the Superior Court to avoid being in breach of the trial judge’s order. [17] The test for admitting fresh evidence on appeal requires the moving party to satisfy four criteria: (i) the evidence could not have been adduced at trial; (ii) the evidence must be relevant in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be reasonably capable of belief; and (iv) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result : R. v. Palmer , [1980] 1 S.C.R. 759, at p. 775. This court recently reaffirmed in Bors v. Bors, 2021 ONCA 513, 60 R.F.L. (8th) 36, that the Palmer criteria are more flexible where an appeal involves the best interests of children, where it is important to have the most current information possible “[g]iven the inevitable fluidity in a child’s development”: Goldman v. Kudelya , 2017 ONCA 300 , at para. 25, citing Children’s Aid Society of Owen Sound v. R.D. (2003), 178 O.A.C. 69 (C.A.), at para. 21 . [18] Notwithstanding the flexible approach for receiving fresh evidence where an appeal addresses the best interests of children, the fresh evidence in the present case does not meet the test for admission. The proposed fresh evidence is essentially the appellant’s account of what has transpired with J.K. since the order under appeal was made, including complaints that the respondent has failed to comply with the order and that the final order is causing harm to J.K. [19] This evidence is not essential to our decision to deal with the appellant’s grounds of appeal. As will become clear, even if the fresh evidence is believed, it could not reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. The trial judge’s final decision to remove J.K. from the appellant’s care was firmly rooted in the evidence and based on clear findings made against the appellant’s credibility. The appellant’s complaints about what has occurred after the trial judge’s final order, and any allegations about the respondent’s conduct should more properly be taken up with the trial judge. We note that the trial judge’s final order had a built-in review of her parenting order after September 30, 2021. [20] Therefore, the motion to introduce fresh evidence is dismissed. DISCUSSION [21] Before turning to the appellant’s arguments, a comment should be made about the trial judge’s reasons in this case. The reasons comprise 898 paragraphs over more than 300 pages. The trial judge obviously laboured over her reasons and provided careful and thoughtful analysis on the multiple issues raised by the parties. We recognize that the trial judge had the significant task of reviewing the long litigation history between the parties. We also recognize that for certain days during the trial, the appellant was self-represented, and the trial judge likely felt that this obligated her to specifically address every argument to demonstrate that his position was understood. [22] Nevertheless, there are portions of the reasons that contain lengthy verbatim summaries of evidence. This court has recently raised concern about these types of recitations of the evidence in reasons for judgment: see Welton v. United Lands Corporation Limited , 2020 ONCA 322, 64 C.C.E.L. (4th) 265, at paras. 56-63; R.F. v. J.W. , 2021 ONCA 528, at para. 34, n. 7; N. v. F. , 2021 ONCA 614, 62 R.F.L. (8th) 7, at para. 266, n. 14, per Lauwers J.A. (dissenting), leave to appeal granted, [2021] S.C.C.A. No. 364. [23] Trial judges are not obliged to refer to every piece of evidence that is introduced at trial. All a trial judge must show is that they have grappled with the essential issues raised in the litigation. Given the narrow issues raised in this case – the best interests of the children – these verbatim summaries and, consequently, the length of the reasons, are problematic. One of the purposes behind the requirement to give reasons is to identify the issues to be resolved and to distill the evidence down to the facts that are relevant to those issues: see generally, R. v. Sheppard , 2002 SCC 26, [2002] 1 S.C.R. 869. The wholescale repetition of all the evidence heard does not fulfill that purpose. It does not help the parties who may be unable to understand the central basis for the decision reached. It does not help counsel in terms of their ability to understand and identify possible grounds of appeal. Finally, it does not help this court which must, among other things, then determine if extraneous facts influenced the trial judge’s analysis. [24] We now turn to the two main issues advanced by the appellant. A. BEST INTERESTS OF J.K. [25] According to the appellant, the trial judge erred in law by failing to adhere to the best interests analysis mandated by the applicable legislation and case law. He argues that the focus was not on J.K.’s best interests. Specifically, he submits that the trial judge erred by failing to fully consider the disruption caused to J.K. by removing him from the appellant, his school and his community, the negative effects on the relationship between J.K. and the appellant, and the desirability of maximizing contact between J.K. and both parents. [26] We do not accept these submissions. [27] We begin with the undisputed premise that since the order under appeal is a parenting order, the trial judge’s exercise of discretion and factual findings in connection with it are entitled to considerable deference on appeal: A.M. v. C.H. , 2019 ONCA 764, 32 R.F.L. (8th) 1, at para. 4; Van de Perre v. Edwards , 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13. In our view, there is no basis to intervene because the appellant has failed to point to any material error, serious misapprehension of the evidence, or error of law in the trial judge’s reasons: see Van de Perre , at paras. 11-12. The trial judge engaged in a full inquiry into the best interests of both children. The appellant’s submissions invite us to retry the case, which is not our function. [28] The trial judge was completely focused on the best interests of the children. That focus is evident throughout her reasons and especially so in the portions of her reasons that are dedicated solely to the best interests analysis. [29] First, the trial judge noted that, in considering the parties respective parenting plans, she was required to determine what orders were ultimately in the children’s best interests in accordance with s. 16 of the Divorce Act . Section 16(1) directs that the court shall take into consideration “only the best interests of the child of the marriage in making a parenting order or a contact order” and s. 16(3) sets out a number of factors that the court must weigh in carrying out the best interests analysis. The trial judge noted that this legislation does not create an exhaustive list of relevant factors and that the weight to be given to each factor depends on the circumstances of each case. [30] Second, the trial judge expressly considered the appellant’s argument that a continuation of the status quo with him as the primary caregiver would prevent uprooting the children and disrupting their routines. She concluded that these were important considerations but that they were more applicable to J.K. because V.K. had already made the transition to living in Toronto with the respondent. She noted that J.K. only started attending his current school shortly before the trial and that he did not have long-established friendships or relationships with teachers and staff at the school. The trial judge noted that J.K. would be required to change schools in another year to start high school and that the respondent had no intention of interrupting his current school year in any event. [31] Third, the trial judge weighed the appellant’s parenting plan, which involved the same arrangements he had made for the last seven years. She noted that the appellant works long hours and runs his own medical clinic. He required the assistance of two nannies who would continue to assist J.K. with his homework, take the children to appointments, and oversee shopping and preparation of their meals. The trial judge found that the respondent, on the other hand, worked on average three days per week and spent more time with the children. [32] Fourth, the trial judge found that there was “an abundance of evidence” that both children were subjected to verbal, emotional, and psychological abuse by the appellant. She specifically found that he physically disciplined V.K. and, on more than one occasion, struck her when he was in a fit of rage. She concluded that the appellant’s inability to control his anger and his frequent resort to physical discipline of V.K. over a long period of time placed both children at risk of physical and psychological harm in his care, even if there was no evidence that he had ever struck J.K. [33] Fifth, the trial judge carefully considered J.K.’s bond with the appellant. However, she found that it was in his best interests that he be removed from the appellant’s grip. The trial judge held: Still, the greatest factor in favour of maintaining J.K.’s primary residence with his father is his strong emotional attachment to K.K. He has been in his father’s primary care for most of his living memory. Separating J.K. from his father to live principally with his mother will no doubt have a serious emotional impact on him. I am, however, convinced that he needs to be removed from the poisonous atmosphere of his father’s orbit in order to escape the crushing pressure under which he has been placed. His best interests necessitate not only that he lives principally with his mother and sister, but also that he has no contact with his father for a temporary period of time. [34] Finally, the trial judge found that the respondent, in contrast to the appellant who had devoted significant energy to vilifying her in the children’s eyes, has been consistently nurturing, yet firm and responsible, in her parenting. [35] Contrary to the appellant’s submission, the trial judge thoroughly considered J.K.’s best interests. She sensitively and carefully considered only the best interests of each child as required by s. 16(1) of the Divorce Act . She clearly considered all factors related to the circumstances of each child, giving primary consideration to each child’s physical, emotional and psychological safety, security and well-being, as required by s. 16(2). There is no basis to suggest that she erred in the assessment of best interests. Accordingly, this ground of appeal fails. B. ASSESSMENT OF S. 30 CLRA REPORTS (1) The Trial Judge’s Ruling [36] As noted above, the appellant father asked the trial judge to admit Dr. Goldstein’s s. 30 CLRA reports and letters into evidence and to consider the parenting recommendations contained within. [37] The respondent objected to the admissibility of Dr. Goldstein’s evidence. Her objection was based on findings of the CPSO arising from complaints that she filed against him. To support her objection, she sought to admit several items: a copy of the decision of the ICR Committee of the CPSO, copies of documents put before the ICR Committee, and a print-out of the CPSO’s on-line Public Register indicating Dr. Goldstein’s member status and his undertakings to the Discipline Committee of the CPSO. The reasons of the ICR Committee reveal that it had serious concerns about Dr. Goldstein’s approach to the s. 30 assessment in the present case and concluded that he would benefit from remediation. The public undertakings restricted Dr. Goldstein’s practice such that he undertook not to conduct any new assessments of individuals he believes have been subject to or have engaged in parental alienation and to terminate any ongoing practice related to parental alienation. [38] Dr. Goldstein also undertook not to provide opinion evidence about parental alienation to any third party, whether orally or in writing, in regards to individuals he had assessed or treated, except as required by law, in which case he was to advise the relevant parties, in advance of providing such opinion evidence, to consult the CPSO’s Public Register. [39] The appellant objected to the admissibility of all the CPSO documents, in part because of the statutory prohibition found in s. 36(3) of the RHPA. Section 36(3) renders inadmissible in a civil proceeding a record of a proceeding under the RHPA, or a report, document or thing prepared for or statement given at such a proceeding. [40] The trial judge noted that the statutory prohibition did not render inadmissible the fact that a complaint was made and did not capture the website information referring to the undertakings given by Dr. Goldstein. The trial judge then proceeded to interpret s. 36(3) of the RHPA – specifically, whether the case before her fell within the meaning of a “civil proceeding”, thus engaging the prohibition. [41] After laying out the principles of statutory interpretation, the trial judge drew several distinctions between “traditional” civil proceedings and family law litigation, the interests at play and remedies available in each. She noted that her task was to interpret the legislation within the distinct contextual framework of family law parenting disputes wherein the children’s best interests are paramount. [42] The trial judge found that to consider this case a “civil proceeding” would yield an absurd result contrary to the legislature’s intention. Upholding the prohibition would require her to ignore the ICR Committee’s findings. This, in turn, would force the respondent to duplicate the CPSO proceeding by calling expert evidence and proving deficiencies in the assessor’s reports from square one, resulting in more delay and expense in the litigation. Furthermore, finding the prohibition applied would mean determining the children’s best interests without reference to highly probative evidence about the validity of the opinions expressed by the court-appointed assessor. [43] The trial judge held that admitting the CPSO materials in the present case would not undermine the objectives of s. 36(3). Ultimately, she concluded that s. 36(3) of the RHPA did not apply, and in addition to her decision to admit the assessor’s public undertakings as information not captured by s. 36(3), she proceeded to admit the ICR Committee’s decision. Given the ICR Committee’s findings that the assessment reports were conducted in a substandard manner, she gave no weight to Dr. Goldstein’s written recommendations, and concluded by noting that, in the alternative, had she not admitted the ICR decision, she still would not have relied on Dr. Goldstein’s opinions unless the appellant produced the assessor for cross-examination, which he was unable to do. [3] (2) The Appellant’s Argument [44] The appellant submits that the trial judge erred in treating s. 36(3) of the RHPA as inapplicable, which makes records of regulatory proceedings at the CPSO and decisions made in them inadmissible in civil proceedings. He argues that the trial judge erred in concluding that a family law proceeding is not a civil proceeding as contemplated by the RHPA. Her decision to admit the CPSO materials tainted her decision and she erroneously gave no weight to the assessor’s opinion or recommendations. (3) Does s. 36(3) of the RHPA prohibit the admission of the CPSO materials? [45] Section 36(3) of the RHPA provides the following: No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act , no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act . [46] As the trial judge correctly stated, these words must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. [47] On a plain reading, this section creates a blanket prohibition against admitting in a civil proceeding any records, reports or documents directly related to a proceeding under the RHPA. The text of the provision leaves no room for exception or discretion in relation to the specific items mentioned: a record of a proceeding, a report, a document or thing prepared for or statement given at such a proceeding, or an order or decision made in such a proceeding . [48] That said, anything not specifically mentioned is fair game. As mentioned, the trial judge noted that the statutory prohibition did not preclude admissibility of evidence of the fact that a complaint was made and did not capture the website information referring to the undertakings given by Dr. Goldstein. We agree. The law is clear that the fact that a complaint was launched, an investigation held, and a decision rendered by the IRC are not covered by s. 36(3) of the RHPA and may be otherwise provable in court, without reference to a prohibited document: F. (M.) v. Sutherland (2000) , 188 D.L.R. (4th) 296 (Ont. C.A.), at para. 45, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 531; Pouget v. Saint Elizabeth Health Care , 2012 ONCA 461, 294 O.A.C. 293, at para. 25; Ontario v. Lipsitz , 2011 ONCA 466, 281 O.A.C. 67, at para. 114, leave to appeal refused, [2011] S.C.C.A. No. 407; Armitage v. Brantford General Hospital (2004), 71 O.R. (3d) 44 (S.C.), at para. 29. [49] As well, Dr. Goldstein’s undertakings, while they may have been made in response to a decision or order covered by s. 36(3), are also not themselves either a decision or order captured by s. 36(3). The undertakings were generated by Dr. Goldstein himself, not by the board, and presumably were also generated after the board had completed its process and released its decision. The rationale that applies to keeping the other items listed in s. 36(3) confidential does not apply to them. Public undertakings are not meant to be confidential, they provide the public with notice, and their admission in civil proceedings where a trial judge deems them relevant does not undermine the purpose of s. 36(3), discussed below. We therefore agree with the trial judge that the undertakings themselves were admissible. [50] However, we respectfully disagree with the trial judge’s conclusion that all proceedings involving the best interests of the child are not civil proceedings and entirely evade the reach of s. 36(3) of the RHPA. In our view, an exemption for all family law cases goes too far. [51] First, private family law disputes, while distinct from other civil litigation in many respects, are “civil” proceedings in the ordinary sense of the word: they concern private relations between members of the community in contrast to criminal or child protection proceedings, which both involve state action. If the legislature had intended to exempt family law litigation from the reach of s. 36(3), it would have said so. [52] As this court explained in Sutherland , at para. 29, The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action. [53] The “broad objective” of the provision “is to keep College proceedings and civil proceedings separate”: Sutherland, at para. 31; see also Lipsitz , at paras. 101-3. [54] A global exemption to s. 36(3) for all family law cases would significantly erode the reach and purpose of s. 36(3). This is because unfortunately, family law disputes involving the best interests of children are fairly common. It would not be unusual for one of the many participants in an RHPA proceeding to at some point become involved in a family law proceeding involving the best interests of children. [55] Fortunately, it is possible to preserve the integrity and purpose of s. 36(3) of the RHPA while also giving effect to the purpose of Part III of the CLRA, which includes ensuring, “that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children” and to s. 30 of the CLRA, under which Dr. Goldstein’s report was prepared, the purpose of which is to “report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.” [56] The trial judge was aware of the need to avoid absurdity in the context of these two distinct legislative schemes. Specifically, the trial judge was appropriately concerned that in the circumstances of this case, where a motion judge had relied on Dr. Goldstein’s opinions in finding parental alienation by the mother, which in turn resulted in a reversal of custody and a temporary order that lasted for more than six years, the court should not be deprived of highly probative evidence regarding the validity of those opinions and recommendations. [57] However, absurdity is avoided and the ordinary meaning of s. 36(3) preserved in two ways. First, although it is indisputable that increased efficiency could be achieved by allowing for the admissibility in family law proceedings of “orders or decisions made” at a proceeding governed by the RHPA, or “a r eport, document or thing prepared for or statement given at [an RHPA governed] proceeding”, s. 36(3) does not create an evidentiary privilege relating to the information or evidence used to prepare such orders, decisions, reports, documents, things or statements. There is nothing to prevent the parties from selecting and presenting such background evidence or information so that a trial judge is not deprived of highly probative evidence regarding the validity of relevant opinions and recommendations. Second, and as already explained, s. 36(3) does not apply to the fact that the complaint was made, the fact that an investigation was conducted, and the fact that a board decision was rendered and undertakings given. As this case demonstrates, depending on the circumstances those “facts” may be relevant when determining the probative value to give to opinions and recommendations. When these limitations on the reach of s. 36(3) are considered, “harmony [can be achieved] between the various statutes enacted by the same government”: Therrien (Re) , 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 121; Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc. , 2021 ONCA 925, at para. 28. (4) Conclusion [58] In conclusion, while the confidentiality protections of s. 36(3) of the RHPA do apply to family law proceedings involving children, in our view the trial judge’s decision in this case was justified. Taken together, the fact of the complaint, the fact that an investigation was conducted and a decision given, and the content of the public undertakings were all admissible and sufficient to support the decision to give Dr. Goldstein’s opinions no weight. [59] We note that it is by no means clear that Dr. Goldstein’s opinions, even given more weight, would have affected the trial judge’s overall decision to reverse the status quo parenting arrangement. We say this acknowledging that the weight to be attached to the assessor’s evidence of any expert is a matter for the trier of fact. The trial judge was aware that the opinion likely supported the status quo because Dr. Goldstein’s reports were used by the motion judge in making an interim order. However, the trial judge gave detailed reasons for why she did not agree with maintaining the status quo. As we have set out in this judgment, we are satisfied that her findings against the respondent’s credibility and the best interests of J.K. are clearly supported by the record. [60] We would not give effect to this ground of appeal. C. OTHER GROUNDS [61] While other grounds of appeal were advanced by the appellant in his factum, they were not pressed in oral argument or only dealt with in a cursory manner. These issues may be dealt with summarily as follows. (1) The Assessment of the Appellant’s Credibility and Evidence [62] The trial judge found that the appellant was an incredible witness. In contrast, she found that the respondent was a credible witness and that her evidence was corroborated by other credible evidence at trial including the testimony of the Office of the Children’s Lawyer (“OCL”) clinician, Ms. MacKenzie, and the Children’s Aid Society (“CAS”) worker, Mr. Thomas. The appellant submits that the trial judge made several palpable and overriding errors in her assessment of his evidence. He argues that the trial judge improperly impugned his credibility, failed to consider the whole of the evidence, and improperly drew adverse inferences against him. We disagree. [63] In assessing his credibility, the trial judge found that the appellant: i. made several misrepresentations in his Form 35.1 sworn parenting affidavit filed before the court; ii. concealed from a case supervision judge his plans to travel with the children to India; iii. misrepresented the status of his health to obtain adjournments of the trial under false pretexts; iv. tendered a fake Indian hospital record as evidence during the trial; v. demonstrated a selective memory during cross-examination; vi. became evasive when confronted with difficult questions; and vii. made several prior inconsistent statements. [64] These unequivocal findings were amply supported in the record, and there is no basis to interfere with any of them. (2) Adequate Weight to J.K.’s views and preferences [65] The appellant submits that the trial judge failed to give adequate weight to J.K.’s views and preferences as required by law. We reject this submission. As noted above, the trial judge carefully considered reports from the CAS, the OCL Voice of the Child report, and the evidence of Mr. Thomas and Ms. MacKenzie (the author of the OCL Voice of the Child report) setting out the children’s views and preferences. The trial judge was aware of J.K.’s preference to live with the appellant. However, in relation to J.K. the trial judge found that “J.K.’s level of maturity is commensurate with his pre-teen age” and that “his views have been profoundly influenced by [the appellant’s] relentless vilification of [the respondent].” [66] In a case where both parties made allegations of parental alienation against the other, the trial judge was required to carefully examine the possibility that the children’s views may not be independently formed. The trial judge’s reasons demonstrate common sense and a reasoned approach to the children’s views. The CAS reports, the OCL Voice of the Child report, and the testimony from the authors of the reports were reviewed by the trial judge and sufficient to convey the children’s views and preferences. The trial judge recognized that J.K. had a strong emotional attachment to the appellant but felt that his views had been manipulated by the appellant. We defer to her findings and dismiss this ground of appeal. DISPOSITION [67] As explained above, this appeal was dismissed at the conclusion of the oral hearing. The panel requested that if the parties were unable to agree on costs, the court would receive brief written submissions. We have received those submissions. The respondent is entitled to costs in the amount of $20,000 all inclusive. “ David M. Paciocco J.A.” “ I.V.B. Nordheimer J.A.” “S. Coroza J.A.” [1] We use the former terminology of “custody” (which is no longer used in the legislation) only when referring to this order made in March 2014. [2] Although support issues were also litigated at trial, the appellant did not advance any support arguments in his factum or oral submissions. Needless to say, there is no basis to interfere with the trial judge’s findings on any of the support issues. [3] The trial judge also noted that the appellant did not ask her to compel Dr. Goldstein to attend cross-examination, but had he done so, she “would have denied the request based on [Dr. Goldstein’s] undertakings”. Though not directly argued on appeal except for a brief mention in oral argument, we note that, as set out above, Dr. Goldstein’s undertakings included an exception for giving opinions about individuals he has assessed where “required by law”. A court order summoning him to testify would have engaged this exception.

COURT OF APPEAL FOR ONTARIO CITATION: Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), 2022 ONCA 74 DATE: 20220126 DOCKET: C69150 Gillese, Lauwers and Sossin JJ.A. BETWEEN Attorney General for Ontario Applicant (Appellant) and Information and Privacy Commissioner and Canadian Broadcasting Corporation Respondents (Respondents) Judie Im and Nadia Laeeque, for the appellant Justin Safayeni and Spencer Bass, for the respondent Canadian Broadcasting Company William S. Challis, for the respondent Information and Privacy Commissioner Daniel Sheppard, for the interveners Centre for Free Expression, Canadian Journalists for Free Expression, The Canadian Association of Journalists, Aboriginal Peoples Television Network, and News Media Canada Heard: August 31, 2021 by video conference On appeal from the order of the Divisional Court of Justices Swinton, Penny and Kristjanson, dated August 27, 2020, with reasons reported at 2020 ONSC 5085, affirming the decision of the Information and Privacy Commissioner, dated on July 15, 2019, with reasons reported at PA18-390. Sossin J.A.: A. OVERVIEW [1] At issue in this appeal is whether the public is entitled to access the mandate letters provided to Cabinet ministers by the Premier of Ontario following the formation of the new government after the 2018 provincial election. [2] A journalist with the CBC requested access to the 23 letters sent by the newly elected Premier, Doug Ford, to Ontario’s Cabinet ministers who, together with him, comprise the Executive Committee, commonly known as the Cabinet. [3] Cabinet Office refused the CBC’s request. The CBC appealed the refusal to the Information and Privacy Commissioner of Ontario (the “IPC”). Mediation did not resolve the issues and so the parties proceeded to the adjudication stage, where they engaged in a lengthy process of written submissions. [4] The Cabinet Office opposed disclosure of the letters on the basis of the Cabinet privilege exemption under s. 12(1) of the Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31. By Order PO–3973; Cabinet Office (Re) , [2019] O.I.P.C. No. 155, the Commissioner, Brian Beamish, ordered the letters to be disclosed to the requester, the CBC. [5] The Divisional Court dismissed the Attorney General for Ontario’s application for judicial review of the IPC Order, who now appeals to this court. [6] Aside from the AG Ontario and CBC, this court heard submissions from the IPC on issues relating to the standard of review, the IPC process and the principles governing the interpretation of the Act. This court also heard submissions by a coalition of media and free-expression organizations as interveners. They appeared to help illustrate how the IPC’s approach protects cabinet deliberations and upholds the public right of access. The interveners Centre for Free Expression, Canadian Journalists for Free Expression, The Canadian Association of Journalists, and Aboriginal Peoples Television Network presented submissions before the Divisional Court and were granted leave to intervene before this Court, with the addition of News Media Canada. [7] For the reasons that follow, I would dismiss the appeal. (1) The Legislation [8] Section 12(1) of the Act is particularly at issue in this appeal. It provides: 12(1) A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including: a. an agenda, minute or other record of the deliberations or decisions of the Executive Council or its committees; b. a record containing policy options or recommendations submitted, or prepared for submission, to the Executive Council or its committees; c. a record that does not contain policy options or recommendations referred to in clause (b) and that does contain background explanations or analyses of problems submitted, or prepared for submission, to the Executive Council or its committees for their consideration in making decisions, before those decisions are made and implemented; d. a record used for or reflecting consultation among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy; e. a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committees, or are the subject of consultations among ministers relating to government decisions or the formulation of government policy; and f. draft legislation or regulations. (2) The Procedural History [9] Cabinet Office provided the IPC with a copy of the Cabinet agenda that indicated the Letters were distributed on July 11, 2018. [10] In detailed reasons, the IPC determined that the Letters did not fall within the exclusion set out in s. 12(1) of the Act. With respect to the content of the Letters, the IPC found: [79] The mandate letters are directives from the Premier to each of his ministers. They contain general statements about the government’s overall priorities and provide guidance to each minister as to each ministry’s priorities and his or her own role. [11] The IPC stated that the opening words of s. 12(1) required Cabinet Office to provide sufficient evidence to establish a link between Cabinet deliberations and the content of the mandate letters, which are the records in issue. That is, if a record does not appear in the list from sub-paras. (a) to (f), s. 12(1) applies only if the record permits accurate inferences regarding actual Cabinet deliberations. It is not enough that the documents reveal the outcome of those deliberations; they must reveal its substance. [12] The IPC found no evidence that the records were tabled at a Cabinet meeting or that their contents were the subject of Cabinet deliberations. Even the agenda provided by the Cabinet Office did not indicate that the Letters were tabled for discussion. The Letters did not assess the reasons for or against a particular course of action, nor did they outline the views, opinions, thoughts, or ideas of cabinet members. Consequently, the Cabinet Office failed to show that the Letters would reveal the substance of any Cabinet deliberations. [13] The Divisional Court found the IPC’s decision to be reasonable. It characterized the case as an application of well-settled principles to particular facts. In the court’s view, the IPC used the absence of deliberation about the letters as evidence that s. 12(1) did not apply, not as a means to narrow the scope of the exclusion. Since the Letters did not disclose or invite any deliberation from Cabinet, the IPC’s conclusion that they did not meet the exception in the opening words of s. 12(1) was reasonable. Further, the Divisional Court found that the IPC did not apply an unreasonably stringent test by requiring Cabinet Office to show that the Letters would be placed before specific Cabinet meetings in the future. The IPC simply found that the Cabinet Office had not discharged its burden to prove a link between the Letters and the substance of future Cabinet deliberations. B. Detailed BACKGROUND (1) The Media Request [14] The CBC made an access request to Cabinet Office under the Act for a copy of each of the Letters sent by the premier to Cabinet Ministers for all of Ontario’s 22 ministries, and two non-portfolio responsibilities. (2) The Cabinet Office Response [15] Cabinet Office denied the CBC access in full to the Letters, claiming the application of the mandatory exemption in s. 12(1) of the Act (Cabinet records). [16] Cabinet Office described the Letters in the following terms: Mandate letters are customarily the first communication to ministers through which the Premier translates party values and policy priorities into a plan of action for the government. For this reason, mandate letters outline the key policy priorities of the Premier that each minister is responsible for leading. Policy priorities are assigned to each minister based on the operational and/or statutory mandate of their ministry. In addition, mandate letters can include advice, instructions and guidance to each minister in carrying out his or her ministerial duties and responsibilities. This guidance is often placed in the context of the values that are important to the Premier and party. Each member of the Executive Council who receives a mandate letter is accountable to the Premier and his or her Cabinet colleagues for assisting the government to achieve the priorities and objectives described in that letter. [17] Cabinet Office asserted that s. 12(1) applies “where records reflect the policy-making and priority setting functions” of the Premier. [18] Cabinet Office submitted that the Letters were distributed to the Ministers at a July 11, 2018, meeting and took the position that disclosure of the Letters would reveal deliberations that took place in relation to the Letters at that Cabinet meeting. [19] Cabinet Office also submitted that the Letters included “the substance of deliberations of Cabinet” because the deliberations of the Premier, when setting policy priorities for Cabinet, are inherently part of Cabinet’s deliberative process. Cabinet Office further submitted that the Letters are exempt from disclosure because they would reveal the substance of future deliberations of Cabinet. (3) The IPC Decision [20] The IPC rejected Cabinet Office’s argument that the Letters were exempt because they reflected the Premier’s policymaking and priority setting functions. [21] The IPC reviewed evidence regarding the preparation of previous mandate letters made publicly available in Ontario and elsewhere in Canada, and concluded, “[t]his evidence contradicts the view that disclosure of letters of this nature would impinge on Cabinet deliberations; and I find no material difference in the nature of letters in issue before me to suggest a different result in this case.” [22] The IPC found no evidence to support Cabinet Office’s position that the Letters would reveal prior deliberations by the Premier or Cabinet Ministers, that they were discussed at a meeting of Cabinet, or that the Letters would be the basis of discussion at future Cabinet meetings. [23] After reviewing the submissions by the parties in detail, the IPC made the following findings of fact: a. There is nothing on the face of the Letters or in the representations of Cabinet Office to indicate that the Letters themselves were intended to serve, or did serve, as Cabinet submissions or as the basis for discussions by Cabinet as a whole: at para. 113. b. Cabinet Office provided no evidence that the Letters were themselves, in fact, discussed at the Cabinet meeting when they were provided to each minister or that they were tabled or made generally available for discussion: at para. 114. c. There is no evidence that the Letters were distributed to Cabinet as a whole at that time or that any specific contents of the Letters were actually the subject of the deliberations of Cabinet: at para. 114. d. The Letters do not reveal any discussions weighing or examining the reasons for or against a course of action with a view to making a decision: at para. 115. e. The Letters do not reveal any views, opinions, thoughts, ideas and concerns expressed by Cabinet members in the course of the deliberative process: at para. 115. f. The Letters do not provide insight into the substance of any specific deliberations that may have occurred among Cabinet ministers: at para. 115. g. There is no evidence that the Letters themselves would be placed before Cabinet in future meetings: at para. 116. h. The Letters do not reveal the substance of any material upon which Cabinet members will actually deliberate in the future and do not reveal the substance of any such future deliberations: at para. 119. i. There is no persuasive evidence that disclosure would give rise to a chilling effect on Cabinet deliberations: at para. 123. j. The Letters do not reveal the substance of the Premier’s deliberations but, rather, the product of his deliberations: at para. 134. [24] Based on these findings of fact, the IPC held that s. 12(1) did not apply to the records at issue, and ordered Cabinet Office to disclose the letters to the appellant. (4) The Divisional Court Decision [25] Assessing the IPC decision on a reasonableness standard, the Divisional Court dismissed the application for judicial review brought by the AG Ontario. [26] Writing for the Divisional Court, Penny J. explained that the Decision was largely fact-based, and resulted from the absence of evidence led by the AG Ontario that the Letters fell within the terms of s. 12(1) of the Act: [24] I cannot agree with the Attorney General that there is any fundamental error in the interpretation of the Act. In my view this is entirely a case of the application of well-settled principles to the particular facts. The burden of proof was undeniably on the government to demonstrate that the Letters fell within the s. 12(1) exemption. The government chose to enter as evidence only the Letters themselves and a heavily redacted copy of the agenda for the meeting at which the Letters were, apparently, delivered. The IPC simply held that, on this record, the government had failed to satisfy its evidentiary burden. This is a sufficiency of evidence case, nothing more. [27] Throughout its decision, the Divisional Court relied on the IPC’s findings on the record to determine that the IPC Decision was reasonable. For example, with respect to whether the Letters were discussed at a Cabinet meeting, the Divisional Court held: [37] As is often said, inferences must be grounded in evidence from which the suggested inference may reasonably be drawn. Inferences unsupported by evidence, or which do not reasonably follow from the established facts, are mere speculation. [38] Regarding the meeting agenda itself, the subject of the Letters does not appear in the numbered list of agenda items (there are seven, all completely redacted). Rather, reference to the Letters appears at the end of the agenda under a heading “Chair Notes: Mandate Letters”. [39] Nothing about the content of this Note supports an inference that the mandate Letters were discussed at the Cabinet meeting. Rather, if anything, the content of the Note suggests the opposite. [40] As noted earlier, the Letters themselves do not suggest they are drafts subject to negotiation or in any way invite dialogue about their content. While it may be true that some of the mandates identified would likely require a return to Cabinet at some future time, this is nowhere specified or contemplated. [41] In these circumstances, there was a clear evidentiary basis to reject the Attorney General’s argument that it was “reasonable to expect” certain unspecified aspects of the Letters “would have” been discussed at the initial Cabinet meeting. The IPC’s decision to do so was not unreasonable. [28] With respect to whether the Letters would reveal deliberations of future Cabinet meetings, the Divisional Court held: [49] Again, the IPC based this conclusion on an assessment of the evidence. The IPC simply found that the Cabinet Office had not discharged its burden to prove a link between the Letters and the substance of future Cabinet decisions. Given the paucity of evidence provided by the Cabinet office, this was not an unreasonable conclusion. [29] Finally, the Divisional Court rejected the AG Ontario submission that it was unreasonable for the IPC to require “stringent” evidence from Cabinet Office to support the argument that the Letters fell within the scope of s. 12(1) of the Act. On this point, writing for the court, Penny J. stated: [55] There is no merit to the Attorney General’s argument on this issue. The IPC clearly recognized, and applied, the correct standard of proof – it was the government’s onus to demonstrate that it met the requirements to come within the s. 12(1) exemption on a balance of probabilities. The Attorney General’s submission amounts to no more than an invitation for this Court to re-weigh the evidence and overturn the findings of the IPC with which the Cabinet Office disagrees. The IPC identified the correct legal principles, applied them to the interpretation of the opening words of s. 12(1), reviewed the record and the submissions before him in light of that legal test and explained the basis for his decision in thorough and cogent reasons. There was nothing unreasonable about the IPC’s approach to or conclusions on the standard of proof. C. ISSUES ON APPEAL [30] The AG Ontario raises the following three issues in this appeal: a. The IPC erred in exercising the statutory authority to grant a right of access that is inconsistent with the purposes of the Act and the Cabinet records exemption; b. The IPC erred in exercising the statutory authority to grant a right of access based on an erroneous interpretation of s. 12(1) of the Act; and c. The IPC erred in exercising the statutory authority to grant a right of access based on an erroneous injection of a balancing test into s. 12(1) of the Act. [31] Each issue is addressed below. D. Analysis (1) The Standard of Review [32] On an appeal from an order of the Divisional Court concerning an application for judicial review of an administrative decision, this court must determine whether the Divisional Court identified the appropriate standard of review and applied it properly. In order to make this determination, the court “steps into the shoes” of the Divisional Court: see e.g., Canadian Federation of Students v. Ontario (Colleges and Universities) , 2021 ONCA 553, at para. 20; Longueépée v. University of Waterloo , 2020 ONCA 830, 153 O.R. (3d) 641, at paras. 47-48, applying Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) , 2013 SCC 36, [2013] 2 S.C.R. 559, at paras. 45-46. [33] The AG Ontario submits that, in upholding the IPC’s interpretation of s.12(1) of the Act, the Divisional Court failed to conduct a sufficiently “robust” reasonableness review as required by the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1. [34] I do not accept this submission. [35] The Divisional Court acknowledged Vavilov as its point of departure for reviewing the reasonableness of the IPC decision. In identifying reasonableness as the standard of review, the Divisional Court stated, at para. 17: Reasonableness is the appropriate standard of review in this case. The reasonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision-makers. [36] I see no error in the Divisional Court’s approach to the standard of review. (2) The IPC’s exercise of statutory authority to grant a right of access was consistent with the purposes of the Act and the Cabinet records exemption [37] The IPC described his approach to the interpretation of s. 12(1) as protective of communications within Cabinet’s deliberative process that would reveal the substance of its formulation of government policies. [38] The IPC emphasized, however, that without additional evidence or context showing how the Letters would reveal the substance of deliberations, the introductory words of s. 12(1) did not shield the policy choices themselves. [39] The Divisional Court approached the issue as to the proper interpretation of s. 12(1) as one on which the parties agreed: [19] It is also accepted by the parties and the IPC that in order for the exemption under s. 12(1) to apply, disclosure of the record must “reveal the substance of deliberations” of Cabinet or “permit the drawing of accurate inferences” about past or future Cabinet deliberations. It is also accepted that the use of the term “including” in the introductory words of s. 12(1) means that any record which would reveal the substance of deliberations or permit the drawing of accurate inferences qualifies for the exemption; the specifically enumerated categories of record in subparagraphs (a) to (f) must be interpreted as providing an expanded definition of, or at the very least the removal of any ambiguity about, the types of records that are exempt from disclosure. [40] The AG Ontario takes issue with this characterization. It argues that the IPC erred by taking a narrow and restrictive view of the opening words of s. 12(1) inconsistent with the purposes of the Act and of the Cabinet records exemption. [41] The AG Ontario argues that s. 12(1) should be read in concert with the specific examples of exclusions set out in the subparagraphs (a) through (f), and in particular “(a) an agenda, minute or other record of the deliberations or decisions of the Executive Council or its committees .” [42] The AG Ontario submits that the use of the term “including” in the introductory portion of s. 12 makes clear that the records set out in the subparagraphs constitute records whose “ disclosure would reveal the substance of deliberations of the Executive Council or its committees .” It characterizes this interpretive approach as the “illustrative approach.” Therefore, s. 12(1) exempts the Letters from disclosure by analogy to the records described in subparagraphs (a) to (f). [43] In contrast, the CBC, in supporting the approach taken by the IPC as reasonable, characterized the proper approach to the interpretation of s. 12(1) as the “expansive approach.” Under the expansive approach, the use of the term “including” in s. 12(1) indicates that the records specified in the following subparagraphs expand on the general language in the introductory portion of s. 12(1) by setting out records which, while not necessarily revelatory of the deliberations of Cabinet or its committees, may be so in certain circumstances and are, therefore, exempt from disclosure. Consequently, CBC argued that the letters fall outside of s. 12(1)’s scope because they do not reveal the substance of Cabinet deliberations or meet any of the expanded categories set out in subparagraphs (a) to (f). [44] As both the CBC and IPC note in their submissions, the expansive approach is in keeping with a long line of decisions by the IPC dealing with exemptions under s. 12(1). For example, in Order P-266 , [1991] O.I.P.C. No. 10, at p. 7, the IPC explicitly stated that the “use of the word ‘including’ in subsection 12(1) of the Act [ sic ] should be interpreted as providing an expanded definition of the types of records which are deemed to qualify as subject of the Cabinet records exemption, regardless of whether they meet the definition found in the introductory wording of subsection 12(1)”: citing Order 22 , [1988] O.I.P.C. No. 22 (emphasis added). [45] Indeed, the IPC has used the same words to describe s.12(1) since Order P-901 , [1995] O.I.P.C. No. 148. In that decision, at p. 4, the IPC stated: [T]he use of the term "including" in the introductory wording of section 12(1) means that the disclosure of any record which would reveal the substance of deliberations of the Executive Council or its committees (not just the types of records listed in the various parts of section 12(1)), qualifies for exemption under section 12(1). [46] Other orders have held that a record which has never been placed before an Executive Council or its committees may nonetheless qualify for exemption under the introductory wording of s. 12(1): see e.g. Interim Order PO-1742-I , [2000] O.I.P.C., at para. 36; Order PO-2707; Ministry of Education , [2008] O.I.P.C. No. 166, at para. 26. This result will occur where a government organization establishes that the disclosure of the record would reveal the substance of deliberations of an Executive Council or its committees, or that its release would permit the drawing of accurate inferences with respect to the substance of deliberations of an Executive Council or its committees. [47] As the Divisional Court highlighted, the subparagraphs of s. 12(1) “clarify that the exemption applies to specific types of records that might otherwise be thought to fall outside the opening words”: at para. 27. [48] The IPC’s Order P-901 further stands for the proposition that s. 12(1) is not limited to its subparagraphs. Any record can fall under the Cabinet records exemption so long as it would reveal the substance of deliberation of an Executive Council or its committees, or permit the drawing of accurate inferences. [49] While previous IPC decisions do not bind the IPC in relation to future interpretations of s.12(1), the IPC’s consistency in its approach to its governing statute may be taken as an indicator of the reasonableness of this decision. As the Supreme Court stated in Vavilov : [ 129 ] Administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis . As this Court noted in Domtar , “a lack of unanimity is the price to pay for the decision‑making freedom and independence” given to administrative decision makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law: p. 800. Nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions. Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker — expectations that do not evaporate simply because the parties are not before a judge. [Citations omitted.] [50] Even if this interpretation of s.12(1) were not long-standing, in my view, the IPC would be acting reasonably in adopting it. The use of the term “including” prior to setting out the ss. 12(1)(a) to (f) is ambiguous. [51] In the face of ambiguous wording, the obligation on an administrative decision-maker is to provide a reasoned explanation for the interpretation adopted that is alive to the text, context and purpose of the provision; Vavilov , at para. 120. The IPC has done this. [52] The IPC’s approach to s. 12(1) is also consistent with the general purpose of the Act, which is to “provide a right of access to information under the control of institutions in accordance with the principles that…necessary exemptions from the right of access should be limited and specific”. This is a point underscored by the interveners, who argue that provisions of the Act which exempt access should generally be interpreted narrowly. [53] Before moving to the IPC’s exercise of statutory authority, I will briefly address two of the AG Ontario’s arguments which were not put before the IPC. [54] First, the AG Ontario points to the French translation of the term “including” in the Act, which is “notamment,” as opposed to “en outre.” The AG Ontario argues that, in other statutory settings, “en outre” is used to indicate an expansive rather than inclusive set of specified subsections. [55] As the AG Ontario could have, but did not make this argument before the IPC, it should not be determinative of a finding that the IPC acted unreasonably in its interpretation: see Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association , 2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 22-26. [56] However, even if it had been argued earlier, the French version of the provision is not conclusive of a particular, proper interpretation of s. 12(1) of the Act. The French dictionary definitions of “notamment” and “en outre” both refer to “including”. Thus, neither rule in nor rule out either interpretive approach. [57] Second, the AG Ontario raised the legislative history of s. 12(1), and the fact that, in the debates surrounding draft legislation preceding the Act, the legislature rejected a proposal to use the term “solely” rather than “including” to limit the exemption to specific records. The AG Ontario argues that this aspect of the legislative history provides further support for the illustrative approach. [58] Again, this legislative history argument was not before the IPC. In any event, this argument also fails to establish that the IPC’s adoption of the expansive approach was unreasonable. While the legislative history establishes that the term “solely” was not adopted, it does not lead to the conclusion that the term “including” is capable of only one reasonable interpretation. [59] In my view, the AG Ontario has failed to establish that the IPC’s interpretation of s. 12(1) was unreasonable, and that the Divisional Court erred in finding the IPC’s interpretation reasonable. (3) The IPC’s exercise of its statutory authority under s. 12(1) of the Act was reasonable [60] The AG Ontario argues that the IPC’s decision to order disclosure of the Letters was unreasonable as the letters represented “decisions” of the Premier which would reveal the substance of the deliberations leading up to these decisions. In its factum, the AG Ontario describes the Letters in the following terms: [23] The Letters are a way by which this Premier has chosen to discharge his constitutional duties as first minister to develop and prioritize the policies and operational agenda of the new government. The Letters represent the first communication to the ministers from the Premier to establish policy priorities and a plan of action for their development and implementation over the term of the current government. [25] In addition to setting out the policy priorities of the new government, the Letters also include opinion, advice, instructions and guidance from the Premier to the newly appointed ministers as to how to carry out their new ministerial duties and responsibilities. Each member of the Executive Council who received a Letter is accountable to the Premier and their other Cabinet colleagues for assisting the government in achieving the policy objectives described in the Letters. [61] The CBC takes the position that the AG Ontario has failed to lead any evidence that the disclosure of the Letters would reveal the substance of deliberations, either the Premier’s or Cabinet’s. [62] Beside the Letters themselves, the AG Ontario relies on the agenda for the July 11, 2018 Cabinet meeting, which refers to the distribution of the mandate letters as a “Chair note.” [63] As noted above, the AG Ontario argued before the IPC that the Letters meet the threshold for excluded records under s. 12(1) of the Act on three grounds: a. the Letters disclosed the deliberations of the Premier in setting Cabinet’s policy priorities which are inherently part of the deliberative process of Cabinet; b. the Letters were the subject of deliberations at the meeting of Cabinet where the letters were placed on the agenda; and c. the deliberations at future Cabinet meetings where the policy priorities set out in the letters would be further discussed. [64] With respect to AG Ontario’s second argument and the reference to Letters in a Cabinet agenda, the IPC’s interpretation of s. 12(1) precluded the argument that all matters on a Cabinet agenda were presumptively excluded. Such a finding might flow from the illustrative approach to the subsection s. 12(1)(a) to (f), and the reference specifically in s. 12(1)(a) to “an agenda , minute, or other record of the deliberations or decisions of the Executive Council or committees” (emphasis added). However, the IPC rejected this approach. [65] Similarly, the IPC found no evidence to support AG Ontario’s first and third arguments. The IPC reiterated that the mere stating of a policy priority does not reveal the deliberations leading to that outcome. [66] The IPC found that the AG Ontario provided no evidence that the Letters were actually discussed at the Cabinet meeting where their distribution was referenced in the agenda. Further, the IPC found that there was no evidence offered for the assertion that the Letters were tabled for future discussion by Cabinet. [67] The IPC also found no basis for the argument that the Letters themselves revealed the deliberations of the Premier. [68] The AG Ontario argued before the IPC that the Premier’s articulation of policy priorities represented a step in Cabinet’s deliberative “continuum” and should not be seen as the culmination of the government’s policy decision-making. According to the AG Ontario, the deliberative process of the Executive Council continues once the Premier establishes and communicates his policy priorities to ministers through the Letters. The policy priorities will involve further deliberation and decision-making by Cabinet in future. [69] The IPC accepted that, where a record discloses deliberations by the Premier, this record may be exempted under s. 12(1). In other words, IPC recognized the distinct role of the Premier in relation to Cabinet. But the IPC rejected the AG Ontario’s view of the deliberative process as unduly broad. In its decision, the IPC stated: [121] The submission advanced by Cabinet Office that the mandate letters “open the dialogue” and initiate a continuum of the deliberative process as a “blueprint” for future Cabinet discussions suffers from the same deficiency. I am asked to accept that deliberations on “nearly all” of the policy initiatives would take place at some point in future Cabinet meetings. I am also asked to find that section 12(1) applies to policy initiatives that may never return to Cabinet at all or that may be altered or amended in significant and unspecified ways. With respect, Cabinet Office has it backwards. I must be satisfied on the evidence of the likelihood that that disclosure of the letters “would reveal” or, at a minimum, permit accurate inferences to be drawn concerning the substance of future Cabinet deliberations. [122] That is not to say that deliberations will not ensue a later date in relation to the subject matter of certain priorities. However, any such deliberations would be in relation to proposals or other materials yet to be developed by individual ministers and later brought before Cabinet. Such materials, when developed, may well reveal the substance of future Cabinet deliberations if and when they occur. However, the evidence before me does not establish that disclosure of the mandate letters themselves will permit accurate inferences to be drawn in that respect. At most, Cabinet Office’s submissions indicates that the subject matter of future deliberations may be revealed by disclosure. [70] On the question of the “continuum” approach to disclosure of deliberations, Penny J. stated: [29] As to the Attorney General’s “continuum” argument, the introductory words of s. 12(1) do not protect all records leading up to any particular government decision; they protect the substance of deliberations of Cabinet (which includes, as found previously by the IPC, the Premier’s deliberations in setting Cabinet’s priorities). The Letters, on their face however, do not disclose or invite any deliberative process. The Cabinet Office’s own submissions describe the Letters as “the culmination of an extensive deliberative process by the Premier [that] reflect his/her determination , as first minister, of the priorities of the new government”. In the absence of any other evidence, the IPC’s conclusion that the Letters do not disclose deliberative processes was a reasonable one. [Emphasis in original.] [71] The IPC also considered its own previous decisions with respect to the role of the Premier’s Office. In Order PO-1725, [1999] O.I.P.C. No. 153, the IPC considered a request for a scheduling book prepared by a Premier Office senior staff member. After a lengthy review of the Premier’s role and the importance of his or her staff, the IPC concluded that the records fell under s. 12(1). [72] In this case, the issue for the IPC was not whether records which disclose the deliberations of the Premier are caught by the exclusion under s. 12(1), but rather whether the Letters and the agenda constitute sufficient evidence that the deliberations of the Premier would be revealed by disclosure of the Letters. [73] On this point, at para. 132, the IPC found on the record before him that the “disclosure of the policy initiatives in the mandate letters would not provide any insight into the deliberative considerations or consultative process by which the Premier arrived at them.” [74] For the Divisional Court, Penny J. distinguished the IPC Order PO-1725 as well, stating, at para. 31: The decision of the IPC in Order PO – 1725 does not support the Attorney General’s argument. Again, this is on essentially factual and evidentiary grounds. In Order PO – 1725, the IPC found that the Premier’s “consultations with a view to establishing Cabinet priorities are an integral part of Cabinet’s substantive deliberative process” and that the records reflecting those “consultations” constitute the “substance of deliberations”. It was this deliberative or consultative aspect of the Premier’s priority-setting process which lay at the heart of the IPC’s decision in that case. There is no evidence of any such consultative or deliberative process in establishing the Premier’s priorities here. In fact, in Order PO – 1725, the IPC specifically found that (apart from the formal agenda document itself) the subject matter of items considered or to be considered by Cabinet will not “normally be found to reveal the substance of Cabinet deliberations, unless either the context or other additional information would permit the reader to draw accurate inferences” as to actual deliberations which took place at a particular Cabinet meeting. [Emphasis added.] [75] I agree with the IPC and the Divisional Court. The scheduling book at issue in Order PO-1725 was far closer to the Premier’s deliberative process than the Letters at issue here. The scheduling book contained “references to particular Bills or pending legislation, [and] more generalized references to possible programs and initiatives”: at p. 15. Therefore, it is apparent that the IPC applied s. 12(1) in Order PO-1725 because the scheduling book revealed the thoughts and opinion of the Premier and, consequently, Cabinet. [76] Conversely, the Letters are the culmination of that deliberative process. While they highlight the decisions the Premier ultimately made, they do not shed light on the process used to make those decisions, or the alternatives rejected along the way. Accordingly, the Letters do not threaten to divulge Cabinet’s deliberative process or its formulation of policies. [77] In my view, this application of s. 12(1) by the IPC to the Letters was reasonable, and the Divisional Court committed no error in so finding. (4) The IPC did not introduce a new balancing test into the exercise of its statutory authority under s. 12(1) of the Act [78] The AG Ontario argued that the IPC injected a balancing test into s. 12(1) despite its exclusion from the “public interest override.” [79] The AG Ontario refers to s. 23 of the Act which permits disclosure of exempt records if there is “a compelling public interest in disclosure that clearly outweighs the purpose of the exemption.” Section 23, however, expressly does not apply to Cabinet records that are otherwise caught by s. 12. [80] The AG Ontario argues that the IPC’s reference to the “public interest” as a balancing factor, relying in part on the Nova Scotia Court of Appeal in O’Connor v. Nova Scotia , 2001 NSCA 132, 197 N.S.R. (2d) 154, thus constitutes a reversible error. [81] I disagree. [82] In my view, the IPC did not inject a new balancing test into the analysis of s. 12(1). Rather, the IPC, relying on O’Connor , recognized that s. 12(1) itself strikes a balance between a citizen’s right to know what government is doing and a government’s right to consider what it might do behind closed doors: Order PO-3973, at para. 97. The Court, at para. 1 in O’Connor , stated that this context calls for an interpretation of the Act that attempts to balance these two public rights. [83] While the Divisional Court highlighted the factual distinctions between this case and O’Connor , where there was substantial evidence that the records at issue would reveal Cabinet deliberations, the reference to the balance reflected in the Act is appropriate in the context of this case as well. [84] I see no error in the IPCs reference to these general observations by the Nova Scotia Court of Appeal in O’Connor as part of its analysis. His reference focuses on the Court of Appeal’s analysis linking the records at issue with the substance of deliberation. That is exactly the thrust of the opening words exception in s. 12(1). [85] Generally, the AG Ontario submits that the Divisional Court erred in failing to conduct a proper Vavilov review of the IPC’s statutory analysis. [86] I would not accept this submission. [87] The Divisional Court committed no error arising from Vavilov in its finding that the Decision was reasonable. DISPOSITION [88] For the reasons set out above, I would dismiss the appeal. [89] If the AG Ontario and CBC cannot agree on costs, brief written submissions may be provided to the court (not to exceed three pages double-spaced) within 15 days of the release date of these reasons. [90] Neither the interveners nor the IPC sought costs and I would order none. “L. Sossin J.A.” “I agree. E.E. Gillese J.A.” Lauwers J.A. (dissenting): A. Overview [91] The Information and Privacy Commissioner ordered Cabinet Office to disclose to the CBC the mandate letters Premier Ford gave to Cabinet ministers at a Cabinet meeting. The distribution of the letters was on the meeting’s agenda. The Commissioner determined that the exemption from disclosure for Cabinet records set out in the Freedom of Information and Protection of Privacy Act [1] did not apply to the mandate letters. The issue is whether the Commissioner’s interpretation of the exemption was reasonable. [92] Section 12(1) of the Act sets out the relevant exemption from public disclosure for Cabinet records: “A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including…”. These opening words are followed by subparagraphs (a) to (f), which list specific kinds of records that are exempted, such as agendas or minutes of Cabinet deliberations. [93] The purpose of the exemption is to establish a robust and well-protected sphere of confidentiality within which Cabinet can function effectively, one that is consistent with the established conventions and traditions of Cabinet government. I conclude that the Commissioner’s interpretation was unreasonable because the effect of his order, contrary to the legislature’s intention, was to breach, erode, or undermine those traditions. I therefore dissent. [94] Because the mandate letters are part of the Premier’s deliberative process, in his role as head of Cabinet, and initiate Cabinet’s mandate going forward, they are, perforce, part of Cabinet’s deliberative process. They are records that would reveal the nature of Cabinet deliberations – understood as including the topics, subject matters, things, or “body of information” Cabinet would be discussing, as well as the deliberations themselves – within the meaning of “the substance of deliberations” in the opening words of s. 12(1). This is dispositive of the appeal, which I would allow on this basis alone. [95] I would also allow the appeal on the grounds that the Commissioner prescribes a new test that a record must meet to qualify for exemption from disclosure under the opening words of s. 12(1): “I f a record does not appear at paragraphs (a) to (f), it will only qualify for the exemption if the context or other information would permit accurate inferences to be drawn as to actual Cabinet deliberations at a specific Cabinet meeting.” [2] This new test is fundamentally incompatible with the text, context, and purpose of s. 12(1) of the Act. [96] Turning to my colleague’s reasons, he states that “[t]he use of the term ‘including’ prior to setting out the ss. 12(1)(a) to (f) is ambiguous.” [3] He takes the position that this ambiguity opens up a policy choice that the Commissioner is entitled to make under the Act between two competing approaches, one broad and one narrow, and the Commissioner did not err in preferring the narrow approach to limit the exemption. [97] I disagree. The ostensible presence of an ambiguity in s. 12(1) of the Act does not open up a policy choice for the Commissioner to make. The legislature made the policy choice as to the reach of the protected sphere of Cabinet confidentiality in enacting s. 12(1). The Commissioner’s task was to identify and apply that legislative choice. This he failed to do, as did the Divisional Court. B. The Issues [98] I frame my analysis around this sequence of questions: 1) What are the relevant principles of statutory interpretation and what is the applicable standard of review? 2) What is the pertinent context within which s. 12(1) of the Act is to be interpreted ? 3) What is the purpose of s. 12(1)? 4) In light of that context and that purpose, what interpretation of the text of s. 12(1) should the Commissioner have adopted? 5) Is the Commissioner’s new test compatible with s. 12(1)? 6) Should the disclosure of the mandate letters be remitted to the Commissioner for disposition in accordance with these reasons? C. The Analysis [99] I begin with two observations. First, Cabinet mandate letters are a relatively recent form of political document issued by prime ministers and premiers. They have been used as a form of public letter to frame an area of public policy and often reiterate campaign promises. Of course, prime ministers and premiers are free to craft and issue such letters for public consumption. But the issue in this case is different. Can the Commissioner compel the disclosure of mandate letters, in the face of the exemption from disclosure for Cabinet records in s. 12(1) of the Act, when the Premier chooses to keep them private? This issue engages constitutional conventions and traditions surrounding the Premier’s role in matters pertaining to Cabinet deliberations, and it has broader implications. [100] My second observation is that an ultimate decision forcing disclosure of the mandate letters in this case is likely to be a one-off. Why do I say that? Because the Premier’s response in the future will predictably take one of three forms: to draft mandate letters for purely public consumption as others have done; to tie mandate letters even more closely to the Cabinet decision-making process in order to better substantiate the claim to an exemption from public disclosure under s. 12(1) of the Act; or to give up drafting mandate letters altogether. [101] That said, the Commissioner’s incursion into the ordinary operations of Cabinet is not benign or unimportant, and it should not be trivialized. The Commissioner overstepped and the Divisional Court was wrong to uphold his decision. It was neither the legislature’s intention nor the purpose of s. 12(1) of the Act to force Cabinet to change its customary way of operating. The basis on which the Commissioner overstepped could give rise to future problems of a markedly more serious nature than the disclosure of mandate letters might suggest. [102] I now turn to the questions that frame my analysis. (1) What are the relevant principles of statutory interpretation and what is the applicable standard of review? [103] The interpreter’s task in statutory interpretation is to discern the legislature’s intention in order to give effect to it. [4] The interpreter must attend to text, context, and purpose. [5] [104] Section 1 of the Act stipulates two purposes. The first purpose is: “(a) to provide a right of access to information under the control of institutions in accordance with the principles that, (i) information should be available to the public, [and] (ii) necessary exemptions from the right of access should be limited and specific”. The second purpose – to protect the privacy of individuals – is not engaged in this appeal. [105] Section 12(1) of the Act sets out the relevant exemption from public disclosure for Cabinet records. The interpreter must reconcile the public access to information purpose of the Act set out in s. 1(a) with the purpose for the exemption from disclosure for Cabinet records set out in s. 12(1). [106] The standard of review to be applied to a specialized tribunal’s statutory interpretation is ordinarily reasonableness. [6] However, because questions regarding “the relationship between the legislature and the other branches of the state… require a final and determinate answer from the courts,” [7] when the interpretation engages a constitutional question, the standard is correctness. [107] This case presents a conundrum. Constitutional conventions are engaged, which gives a constitutional dimension to the interpretation exercise. But constitutional conventions are not law beyond a legislature’s reach. Good constitutional order requires at least a presumption that the legislature did not intend to abrogate any constitutional conventions absent a clear signal to the contrary. All the signals in the Act’s development and in its text are in the direction of respect for those conventions and the associated traditions and practices. [108] I conclude that the Commissioner’s interpretation of s. 12(1) was unreasonable. I would leave for another day the thorny question of whether the constitutional overlay in this case – that is, the constitutional conventions and associated traditions and practices surrounding the role of the Premier in matters pertaining to Cabinet deliberations – requires the Commissioner to be correct in his interpretation. (2) What is the pertinent context within which s. 12(1) of the Act is to be interpreted? [109] The word “context” in the phrase, “text, context, and purpose”, has an external dimension, outside the Act’s text, which positions the legislation in the larger world. The context also has an internal dimension by which the Act as a whole must be given a coherent interpretation that reconciles its access to information purpose in s. 1(a) with the purpose for the Cabinet records disclosure exemption in s. 12(1). I begin with the external dimension and then turn to the internal. (a) The external contextual dimension [110] In this section of the reasons, I consider the constitutional context and then the policies supporting public access to government information. (i) The constitutional context [111] The policy work behind the Act was largely done by t he Commission on Freedom of Information and Individual Privacy, which was headed by Dr. D. Carlton Williams. [8] The Williams Report noted that the “terms of reference directed us to consider possible changes in public information practices which would be ‘compatible with the parliamentary traditions of the Government of Ontario.’” [9] These include those constitutional conventions and traditions surrounding the role of the Premier in matters pertaining to Cabinet deliberations. Such conventions and traditions form the deep contextual backdrop, which must not be ignored, forgotten, or paid mere lip service. T he Report was sensitive to the political realities of Cabinet government and to how access to information should function, as is the Act, properly interpreted. The Commissioner was not similarly sensitive, nor was the Divisional Court. The Westminster model of responsible government in Canada [112] The Constitution Act, 1867 established a modified Westminster model of responsible government in Canada via the preamble, which mandates “a Constitution similar in Principle to that of the United Kingdom.” As Professor Peter Hogg notes: “[T]he rules which govern [responsible government in Canada] are almost entirely ‘conventional’, that is to say, they are not to be found in the ordinary legal sources of statute or decided cases.” [10] The various elements of the Westminster model form a tradition. A tradition is like an iceberg. The bulk of it is not immediately visible. Understanding a tradition in order to do no harm to it requires careful, attentive, and sensitive work. [113] I accept Hogg’s general description of the Canadian version of the Westminster model of responsible government. He observes that “the forms of monarchical government are retained, but real power is exercised by the elected politicians who give advice to the Queen and her representatives.” [11] By convention, the Governor General selects as Prime Minister the “person who can form a government that will enjoy the confidence of the House of Commons.” [12] Hogg notes: “Responsible government transfers the real power to the elected Prime Minister”, who is the “political head of state” . [13] [114] The Prime Minister has two significant powers. The first is “the power to select the other ministers, and the power to promote, demote or dismiss them at pleasure.” [14] The Governor General appoints the ministers on the Prime Minister’s advice. [15] The second power is to seek dissolution for an election. [16] Hogg observes that these powers, along with the “special authority” that comes from having won an election, “ensures that the Prime Minister’s voice will be the most influential one within the cabinet.” [17] [115] The appointed ministers meeting together as a group constitute Cabinet, which is “in most matters the supreme executive authority.” [18] Functionally, Cabinet “formulates and carries out all executive policies, and it is responsible for the administration of all the departments of government.” [19] Hogg adds that full Cabinet’s role in decision-making “may depend in large measure upon the discretion of the Prime Minister” because “the Prime Minister calls the meetings of cabinet, settles the agenda, presides over the meetings, and ‘defines the consensus’ on each topic.” [20] Accordingly, “[t]he Prime Minister (or provincial Premier) effectively controls the executive branch of government through his control over ministerial appointments and over the cabinet .” [21] The separation of powers [116] The constitutional doctrine of the separation of powers has applied since Confederation. The courts have policed the division of powers and, since 1982, also compliance with the Charter . [22] Although the separation of powers in Canada is not strict, Canadian constitutional law “recognize[s] and sustain[s] some notion of the separation of powers.” [23] [117] The three branches are the executive, the legislative, and the judicial. [24] Most of the case law on the separation of powers has considered the line between the judicial and the legislative branches, which is necessary to ensure impartial justice. The line between the executive and the legislative is less distinct and has been addressed less often. [118] Karakatsanis J. observed: “All three branches have distinct institutional capacities and play critical and complementary roles in our constitutional democracy.” [25] She added a relevant caution: “However, each branch will be unable to fulfill its role if it is unduly interfered with by the others.” Karakatsanis J. cited the words of McLachlin J. : “It is fundamental to the working of government as a whole that all these parts play their proper role”, to which McLachlin J. added her own caution: “It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.” [26] [119] A functional and purposive approach must be taken to the question of what powers and privileges each branch has in relation to the others. The analysis must engage what each branch functionally needs in order to perform its expected role within the constitutional polity. This flows ineluctably from the nature of the Westminster model of responsible government, as the cases have recognized. The executive-legislative separation [120] Some commentators, including Hogg, posit that in the Westminster model, “there is no separation of powers between the executive and legislative branches” because “[t]he head of the executive branch, the cabinet, draws its personnel and its power to govern from the legislative branch, the Parliament; and the cabinet controls the Parliament.” [27] However, in my view, this position is insufficiently nuanced because it ignores the realities of how responsible government functions in practice and the constitutional conventions that hedge that practice about. [28] [121] Professor Dennis Baker disputes Hogg’s assertion that the separation of powers between the executive and legislative branches would “make little sense in a system of responsible government”. [29] To the contrary, Baker states: “Far from being antithetical to responsible government… the executive-legislative separation is logically necessary for responsible government to work.” [30] I agree with Baker. [122] Bitter historical experience, Baker notes, made “neither legislative nor monarchical absolutism… particularly appealing.” He explains: While the pre-Civil War experience with Charles I confirmed the fears of a king with absolute prerogatives, the subsequent experience with the Long Parliament raised serious doubts about legislative supremacy. Following Montesquieu, Blackstone understood this history as confirming the desirability of partial executive and legislative independence since “either total union or total disjunction would in the long run lead to tyranny.” [31] [123] This insight led to the development of the mixed polity of the Westminster model. Baker explains: “To fulfill its purpose of moderate government, the separation of powers might permit significant inter-branch interactions, even exertions of influence and control, but must prohibit arrangements that place one power entirely in the hands of another.” [32] [124] Baker argues that “the separation of powers continues to play a vital [role] in Canada‘s constitutional design”, albeit one that has been obscured by what he calls “the exaggerated claim of executive-legislative fusion”. [33] “Viewed through this lens,” he notes, “the fundamental rule of the separation of powers (the power of no branch may be wholly exercised by another) can be easily discerned.” [34] Each branch has a sphere of independence, but each is sufficiently hobbled to require the support of the others, which leads to a measure of interdependence. For example, the legislative branch has no executive capacity and the executive branch cannot enact legislation. [35] [125] The concept of fusion implies that executive control of the legislative branch is absolute, but this does not bear close scrutiny. It is more accurate to say that there is “a considerable degree of integration” between the legislative and executive branches. [36] [126] However, most telling, in my view, is Baker’s observation that: “[T]he subtle interplay of formal and informal power maintains and animates an effective institutional separation between the legislature and the executive.” [37] This is the Anglo-Canadian version of constitutional checks and balances. It raises squarely the issue of Cabinet functionality; Cabinet serves as a “connecting link” between the two branches. [38] Cabinet, in functional terms [127] I now look more closely at the role of Cabinet within the Westminster system. In functional terms, Cabinet is to be understood as “a forum, presided over by the Prime Minister, where Ministers meet to propose, debate and decide government policy and action.” [39] It is “the place where Ministers decide, as a group, how the executive power should be exercised.” [40] [128] Several building blocks are essential for Cabinet to be able to function effectively as a political body nested in Parliament or in the Legislative Assembly. These building blocks are fostered and protected by constitutional conventions. I focus on three: candour, solidarity, and confidentiality. Necessary and tight links among these conventions make possible the proper functioning of our parliamentary system in which the risk of a vote of no-confidence is ever-present. This risk is particularly acute in minority governments but still exists in a majority, if only as a more remote possibility. The Prime Minister and Cabinet must accommodate Cabinet’s own internal tensions, occasionally balky bureaucrats, hear from caucus and secure caucus support, marshal sufficient support in the House (challenging in minority times), and attune the government’s program both to day-to-day contingencies and to past and future electoral commitments designed to secure re-election. [129] Cabinet functionality depends on its members being free to communicate with complete candour. As McLachlin C.J. noted: “Those charged with the heavy responsibility of making government decisions must be free to discuss all aspects of the problems that come before them and to express all manner of views, without fear that what they read, say or act on will later be subject to public scrutiny”. [41] Cabinet could not carry out its policy-making and policy-vetting responsibilities if its members were inhibited in their debate by the prospect of public disclosure. [130] As for solidarity, all ministers accept responsibility collectively for Cabinet decisions and must resign or expect dismissal if they publicly dissent. [42] Ministers could not credibly offer public support and positive explanations for policy decisions they opposed in Cabinet deliberations were that opposition to become publicly known. [131] Confidentiality links candour and solidarity. The confidentiality of Cabinet’s deliberations enables frank discussion and dissent during its meetings while preserving public-facing collective responsibility for its decisions. [43] These three essential constitutional conventions underwrite the protected sphere in Cabinet within which government policy can be developed and debated, as the cases recognize. [44] (ii) The policy context for access to information [132] The Williams Report led to the enactment of the Act in 1988 . The policy development process was sensitive to the political realities of Cabinet government and the functional issues because, to repeat, the terms of reference directed the Commission to consider changes that were “compatible with the parliamentary traditions of the Government of Ontario.” [45] [133] The Williams Report recognized the tension between “a compelling public interest in open government”, on the one hand, and “a compelling public interest in effective government”, on the other, which recognizes “the critical needs of government for confidentiality”. [46] The Report did not set about to substantially depart from Cabinet’s current practices or well-established traditions, which are rooted in constitutional conventions, nor did its recommendations do so. The Report, as an added example, noted the need to preserve the anonymity of public servants, [47] because not doing so “would mark a significant departure from this well-established tradition ”, [48] which was not desired. [134] The goal was to provide public accessibility to government documents in order to facilitate “[i]ncreased access to information about the operations of government”. [49] The Williams Report recognized that there was a “need to render government more accountable to the electorate”, and that “facilitating informed public participation in the formulation of public policy” was desirable. [50] Achieving these ends would enhance the ability of the public to hold elected representatives accountable and the ability of members of the legislature to hold the executive accountable. The Report was confident that the “critical balance between the public interest in access and the government need for confidentiality” could be “achieved by means of statutory exemptions from the general rule of public access.” [51] [135] Pertinent to the task of interpreting the exemption in s. 12(1) of the Act, the Williams Report stated: “[I]t is obvious that the confidentiality of Cabinet deliberations must be preserved in a freedom of information scheme”. [52] The question was “how an exemption relating to this matter should be drafted”. [53] The Report listed documents considered to be “Cabinet documents”: [A]gendas, informal or formal minutes of the meetings of Cabinet committees or full Cabinet, records of decision, draft legislation, Cabinet submissions and supporting material, memoranda to and from ministers relating to matters before Cabinet, memoranda prepared by Cabinet officials for the purpose of providing advice to Cabinet, and briefing materials prepared for ministers to enable them to participate effectively in Cabinet discussions. [54] [136] The Williams Report noted: “The disclosure of many of these documents would have the effect of disclosing the nature of Cabinet discussions and the advice given or received by Cabinet members”, and accordingly “ all such material should be considered exempt under a freedom of information scheme.” [55] [137] I now turn to the internal dimension of the context by which the Act as a whole must be given a coherent interpretation that reconciles its purpose of promoting access to information with the purpose of its s. 12(1) Cabinet records exemption. (b) The internal dimension [138] Two observations: First, it was open to the legislature to enact legislation requiring Cabinet to be much more forthcoming in its disclosure than Cabinet’s prior practices or well-established traditions would permit or require. [56] Instead, the enacted legislation contains provisions that are substantially similar to those proposed in the relevant sections of the Williams Report. Second, while providing a right of access to government information, the Act shares the Report’s real diffidence around “Cabinet records”. [139] Against the rich background of the external dimension described above, I look at s. 12(1) from the perspective of the text and the legislative history, which together show the legislature’s intent. [140] The full text of s. 12(1) provides: (1) A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including : (a) an agenda, minute or other record of the deliberations or decisions of the Executive Council or its committees; (b) a record containing policy options or recommendations submitted, or prepared for submission, to the Executive Council or its committees; (c) a record that does not contain policy options or recommendations referred to in clause (b) and that does contain background explanations or analyses of problems submitted, or prepared for submission, to the Executive Council or its committees for their consideration in making decisions, before those decisions are made and implemented; (d) a record used for or reflecting consultation among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy; (e) a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committees, or are the subject of consultations among ministers relating to government decisions or the formulation of government policy; and (f) draft legislation or regulations. [Emphasis added.] The meaning of the underlined words – “the substance of deliberations” and “including” – is hotly disputed in this case. (i) The text [141] The first perspective relates to the strength of the provision’s language. I infer that the exemption in s. 12(1) for Cabinet records is intended to be especially strong. T he text in the opening words of s. 12(1) is imperative: “A head shall refuse to disclose a record…” (emphasis added). This mandatory wording leaves the head no discretion. Similar language is found in other sections such as s. 21 (personal privacy). Contrast this with the permissive and discretionary language about records covered in certain other sections, including s. 13(1) (advice to government), which the “head may refuse to disclose” (emphasis added). This inference about the strength of the s. 12(1) exemption is reinforced by contrasting s. 23 of the Act, which builds in flexibility and allows exemptions from disclosure to be lifted where there is a “compelling public interest”. It is especially instructive that the s. 23 public interest override does not apply to Cabinet records under s. 12(1), even though it does to a refusal under s. 13. Nor does the purpose language in s. 1(a) of the Act, which provides that “necessary exemptions from the right of access should be limited and specific”, take priority over the s. 12(1) exemption. (ii) The legislative history [142] The second perspective on the text takes into account the legislative history, which can provide guidance in statutory interpretation. [57] The Attorney General for Ontario points out that a proposed amendment to Bill 34 (the predecessor draft Bill to the Act) would have limited the exemption from disclosure in s. 12(1) “solely” to the records listed in the subparagraphs. [58] The amendment was defeated. This reinforces the view that the expression “the substance of deliberations” was meant to be broad enough to encompass the listed records without being limited to only those records. [143] I make four additional points. First, I set out above the Williams Report’s explanation for the list of particular records it would have included in the subparagraphs. However, here I focus on different words : “The disclosure of many of these documents would have the effect of disclosing the nature of Cabinet discussions and the advice given or received by Cabinet members.” [59] In other words, the Report’s focus was less on the list of records than on the principle: keeping confidential “the nature of Cabinet discussions” so that those discussions could proceed unharried by outside influences. In other words, even though not all the listed documents – only many – would or would always have the effect of disclosing Cabinet discussions, it is noteworthy that the Report recommended that “ all such material should be considered exempt under a freedom of information scheme.” [60] [144] My second point is that it is instructive to contrast the wording of the Williams Report recommendation on Cabinet records with the opening words of s. 12(1) [61] : Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31, s. 12(1) Text of the Williams Report Cabinet records 12(1) A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including, 1. We recommend that the proposed freedom of information law contain an exemption for documents whose disclosure would reveal the substance of Cabinet deliberations and, in particular, that the following kinds of Cabinet documents be the subject of this exemption: [145] Note the use of the words, “the following kinds of Cabinet documents” in the Williams Report. This is another way of expressing and underlining the Report’s worry about keeping “the nature of Cabinet discussions” confidential. [146] Third, the Williams Report gave two signal cautions that also made their way into the Act. Any disclosure regime must not have the effect of rushing Cabinet into a decision. Accordingly, there should be no disclosure of material forwarded before Cabinet’s consideration of it. [62] Further, the Report accepted that “[t]here may be many situations in which Cabinet might properly wish to delay public announcements of its decisions.” [63] [147] My fourth point is that the Act expands the reach of the exemption beyond the Report’s recommendations in several ways. Notably, s. 12(1) of the Act generally uses the formulation “of the Executive Council or its committees ” while the Report only used a similar formula once. [64] Next, the Report would have limited the exemption under subparagraph (b) to “records containing proposals or recommendations submitted, or prepared for submission, by a Cabinet Minister to Cabinet ”, but the Act provides a broader, more generic exemption: “policy options or recommendations submitted, or prepared for submission ”. Finally, the Report would have limited the exemption under subparagraph (c) to the time “before such decisions are made” while the Act states: “before those decisions are made and implemented ”. The enacted language is more protective of Cabinet records than the proposed language in the Williams Report. [148] I noted above that the Williams Report evinced real diffidence around the confidentiality of Cabinet records. The Commission appears to have favoured setting clear rules for Cabinet records. [65] The practical reason for such a blanket rule is to avoid disputes over specific documents of the sort this case exemplifies. I will return to this point below. (3) What is the purpose of s. 12(1) of the Act? [149] The consideration of the external and the internal contextual dimensions set out above leads me to conclude that the purpose for the exemption from the disclosure of Cabinet records in s. 12(1) of the Act is to establish a robust and well-protected sphere of confidentiality within which Cabinet can function effectively, one that is consistent with the established conventions and traditions of Cabinet government. “The preservation of the confidentiality of Cabinet discussions… [is] a necessary feature of a freedom of information scheme ‘compatible with the parliamentary traditions of the Government of Ontario’”, the Williams Report noted, warning that giving “the public a right of access to documents revealing the nature of Cabinet deliberations would be a substantial departure from current practice.” [66] [150] This purpose – to establish a robust and well-protected sphere of confidentiality within which Cabinet can function effectively – is reinforced by the mandatory and absolute nature of the protection in s. 12(1) and by the exclusion of s. 12(1) from the s. 23 public interest override. It is also more modestly reinforced by the slight adjustments in s. 12(1)’s subparagraphs in favour of more confidentiality made by the legislature to the language proposed in the Williams Report. [151] At bottom, s. 12(1)’s purpose resonates profoundly with the values and virtues of Ontario’s version of Westminster responsible government, and facilitates what Baker called, to repeat: “the subtle interplay of formal and informal power [that] maintains and animates an effective institutional separation between the legislature and the executive.” [67] (4) In light of the context and purposes, what interpretation of the text of s. 12(1) should the Commissioner have adopted? [152] The analysis of this question is divided into three sections: the approach to be applied to the interpretation of s. 12(1) of the Act; the role of the functional approach; and the Premier’s role in Cabinet in the interpretation exercise. In my view, the “illustrative approach” best captures the purpose of the exemption, and is supported by the functional approach to Cabinet government discussed above, taking into account the particular role played therein by the Premier. (a) Two approaches to the interpretation of s. 12(1) of the Act [153] When the word “including” is used in legislation, the issue often is which of two approaches, the “expansive approach” or the “illustrative approach”, was legislatively intended. Professor Ruth Sullivan states that: “The purpose of a list of examples following the word ‘including’ is normally to emphasize the broad range of general language and to ensure that it is not inappropriately read down so as to exclude something that is meant to be included.” [68] Sullivan adds: “It is not always obvious whether a list that follows ‘includes’ is meant to expand the scope of the stipulated definition or merely illustrate it.” [69] [154] In interpreting s. 12(1), the Commissioner did not take the “illustrative approach”, which is endorsed by the Attorney General for Ontario. Instead he took the competing “expansive approach”, which is endorsed by the CBC and the interveners. [155] The expansive approach holds that, but for their express inclusion in s. 12(1)’s subparagraphs, the listed records would not necessarily be caught by the opening words and so would otherwise require specific exemption from disclosure. [70] The subparagraphs are thus said to “expand” the scope of the general exemption of records that “would reveal the substance of deliberations ” by going beyond the underlined words to the list in the subparagraphs. The expansive approach takes a correlatively narrow view of the meaning of that expression. [156] Take the word “agenda” in subparagraph (a) as an example. Because an agenda sets out a list of topics for discussion at a meeting, it could not reveal any actual deliberations. The expansive approach argues that “agenda” should not be understood to be included in the expression “the substance of deliberations” because that expression refers only to actual deliberations at the Cabinet table. Or, as my colleague puts it, the Commissioner’s approach is only “protective of communications within Cabinet’s deliberative process that would reveal the substance of its formulation of government policies.” [71] But for its inclusion in subparagraph (a), a Cabinet agenda would be disclosable under s. 1 of the Act. On the expansive approach, the same argument would apply to the records in subparagraphs (b), (c), (e), and (f), which are all records prepared by someone else for Cabinet to discuss and would not thereby describe any actual deliberations. [157] By contrast, the illustrative approach holds that subparagraphs (a) to (f) serve to identify or “illustrate” the types of records that, if disclosed, would reveal the substance of deliberations. The list of protected records in the subparagraphs informs the interpretation of “the substance of deliberations” and posits a different meaning: this expression refers to the nature of the topics, subject matters, or things Cabinet would be discussing, as well as to the deliberations themselves. The illustrative approach takes a broader view of the exemption. [158] In my opinion, the illustrative approach best achieves and instantiates the purpose of s. 12(1), which is to establish a robust and well-protected sphere of confidentiality within which Cabinet can function effectively. This result flows from the purpose of the legislation and the legislative history of s. 12(1) of the Act discussed above, and by the functional and purposive approach taken in the cases on the operation of the separated powers, and the particular role assigned to the Premier. [159] I am fortified in my view by the decision of the British Columbia Court of Appeal in Aquasource. [72] That court took the same approach to Cabinet records as the Williams Commission, and adopted a broad reading of “the substance of deliberations” in s. 12(1) of B.C.’s legislation, which provided: The head of a public body must refuse to disclose to an applicant information that would reveal the substance of deliberations of the Executive Council or any of its committees, including any advice, recommendations, policy considerations or draft legislation or regulations submitted or prepared for submission to the Executive Council or any of its committees. [73] [160] Donald J.A. held that the phrase “the substance of deliberations”, when read together with the clause, “including any advice, recommendations, policy considerations or draft legislation or regulations”, plainly refers to “ the body of information which Cabinet considered (or would consider in the case of submissions not yet presented) in making a decision”. [74] Accordingly, s. 12(1) “must be read as widely protecting the confidence of Cabinet communications.” [75] Donald J.A. concluded that the test for whether something is protected under s. 12(1) is: “Does the information sought to be disclosed form the basis for Cabinet deliberations?” [76] In my view, the Aquasource approach is sound. [161] The Commissioner rejected this approach, preferring the analysis of the Nova Scotia Court of Appeal in O’Connor . [77] I disagree with my colleague that the Commissioner made appropriate use of O’Connor . In that case, the court rejected Donald J.A.’s focus on the “body of information” Cabinet considered in its deliberations, and instead adopted a narrower test for Nova Scotia’s Cabinet records exemption. [78] The Commissioner preferred the statutory interpretation of O’Connor to that of Aquasource on the basis that “the general approach articulated by the Nova Scotia Court of Appeal in O’Connor aligns more closely with the language of the [Ontario] exemption”. [79] [162] In applying the O’Connor approach to the words of s. 12(1) of the Ontario Act, the Commissioner failed to adequately take into account the salient differences between the respective statutes. In O’Connor , Saunders J.A. found that his province’s access to information legislation is uniquely and “deliberately more generous to its citizens and is intended to give the public greater access to information than might otherwise be contemplated in the other provinces and territories in Canada”, including Ontario. [80] It is decidedly not the case that the O’Connor approach “ aligns more closely with the language of the [Ontario] exemption”. There is simply no basis on which the Commissioner could reasonably prefer O’Connor to Aquasource . Given the text, context, and purpose of Ontario’s Act, the opening words of s. 12(1) of the Act create a broader sphere of protection surrounding Cabinet confidentiality. This includes protection over “the body of information” Cabinet will consider in its deliberations. (b) The functional approach in interpretation [163] I now go deeper into the constitutional backdrop and draw on the cases describing what is necessary for the proper and effective functioning of Cabinet government. The functional approach is evident in Ontario (Public Safety and Security) v. Criminal Lawyers' Association , where McLachlin C.J. and Abella J. make several pertinent observations. [81] They note: “It may also be that a particular government function is incompatible with access to certain documents.” The example they give is the need to preserve secrecy and privacy in judicial deliberations. Public access “would impair the proper functioning of the court by preventing full and frank deliberation and discussion at the pre-judgment stage.” They add: “The principle of Cabinet confidence for internal government discussions offers another example.” They urge that attention be paid to the “historic function of a particular institution [which] may assist in determining the bounds of institutional confidentiality” because “certain government functions and activities require privacy”. [82] They explain: “Certain types of documents may remain exempt from disclosure because disclosure would impact the proper functioning of affected institutions.” [164] La Forest J. stated in Carey v. Ontario : “I would agree that the business of government is sufficiently difficult that those charged with the responsibility for running the country should not be put in a position where they might be subject to harassment making Cabinet government unmanageable.” [83] In making this statement, he cited Lord Reid’s trenchant observation in Conway v. Rimmer : [The premature disclosure of Cabinet confidences] would create or fan ill-informed or captious public or political criticism. The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind. [84] McLachlin C.J. added her agreement in Babcock and pointed out that: “[M]inisters undertake by oath as Privy Councillors to maintain the secrecy of Cabinet deliberations and the House of Commons and the courts respect the confidentiality of Cabinet decision-making.” [85] [165] Manageability and reasonable functionality underpin the functional approach taken by the courts. I note that Babcock is cited several times in the Commissioner’s reasons, mostly in reciting Cabinet Office’s submissions, but he ignores its teaching. Instead, he should have paid more respectful attention to the constitutional backdrop, as the Assistant Commissioner did in Order PO-1725. [86] (c) The Premier’s role in Cabinet [166] Neither the premiers nor the Prime Minister are expressly mentioned in the Constitution Act, 1867 . Their constitutional roles and functions are conventional, not prescribed, which makes it essential to be careful in discerning what is at stake when a convention is touched. Neither the reason for, nor the proper reach of, a convention is necessarily completely obvious. [167] In Order PO-1725, Assistant Commissioner Tom Mitchinson provided an insightful articulation of the Premier’s role in Cabinet. The requester in that case sought access to the electronic and hardcopy appointment books of a named senior employee in the Premier’s office, whose “job title and employment responsibilities deal directly and primarily with policy formulation and the overall priority-setting and co-ordination of the government’s policy agenda.” [87] Many entries were found to qualify for exemption from disclosure under the opening words of s. 12(1), although some were not. [88] [168] The Assistant Commissioner considered carefully the “constitutional conventions and traditions surrounding the role of the Premier in matters pertaining to Cabinet deliberations.” [89] The Assistant Commissioner reviewed the authorities on the conventions surrounding the Premier and Cabinet, and accepted the description of the integral role the Premier plays in the functioning of Cabinet presented by Dussault and Borgeat, who state: [Cabinet] is responsible for determining the ways and means of economic, social and cultural progress and is called upon to translate into legislation and into concrete programs the values underlying its rise to power or its remaining in power. Above all, therefore, it represents a centre for reflection and decision. By its very nature, the Cabinet is an institution for compromise, with respect to which its primary role is to determine priorities, to plan and to establish political strategy. [T]he ultimate responsibility for decision-making, although ascribable to Cabinet members as a group, is conferred in particular upon the Prime Minister who dominates its activities. This results since he or she is the head of Cabinet and receives technical briefs and also since he or she has the power to determine the agenda for meetings and to exert control over the support staff. The Prime Minister has recently been termed “the guiding force, co-ordinator and arbitrator of the executive decision-making process”. Possessing, inter alia , such powers as the authority to appoint his or her colleagues, the Prime Minister dominates the administrative machinery. [90] Dussault and Borgeat noted that, while ministers are generally viewed as equals, the Prime Minister or Premier is “without doubt ‘a little more equal’ than the others”. [91] [169] Against this background, the Assistant Commissioner framed three broad principles that guided his disposition, which warrant reproduction: Firstly, by virtue of the Premier’s unique role in setting the priorities and supervising the policy making, legislative and administrative agendas of Cabinet, the deliberations of the Premier , unlike those of individual ministers of the Crown, cannot be separated from the deliberations of Cabinet as a whole . The Premier’s consultations with a view to establishing Cabinet priorities are an integral part of Cabinet’s substantive deliberative processes. To the extent that records reflect consultations bearing on the policy making and priority setting functions within the constitutionally recognized sphere of the Premier’s authority as first minister, those records, by definition, may be seen as reflecting the substance of deliberations of the whole Cabinet . Secondly, in our modern parliamentary democracy, the Premier functions by and large through the instrumentality of staff within his Office. Thirdly, the Premier’s policy-making and priority setting functions do not occur in a vacuum, but within the political framework which brought the ruling party to power. Cabinet, and the Premier in his capacity as leader of the winning party, are charged with the task of prioritizing and implementing the major policy choices of party members by translating political party values into strategies for legislation and other programs. By virtue of his dual role as party leader and head of Cabinet, the Premier is at the apex of both the political and legislative policy-making functions. In the person of the Premier, Cabinet deliberations cannot be divorced from the consensus building process that must occur within the democratic political environment. [92] [170] These words reveal the radical discontinuity between the approach taken in Order PO-1725 and by the Commissioner in this case. The Assistant Commissioner unequivocally found that, owing to the constitutional conventions and traditions, “the deliberations of the Premier, unlike those of individual ministers of the Crown, cannot be separated from the deliberations of Cabinet as a whole.” The Commissioner quotes this statement early in his reasons in reciting the submissions of Cabinet Office, [93] but he never directly engages with the statement’s implications for the interpretation of s. 12(1). [171] The Commissioner’s chain of reasoning rests on two propositions. First, s. 12(1) implicitly distinguishes between the “substance of deliberations” and the “outcome of deliberations”. Second, s. 12(1) of the Act applies only to “Cabinet as a whole”; because the mandate letters are at best outcomes of the Premier’s deliberations, they do not fall within the expression “substance of deliberations”. In addition, the Commissioner construed Order PO-1725 too narrowly. I address each point in turn. (i) The distinction between outcomes and deliberations is not material in this case [172] The Commissioner’s view is that the mandate letters are at best “outcomes” of the Premier’s deliberations that do not fall within the “substance of deliberations” of “Cabinet as a whole”. [94] I reject the relevance of this distinction in this case. [173] I accept that there are circumstances where the distinction between the “substance” and the “outcome” of deliberations would be meaningful, such as when the outcome of Cabinet’s deliberations on an issue has been publicized but “the substantive details of the matters deliberated upon by Cabinet” to reach that outcome have not. [95] However, I would qualify the distinction in two ways. [174] First, the Act is concerned about premature disclosure. For example, subparagraph (c) expressly exempts materials used in reaching a decision “before those decisions are made and implemented”. Further, s. 18(1)(g), exempts: “information… where the disclosure could reasonably be expected to result in premature disclosure of a pending policy decision”. In construing the Act coherently, the concern about premature disclosure counsels caution in making an overly sharp distinction between deliberations and outcomes in a chain of reasoning in assessing the application of s. 12(1). [175] Second, chains of deliberative reasoning are usually comprised of alternating outcomes and further deliberations until the end of the chain when the ultimate outcome appears. There is no sense in which the Act would require the disclosure of any “interim” outcome in a chain of deliberative reasoning. In Cabinet, where that deliberative chain culminates in draft legislation or regulations, it is still protected from disclosure. [176] The question arises: If the mandate letters are disclosable on the basis that they are merely the outcomes of the Premier’s deliberations and are not therefore part of Cabinet deliberations, what other decisions of the Premier sent in documentary form to Cabinet ministers would not also be disclosable? The ramifications could force large and ultimately unproductive changes in the way the Premier communicates with ministers. Consider, for example, the content of a new mandate letter written to a minister just appointed to replace an underperforming minister. It is hard to imagine that such a new letter would not reflect in its instructions to the new minister the Premier’s displeasure with the performance of the old minister, quite likely the subject of Cabinet discussion, especially when compared to the mandate letter to the old minister. (ii) The Premier is not separate from Cabinet [177] As the above discussion of Order PO-1725 reveals, it is a novel proposition – one that I reject in this case – that the Premier’s deliberations as head of Cabinet can be separated from those of the rest of Cabinet, specified by the Commissioner several times as “Cabinet as a whole”, for the purpose of applying the Act. [96] [178] Drawing a hard line between the Premier’s deliberative process and that of the rest of Cabinet would not respect the way Cabinet functions because it would interfere with “the subtle interplay of formal and informal power [that] maintains and animates an effective institutional separation between the legislature and the executive.” [97] Doing so would be contrary to the instructions given to the Williams Commission, and faithfully reflected both in its Report and in the Act, that reforms be “compatible with the parliamentary traditions of the Government of Ontario.” [98] [179] The Premier sets the “agenda” of the government and Cabinet in the large sense. [99] His mandate letters reflect the outcome of a deliberative process on the Premier’s part, assisted no doubt by staff and political advisers. However, as Cabinet Office put it before the Commissioner, the letters also “initiate a continuing deliberative process at Cabinet”. [100] They signal the tasks – the agenda – that the Premier expects each minister to undertake within the minister’s portfolio. In my view, the Premier’s deliberations leading to the mandate letters, and the letters themselves, are part of Cabinet’s deliberative process. The entire set of mandate letters should be seen as the starting instructions for Cabinet in the new mandate, or as “blueprint[s] to inform discussion at the Cabinet table”. [101] While they contain some campaign-style language, to varying degrees they also go further and, in some instances, signal the need for further policy work that will inevitably return to Cabinet. They are records that would reveal the nature of Cabinet deliberations within the meaning of “the substance of deliberations”. (iii) The Commissioner overstates the holding in Order PO-1725 [180] The Commissioner overstates the holding in Order PO-1725 in asserting that the records at issue in that case “were deliberative in nature because they provided a roadmap revealing how and why policy choices were made by the Premier.” [102] [181] The holding in Order PO-1725 does not go that far. First, the Assistant Commissioner noted: “While many of these references consist of abbreviations, acronyms or initials, persons knowledgeable in the affairs of government would likely be in a position to identify most of these references both as to subject matter and the persons or entities involved.” [103] He added: To the extent that the records reveal the issues and options upon which the Premier or the named individual is reflecting in formulating and establishing Cabinet’s “agenda” – used here in its broadest sense – these records would tend to reveal the substance of this deliberative process and, therefore, the substance of the deliberations of Cabinet in the context of the Premier’s unique role within that body. [104] [182] Note that the “substance of the deliberative process” can only mean the subject matter under consideration, not the Premier’s actual deliberations. The Assistant Commissioner noted: “It is only by virtue of the capacity of these entries to reflect the Premier’s deliberations in establishing Cabinet’s priorities that they fall within the introductory wording of section 12(1) by revealing the substance of that exercise.” [105] [183] There is, with respect, no way that the scheduling entries could reveal the Premier’s actual deliberations, only their subject matter. The entries would provide a form of roadmap as to the activities of the named employee, but they would not reveal “how and why policy choices were made by the Premier.” The Commissioner’s conclusion is completely speculative. [184] To conclude, because the mandate letters are the product of the Premier’s deliberations, in his role as head of Cabinet, and initiate Cabinet’s mandate going forward, they are, perforce, part of Cabinet’s deliberations and are fully protected from disclosure by the opening words of s. 12(1). As I stated at the outset, this determination is dispositive of the appeal. (d) The test applied [185] The design of the s. 12(1) exemption aims to protect the confidentiality of certain kinds of documents whose disclosure would reveal the nature of Cabinet’s deliberations, that is, the topics, subject matters, things or the body of information Cabinet would be discussing. [186] The pertinent question is whether the particular record resembles or is analogous to a record in the list or would otherwise reveal the nature of Cabinet deliberations. The mandate letters are analogous to the records listed in ss. 12(1)(d) and (e), respectively: “a record used for or reflecting consultation among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy”, there being no doubt that the Premier is a Cabinet minister; and “a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committees”. It is no stretch to apply these words to the mandate letters. [187] The design of the s. 12(1) exemption emplaces metaphorical bollards in the form of categorical exemptions in order to provide robust protection of the sphere of confidentiality within which Cabinet can function effectively. Departing from this interpretation would engage the Commissioner and the court in a deconstructive exercise in which every questioned record would be parsed and pared down to some irreducible core of actual communications at the Cabinet table. The Commissioner’s analysis portends this outcome. (5) Is the Commissioner’s new test compatible with s. 12(1)? [188] At the outset, I stated that I would also allow the appeal on the basis that the Commissioner’s new test for an exemption from disclosure is fundamentally incompatible with the text, context, and purpose of s. 12(1) of the Act. I address the general approach to establishing an exemption, the Commissioner’s new test, and problems with the new test and why it is unreasonable. (a) Establishing an exemption from disclosure [189] It is axiomatic that the party invoking the s. 12(1) exemption must explain why it applies. To some extent, that explanation will lay out the nature of the record and how it relates to s. 12(1), both the opening words and any applicable subparagraph. The forensic pattern is seen in the old case of Conway , which was a civil action by a former probationary police constable against his former superintendent for damages for malicious prosecution. The Home Secretary asserted absolute Crown privilege in certain documents. However, because the documents concerned internal police administration, the court concluded that they might not be Crown-privileged, properly speaking. Afterwards, Lord Reid examined the documents and ordered them to be produced in the civil action. [190] Note the tension. There is a certain performative inconsistency. The party claiming the exemption is required to disclose the records in some measure in order to prove entitlement. In practice, this is done under seal with numerous redactions, as in this case. But the tension sets a conundrum for the party seeking the exemption and for the decision-maker charged with policing the Act. How much disclosure is required to justify the application of the Cabinet records exemption? There is a considerable distance from the fairly respectful treatment the Premier’s Office received in Order PO-1725 to the dismissive and intrusive approach taken by the Commissioner in this case. [191] The Assistant Commissioner’s approach in Order PO-1725 was altogether more consistent with the broad interpretive approach explained earlier than the order under appeal. The Commissioner was unreasonable in failing to take the same approach to the mandate letters. [192] In my view, the content of the mandate letters on their face constitutes sufficient evidence to trigger the exemption from disclosure provided for in the opening words of s. 12(1), quite apart from the evidence that they were on a Cabinet agenda and distributed on that occasion. Nothing more was reasonably required by way of evidence. (b) The Commissioner’s new test [193] The test for the opening words exemption expressed in Order PO-1725 was that the disclosure “would permit the drawing of accurate inferences with respect to the deliberations of Cabinet or its committees.” [106] However, the Commissioner ratchetted up this test by incorporating language drawn from Order PO-1725’s discussion of the “agenda” exemption in subparagraph (a). The Assistant Commissioner explained why the appointment book entries in Order PO-1725 did not meet the definition of “agenda”. In this context he said: Nor would such an entry, standing alone, normally be found to reveal the substance of Cabinet deliberations, unless either the context or other additional information would permit the reader to draw accurate inferences as to actual deliberations occurring at a specific Cabinet meeting . Therefore, none of the entries in the records at issue in these appeals is an “agenda”, nor could any of these records be said to reveal any part of a Cabinet agenda. [107] [194] The Commissioner adopted the underlined words as the proper test under the opening words of s. 12(1). He stated: “If a record does not appear at paragraphs (a) to (f), it will only qualify for the exemption if the context or other information would permit accurate inferences to be drawn as to actual Cabinet deliberations at a specific Cabinet meeting.” [108] But he took the underlined phrase from Order PO-1725 entirely out of its context (i.e., a technical discussion of the exemption for a Cabinet “agenda”) and then adopted the words as his new test. The person seeking the exemption in the opening words of s. 12(1) must show that disclosure “would permit accurate inferences to be drawn as to actual Cabinet deliberations at a specific Cabinet meeting”, on the balance of probabilities. [195] Notably, this new test is not consistent with the Assistant Commissioner’s actual holding in Order PO-1725, where the test was whether the disclosure “would permit the drawing of accurate inferences” with respect to Cabinet deliberations. Because the appointment book entries could signal to an astute observer what was on the table at a Cabinet meeting – that is, what was discussed and not the deliberations themselves – this was itself sufficient to trigger the exemption. [109] In other words, the “accurate inferences” were about the subject matter of the deliberations, not the actual deliberations as in who said what to whom. [196] The Commissioner considerably heightened the test for the exemption from disclosure. He went too far. He was right to reject CBC’s submission that the opening words exemption be limited “ to records which permit accurate inferences to be drawn regarding discussion of the pros and cons of a course of action.” [110] However, I find perplexing his additional comment that in his view, “the words of the exemption may extend more generally to include Cabinet members' views, opinions, thoughts, ideas and concerns expressed within the course of Cabinet’s deliberative process.” [111] Is there really any doubt that those items would be covered by the exemption? Why use the word “may”? [197] In any event, the Commissioner’s new test does not fall far short of CBC’s proposal. (c) Problems with the new test [198] I noted above that the Commissioner’s approach would engage the IPC and the court in a deconstructive exercise in which every questioned record would be parsed and pared down to some irreducible core of actual communications at the Cabinet table, with everything else being disclosable. The Commissioner’s forensic approach bears this out. He stated that “evidence of a document actually having been placed before Cabinet provides ‘strong but not necessarily determinative evidence that disclosing its content could reveal the substance of deliberations.’” [112] He required an institution to provide “evidence establishing a linkage between the content of a record and the substance of Cabinet deliberations.” [113] [199] The Commissioner then assessed the evidence: Cabinet Office does not claim or provide evidence that the mandate letters were themselves, in fact, discussed at the Cabinet meeting when they were provided to each minister or that they were tabled or made generally available for discussion. There is no evidence that the mandate letters were distributed to Cabinet as a whole at that time or that any specific contents of the letters were actually the subject of the deliberations of Cabinet. [114] [200] The Commissioner took the view that the assumption that the mandate letters “would have been discussed” at the meeting on which they were listed as an agenda item falls “well short of the standard in section 12(1) that disclosure of the mandate letters would reveal the substance of any Cabinet deliberations at the initial Cabinet meeting.” [115] He added: “ Without additional evidence of what transpired in the course of the initial Cabinet meeting, the mandate letters at best provide an indication of topics that may have arisen during that meeting.” [116] [201] The Commissioner, in effect, suggested that only an affidavit by someone present at the Cabinet meeting and knowledgeable about what happened at it would be sufficient. That stance would presumably permit cross-examination. About what, precisely? One can imagine the cross-examination. Which letter was discussed, on the theory that any one not discussed would be disclosable? What in the letter was discussed, on the theory that anything discussed could be redacted and the rest disclosed? Was it just the reiterated campaign promise or did the discussion go to the new policy requirements because if it did not then that part of the letter would be disclosable? [202] The degree of micromanagement implicit in the Commissioner’s new test is palpable and entirely inconsistent with functional Cabinet government. One could get no deeper into the bowels of Cabinet government than this, which is precisely the mischief that s. 12(1) of the Act was designed to prevent. [203] I turn now to the future orientation. The mandate letters reveal prospective deliberations by Cabinet, which past IPC decisions have recognized may be sufficient to trigger exemption under the opening words of s. 12(1). [117] The Commissioner acknowledged that the opening words of s. 12 do, in general, contemplate the possibility of a prospective application, [118] but he rejected Cabinet Office’s argument that the letters should be exempt from disclosure on the basis that they would reveal the substance of future Cabinet deliberations. It is worth attending to his precise words: [T]here is no evidence that the mandate letters themselves would be placed before Cabinet in future meetings. The evidence before me establishes only that the subject matter of a number of unspecified policy initiatives in the letters would be considered at some point in future Cabinet meetings. This, too, is insufficient on its own to establish that disclosure of the letters would reveal the substance of any specific Cabinet deliberations occurring at a future date. [119] [204] The Commissioner added: While the mandate letters may be said to reveal the subject matter of what may come back to Cabinet for deliberation at some point in the future, they do not reveal the substance of any minister's actual proposals or plans for implementation, or the results of any consultations or program reviews and options. Consequently, they do not reveal the substance of any material upon which Cabinet members will actually deliberate in the future and, for that reason, do not reveal the substance of any such future deliberations. [120] [205] Based on his interpretation of s. 12(1), the Commissioner viewed his factual finding that the subject matter of policy initiatives discussed in the letters would be considered at future Cabinet meetings as insufficient to exempt the mandate letters. However, when considered in view of the reasonable interpretation of s. 12(1), the mandate letters plainly fall within the meaning of the section’s opening words. [206] Meeting the new test would require an affiant to provide future details that do not exist and would not exist until the policy development process is complete and the matter is before Cabinet. The Commissioner misapprehends the fluid nature and process of Cabinet government on which the categorical exemption in s. 12(1) rests. [207] In terms of the mischief, I can do no better than to repeat the words of Lord Reid, approved by the Supreme Court: “The business of government is difficult enough as it is, and no government could contemplate with equanimity the inner workings of the government machine being exposed to the gaze of those ready to criticise without adequate knowledge of the background and perhaps with some axe to grind.” [121] [208] To conclude, the purpose of s. 12(1) is to set a robust and well-protected sphere of confidentiality within which Cabinet can function effectively. Accordingly, the expression “the substance of deliberations” in s. 12(1) is properly understood as including the nature of the topics, the subject matters, things or “body of information” Cabinet would be discussing, as well as the deliberations themselves. [209] The subjects covered in the mandate letters fall within this understanding. Such a reading would avoid the slippery slope to the kind of intrusive incursion into Cabinet proceedings that the Commissioner undertook in this case in seeking to determine whether there was actual discussion of the mandate letters at the relevant Cabinet meeting. The Commissioner’s new test is incompatible with s. 12(1) of the Act and is plainly unreasonable. [210] In light of the foregoing, and my earlier dispositive conclusion that the mandate letters are part of Cabinet’s deliberative process and therefore exempt from disclosure, I would allow the appeal and set aside the Commissioner’s order directing the release of the mandate letters. (6) Should the issue of the disclosure of the mandate letters be remitted to the Commissioner for disposition in accordance with these reasons? [211] The standard remedy in cases where the reviewing court has determined that an administrative decision-maker’s statutory interpretation cannot be sustained is for the court to remit the matter back to the decision-maker for reconsideration. [122] This remedy reflects respect for the legislature’s intention that the administrative decision-maker should decide the issue. However, remedies are discretionary. [123] When it is evident “that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose”, the court may decline to remit the matter. [124] [212] In this case, remitting the matter for reconsideration would serve no useful purpose, and I would not do so. The conclusion that the mandate letters qualify for exemption under the opening words of s. 12(1) flows inevitably from a reasonable interpretation of the provision. Although a reviewing court should not substitute its own decisions for those of an administrative decision-maker lightly, remitting this matter to the Commissioner for reconsideration would be pointless. [125] Released: January 26, 2022 “E.E.G.” “P. Lauwers J.A.” Appendix: s. 12(1) and the Williams Report Recommendations Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31, s. 12(1) Text of the Williams Report Cabinet records 12(1) A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including, 1. We recommend that the proposed freedom of information law contain an exemption for documents whose disclosure would reveal the substance of Cabinet deliberations and, in particular, that the following kinds of Cabinet documents be the subject of this exemption: (a) an agenda, minute or other record of the deliberations or decisions of the Executive Council or its committees; a. agenda, minutes or other records of the deliberations or decisions of Cabinet or its committees; (b) a record containing policy options or recommendations submitted, or prepared for submission, to the Executive Council or its committees; b. records containing proposals or recommendations submitted, or prepared for submission, by a Cabinet minister to Cabinet; (c) a record that does not contain policy options or recommendations referred to in clause (b) and that does contain background explanations or analyses of problems submitted, or prepared for submission, to the Executive Council or its committees for their consideration in making decisions, before those decisions are made and implemented; c. records containing background explanations, analyses of problems or policy options submitted or prepared for submission by a Cabinet minister to Cabinet for consideration by Cabinet in making decisions, before such decisions are made; (d) a record used for or reflecting consultation among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy; d. records used for or reflecting consultation among ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy; (e) a record prepared to brief a minister of the Crown in relation to matters that are before or are proposed to be brought before the Executive Council or its committees, or are the subject of consultations among ministers relating to government decisions or the formulation of government policy; and e. records containing briefings to Cabinet ministers in relation to matters that are before or are proposed to be brought before Cabinet, or are the subject of consultations among ministers relating to government decisions or the formulation of government policy; (f) draft legislation or regulations. f. draft legislation. [1] Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31, s. 12(1). [2] Order PO-3973; Cabinet Office (Re) , [2019] O.I.P.C. No. 155 , at para. 101 (emphasis added). [3] Reasons of Sossin J.A., at para. 50. [4] Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65, 441 D.L.R. (4th) 1, at paras. 117, 121. [5] Vavilov , at paras. 118-24. [6] Vavilov , at paras. 115, 119. [7] Vavilov , at para. 55. [8] Public Government for Private People: The Report of the Commission on Freedom of Information and Individual Privacy , vol. 2 (Toronto: Queen’s Printer of Ontario, 1980) (the “Williams Report” by the “Williams Commission”). [9] Williams Report, at p. 83. [10] Peter W. Hogg , Constitutional Law in Canada , loose-leaf, 5th ed. (Toronto: Thomson Reuters Canada Ltd., 2007), at para. 9-3. The most significant modification is the country’s federal structure. In this section, I pick out of Professor Hogg’s text some pertinent descriptive statements that are indisputable, though not, as he points out, absolute or without exception. The concepts applicable to the federal government apply with necessary modifications to the provinces; the Premiers are the Prime Minister’s equivalent: Hogg , at paras. 9-1, 9-3. Ontario’s Executive Council, the provincial equivalent of the Privy Council, is mandated by the Executive Council Act , R.S.O. 1990, c. E.25, although a number of other pieces of legislation affect its composition and functions : see F.F. Schindeler, Responsible Government in Ontario (Toronto: University of Toronto Press, 1969), at p. 30. [11] Hogg, at para. 9-1. [12] Hogg, at para. 9-4. [13] Hogg, at para. 9-1. [14] Hogg, at para. 9-6. [15] Hogg, at para. 9-4. [16] Hogg, at para. 9-6. [17] Hogg, at para. 9-6. [18] Hogg, at para. 9-5. [19] Hogg, at para. 9-5. [20] Hogg, at para. 9-5 (footnote omitted). [21] Hogg, at para. 9-6. [22] Ontario v. Criminal Lawyers’ Association of Ontario , 2013 SCC 43, [2013] 3 S.C.R. 43, at paras. 27-31 , a decision that concerned the appointment of amicus curiae by judges. [23] Cooper v. Canada (Human Rights Commission) , [1996] 3 S.C.R. 854, at paras. 10-11, per Lamer C.J. And see Côté J.’s partially dissenting reasons in References re Greenhouse Gas Pollution Pricing Act , 2021 SCC 11, 455 D.L.R. (4th) 1, at para. 279. [24] The precise status in the constitutional pantheon of certain officials created by statute, such as the Auditor General, the Ombudsman and the Information and Privacy Commissioner, is unclear. [25] Criminal Lawyers’ Association of Ontario , at para. 29. [26] New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) , [1993] 1 S.C.R. 319, at p. 389, cited in Criminal Lawyers’ Association of Ontario , at para. 29. [27] Hogg, at para. 9-12. [28] These practical realities were well known to the Williams Commission, which took them into account. See below at paras. 132-37. [29] Hogg, at para. 7-15, cited in Dennis René Baker, Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation , (Montreal: McGill-Queens University Press, 2010), at p. 61. [30] Baker, at p. 61. [31] Baker, p. 58 (emphasis in original; footnotes omitted). [32] Baker, p. 60. Apart from constitutional conventions, Baker notes, at pp. 61-62, that ss. 53 and 54 of the Constitution Act, 1867 apportion responsibilities over public finances between the executive and legislative branches, thus explicitly recognizing the separation of powers beyond the constitutional conventions, citing Janet Ajzenstat, The Once and Future Canadian Democracy: An Essay in Political Thought (Montreal and Kingston: McGill-Queen’s University Press, 2003), at p. 65. [33] Baker, at p. 83. [34] Baker, at p. 83. [35] See Baker, Chapter 3, especially pp. 61-63. [36] Wells v. Newfoundland , [1999] 3 S.C.R. 199, citing Attorney General of Quebec v. Blaikie et al. , [1981] 1 S.C.R. 312, at p. 320. In Wells , the court also stated that even though the “separation of powers is not a rigid and absolute structure”, the court “should not be blind to the reality of Canadian governance that, except in certain rare cases, the executive frequently and de facto controls the legislature”: at para. 54. [37] Baker, at p. 83. [38] The description of Cabinet as a “connecting link” is drawn from Walter Bagehot’s The English Constitution , 7th ed. (London: Kegan Paul, Trench, Trübner & Co., 1894), at p. 11. However, although I accept this connecting link concept, I reject Bagehot’s overall executive-legislative fusionist view. [39] Yan Campagnolo, “The Political Legitimacy of Cabinet Secrecy” (2017) 51:1 R.J.T.U.M. 51, at p. 60. Campagnolo also explains, at pp. 60-61, that unlike the Privy Council, Cabinet has no legal existence or power. Rather, it is “an informal advisory body”. Executive power is “exercised by the Governor in Council or individual Ministers”, although “from a conventional perspective, the Governor in Council or individual Ministers act on the advice of the Cabinet.” [40] Campagnolo, at p. 60. [41] Babcock v. Canada (Attorney General) , 2002 SCC 57, [2002] 3 S.C.R. 3, at para. 18. [42] Sir W. Ivor Jennings, Cabinet Government , 2nd ed. (Cambridge: Cambridge University Press, 1951), at pp. 257-58. See also Hogg, at para. 9-7. [43] See Campagnolo, at p. 63, and a publication from the Privy Council Office that, among other things, summarizes the principles of Cabinet solidarity and confidentiality: Canada, Privy Council Office, Open and Accountable Government (2015), online: <http://pm.gc.ca/eng/news/2015/11/27/open-and-accountable-government>. [44] In addition to the text above, see below at paras. 163-65. [45] Williams Report, at p. 83. [46] Williams Report, at p. 235. [47] Williams Report, at p. 86. [48] Williams Report, at p. 90 (emphasis added). [49] Williams Report, at p. 77. [50] Williams Report, at p. 77. [51] Williams Report, at p. 277. [52] Williams Report, at p. 285. [53] Williams Report, at p. 285. [54] Williams Report, at p. 285 (footnote omitted). [55] Williams Report, at p. 285 (emphasis added). [56] This is what the Nova Scotia legislature did, as I discuss below at para. 162. [57] See 1704604 Ontario Ltd. v. Pointes Protection Association , 2020 SCC 22, 449 D.L.R. (4th) 1, at paras. 12-14, citing Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53, [2011] 3 S.C.R. 471, at para. 43. [58] Ontario, Legislative Assembly, Official Report of Debates (Hansard) , 33rd Parl., 1st Sess., No. 113 (10 February 1986), at p. 3955 (Norman Sterling). [59] Williams Report, at p. 285 (emphasis added). [60] Williams Report, at p. 285 (emphasis added). [61] The full contrasting text is set out in the Appendix. [62] Williams Report, at p. 287. [63] Williams Report, at p. 286. [64] Emphasis added throughout. [65] The Report’s recommendations focused on the protection of physical Cabinet records. This concern with physical documents may relate to the historical formalization of Cabinet meetings. As Campagnolo notes, at pp. 72-77, prior to the 20th century, Cabinet meetings were informal affairs with no organized system of record-keeping. The only official document recording Cabinet discussions was a letter from the Prime Minister to the Sovereign. However, due to the increasing complexity of state activities, measures were taken to improve executive decision-making efficiency, including the introduction of Cabinet secretariats. Yet, the establishment of Cabinet secretariats was accompanied by a new risk: that the written records of Cabinet meetings could be potentially accessible, including by members of an incoming government following a change of power. This led to the development of conventions that focused on the protection of physical records of Cabinet’s deliberations. [66] Williams Report, at p. 85. [67] Baker, at p. 83. [68] Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed. (Toronto.: LexisNexis Canada, 2014), at para. 4-38. [69] Sullivan, at paras. 4-41 to 4-42, citing Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada , 2012 SCC 34, [2012] S.C.R. 231. [70] Reasons of Sossin J.A., at para. 43. [71] Reasons of Sossin J.A., at para. 37. [72] Aquasource Ltd. v. British Columbia (Freedom of Information and Protection of Privacy Commissioner) , 58 B.C.L.R. (3d) 61. [73] Freedom of Information and Protection of Privacy Act , R.S.B.C. 1996, c. 16, s. 12(1). [74] Aquasource , at para. 39 (emphasis added). [75] Aquasource , at para. 41. [76] Aquasource , at para. 48. [77] O’Connor v. Nova Scotia (Deputy Minister of the Priorities & Planning Secretariat) , 2001 NSCA 132, 197 N.S.R. (2d) 154. [78] O’Connor , at paras. 90-92. [79] Order PO-3973 , at para. 97. [80] O’Connor , at para. 57. [81] Ontario (Public Safety and Security) v. Criminal Lawyers' Association , 2010 SCC 23, [2010] 1 S.C.R. 815, at para. 40. [82] Ontario (Public Safety and Security) , at para. 40, citing Montréal (City) v. 2952 ‑ 1366 Québec Inc ., 2005 SCC 62, [2005] 3 S.C.R. 141. [83] Carey v. Ontario , [1986] 2 S.C.R. 637, 1986 CanLII 7, at para. 50. [84] Conway v. Rimmer , [1968] A.C. 910 (H.L.), at p. 952, cited in Carey , at para. 49. [85] Babcock , at para. 18. [86] Order PO-1725 , [1999] O.I.P.C. No. 153. [87] Order PO-1725 , at para. 57. [88] Order PO-1725 , at paras. 61-64. [89] Order PO-1725 , at para. 50. [90] René Dussault and Louis Borgeat, Administrative Law, A Treatise , 2nd ed. (Toronto: Carswell, 1985), at pp. 59-60 (footnotes omitted), cited in Order PO-1725 , at para. 52. [91] Dussault and Borgeat, at p. 61. For additional discussion of Cabinet, see generally Dussault and Borgeat, at pp. 51-63. [92] Order PO-1725 , at paras. 54-56 (emphasis added). [93] Order PO-3973 , at para. 23. [94] I also note that the Commissioner followed a line of IPC cases that draws a distinction between the “substance” and the “subject matter” of deliberations: see Information and Privacy Commissioner of Ontario , Order PO-3719 (2017), at para. 42; Order PO-3720; Ontario (Ministry of Finance) (Re) , [2017] O.I.P.C. No. 58, at paras. 33, 42, and 44; Interim Order MO-2964-I; Greater Sudbury (City) (Re) , [2013] O.I.P.C. No. 254, at paras. 37-39, 43, and Interim Order MO-3684-I; North Bay (City) (Re) , [2018] O.I.P.C. No. 236, at paras. 18-21. As I indicated above, I reject this distinction because, understood in its proper context, s. 12(1) aims to protect the confidentiality of certain kinds of documents whose disclosure would reveal the matters Cabinet would be discussing, not just the content of its discussions. I also note that much of this IPC case law is rooted in the interpretation of the meaning of “the substance of deliberations” as it appears in s. 6(1)(b) of the Municipal Freedom of Information and Protection of Privacy Act . R.S.O. 1990, c. M.56. This section permits a head to refuse to disclose a record “that reveals the substance of deliberations of a meeting of a council, board, commission or other body or a committee of one of them if a statute authorizes holding that meeting in the absence of the public” (emphasis added). Although both provisions use the phrase “the substance of deliberations”, the s. 6(1)(b) exemption is unrelated to Cabinet records and therefore does not engage the constitutional conventions surrounding Cabinet confidentiality. As a result, the case law interpreting the scope of s. 6(1)(b) is of limited use in discerning the scope of s. 12(1). [95] Order PO-3752; Ontario (Ministry of Energy) , [2017] O.I.P.C. No. 145 , at para. 40. [96] The Premier is not generally set apart from Cabinet. As Hogg notes: “Not only do conventions presuppose the existence of law, much law presupposes the existence of conventions.” The Constitution Act, 1867 was drafted the way it was because the framers knew that the extensive powers vested in the Queen and Governor General would be exercised in accordance with the conventions of responsible government, that is to say, under the advice (meaning direction) of the cabinet or in some cases the Prime Minister. Modern statutes continue this strange practice of ignoring the Prime Minister (or provincial Premier) and his cabinet. They always grant powers to the Governor General in Council (or the Lieutenant Governor in Council) when they intend to grant powers to the cabinet. The numerous statutes that do this are of course enacted in the certain knowledge that the conventions of responsible government will shift the effective power into the hands of the elected ministry where it belongs”: at para. 1-14 (footnote omitted). [97] Baker, at p. 83. [98] Williams Report, at p. 83. [99] I do not use the word “agenda” in the technical meaning given by the Act: see Order PO-1725 , at para. 60. [100] Order PO-3973 , at para. 27. [101] Order PO-3973 , at para. 27. [102] Order PO-3973 , at para. 130. [103] Order PO-1725 , at para. 58. [104] Order PO-1725 , at para. 59. [105] Order PO-1725 , at para. 60. [106] Order PO-1725 , at para. 48. [107] Order PO-1725 , at p. 60 (emphasis added). [108] Order PO-3973 , at para. 101. [109] Order PO-1725 , at paras. 58-59. [110] Order PO-3973 , at para. 98. [111] Order PO-3973 , at para. 98 (emphasis added). [112] Order PO-3973 , at para. 96, citing Order PO-2320; Ontario (Ministry of Finance) , [2004] O.I.P.C. No. 201, at para. 31. [113] Order PO-3973 , at para. 96. [114] Order PO-3973 , at para. 114. [115] Order PO-3973 , at para. 114 (emphasis in original). [116] Order PO-3973 , at para. 115 (emphasis in original). [117] See, for example, Order PO-2707; Ministry of Education , [2008] O.I.P.C. No. 166, at para. 64. [118] Order PO-3973 , at para. 120. [119] Order PO-3973 , at para. 116. [120] Order PO-3973 , at para. 119 (emphasis in original). [121] Conway , at p. 952. [122] Vavilov , at para. 141. [123] Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada , 2020 FCA 100, [2020] F.C.J. No. 671, at para. 99, leave to appeal granted, [2020] S.C.C.A. No. 392 (“ Entertainment Software Association ( FCA)”), citing Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board , [1994] 1 S.C.R. 202 and MiningWatch Canada v. Canada (Fisheries and Oceans) , 2010 SCC 2, [2010] 1 S.C.R. 6. [124] Vavilov , at para. 142. [125] See Entertainment Software Association ( FCA), at para. 100; Vavilov , at para. 142; and Giguère v. Chambre des notaires du Québec , 2004 SCC 1, [2004] 1 S.C.R. 3, at para. 66, per Deschamps J. (dissenting).

COURT OF APPEAL FOR ONTARIO CITATION: Dagenais v. Pellerin, 2022 ONCA 76 DATE: 20220128 DOCKET: C69738 Feldman, MacPherson and Thorburn JJ.A. BETWEEN Annette Dagenais and Richard Dagenais Plaintiffs (Respondents) and Guy Pellerin and Slavko Concrete Finishing Inc. Defendants ( Appellant ) AND BETWEEN Janet McGlone and Janet McGlone as Litigation Administrator of the Estate for Allan Timms Plaintiffs (Respondents) and Guy Pellerin, Slavko Concrete Finishing Inc. and Annette Dagenais and John Doe Defendants ( Appellant ) Pat C. Peloso and Jaime Wilson, for the appellant William R. Hunter and Patrick Simon, for the respondents Annette Dagenais and Richard Dagenais Mikolaj T. Grodzki and Alexander N. Elkin, for the respondents Janet McGlone and Janet McGlone as Litigation Administrator of the Estate for Allan Timms Heard: January 20, 2022 by video conference On appeal from the orders of Justice Paul B. Kane of the Superior Court of Justice, dated June 25, 2021, with reasons reported at 2021 ONSC 3415. REASONS FOR DECISION [1] The respondents, Annette Dagenais and Janet McGlone, were the driver and passenger in a car that was in an accident with a car driven by Guy Pellerin, an employee of the appellant, Slavko Concrete Finishing Inc. (“Slavko”), who was on his way to a job site. Mr. Pellerin admitted liability for the accident. The respondents’ claims for damages, which will be determined by a jury, exceed the amount of Mr. Pellerin’s liability insurance coverage. They have therefore also claimed against the appellant on the basis of the doctrines of vicarious liability and respondeat superior . On summary judgment, the appellant was found to be responsible for the respondents’ damages on both bases. The appellant challenges both findings on this appeal. A. Factual background [2] The accident occurred on January 31, 2013. Mr. Pellerin was employed by Slavko as a cement finisher, and had been called by his supervisor on January 30, and told to go to a job site in Petawawa for noon the next day. The job site was about two hours away from Mr. Pellerin’s home. Five other employees were to attend for 9 a.m., as they were pouring the concrete slab. They went together in transportation provided by the company. Mr. Pellerin was to drive in his own car to the job site and back the same day. He had his tools for the job with him in the car. [3] A collective agreement governed the terms and conditions of Mr. Pellerin’s employment. It included provisions regarding travel to job sites, including: payment of the hourly rate for up to four hours per day for travelling outside the National Capital Commission Greenbelt; transportation to be arranged by the employer for travel outside the National Capital Commission Greenbelt; and payment of a mileage allowance of $0.48 per kilometer for travel to or between job sites in a personal vehicle. [4] Mr. Pellerin left home, got gas, did a personal errand, and then headed for Petawawa. At Renfrew, he decided to stop at Tim Horton’s for a coffee and to stretch his legs. When making the left turn off the highway, he hit the respondents’ vehicle coming through the intersection. [5] Mr. Pellerin admitted responsibility for the accident and the damages suffered by the respondents to the limit of his liability insurance coverage, $2,000,000. As the claims of the respondents exceed that amount, they also pursued the appellant, alleging that it is responsible for the negligence of its employee during the course of his employment, on the basis of the doctrines of vicarious liability and respondeat superior . [6] While the quantification of the damages was left to be determined in a jury trial, all parties agreed that it was appropriate to have the issue of the liability of the appellant determined on summary judgment. B. Findings by the Motion Judge [7] In detailed and thorough reasons, the motion judge considered the legal and factual issues necessary to determine whether the appellant is liable for the damages suffered by the respondents. [8] He first found that while travelling to the job site in Petawawa, Mr. Pellerin was acting within the course of his employment. He was directed by the employer to travel to Petawawa and be there by noon; he was transporting his tools; and the collective agreement required the employer to arrange for transportation to distant job sites, such as Petawawa, and to pay a travel allowance and up to four hours’ salary. The motion judge concluded that the travel to the job site was part of the employee’s work. [9] The motion judge next considered whether the fact that Mr. Pellerin was using his own vehicle meant that he was acting outside his employment. The motion judge concluded that Mr. Pellerin’s use of his own vehicle was directed, or at least authorized, by the employer, based on the evidence. [10] The motion judge further found that Mr. Pellerin’s detour to get coffee and to stretch his legs was authorized by the employer as part of the travel requirement to get to the job site, a two-hour drive away. The motion judge relied on the record of evidence of the policy of the employer as well as case law from the Supreme Court of Canada, Battistoni v. Thomas , [1932] S.C.R. 144; the House of Lords, Smith v. Stages and another , [1989] 1 All E.R. 833 (H.L.); and other courts that have held that a brief deviation from the direct route or brief detour does not take the employee out of the course of employment. [11] The motion judge summarized his factual and legal findings at paras. 148-150 as follows: [ 148 ]  The Court has concluded that Mr. Pellerin was acting in and continued in the course of his employment: a.       as he drove towards Petawawa; b.       as he did so while driving his vehicle; c.       as he attempted to turn off Highway 17 to stop to stretch and buy a coffee before continuing on to that destination; and d.       that each of those actions were permitted and authorized by his employer based on the evidence and as supported by reasonable inferences drawn from that evidence. [ 149 ]  Those were authorized acts therefore pursuant to the first branch of the Salmond test and not unauthorized acts governed under the second branch of the Salmond test. [ 150 ]  Slavko accordingly was legally responsible for the negligence of such actions by Mr. Pellerin under the doctrine of vicarious liability or in the alternative, pursuant to the doctrine of respondeat superior . [12] These findings were made in the context of the test for vicarious liability known as the Salmond test, which was affirmed by the Supreme Court of Canada in Bazley v. Curry , [1999] 2 S.C.R. 534, at para. 10: [T]he Salmond test … posits that employers are vicariously liable for (1) employee acts authorized by the employer; or (2) unauthorized acts so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act. [13] The motion judge found that Mr. Pellerin was specifically authorized to drive to the job site in Petawawa in his car with his tools, that he was in the course of his employment while driving to the remote job site, and that he was authorized to take a short detour to get a coffee and stretch his legs as part of the long drive. The employer was therefore vicariously liable under the first branch of the Salmond test. [14] Slavko argued on the motion, and on the appeal, that the test to be applied was the second branch of the Salmond test because the drive and the accident were unauthorized. As a result, the motion judge was required to apply the two-part analysis from Bazley for determining vicarious liability for unauthorized acts. [15] In Bazley , a children’s foundation unknowingly hired a paedophile, Mr. Curry, to look after children in its care. A child who was abused by Mr. Curry sued the foundation on the basis of vicarious liability. In that case, the court was concerned with the second branch of the Salmond test. The issue was whether the unauthorized abuse of the child constituted a mode of performing the authorized act of looking after the child. The Supreme Court held that where there is no precedent that determines the issue, the court should do so by considering and applying the policy underlying vicarious liability: Bazley , at para. 15. That policy has two fundamental concerns: (1) provision of a just and practical remedy for the harm; and (2) deterrence of future harm: Bazley , at para. 29. [16] In response to the appellant’s submission, the motion judge considered, in the alternative, that if Mr. Pellerin’s acts had been unauthorized, whether vicarious liability should be imposed based on the two policy considerations from Bazley . He concluded that it should. First, the respondents are entitled to fair compensation for the accident, and may not get it if the only source is Mr. Pellerin’s insurance limit of $2,000,000. Second, imposing liability on the employer in this case could cause the employer, in the future, to provide safe transportation to distant work sites for all employees, in accordance with the requirements of the collective agreement. C. Issues on the Appeal [17] The appellant’s position is that the motion judge erred in fact and law by finding that the first branch of the Salmond test applies. It argues that the drive and the accident were unauthorized and the motion judge erred by finding that they were authorized. The appellant argues further that the motion judge’s alternative analysis and application of the two-part Bazley test was in error, and that as a matter of policy, the respondents are already being compensated by Mr. Pellerin’s insurance, and there is no applicable deterrence issue in this case. [18] We reject these submissions. The motion judge’s reasons were thorough and comprehensive. He fully applied the Salmond test and found the facts that supported the legal conclusion that Mr. Pellerin, while employed as a cement finisher, was specifically authorized to drive in his own car to the job site at Petawawa and was entitled to a mileage allowance and up to four hours of wages for the driving time. Furthermore, he found, again based on the evidence and legal precedent, that the authorization included the employee taking a coffee break and stretching his legs during the drive. The small detour taken by Mr. Pellerin was not a “frolic of his own”, as in Battistoni , where the employee went off to socialize for a lengthy period during the drive. There is no basis to interfere with his findings or his conclusion. [19] The appellant also argues that the motion judge should not have relied on the Saskatchewan Court of Appeal decision in Sickel Estate v. Gordy , 2008 SKCA 100, 311 Sask. R. 235, which, it submits, was wrongly decided and incorrectly applies the Salmond test contrary to the direction of the Supreme Court in Bazley . In Sickel , the court held that the negligent driver was acting in the course of her employment, moving the employer’s equipment from site to site, and stated at para. 39 that “it is not the negligence that must be seen as authorized by the employer, but only the activity, which, incidentally, was negligently performed” (emphasis in original). [20] We reject the appellant’s legal submission. We see no error in the motion judge’s reliance on Sickel as an example of employee conduct authorized by the employer, and therefore falling within the first branch of the Salmond test for imposing vicarious liability for the accident on the employer. [21] Because we agree with the motion judge’s conclusion that Mr. Pellerin was authorized to drive to the job site in Petawawa as part of his employment, and therefore the appellant is vicariously liable under the first part of the Salmond test, it is unnecessary to address the second part of the Salmond test, and the two policy criteria from Bazley . However, we add that we see no error in the alternative analysis conducted by the motion judge on this issue. We also affirm the motion judge’s finding that the appellant is also liable for the negligence of Mr. Pellerin on the basis of the application of the doctrine of respondeat superior . [22] The appeal is therefore dismissed with costs to each of the two respondents fixed in the amount of $18,000 to each, inclusive of disbursements and HST. “K. Feldman J.A.” “J.C. MacPherson J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Flight (Re), 2022 ONCA 77 DATE: 20220126 DOCKET: M53087 (C69594) Simmons J.A. (Motions Judge) In the Matter of the Bankruptcy of Brian Wayne Flight, of the City of London, in the Province of Ontario Nicholas Kluge and C. Haddon Murray [1] , for the moving parties/appellants, Adamson & Associates Inc. and John Adamson Tara Vasdani, for the responding party/respondent, Brian Wayne Flight Jacob Pollice, for the intervener Superintendent of Bankruptcy [2] Heard: January 20, 2022 by video conference ENDORSEMENT A. Introduction [1] The appellants moved in writing for an order permitting them to amend their notice of appeal dated June 24, 2021, to add a request, in the alternative, for leave to appeal under s. 193(e) of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B‑3 (the "BIA"). [2] The order under appeal declares that Mr. Flight and his spouse do not require leave under s. 215 of the BIA to commence and continue their action against Mr. Adamson for declaratory relief and damages in connection with his administration as trustee of Mr. Flight's estate in bankruptcy. As originally framed, the appellants relied in their notice of appeal on ss. 193(b) and (c) of the BIA, which do not impose a leave requirement. [3] I required counsel to attend to speak to this motion because of serious allegations made by the responding party and concerns I had about the admissibility of some of the material filed on the motion. [4] Following submissions from counsel, I struck the second sentence of para. 19 of the moving parties' factum and the moving parties' letter to the court dated January 11, 2022. [5] In addition, I struck the following portions of the responding party's affidavit filed on the motion: paras. 2, 8, the first sentence of paras. 9 and 11, para. 13, the heading over para. 14, paras. 15-20, the heading over para. 21, paras. 21 and 22, para. 31 (subject to treating paras. 31 a. and c. as being included in the responding party's factum), paras. 33-35, paras. 37-39, and paras. 41-44. [6] After I struck the foregoing material, the parties agreed that the motion should proceed in writing and also confirmed that, if the motion is granted, the leave issue should be dealt with by the panel hearing the appeal without the necessity of any additional material being filed. [7] For the reasons that follow, the motion to amend is granted. I will also explain below my reasons for striking the foregoing material and declining the responding party's request to call oral evidence to replace certain paragraphs of the responding party's affidavit filed on the motion if they were struck. B. Discussion (1) The Materials (a) The Moving Parties’ material [8] My concern with respect to the second sentence of para. 19 of the moving parties' factum was that it lacked an evidentiary foundation for asserting that the first date the responding party took the position that the moving parties required leave to appeal under s. 193(3)(e) of the BIA was upon filing the respondent's factum. [9] As for the letter dated January 11, 2022, I expressed concern that letters from counsel are not an appropriate way to make submissions on a motion. Although the moving parties submitted that the January 11, 2022 letter (with enclosures) was sent in an effort to fulfill counsel's duty to ensure submissions are accurate (in this case, the second sentence of para. 19 of the factum), ultimately they did not oppose striking the specified material. (b) The Responding Party’s material [10] The responding party's affidavit was sworn by a law student. My concerns with respect to the listed paragraphs were, variously, that they constituted inadmissible opinion; were inaccurate on their face; in violation of rule 39.01(4) of the Rules of Civil Procedure ; argumentative; or a combination of some or all of the foregoing. [11] Ultimately, the responding party opposed striking only paragraphs 15 to 20 and 31 of the student's affidavit. My concern with respect to those paragraphs was primarily that they violated rule 39.01(4). Counsel submitted that there was no real violation, in effect, as the source of the information should be obvious. Moreover, and in any event, case law and various rules support admitting non-contentious statements premised on information and belief even if there is a minor violation of the rule. Counsel also asked to call oral evidence from the responding party, who was present via videoconference, to cure any defects. [12] I did not accept these submissions or permit oral evidence. [13] The responding party alleges that the moving parties' motion "is brought in patent bad faith" and that the moving parties, and by implication their counsel, are misleading the court. Where such serious allegations are made, the evidence to support them must comply strictly with both the laws of evidence and the rules. Evidence proffered on information and belief to support such allegations may be subject to questions of weight in any event. Such questions could include when and by what method the information was communicated, whether notes were taken and other similar matters. However, the failure to comply with even the basic requirements of rule 39.01(4) of specifying from whom the information was communicated and that the deponent believes the information is true requires that the specified paragraphs be struck. [14] As for the request to call oral evidence, paragraphs 15 to 20 of the affidavit relate to communications between counsel. Evidence from the responding party could not reasonably be expected to cure a defect in rule 39.01(4) except by double hearsay. In any event, permitting oral evidence on a procedural motion in this court would be out of the ordinary and could only be justified in exceptional circumstances. Curing a failure to comply with basic requirements of the rules does not qualify as an exceptional circumstance. (2) The Merits of the Motion (a) The Test [15] At paras. 13-15, Yar. v. Yar (2012), 24 R.F.L. (7th) 101, specifies five factors relevant to the determination of whether to grant leave to amend a notice of appeal (in that case, a notice of cross-appeal) after an appeal had been perfected: i. whether the appellant formed an intention to appeal within the relevant period; ii. the length of the delay and any explanation for the delay; iii. any prejudice to the respondent; iv. the merits of the appeal; v. whether the “justice of the case” requires an extension. (b) Application of the Test to this Case [16] As the moving parties' appeal under ss. 193(b) and (c) of the BIA has been perfected, there appears to be no question that they formed an intention to appeal within the relevant period. [17] That said, the moving parties' material is devoid of any reasonable explanation concerning when they recognized the possible requirement to seek leave to appeal under s.193(e) of the BIA and why they failed to do so before now. [18] I reject any suggestion that the explanation for the moving parties’ failure could somehow be that the responding party failed to put the moving parties on notice of the possible requirement to seek leave. Section 193(e) states on its face that leave is a requirement under that subsection. Further, that the requirements of the various subsections of s. 193 can be complex is well known. The moving parties have not explained why they failed to recognize the possible necessity of seeking leave under s. 193(e) when they originally delivered their notice of appeal. [19] However, the absence of an explanation and even the attempted explanation that the responding party failed to adequately put the moving parties on notice that leave may be required does not lead to necessary inferences of bad faith or that the moving parties are attempting to mislead the court. There are many possible reasons, short of bad faith, why the moving parties may have failed to advert to the possibility of requiring leave even in the face of the responding party's suggestion that leave was required. Nonetheless, the bottom line remains, on the record before me, there is no indication that the moving parties formed an intention to seek leave within the relevant period and no reasonable explanation for their delay in failing to request permission to amend before now. [20] That said, I see no prejudice to the responding party if permission to amend is granted. The parties agreed that if permission is granted to amend to seek leave to appeal under s. 193(3) in the alternative, the issue of leave to appeal will simply be dealt with by the panel hearing the already perfected appeal without the necessity for further material. [21] If the panel hearing the appeal determines an appeal as of right is not available under ss. 193(b) or (c) of the BIA, the factors set out in Business Development Bank of Canada v. Pine Tree Resorts Inc ., 2013 ONCA 282, 115 O.R. (3d) 617 may govern the leave issue: i. whether the appeal raises an issue of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole and whether the issue is one that this court should consider and address; ii. whether the appeal is prima facie meritorious; and iii. whether the appeal will unduly hinder the progress of the bankruptcy/insolvency proceedings. [22] Concerning the last factor, the bankruptcy has been resolved by a consumer proposal. The appeal will not hinder its progress. Further, because there is a pending appeal in any event, granting permission to amend will not hinder the progress of the responding party's action. [23] As for the first two factors, the fact that the Superintendent has been permitted to intervene and the evidence the Superintendent filed on the motion to intervene support the likelihood that the appeal raises an issue of general importance and also the prospect that the panel may choose to address it whatever the level of merit. However, the panel hearing the appeal will also have discretion not to grant leave. [24] In the circumstances, the merits of the leave motion support granting permission to amend. [25] Considering the case overall, permission to amend should be granted. No doubt, the moving parties should have addressed their alternative request earlier. They should also have provided an explanation for their failure to do so and for their delay in applying for leave to amend to this court. However, given the lack of prejudice to the responding party and the merits of the alternative leave request, I am satisfied that the justice of the case warrants granting permission to amend. C. Disposition [26] Based on the foregoing reasons, permission to amend as requested is granted, provided that the amendment should be completed within seven days of the release of these reasons. Given that this disposition amounts to an indulgence, the responding party may make submissions as to costs within seven days of the receipt of these reasons and the moving parties may respond within seven days thereafter. “Janet Simmons J.A.” [1] Mr. Murray prepared the in-writing submissions on behalf of the moving parties/appellants. Due to a conflict, Mr. Kluge appeared for the purposes of oral submissions. [2] Mr. Pollice appeared but made no written or oral submissions on behalf of the intervener.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Edwards, 2022 ONCA 78 DATE: 20220128 DOCKET: C65250 Paciocco, Nordheimer and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Kawayne Edwards Appellant Eric Neubauer, for the appellant Anna Martin, for the respondent Heard: January 13, 2022 by video conference On appeal from the conviction entered by Justice David Salmers of the Superior Court of Justice, sitting with a jury, on August 27, 2017. Sossin J.A.: [1] After a seven-day trial, a jury found the appellant guilty of drug trafficking, possession of the proceeds of crime, and possession of drugs for the purpose of trafficking. [2] The appellant appeals his conviction on the basis that the trial judge gave deficient jury instructions. [3] For the reasons that follow, I would dismiss the appeal. While the trial judge failed to appropriately caution the jury, the evidence against the accused was overwhelming. As a result, the curative proviso applies. FACTS [4] On September 2, 2015, an undercover officer contacted a person known as “Tony” to arrange to buy crack cocaine. The officer was directed to an apartment window on Bloor Street in Oshawa, where he received 2.6 grams of cocaine for $240. None of the surveillance officers saw the actual purchase. However, a video recording of the initial meeting between the suspected drug dealer and the undercover officer allowed police to identify him as the appellant that same day. [5] Six days later, the undercover officer arranged to buy more crack cocaine. He was let into the same apartment building and bought drugs from the same suspected drug dealer. [6] Later that day, the appellant, along with two other individuals, exited the apartment building and got into a taxi. Police followed. One of the other individuals exited the taxi before it reached its final destination, but police continued to trail the taxi, eventually surrounding it, and arresting the appellant. Police seized a phone found near the appellant with the same phone number used by the undercover officer to coordinate the two drug transactions. The arresting officers also found a pair of Ray-Ban sunglasses. [7] A search of the appellant’s person revealed the money used to purchase the drugs, and a subsequent search of the apartment where the drugs were bought discovered 56.5 grams of cocaine and an empty Ray-Ban sunglasses case in a backpack. Certain documents were found at the apartment with the name of the individual later identified as the person who exited the taxi before it reached its final destination. TRIAL [8] In addition to the undercover officer’s eyewitness testimony, the prosecution presented a range of circumstantial evidence, including items recovered from the taxi (such as the appellant’s phone, which had the undercover officer’s number saved in its contacts), and items recovered from the house (such as a backpack, and drug paraphernalia which the undercover officer recognized from the drug purchase). [9] The prosecution also relied on utterances made by the appellant to the undercover officer at the meeting caught on video, including that the phone number the officer had called was his, and that he had told the undercover officer he was “good for a B.” [10] The appellant elected not to testify. He conceded he was the “greeter” who met with the undercover officer to set up the drug purchase in the encounter captured on video, but alleged that he was not the individual who subsequently participated in the drug purchase upon which the  prosecution based its allegation. [11] The defence called the appellant’s mother, who testified that her son lived with her in Scarborough during the period of his arrest, and that she did not know what business he had in Oshawa that night. She did not recognize the backpack containing the crack cocaine nor remember her son wearing Ray-Ban sunglasses. Moreover, she did not recall contacting the appellant with the number used to arrange the drug transactions. [12] The trial judge charged the jury according to Watt’s Manual for Criminal Jury Instructions . Beyond the role of the jury and the governing burdens and standards, the trial judge outlined the key issues as the drug trafficker’s identity and whether the appellant trafficked crack cocaine to the undercover officer on the dates in question. He also summarized the defence’s theory that the Crown had failed to link the apartment and, accordingly, the drug trafficking to the appellant. Defence counsel argued that the evidence actually incriminated the individual seen exiting the taxi before the appellant’s arrest. [13] Neither the defence nor the Crown sought any significant amendment to the trial judge’s proposed instructions. In particular, neither party sought an instruction regarding eyewitness identification, voice recognition evidence, or circumstantial evidence in accordance with R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000. ANALYSIS [14] A trial judge is entitled to significant deference in any review of a charge to the jury. A trial judge’s instructions are considered as a whole, and are not held to a standard of perfection. The accused is entitled to a properly instructed jury, not a perfectly instructed jury: R. v. Daley , 2007 SCC 53, [2007] 3 S.C.R., at para. 31. [15] The appellant contends that the trial judge made three errors in his charge to the jury: 1. The trial judge failed to provide a caution on eyewitness identification evidence; 2. The trial judge failed to provide a caution on voice identification evidence; and 3. The trial judge failed to provide a Villaroman caution on the circumstantial evidence in the case. [16] I will address each issue in turn. As I conclude the trial judge did make errors in the charge to the jury, I also consider the application of the curative proviso under s. 686(1)(b)(iii) of the Criminal Code , R.S.C. 1985, c. C-46. (1) The trial judge failed to caution the jury on eyewitness evidence [17] The identification of the appellant as the suspected drug dealer turned, in large part, on the eyewitness evidence of the undercover officer. He identified the appellant as the person who sold him drugs based both on his recollection and on the basis of video surveillance evidence of his meeting with the greeter, which the appellant conceded was him. The undercover officer also made an in-dock identification of the appellant during the trial. [18] In his charge, the trial judge stated that the jury had to be convinced beyond a reasonable doubt that the appellant was the person who sold the drugs to the undercover officer, but did not provide any specific caution with respect to the frailties of eyewitness identification evidence. [19] The jury would have been alerted to the importance of the eyewitness identification evidence as concerns over the reliability of this evidence featured prominently in the closing address of defence counsel, who identified a number of features he claimed cast doubt on the accuracy of the identification evidence. [20] Not only was the testimony of the undercover officer identifying the appellant the only direct identification presented by the Crown, it was clearly of significance to the jury. Indeed, after deliberations began, the jury asked for the portion of the undercover officer’s testimony and cross-examination regarding his identification of and interaction with the appellant during the first drug purchase to be replayed. This was the only question posed by the jury during deliberations. [21] Given the significance of this eyewitness identification evidence to the question of the appellant’s guilt and the attention paid by the appellant to difficulties he perceived in the manner in which the identification was made, in my view, more attention to this evidence was required in the trial judge’s charge. [22] Concerns over the reliability of eyewitness identification evidence have been recognized in a number of cases. As Epstein J.A. stated in R. v. Jack , 2013 ONCA 80, 302 O.A.C. 137: [ 13 ] The dangers inherent in eyewitness identification evidence and the risk of a miscarriage of justice through wrongful conviction have been the subject of much comment. Such evidence, being notoriously unreliable, calls for considerable caution by a trier of fact. [ 14 ] It is essential to recognize that it is generally the reliability, not the credibility, of the eyewitness' identification that must be established. The danger is an honest but inaccurate identification. [ 15 ] The jury must be instructed to take into account the frailties of eyewitness identification as they consider the evidence relating to the following areas of inquiry. Was the suspect known to the witness? What were the circumstances of the contact during the commission of the crime including whether the opportunity to see the suspect was lengthy or fleeting? Was the sighting by the witness in circumstances of stress? [Citations omitted.] [23] I am mindful that a caution on eyewitness evidence would require the trial judge to examine the evidence in his charge in greater detail and that this additional focus may not have benefitted the defence: R. v. Oswald , 2016 ONCA 147, at para. 5. For example, in this case, had the trial judge provided a caution on the eyewitness identification evidence, he may have drawn attention to the fact that the undercover officer’s opportunity to observe the person he testified was the appellant was not unexpected or fleeting, and that the officer’s identification of the appellant was bolstered by surrounding circumstantial evidence. [24] Even though much of what the trial judge would have said would have favoured the Crown case, this is not a case where it is appropriate to infer that defence counsel refrained from objecting to the absence of a charge relating to identification evidence because of concerns that a charge on the dangers of identification evidence would not serve the appellant’s interest. As indicated, defence counsel sought to defend this case based on percevied deficiencies in the identification. In those circumstances, it was important for the trial judge to give a direction relating to the dangers of eyewitness identification so that the jury could make its decision with the benefit of judicial experience about the challenges that eyewitness identification evidence can present. [25] While an eyewitness identification caution may not have benefitted the defence, it was an error by the trial judge not to provide such a caution in the circumstances of this case. (2) The trial judge failed to caution the jury on the voice identification evidence [26] Similar concerns apply to the trial judge’s failure to caution the jury on the voice identification evidence. [27] The undercover officer’s evidence linking the appellant as the person who provided instructions to him over the phone with the person who sold him the drugs relied on voice recognition. The undercover officer had not met the appellant prior to this interaction and testified that the voice he recognized had no distinguishing accent or other identifying features. [28] It is particularly important to caution juries about the frailties of voice identification evidence where there is no pre-existing relationship between the person speaking and the person purporting to identify their voice: see R. v. Brown , [2003] O.J. No. 4592 (C.A.) at para. 4; R. v. Portillo , [1999] O.J. No. 2435 (S.C.), at para. 36. [29] The Crown relies on R. v. Deol , 2017 ONCA 221, 352 C.C.C. (3d) 343, at paras. 10-12, where this court confirmed a voice identification caution will not always be required. However, Deol involved three witnesses who were already familiar with the accused and his voice. This case involves a single voice identification witness with no prior contact with the appellant. [30] While not as significant as the error in failing to provide a caution on the eyewitness identification evidence, in the circumstances of this case, a voice identification caution was warranted as well. (3) The trial judge failed to caution the jury on circumstantial evidence [31] The appellant argues that the trial judge also was obliged to provide a Villaroman caution in light of the Crown’s strong reliance on circumstantial evidence in the case. [32] The Crown placed significant reliance on circumstantial evidence in relation to the possession charge against the appellant, particularly the items recovered from the taxi and the apartment. The trial judge made clear the difference between direct and circumstantial evidence in his charge, and the fact that the circumstantial evidence had to be proven beyond a reasonable doubt. These instructions, while important, do not take the place of a Villaroman instruction where there is real risk that the jury may infer guilt based on circumstantial inferences. [33] The jury could not convict the appellant unless the only reasonable inference available on all of the evidence was that the drugs seized were his: see Villaroman , at paras. 30-42 . Other plausible theories or other reasonable possibilities must also be applied to the evidence or the absence of evidence: see Villaroman , at para. 37 ; R. v. Anderson , 2020 ONCA 780, at para. 24. For example, in this case, some of the circumstantial evidence, such as the backpack allegedly belonging to the appellant, was challenged by his mother’s testimony. [34] In my view, a Villaroman instruction was required in this case. Does the curative proviso apply in this case? [35] In light of my conclusion that the trial judge erred in failing to provide the cautions set out above, I must now consider whether the curative proviso in s. 686(1)(b)(iii) of the Criminal Code applies in this case. [36] The curative proviso applies in two circumstances: first, where there is an error so harmless or minor that it could not have had any impact on the verdict; and second, where there are serious errors that would otherwise justify a new trial or an acquittal, but where the evidence against the accused was so overwhelming that a conviction was inevitable. [37] The Crown has the burden of establishing that the curative proviso is applicable, and that the conviction should be upheld notwithstanding the legal error: R. v. Van , 2009 SCC 22 , [2009] 1 S.C.R. 716, at para. 34 . [38] The Crown argues that either branch of the curative proviso is applicable here, as the errors, if any, were minor, and as the evidence against the appellant was overwhelming. According to the Crown, the appellant was “enveloped in a web of circumstantial evidence that he could not escape”. [39] In my view, it cannot be said that the cumulative impact of the errors in the charge to the jury were harmless or minor. The trial judge’s failure to instruct the jury on eyewitness, voice, and circumstantial evidence impacted virtually all the Crown’s case against the appellant. Therefore, the question is whether the curative proviso applies because the evidence against the appellant was so overwhelming that his guilt was inevitable. [40] In R. v. Khan , 2001 SCC 86, [2001] 3 SCR 823, the Supreme Court elaborated on the situations where the curative proviso applies because the evidence is so overwhelming that a trier of fact would inevitably convict: 31. In addition to cases where only a minor error or an error with minor effects is committed, there is another class of situations in which s. 686(1)(b)(iii) may be applied. This was described in the case of R. v. S. (P.L.) , 1991 CanLII 103 (SCC), [1991] 1 S.C.R. 909, at p. 916, where, after stating the rule that an accused is entitled to a new trial or an acquittal if errors of law are made, Sopinka J. wrote: There is, however, an exception to this rule in a case in which the evidence is so overwhelming that a trier of fact would inevitably convict. In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction. Therefore, it is possible to apply the curative proviso even in cases where errors are not minor and cannot be said to have had only a minor effect on the trial, but only if it is clear that the evidence pointing to the guilt of the accused is so overwhelming that any other verdict but a conviction would be impossible. [Citations omitted.] [41] In this case, the evidence of guilt was indeed overwhelming. The appellant conceded that he was at the scene of the drug deal and served as the greeter, and extensive evidence pointed to his involvement in the drug deals. [42] Therefore, I find that the trial judge erred in failing to provide specific cautions in his charge to the jury as set out in these reasons, but that the curative proviso applies so that the conviction is upheld notwithstanding these errors. [43] Accordingly, the appeal is dismissed. Released: January 28, 2022 “David M. Paciocco J.A.” “L. Sossin J.A.” “I agree. David M. Paciocco J.A.” “I agree. I.V.B. Nordheimer J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Levant v. DeMelle, 2022 ONCA 79 DATE: 20220128 DOCKET: C69202 & C69203 Gillese, Trotter and Nordheimer JJ.A. BETWEEN Ezra Levant and Rebel News Network Ltd. Plaintiffs (Appellants/ Respondents by way of cross-appeal) and Brendan DeMelle and The Narwhal News Society Defendants ( Respondent/ Appellant by way of cross-appeal ) AND BETWEEN Rebel News Network Ltd. Plaintiff (Appellant/ Respondent by way of cross-appeal) and Al Jazeera Media Network Defendant (Respondent/ Appellant by way of cross-appeal) A. Irvin Schein and Tamara Markovic, for the appellants/respondents by way of cross-appeal M. Philip Tunley, for the respondents/appellants by way of cross-appeal Heard: November 16, 2021 On appeal from the order of Justice James F. Diamond of the Superior Court of Justice, dated February 16, 2021 and March 15, 2021, with reasons reported at 2021 ONSC 1074, and from the order of Justice James F. Diamond of the Superior Court of Justice, dated February 16, 2021 and March 15, 2021, with reasons reported at 2021 ONSC 1035. [1] Nordheimer J.A.: [1] There are two orders in two separate proceedings, the appeals from which were heard together. In each case, the appeal is taken from the order of the motion judge, made pursuant to s. 137.1 of the Courts of Justice Act , R.S.O. 1990, c. C.43, that dismissed an action involving a claim for defamation. Additionally, in each appeal, there is a motion for leave to cross-appeal from the motion judge’s award of costs. [2] Since the appeals were heard together, I will deal with both of them in these reasons. While I do not agree entirely with the analysis undertaken by the motion judge in either case, I agree with the results that he reached and thus would dismiss both appeals. I do not, however, agree with the motion judge’s costs awards in these cases. Consequently, I would grant leave to appeal the costs awards, and allow each of those cross-appeals. A. BACKGROUND [3] Ezra Levant is a journalist and broadcaster. In 2015, he founded Rebel News Network Ltd. According to Mr. Levant, in keeping with his own personal beliefs, Rebel News adopted a conservative and pro-Israel orientation. Mr. Levant also says that Rebel News could be considered to hold an anti-Islamist orientation, Islamism being the political manifestation of radical Islam. Rebel News believes that radical Islam promotes violence and erodes secular civil liberties. [4] Brendan DeMelle is a journalist, writer and researcher specializing in media, politics, climate change and clean energy. Since 2010, Mr. DeMelle has reported on climate misinformation campaigns as the executive director of DeSmog, an online news outlet focused on climate change and environmental concerns. [2] [5] Al Jazeera is a public utility private corporation in accordance with the laws of the State of Qatar. Al Jazeera was founded in 1996 and launched its English language branch in 2006. Its head office is in the city of Doha, Qatar. Al Jazeera broadcasts worldwide. (1) The Al Jazeera statements [6] Rebel News alleges that Al Jazeera published three separate defamatory statements in an internet article and YouTube video published by it on or about September 29, 2019. Both the article and YouTube video were co-produced by Ryan Kohls and Florence Phillips for a weekly program called “The Listening Post”. Mr. Kohls is a journalist who has worked as an interview producer for Al Jazeera since 2013. Ms. Phillips is a senior producer and reporter who has worked for Al Jazeera since 2009. [7] The article was entitled “The Right Perspective? YouTube, Radicalization and Rebel Media”. After describing Rebel News as “one of the internet’s most influential far-right publications”, the article contained the following statements: Perhaps even more damaging to The Rebel’s reputation has been its connection to violent acts; acts like the Finsbury Park Mosque attack in London, the Quebec City mosque shooting, and in Fredericton, New Brunswick, the murder of two police officers. In all three instances, the men involved watched The Rebel Media and had become convinced Muslims were invading their countries. [8] After receiving Notices of Libel from Rebel News, in mid-November 2019, Al Jazeera published the following addendum: Correction, November 15, 2019: Since this report was first published, we have updated it to correct the following facts: ... In the web article it was stated that the perpetrators of three violent attacks had all watched Rebel News. For strict factual accuracy, we have clarified that they watched Rebel News or the work of their regular contributors. [9] Within the YouTube video, the following statement was made at the 22 second mark: The content, typically disguised as cutting-edge journalism, can have real-life ramifications; viral material that is capable of not just radicalizing the views of those that watch it, but driving some of them to acts of violence. Among the best-known practitioners of the art: The Rebel Media. [10] At approximately the eight minute mark of the same video, the following statement was made: The Ottawa Police have filed a criminal complaint alleging that Rebel Media had breached a section of the Canadian Criminal Code by wilfully promoting hatred of the Muslim community. [11] Once again, after Al Jazeera received Rebel News’ Notice of Libel, it published this addendum in mid-November 2019: Correction, November 15, 2019: Since this report was first published, we have updated it to correct the following facts: In the video report we stated that the Ottawa Police had filed a criminal complaint against Rebel. In fact, a complaint had been received by the Ottawa Police. [12] The program generated slightly fewer than 40,000 views on the internet. (2) The DeMelle statements [13] Mr. DeMelle wrote and published an article on or about October 19, 2019. The article was entitled “Right Wing Attacks on Greta Thunberg: How Low Can They Go? Canada’s Extremist Network ‘The Rebel’ Tries for the Prize”. [14] In the article, Mr. DeMelle referred to Mr. Levant and Rebel News as follows: The Rebel was founded by disgraced neo-Nazi sympathizer Ezra Levant, a climate denier who once interned at the Charles Koch Foundation. Levant and The Rebel Media earned some notoriety for their laudatory coverage of the deadly 2017 Unite the Right rally in Charlottesville. [15] In the article, the words “laudatory coverage of the deadly 2017 Unite the Right rally in Charlottesville” are hyperlinked to an article written by Dan Lett, on August 19, 2017, entitled “Rebel Media’s meltdown and the politics of hate” and published on the website of the Winnipeg Free Press. [16] After receiving a Notice of Libel from the appellants, in early November 2019, Mr. DeMelle made the following revisions to the article: (a) He removed the words “disgraced neo-Nazi sympathizer”; and, (b) He removed the words “Levant and” in reference to the coverage of the Charlottesville rally, and amended the description of that coverage by indicating that it had been provided with respect to “participants” in the rally rather than the rally itself. [17] The article generated slightly fewer than 16,000 views on the internet. B. THE DECISIONS BELOW [18] Rebel News commenced a proceeding against Al Jazeera seeking damages for defamation. Mr. Levant and Rebel News also commenced a simplified procedure action against Mr. DeMelle and The Narwhal News Society for defamation. Al Jazeera and Mr. DeMelle each brought a motion pursuant to s. 137.1(3) of the Courts of Justice Act for orders dismissing the plaintiffs’ actions. (1) The Al Jazeera motion [19] The motion judge began by setting out the contents of s. 137.1. He then properly set out the shifting burden on a s. 137.1 motion. He said that the initial burden is on the defendant to satisfy the court that the proceeding arises out of an expression made by the defendant and that the expression relates to a matter of public interest. If the defendant meets its onus, then the onus shifts to the plaintiff to show that there are grounds to believe that the proceeding has substantial merit; that there are grounds to believe that there are no valid defences; and that the harm suffered by the plaintiff as a result of the defendant’s expression is sufficiently serious that the public interest in permitting the plaintiff’s action to proceed outweighs the public interest in protecting the defendant’s expression. [20] The motion judge found that Al Jazeera met its initial onus. There was no doubt that the expression was made by Al Jazeera. Further, Rebel News conceded that the expression related to a matter of public interest. [21] The burden then shifted to Rebel News. In considering whether the proceeding had substantial merit, the motion judge reviewed the evidence filed and the constituent elements of a claim for defamation. Al Jazeera contended that the article and YouTube video would not have lowered the reputation of Rebel News because Rebel News already had a reputation of publishing hateful commentary “disguised as cutting-edge journalism”. Consequently, according to Al Jazeera, the reputation of Rebel News was already so low that it could not be further lowered by the contents of the article and YouTube video. [22] The motion judge rejected Al Jazeera’s argument. He found that considering Rebel News’ existing reputation would involve too close an examination of the merits of the action at an early stage of the proceedings. He concluded that the statements in the article and YouTube video were “quite capable of being defamatory”, and as such he held that there were grounds to believe that the action had substantial merit. [23] The motion judge then considered the defences raised and whether Rebel News had shown that none of them were valid. Three defences were considered: (i) fair comment; (ii) justification; and (iii) responsible journalism. The motion judge concluded that the first two defences were not valid. However, he held that the third defence might succeed. Therefore, the motion judge concluded that Rebel News had failed to show that there was no valid defence and, consequently, its action had to be dismissed. [24] Notwithstanding his conclusion on that issue, the motion judge went on to consider the final step of the analysis, that is, which of the two public interests outweighed the other. He concluded that the weighing favoured the public interest in protecting Al Jazeera’s expression and public debate. In doing so, the motion judge noted that Rebel News had not led any evidence that it had suffered specific harm as a result of the article and YouTube video. (2) The DeMelle motion [25] The motion judge generally followed the same format in his decision on this motion. Again, there was no dispute that the expressions were those of Mr. DeMelle. On whether the expressions related to a matter of public interest, the motion judge concluded “with some reluctance” that they did. Consequently, Mr. DeMelle had met his onus and the burden shifted to Mr. Levant and Rebel News. [26] On the issue of whether the action had substantial merit, the question again arose as to whether the reputations of Mr. Levant and Rebel News could be lowered as a result of the expressions – an argument that generally tracked the argument advanced by Al Jazeera on its motion. Once again, the motion judge rejected that argument largely for the same reasons he had when dealing with it in the Al Jazeera motion. The motion judge concluded that the presence of grounds to believe that the defamation action had substantial merit “cannot be questioned”. [27] Going on to the defences raised, the same three defences were in play: (i) justification; (ii) fair comment; and (iii) responsible journalism. In this case, though, the motion judge concluded that none of the defences were valid. In finding that the defence of fair comment was not valid, the motion judge found that referring to Mr. Levant as a neo-Nazi sympathizer “traverses too far into the realm of fact, or at least imputation of fact,” and thus could not constitute comment. Consequently, the defence of fair comment was not available. In finding that the defence of responsible journalism was not valid, the motion judge found that Mr. DeMelle had not shown that he was reasonably diligent in verifying the accuracy of the impugned expressions. [28] The motion judge then proceeded to the final issue, the weighing of the competing public interests. On this issue, the motion judge noted that Mr. Levant and Rebel News had not led any evidence of specific harm or damage to their reputations as a result of the expressions. He therefore found that Mr. Levant and Rebel News had not shown the necessary harm that would outweigh the public interest in permitting public expression. Consequently, he dismissed the action. (3) The costs awards [29] The motion judge addressed the costs of each motion in brief written endorsements. He noted that s. 137.1(7) of the Courts of Justice Act provides that, if the motion is granted and the proceeding is dismissed, the moving party is entitled to its costs of the motion and the proceeding on a full indemnity basis, unless the judge determines that “such an award is not appropriate in the circumstances”. On both motions, the motion judge found that an award of costs on a full indemnity basis was not appropriate. Instead, he awarded each successful moving party its costs on a partial indemnity scale. C. ANALYSIS (1) The Al Jazeera motion [30] Rebel News asserts two main errors by the motion judge. One has to do with the defence of responsible journalism. The other has to do with the motion judge’s balancing of the public interests at stake. [31] Before turning to these issues, I should address the argument over the proper standard of review. Rebel News contends that the standard of review is correctness because it says that the motion judge misconstrued the law on defamation and its defences. I do not agree. While Rebel News dresses up its complaint as the motion judge having misconstrued the law, what Rebel News is actually complaining about is the application of the law by the motion judge to the facts of this case. That application is not subject to a standard of review of correctness. Rather, the motion judge’s decision is entitled to deference, absent a reviewable error: Bent v. Platnick , 2020 SCC 23, 449 D.L.R. (4th) 45, at para. 77. a) The defence of responsible journalism [32] Rebel News contends that the motion judge erred in finding that the defence of responsible journalism might succeed because, according to Rebel News, Al Jazeera did not act responsibly in respect to the article and YouTube video. [33] I do not find a reviewable error in the motion judge’s analysis of the defence of responsible journalism. [34] First, Rebel News submits that the motion judge erred by not considering that Mr. Kohls, one of the authors of the expressions, had not spoken to certain individuals who might have provided contrary viewpoints to those that he had received, and thus the article could have been more “balanced”. [35] I do not see anything in the requirements of the defence of responsible journalism that places a burden on a journalist to interview every individual who might conceivably have something to offer on the subject being written on. Certainly, no such burden is to be found in the seminal decision on this defence, Grant v. Torstar Corp. , 2009 SCC 61, [2009] 3 S.C.R. 640. Indeed, placing such a burden on journalists would seem to be inconsistent with the point that McLachlin C.J. makes in Grant , at para. 113: The legal requirement to verify accuracy should not unduly hamstring the timely reporting of important news. [36] The motion judge reviewed the steps that Mr. Kohls had taken to verify the accuracy of the article and video. Of importance to this issue is the salient fact that efforts had been made to interview Mr. Levant. However, as found by the motion judge, at para. 66: Given the opportunity to provide Rebel’s side of the story, neither Levant nor Rebel provided any relevant comments, responses or facts. [37] It is also relevant to this issue that, on a s. 137.1 motion, the motion judge is not finally determining whether a defence will succeed. Consequently, the motion judge is not to conduct the equivalent of a summary judgment motion. Rather, the motion judge only considers whether there are grounds to believe that there is no valid defence. As Côté J. explained in 1704604 Ontario Ltd. v. Pointes Protection Association , 2020 SCC 22, 449 D.L.R. (4th) 1, at para. 37: To be sure, s. 137.1(4)(a) is not a determinative adjudication of the merits of the underlying claim or a conclusive determination of the existence of a defence. [38] Rebel News has not shown any palpable and overriding error in the motion judge’s determination of the adequacy of the steps taken by Mr. Kohls in verifying the accuracy of the contents of the article and YouTube video, given the limited analysis that the motion judge was required to undertake. His conclusion on this issue is entitled to deference. [39] Rebel News’ second attack on the motion judge’s conclusion is its contention that Mr. Kohls acted out of malice, and that fact precludes Al Jazeera’s reliance on the defence. The motion judge did not directly address the contention that Mr. Kohls was actuated by malice. However, his conclusion that the defence of responsible journalism could succeed carries with it the implicit rejection of any allegation of malice, since the defence of responsible journalism is not available if malice is present. As McLachlin C.J. explained in Grant , at para. 92: Furthermore, it makes little sense to speak of an assertion of responsible journalism being defeated by proof of malice, because the absence of malice is effectively built into the definition of responsible journalism itself. [40] Rebel News’ third and final challenge to the motion judge’s conclusion regarding the defence of responsible journalism is its contention that the motion judge erred in finding that Rebel News was provided with a proper opportunity to respond to the article and YouTube video before they were published. It submits that there was no evidentiary foundation for the motion judge’s conclusion to the contrary at para. 66 of his reasons, to which I referred above. [41] There is no question that, in the context of a defence of responsible journalism, the opportunity for the target of the expression to respond is important. McLachlin C.J. makes this point in Grant , at para. 116: In most cases, it is inherently unfair to publish defamatory allegations of fact without giving the target an opportunity to respond. [Citation omitted.] [42] Rebel News asserts that Mr. Levant “was given no meaningful opportunity to reply, because none of the defamatory statements was ever put to Levant for comment.” The record does not bear out that assertion. While the specifics of the article and video were not provided to Mr. Levant, Ms. Phillips did tell him that Al Jazeera was working on a “ten minute feature film that will in large part focus on The Rebel Media – your history, the outlet’s origins, the varied presenters you offer a platform to, and some of the content that you produce”. Ms. Phillips also told Mr. Levant of one specific comment that was included in the video, and requested his response to it: The Rebel media is an alt-right media company that creates content on a range of issues. I would say anti‑Muslim, anti-immigrant, anti-refugee, anti-climate, anti-liberal, anti a lot of things… And unlike a real news organization they don’t look for balance. They don’t look to try to actually find out what’s really going on. But they simply try to create narratives and anger that really get people riled up [43] Mr. Levant refused to provide any response to Ms. Phillips. He said that he would respond to allegations of fact but not to opinions. Ms. Phillips then sent him a more specific quote but was met with the same response. [44] The record demonstrates that Mr. Levant was given the opportunity to respond, on behalf of Rebel News, to the thrust of the article and YouTube video. He declined to do so. There is nothing in the decision in Grant , to my reading, that requires that the actual words of the proposed defamatory allegations must be put to the subject of the allegations. What Al Jazeera was required to do was give Rebel News “an opportunity to respond”. In making that a meaningful opportunity, Al Jazeera was required to give Rebel News the essence, or “gist”, of the proposed publication, sufficient to allow Rebel News to understand what was going to be said about it, and thus provide the necessary context for its response. That is what Al Jazeera did. [45] On this point, I return to the nature of the exercise being carried out by the motion judge. It is to determine whether there are grounds to believe that a defence is not valid. It is not a “conclusive determination” of that issue: Pointes , at para. 37. Whether the opportunity to respond was sufficient is ultimately a matter for trial. [46] All that the motion judge was required to do was to review the record and determine whether Rebel News had established that the defence of responsible journalism was not a valid defence. In reaching a conclusion on that question, the motion judge was not required to delve deeply into the evidence, or to make findings of credibility, or to otherwise resolve disputed questions of fact: Pointes , at para. 52. The role of the motion judge is much more limited, which coincides with the limited record that will exist, given the early stage of a proceeding when these motions are supposed to be addressed. Once again, the motion judge’s conclusion, that the defence of responsible journalism was available to Al Jazeera on the record, is entitled to deference. b) The weighing of public interests [47] The second error alleged by Rebel News is the motion judge’s weighing of interests under s. 137.1(4)(b). This weighing was described by Côté J. in Pointes , at para. 61, as “the crux of the analysis”. The subsection reads: No judge shall dismiss a proceeding under subsection (3) if the responding party satisfies the judge that, (b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. [48] In considering this issue, I am mindful of the fact that the motion judge was not required to proceed to consider this issue in light of his conclusion about the presence of a potentially valid defence. Nonetheless, he chose to address the question in the interests of completeness. His relatively brief analysis should be considered in that context. [49] Rebel News says that the motion judge erred in requiring it to lead evidence of specific harm or damage when such evidence is not required. In my view, this submission ignores the salient fact that Rebel News is a corporation. It is not an individual. That is a significant distinction in the law of defamation. For example, it directly affects the level of damages that can be awarded. As Blair J.A. noted in Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.), at para. 49, quoting from Peter F. Carter-Ruck and Harvey Starte, Carter-Ruck on Libel and Slander , 5th ed. (London: Butterworths, 1997): Limited companies, and other corporations, may also be awarded general damages for libel or slander, without adducing evidence of specific loss. However, it is submitted that in practice, in the absence of proof of special damage, or at least of a general loss of business, a limited company is unlikely to be entitled to a really substantial award of damages. [50] Rebel News did not lead evidence of any specific harm it suffered as a consequence of the impugned expression. It was required to do at least that. As Côté J. said in Pointes , at para. 71: [T]he plaintiff need not prove harm or causation, but must simply provide evidence for the motion judge to draw an inference of likelihood in respect of the existence of the harm and the relevant causal link. [51] One of the failings in the submissions of Rebel News on this question is its reliance on cases such as Montour v. Beacon Publishing Inc. , 2019 ONCA 246, leave to appeal to S.C.C. refused, 38657 (October 10, 2019); Levant v. Day , 2019 ONCA 244, 145 O.R. (3d) 442, leave to appeal refused, [2019] S.C.C.A. No. 194; and Lascaris v. B’nai Brith Canada , 2019 ONCA 163, 144 O.R. (3d) 211, leave to appeal refused, [2019] S.C.C.A. No. 147. Those cases were all decided prior to the decision in Pointes and the various refinements that that decision brought to the required analysis under s. 137.1. Further, all of those cases involved individual plaintiffs, where the harm to their reputations could be presumed, especially where their reputations were otherwise seemingly unblemished. [52] In this case, any presumption of harm must be limited, not only because Rebel News is a corporation, but also because there was evidence before the motion judge that the reputation of Rebel News, however one might characterize it, cannot be said to be unblemished. On this point, I do find fault with the motion judge’s analysis of harm insofar as he said that he was making “no specific finding” about the state of Rebel News’ reputation. I do not understand how the motion judge could maintain that position, while at the same time purporting to weigh the harm to the reputation of Rebel News against the public interest in protecting the expression. It seems to me that a consideration of the state of Rebel News’ reputation was a necessary step to be taken in order to conduct a proper weighing. [53] For the purposes of that weighing, however, it is sufficient to recognize the state of Rebel News’ reputation as it appears from the record (not unblemished, as I put it earlier). Given that fact, it was incumbent on Rebel News to lead evidence, either of business lost because of the impugned expressions, or at least evidence that its reputation had been harmed in some respect by them. This requirement is evidenced in Pointes , at para. 72, where Côté J. said: [E]vidence of a causal link between the expression and the harm will be especially important where there may be sources other than the defendant’s expression that may have caused the plaintiff harm. [Citation omitted.] [54] Rebel News failed to lead specific evidence of harm. Given the absence of such evidence, I agree with the conclusion that the motion judge reached that weighing the two public interests favoured protecting the expression of Al Jazeera. Any harm to Rebel News appears slight whereas the harm that arises from interfering with publications by the media on matters of public interest is significant. (2) The DeMelle motion [55] Mr. Levant and Rebel News assert two main errors by the motion judge. One is that the motion judge erred in concluding that Mr. DeMelle’s expressions relate to a matter of public interest. As in the Al Jazeera motion, the second has to do with the motion judge’s balancing of the public interests at stake. [56] The appellants, understandably, do not take issue with the motion judge’s conclusion that there are grounds to believe that none of the defences asserted by the respondent were valid. The respondent does contest those findings, however, in responding to the appellants’ challenge to the ultimate decision reached by the motion judge. a) Statements relating to a matter of public interest [57] The appellants take issue with the motion judge’s conclusion that the impugned expressions were on a matter of public interest – a conclusion that he reached “with some reluctance”. In making their submissions, the appellants focus on the accusation that Mr. Levant is “a neo-Nazi sympathizer”. They say that the accusation is nothing more than a gratuitous insult and cannot be characterized as having anything to do with any matters of public interest. [58] The flaw in the appellants’ argument on this point is that they isolate the “neo-Nazi sympathizer” statement from the rest of the article. That is not the proper approach to determining whether the expression in issue relates to a matter of public interest. Rather, it is the entire expression that must be considered. In other words, in this case, it is the article as a whole that must be considered in determining whether the expression is on a matter of public interest. [59] That this is the proper approach is clear from the decision in Grant , which is referred to at some length on this subject in Pointes . In Grant , McLachlin C.J. said, at para. 101: In determining whether a publication is on a matter of public interest, the judge must consider the subject matter of the publication as a whole. The defamatory statement should not be scrutinized in isolation. [60] It would appear that the motion judge took the same erroneous approach to the issue of public interest. If he did not, it is difficult to understand how he would have concluded “with some reluctance” that the expression related to a matter of public interest. The article, taken as a whole, clearly related to a matter of public interest. Indeed, it is difficult to identify an issue that is more in the public interest currently than the issue of climate change and its related topics, including the actions of climate change deniers. The alleged actions of climate change deniers in terms of trying to silence, or intimidate, or otherwise harass a person, who is as outspoken on the subject of climate change as Greta Thunberg, would naturally draw the public’s interest. I see no reason for “reluctance” in concluding that the expression related to a matter of public interest. b) The defence of fair comment [61] The question then becomes whether there are grounds to believe that the respondent has no valid defence to the appellants’ claim. [62] I do not consider it necessary to review each of the three defences that the motion judge found were not valid. His conclusions regarding the defence of justification and the defence of responsible journalism were open to him on the record and are entitled to deference. However, his analysis of fair comment is flawed, even though his conclusion that there are grounds to believe that Mr. DeMelle’s fair comment defence is not valid is correct. [63] The motion judge erred in concluding that “calling Levant a neo-Nazi sympathizer traverses too far into the realm of fact, or at least imputation of fact,” to permit a defence of fair comment. In so concluding, the motion judge committed the same error that was identified by the Supreme Court of Canada in WIC Radio Ltd. v. Simpson , 2008 SCC 40, [2008] 2 S.C.R. 420. In discussing the difference between comment and fact in that case, Binnie J., at para. 26, quoted with approval from the decision in Ross v. New Brunswick Teachers’ Assn. , 2001 NBCA 62, 201 D.L.R. (4th) 75, at para. 56, where the New Brunswick Court of Appeal said that “comment" includes a “deduction, inference, conclusion, criticism, judgment, remark or observation which is generally incapable of proof”. Binnie J. also cited Raymond E. Brown, The Law of Defamation in Canada (Scarborough: Carswell, 1994) (loose-leaf updated 2007, release 4), for the proposition that words that may appear to be statements of fact may, in pith and substance, be properly construed as comment. Of significance to this case, Binnie J. noted that: This is particularly so in an editorial context where loose, figurative or hyperbolic language is used in the context of political debate, commentary, media campaigns and public discourse. [Citation omitted.] [64] In the context in which it appears in the article, the statement that Mr. Levant is a neo-Nazi sympathizer is clearly a matter of comment. It therefore opens the door to the defence of fair comment. The elements of that defence are well‑established. They were set out recently in Blair v. Ford , 2021 ONCA 841, at para. 45: There are five elements to the defence of fair comment: (i)      the comment must be on a matter of public interest; (ii)      the comment must be based on fact; (iii)     the comment, although it can include inferences of fact, must be recognizable as comment; (iv)     the comment must be one that any person could honestly make on the proved facts; and (v)     the comment was not actuated by express malice. [65] Where Mr. DeMelle’s reliance on this defence falters is on the fourth element. Based on the record before us, no person could honestly express that opinion on the proved facts. Undoubtedly, that is the reason why, immediately upon the Notice of Libel being delivered, Mr. DeMelle removed that comment from the article. The removal of the comment is not a defence to the claim for defamation, however. Rather, it is relevant to the issue of any damage that may have been caused by it: Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (Toronto: Carswell, 1994) (loose-leaf updated 2020, release 5), ch. 25 at 124-25. c) The weighing of public interests [66] The motion judge concluded that the weighing exercise required by s. 137.1(4)(b) favoured the respondent because, as was the case in the Al Jazeera action, the appellants had not led any evidence of “particular or specific economic harm or damage to their reputation”. Largely for the same reasons that I have set out above in considering the weighing exercise in the Al Jazeera motion, I agree with the motion judge’s conclusion, but not with his analysis. [67] I begin by acknowledging that the harm analysis is different in this case given the personal presence of Mr. Levant as a plaintiff. The motion judge did not address that distinguishing factor. Some level of damage to Mr. Levant’s reputation can be presumed from the defamatory statement. However, that is not sufficient for the purposes of s. 137.1(4)(b). [68] The presumption of damages in a defamation action involving an individual only goes so far. While it may be sufficient to establish the existence of damages, it is not sufficient to establish the level of those damages. This point is addressed in the decision of the Court of Appeal (England and Wales) in Lachaux v. Independent Print Ltd. , [2017] EWCA Civ. 1334, [2018] 2 W.L.R. 387, where that court was dealing with a statutory provision intended to limit actions for defamation and create a higher threshold for making out a defamation claim – a not dissimilar exercise as s. 137.1 engages. On the issue of the presumption of damages in a defamation case, the court said, at para. 72: [T]here is no presumption, at law, of serious damage in a libel case. Accordingly that, under s. 1(1), has to be proved. The point nevertheless remains that serious reputational harm is capable of being proved by a process of inference from the seriousness of the defamatory meaning. [Emphasis in original.] [69] I accept that the “neo-Nazi sympathizer” comment is a serious one. I would not, however, draw an inference that it resulted in serious reputational harm to Mr. Levant on the record in this case. First, the statement was fairly quickly removed from the article in question. Second, the article itself drew limited attention, given the evidence that it generated slightly fewer than 16,000 views on the internet. Third, is the evidence regarding the state of Mr. Levant’s reputation as reflected in the affidavits filed on behalf of the respondent. Balanced against all of that is the sole statement of Mr. Levant in his affidavit: I believe that the dissemination of these defamatory statements has damaged my reputation in this regard, and accordingly, Rebel News and I should be entitled to compensation. That statement is not only self-serving, it is completely devoid of any foundation for the belief. [70] Finally, on this point, when a person injects themselves into public debate over a contentious topic, they must expect that they are going to be met with some measure of rebuttal, perhaps forceful rebuttal, by those who take an opposite view. The case of WIC Radio is an example of that reality. The evidence demonstrates that the appellants quite readily inject themselves into the public debate on many of these types of issues. Indeed, there is evidence that they consider that to be part of the rationale for their existence. The appellants should not be surprised when they are then met with a response – even a very forceful response. While such responses do not justify crossing the line into defamatory speech, they are a factor to consider in assessing the level of damages that the defamatory aspect of the response may create. As Binnie J. said in WIC Radio , at para. 4: We live in a free country where people have as much right to express outrageous and ridiculous opinions as moderate ones. [71] As I concluded with respect to the Al Jazeera motion, the appellants have failed to lead evidence of any specific harm or any level of serious harm. Balanced against whatever harm may be presumed, is the public interest in protecting freedom of expression and in having robust debates on matters of public importance. I agree with the motion judge that the appellants failed to establish, in the words of s. 137.1(4)(b), that “the harm likely to be or have been suffered by the [appellants] as a result of [the respondent’s] expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression”. (3) The costs awards [72] In both proceedings, the motion judge awarded costs to the respondents on a partial indemnity scale. The respondents seek leave to appeal from those costs awards, arguing that the motion judge erred in departing from the presumptive scale of costs provided for in s. 137.1(7), which reads: If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. [73] In the DeMelle motion, the motion judge said that he considered a full indemnity award of costs not to be appropriate “in the circumstances of this case”. It is not clear what circumstances the motion judge was referring to. Slightly more clarity may be found in the motion judge’s decision on costs in the Al Jazeera motion, where he said that “[b]alancing those findings”, an award of full indemnity costs was not appropriate. The findings to which he was referring were the responsible journalism defence and the public interest in allowing Al Jazeera’s expression, on the one hand, and that Rebel News’ action had substantial merit and the two other defences advanced were not valid, on the other hand. [74] I would grant leave to appeal in these cases because I conclude that there are “strong grounds upon which the appellate court could find that the judge erred in exercising his discretion”: Brad-Jay Investments Ltd. v. Szijjarto (2006), 218 O.A.C. 315, at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92. I reach that conclusion principally because of the lack of reasons provided by the motion judge for his costs awards. [75] When an action is dismissed under s. 137.1, the statutory presumption is that the successful moving party will be awarded costs on a full indemnity basis, unless the judge determines that such an award is not “appropriate”. The statute does not provide any factors to be considered in deciding when the presumptive award will not be appropriate. [76] That said, it is apparent from the wording of s. 137.1(7) that an award of full indemnity costs is not intended to apply to every case where the action is dismissed. The subsection clearly leaves the motion judge with the discretion to decide whether an award of full indemnity costs is not “appropriate” in a particular case. The issue then becomes what features will distinguish a case where an award of full indemnity costs is not appropriate as opposed to one where it is. [77] In my view, merely concluding that there are countervailing determinations on the factors that are required to be considered under s. 137.1 is an insufficient basis to make a finding that it is not appropriate to award full indemnity costs. If that was all that was required, most cases would not draw a full indemnity costs award since, as the existing case law under s. 137.1 amply demonstrates, there are countervailing determinations in many cases. To adopt that as the distinguishing feature would result in the presumptive costs award not being presumptive at all. [78] The genesis for a presumptive award of full indemnity costs can be found in the Anti-SLAPP Advisory Panel, Report to the Attorney General (Ontario: Ministry of the Attorney General, 2010) (the “Report”). In Pointes , Côté J. observed that the Report is a “persuasive authority for the purposes of statutory interpretation” as it “was the clear impetus for the legislation, and was relied upon heavily by the legislature in drafting s. 137.1”: at para. 14. In the Report, the authors said, at para. 44: It is important that the special procedure provide for full indemnification of the successful defendant’s costs to reduce the adverse impact on constitutional values of unmeritorious litigation, and to deter the commencement of such actions. [79] That statement reveals two factors driving the reason for a presumptive award of full indemnity costs: (i) to reduce the adverse impact on constitutional values of unmeritorious litigation; and (ii) to deter the commencement of “such actions”. The reference to “such actions”, I conclude, is a reference to actions that were launched with the intention to “unduly limit expressions on matters of public interest” as set out in s. 137.1(1)(c). In other words, what is typically referred to as a strategic lawsuit against public participation (“SLAPP”). [80] On this latter point, I appreciate that the decision in Pointes narrowed the relevance of the indicia of a SLAPP lawsuit as they relate to the determination of a motion under s. 137.1: at paras. 78-79. However, that narrowing related to the merits of the motion, and not to the issue of costs and the appropriateness exception. [81] In attempting to give some guidance to the appropriateness exception, I start with the recognition that this is a matter that involves the exercise of the motion judge’s discretion. There will be many different factors that may impact on the exercise of that discretion depending on the circumstances of the individual case. Given the rarity of full indemnity awards, the presence or absence of factors that might drive an award of costs on a higher scale in regular civil litigation may be relevant to the exercise of the appropriateness discretion in these special cases. For example, claims borne of ulterior motives, which a SLAPP lawsuit represents, is an example of one such factor. [82] Turning to the cases at hand, there is evidence that these actions were commenced in an effort to quell the public expressions made. They bear the indicia of a SLAPP lawsuit. Those indicia were set out by Doherty J.A. in Platnick v. Bent , 2018 ONCA 687, 426 D.L.R. (4th) 60, at para. 99, aff’d 2020 SCC 23: · a history of the plaintiff using litigation or the threat of litigation to silence critics; · a financial or power imbalance that strongly favours the plaintiff; · a punitive or retributory purpose animating the plaintiff's bringing of the claim; and · minimal or nominal damages suffered by the plaintiff. [83] Three of those four factors are present in these cases, the sole exception being a financial or power balance that strongly favours the appellants. There is a history of the appellants using litigation to silence critics. Indeed, Mr. Levant has publicly proclaimed that commencing such lawsuits is part of a deliberate campaign, which he calls his “stop de-platforming strategy”. Other aspects of his public statements also make it clear that there is a retributory purpose to bringing these claims. These lawsuits are clearly designed to make critics think twice about expressing their criticisms of the appellants for fear of being sued. Further, for the reasons that I have already set out above in considering the issue of harm, there is good reason to conclude that any damages suffered by the appellants arising from the defamatory expressions are minimal. [84] These actions thus bear three of the four hallmarks of a SLAPP lawsuit. It is such lawsuits that s. 137.1 was designed to prevent, or at least quash at the earliest opportunity. As I have already set out, it is the deterrence of such lawsuits that led to the Report’s proposal for full indemnity costs. The purpose behind the presumptive costs award clearly applies to these cases. [85] In considering this issue, I am mindful of the fact that costs awards are ones which normally attract a high degree of deference from appellate courts given the nature and subjectivity of costs awards. However, in this case, that high degree of deference is displaced by the paucity of reasons offered by the motion judge for his awards, especially where the motion judge was departing from a statutory presumption. In that situation, there is an obligation to provide sufficient reasons for the departure. In the absence of sufficient reasons, the costs awards are not entitled to deference. [86] A further comment on the issue of the costs awards is warranted. The respondents argue that the motion judge erred not only in his determination of the merits of the actions but also in considering that determination as a factor when deciding costs. I do not agree that the motion judge erred in that regard. I have essentially addressed the respondents’ challenges to the motion judge’s conclusion on the apparent merits of the actions above. It is unnecessary to address those issues again in the context of costs. [87] Before leaving the costs awards, I must address one other issue. In the costs sought by Al Jazeera there was included time charged by a solicitor in the United Kingdom. The justification for this inclusion, that is offered by Al Jazeera, is that it is an international media organization that was served ex juris in the United Kingdom with this proceeding. Al Jazeera says that, in those circumstances, Rebel News “must have reasonably anticipated” that it would incur such costs and thus they should be recoverable. Al Jazeera does not provide any authority for this proposition. [88] On this point, the motion judge simply said that the “solicitor was not retained as an expert, and those fees are not recoverable as disbursements”. However, Al Jazeera was not seeking to recover these expenses as a disbursement but, rather, was seeking to recover them as part of the fees portion of their costs award. [89] Nevertheless, I agree with the motion judge that the fees of the United Kingdom solicitor are not recoverable. Costs recoverable in Ontario are determined in accordance with s. 131 of the Courts of Justice Act and r. 57.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194. Rule 57.01(3) stipulates that when costs are awarded, they shall be fixed “in accordance with subrule (1) and the Tariffs”. Tariff A, which deals with the fees and disbursements that are allowable, expressly stipulates that the fees that are recoverable are, first and foremost, “lawyers’ fees”. The term “lawyer” is defined in r. 1.03 as “a person authorized under the Law Society Act to practise law in Ontario”. [90] The end result is that fees recoverable as part of a costs award relate only to lawyers who are authorized to practice in Ontario. Absent evidence that the United Kingdom solicitor was authorized to practice law in Ontario, the time spent by that solicitor is not recoverable as part of the fees portion of the costs awarded. I repeat that this is not a case where a foreign lawyer was retained to provide expert evidence. In that situation, the expense of the foreign lawyer may be recoverable like the expense of any other expert witness. However, that expense would be recoverable as a disbursement and not as part of the fees portion of the costs award. I should add that this result is not affected by the fact that this is a full indemnity costs award. Regardless of the scale of costs awarded, the proper component parts of a costs award do not change. [91] Consequently, in fixing the amount of the full indemnity costs award in the Al Jazeera action, I have removed the amount relating to the United Kingdom solicitor. D. CONCLUSION [92] I would dismiss both appeals. I would allow both cross-appeals, set aside the costs awards below, and award full indemnity costs to the respondent, Mr. DeMelle, in the amount of $65,403.99, inclusive of disbursements and HST, and to the respondent, Al Jazeera, in the amount of $151,741.51, inclusive of disbursements and HST. The respondents are also entitled to their costs of the appeals. Having considered the bills of costs filed, I would fix the costs to Mr. DeMelle in the amount of $15,000, inclusive of disbursements and HST. I would fix the costs to Al Jazeera in the amount of $20,000, inclusive of disbursements and HST. Released: January 28, 2022 “E.E.G.” “I.V.B. Nordheimer J.A.” “I agree. E.E. Gillese J.A.” “I agree. Gary Trotter J.A.” [1] The orders in issue improperly bear two dates. One date relates to the disposition on the merits and the other to the disposition on costs. There ought to have been separate orders signed, each bearing the date of the disposition to which the order related. [2] The Narwhal News Society is a British Columbia not-for-profit entity operating an online news and commentary service. From the record, it does not appear that it participated in any of these 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. A.R., 2022 ONCA 80 DATE: 20220127 DOCKET: C65961 Gillese, Rouleau and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and A.R. Appellant Neha Chugh, for the appellant Katie Doherty, for the respondent Heard: January 26, 2022 by video conference On appeal from the sentence imposed on December 1, 2017 by Justice Rommel G. Masse of the Ontario Court of Justice. REASONS FOR DECISION [1] Over the course of seven years, the appellant inflicted a campaign of terror on five of the appellant’s six children, involving repeated acts of physical, sexual, and psychological abuse. After trial, the appellant was convicted of 30 offences and sentenced to 20 years in prison. [2] The appellant’s appeal from conviction was dismissed: see R v. A.R. , 2022 ONCA 33. The appellant now appeals against sentence. The appellant submits that the sentence is excessive and that the sentencing judge incorrectly applied the totality principle. [3] We accept neither submission. There is no basis for appellate interference with the sentence. [4] Far from being manifestly unfit, the sentence is proportionate and fit given the moral blameworthiness of the appellant’s extremely serious criminal conduct. And, it falls within the range of sentences imposed in cases of extensive child abuse involving a sexual abuse component. See, for example: R. v. M. (C.A.), [1996] 1 S.C.R. 500; R. v. C. (J.A.) (1995), 26 O.R. (3d) 462 (C.A.); R. v. L.K.W. (1999), 126 O.A.C. 39 (C.A.); and R. v. D.D. , 2018 ONCA 134. [5] Nor did the sentencing judge err in his application of the totality principle. The sentencing judge identified the predominant sentencing principles for these offences: denunciation, deterrence, and the protection of the public, including these specific children. He determined that an overall sentence of 20 years was fit and then imposed individual sentences adding up the total. He took care to ensure that the total sentence was not disproportionate to the gravity of the offences and the appellant’s conduct. [6] There are different methods of applying the totality principle. The Supreme Court of Canada has expressly affirmed the validity of the approach used by the sentencing judge: see R. v. Friesen , 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 157. [7] In terms of credit for pre-sentence custody, we accept the Crown submission that, reading the record as a whole, the credit given was justified. DISPOSITION [8] Accordingly, leave to appeal sentence is granted but the appeal is dismissed. “E.E. Gillese J.A.” “Paul Rouleau J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Hoang v. Mann Engineering Ltd., 2022 ONCA 82 DATE: 20220126 DOCKET: M52935 (C68186) Tulloch J.A. (Motion Judge) BETWEEN K. Matthew Hoang Plaintiff Appellant (Moving Party) and Mann Engineering Ltd., Aris Building Technologies, Cartwright Management, Mann Enterprises, Wu Ventures, Hay Solar Ltd. and Gigajoule Research and Development Ltd. (carrying on business as the “Mann Group” Defendants Respondents (Responding Parties) K. Matthew Hoang, appearing in person Ted Flett, for the responding parties Heard: November 23, 2021 by video conference REASONS FOR DECISION [1] The moving party, Matthew Hoang, brings this motion for leave to file a motion to, in essence, reverse two prior decisions of this court in these proceedings. The moving party argues that the panel that heard the appeal from the November 4, 2019 summary judgment decision of Glustein J. misapprehended the evidence, as well as failed to provide proper reasons substantiating its finding that there was no merit to the moving party’s action. He further argues that the court erred in refusing to reconsider his appeal on the basis that it had no merit. [2] The genesis of the underlying litigation started in June 2011 when Mr. Hoang’s employment was terminated. Mr. Hoang sued Mann Engineering for negligence arising from the termination of his employment. [3] This single incident has resulted in two separate sets of actions by the moving party and over ten years of litigation at all levels of court, ultimately resulting in the dismissal of both actions and costs awards against Mr. Hoang, none of which have been paid. [4] The first action was dismissed by virtue of a summary judgment motion in 2014, with costs awarded against Mr. Hoang. After this first dismissal, Mr. Hoang appealed various aspects of the decision to this court on four separate occasions, and then finally to the Supreme Court of Canada by way of motion for leave on two separate occasions, culminating in a dismissal on July 21, 2016, by the Registrar of the Supreme Court. [5] On December 8, 2017, Mr. Hoang commenced the current underlying action against the same defendants for tortious conduct, breach of duty of care, and negligence based on allegations arising out of the same termination of employment. [6] In the decision dated November 4, 2019, the motion judge, Glustein J. of the Superior Court of Justice allowed the responding parties’ motion for summary judgment and dismissed Mr. Hoang’s action on the basis that there was no genuine issue requiring a trial. He found that the responding parties did not owe a duty of care to Mr. Hoang while pursuing garnishment proceedings against him. And even if there was a duty of care, Mr. Hoang had not established causation between the breach of that duty and the loss of his employment. Mr. Hoang’s cross-motion for damages was dismissed. Costs were again awarded against Mr. Hoang. [7] Mr. Hoang appealed Glustein J.’s order to this court and sought leave to appeal the costs order. In a decision dated December 16, 2020, this court dismissed the appeal. This court held that the motion judge correctly determined there was no triable issue on the question of whether the responding parties owed Mr. Hoang a duty of care, as the relationship of the parties as a judgment creditor and debtor does not hold the requisite proximity to recognize such a duty. The court further held that it would be antithetical to the litigation process to find that such a duty arises. The court also noted that it was not reasonably foreseeable that the responding party’s actions could lead to the termination of Mr. Hoang’s employment. [8] Mr. Hoang then brought a motion to this court to set aside the December 16, 2020 decision and to allow him to amend his pleadings. This motion was dismissed by a panel of this court on October 21, 2021 pursuant to r. 2.1.02 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, on the basis that it was an abuse of the court’s process. The court ruled that while this court is empowered to set aside a prior decision under r. 61.16(6.1), the circumstances in which it would be appropriate to do so were not present. The court determined that Mr. Hoang sought simply to re-argue his appeal, which was without merit, and that this attempt formed part of a pattern of vexatious conduct. The court also ordered that Mr. Hoang be prohibited from filing any further motions without leave of the court. [9] Mr. Hoang now brings a motion for leave to file a motion seeking one of two forms of relief. He seeks either leave to amend his amended statement of claim to add a claim of abuse of process against the responding parties and to have Glustein J.’s decision set aside and judgment granted in his favour; or, leave to amend his amended statement of claim, to set aside the decisions of this court, and to re-hear his appeal of Glustein J.’s decision. [10] Where a court makes an order under r. 2.1.02(1) dismissing a motion as an abuse of process, it may also make an order under r. 37.16 prohibiting a party from filing further motions without first obtaining leave: Rules , r. 2.1.02(3). Justice Pepall in Huang v. Braga , 2020 ONCA 645 sets out helpful guidance for assessing whether to grant leave to file a motion to a party subject to a r. 37.16 order: Consideration should first be given to the strength of the grounds advanced by the moving party. Put differently, are there reasonable grounds of appeal that merit granting the leave requested? Second, the context of the r. 37.16 order itself should be considered. Is the substance of the leave request a continuation of the frivolous and vexatious or abusive process that had generated the r. 37.16 order in the first place? The r. 37.16 order is of course not a bar, but as stated in Evans v. Snieg , 2019 ONSC 7270, at para. 30, “such an order should not be lightly disregarded or blithely treated”. Lastly, the overriding consideration is whether the granting or refusal of leave is in the interests of justice. [11] I am of the view that this is not one of those cases where leave should be granted. First, I find the proposed appeal lacks merit and does not put forth any reasonable gronds of appeal. It is essentially an attempt to re-argue issues that the moving party has already advanced and that were rejected at trial and on appeal in the first action. [12] Second, the request for leave to file a motion is in fact a continuation of the abusive conduct that made the moving party subject to the order in the first place. With the present motion and proposed appeal, as in the October 21, 2021 motion, “the motion is part of a pattern of conduct by which Mr. Hoang has repeatedly challenged the correctness of decisions made by this court by way of meritless motions brought in this court after the appeal had been decided”: Hoang v. Mann Engineering Ltd ., 2021 ONCA 742, at para. 9. [13] In my view, it is not in the interests of justice to grant the motion. Mr. Hoang is unrelenting in his litigation efforts. He has exhausted all rights of appeal or revocation for each time he has received an adverse judgment. As further pointed out by the respondents, over a period of seven years, Mr. Hoang has appeared before this court in the first action, in writing or in person, on five separate occasions, and before the Supreme Court of Canada on four separate occasions. The second action has been active for an additional four years. The finality of this litigation must at some point be enforced. [14] Accordingly, the moving party’s motion is denied. “M. Tulloch J.A.”

WARNING The Motion Judge 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.B., 2022 ONCA 83 DATE: 20220127 DOCKET: M53067 (C70153) Lauwers J.A. (Motion Judge) BETWEEN Her Majesty the Queen Respondent (Responding Party) and A.B. Appellant (Applicant) James Coulter, for the applicant Nicolas de Montigny, for the responding party Heard: January 14, 2022 by video conference REASONS FOR DECISION [1] The applicant was convicted of two counts of child luring contrary to s. 172.1(1)(b) of the Criminal Code , R.S.C., c. C-46 “for the purpose of facilitating the commission of an offence of sexual assault”, and one count of making child pornography contrary to s. 163.1(2). The applicant was sentenced to 36 months concurrent for child luring and 5 months consecutive for child pornography, based on the totality principle. This sentence included a 30-day credit for restricted bail conditions, which was subtracted from the child pornography sentence. The total sentence is 41 months. [2] The applicant is appealing his conviction and is seeking leave to appeal his sentence. He seeks judicial interim release pending his appeal. For the reasons that follow, I dismiss the application for bail pending appeal. A. THE GOVERNING PRINCIPLES [3] Applications for bail pending conviction appeal are governed by s. 679(3) of the Criminal Code . The applicant must satisfy the court, on a balance of probabilities, 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. [4] The Crown opposes release on the ground that the applicant’s detention is necessary in the public interest, on the basis of maintaining public confidence in the administration of justice. [5] In R. v. Oland , 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, the Supreme Court endorsed the framework for evaluating the public interest criterion set out in R. v. Farinacci (1993), 86 C.C.C. (3d) 32 (Ont. C.A.), [1993] O.J. No. 2627. The public interest criterion has two components: public safety and public confidence in the administration of justice. With respect to the public’s confidence in the administration of justice, the competing interests of enforceability and reviewability must be balanced. As Arbour J.A. said in Farinacci , at paras. 41-43: The “public interest” criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments. Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability. On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. Public confidence would be shaken, in my view, if a youthful first offender, sentenced to a few months’ imprisonment for a property offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the conviction on appeal. [6] In Oland , Moldaver J. elaborated on Farinacci ’s approach to the public interest criterion. He noted, at paras. 31-32, that an appeal judge hearing an application for bail pending appeal should consider the factors stipulated for bail pending trial under s. 515(10)(c) of the Criminal Code , with necessary modifications to account for the fact that the conviction has displaced the presumption of innocence. In the pre-trial context the onus is on the Crown to establish that an accused should be detained in custody, but the onus rests on the applicant to establish that he should be granted bail pending appeal: at para. 35. The factors to be considered are: the apparent strength of the prosecution’s case; the gravity of the offence; the circumstances surrounding the commission of the offence; and the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment. [7] Moldaver J. explained how, with appropriate modifications, the public confidence factors listed in s. 515(10)(c) are to be taken into account by the appeal judge in identifying the factors that make up the public confidence component in s. 679(3)(c). [8] First, when considering the public confidence component under s. 679(3)(c), “the seriousness of the crime for which a person has been convicted should… play an equal role in assessing the enforceability interest”: Oland , at para. 37. An appeal judge should have regard to the sentencing judge’s reasons, and not repeat that evaluation afresh: Oland , at para. 38. [9] Second, Moldaver J. considered the “reviewability interest”, which he identified as “the strength of the prosecution’s case (s. 515(10)(c)(i))”: Oland , at para. 40. In the appellate context, this translates into an evaluation of the strength of the grounds of appeal. In assessing the reviewability interest, an appeal’s strength plays a “central role”. Specifically, Moldaver J. endorsed the view expressed by Trotter J.A. in his article entitled, “Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion” (2001) 45 C.R. (5th) 267, at p. 270, where he explained: [R]ealistically, most cases do not raise strong claims regarding the public interest, at least not beyond the general concern that all criminal judgments ought to be enforced.... However, when an offence is serious, as with murder cases, such that public concern about enforceability is ignited, there should be a more probing inquiry into the chances of success on appeal. It is in this context that the balancing required by Farinacci requires some assessment of the merits, separate from the question of whether the appeal is frivolous or not. [Footnotes omitted.] [10] Moldaver J. added that judges should “examine the grounds identified in the notice of appeal with an eye to their general legal plausibility and their foundation in the record” and consider whether those grounds “clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion”: Oland, at para. 44. [11] After assessing the enforceability and reviewability factors, the appeal judge must balance them, keeping “in mind that public confidence is to be measured through the eyes of a reasonable member of the public”: Oland , at para. 47. This reasonable member of the public “is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values.” There is no precise formula, but a “qualitative and contextual assessment is required”: at para. 49. However, Moldaver J. observed that where the conviction is for “murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak”: at para. 50. B. THE PRINCIPLES APPLIED [12] As discussed, the applicant must satisfy the court that his appeal is not frivolous, that he will surrender himself into custody in accordance with the terms of the order, and that his detention is not necessary in the public interest. (1) Not Frivolous [13] The applicant raised five grounds of appeal. The primary ground of appeal, which was argued at length, concerns the proper interpretation of s. 172.1(1)(b). This section provides: 172.1(1) Every person commits an offence who, by a means of telecommunication, communicates with (b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; [14] The offence alleged to have been facilitated in this case is sexual assault under s. 271. The applicant argues that “the trial judge erred in treating the offence of child luring pursuant to section 172.1(1)(b) in this circumstance as ‘luring’ for the purpose of any of the enumerated offences, rather than the specific offence of ‘sexual assault’ as pleaded in counts 1 and 2 of the Information.” I will elaborate on the applicant’s argument below. [15] The second ground of appeal is that the trial judge erred in law by convicting the applicant “on the standard of recklessness when assessing whether the essential element of knowledge of the individual’s age was proven beyond a reasonable doubt, while recklessness cannot be a substitute for knowledge in these particular offences” (emphasis in original). [16] The third ground is that the trial judge erred in law “by constructively treating the failure to take reasonable steps to determine the age of the complainant as an independent pathway to conviction.” [17] The fourth ground is that the trial judge failed to “actively engage with the steps and perceptions of someone acting in [the ‘ Daddy-Dom-Little-Girl ’ online] community”, with its distinctive set of rules and roles, as providing a defence regarding the complainant’s age. [18] The fifth ground is that the trial judge erred by improperly taking “subjective notice of the complainant’s age by using his own independent observations of her in court and the exhibit evidence to conclude that a reasonable observer would only view this individual as a ‘prepubescent child’, and treating the mens rea of these offences as being objective in nature.” [19] In my view, the strongest ground of appeal is the first one, and I will focus on it in these reasons. The other grounds are much weaker, and their cumulative force adds little. That said, “the ‘not frivolous’ test is widely recognized as being a very low bar”: Oland , at para. 20. I am satisfied that the appeal is not frivolous. (2) Surrender into Custody in Accordance with the Terms of the Order [20] Before his conviction, the applicant was on bail for several years, and compliance was not an issue. The Crown does not oppose the bail provisions. [21] I am satisfied that the applicant would surrender into custody in accordance with the terms of his release. (3) The Public Interest [22] There are two components to consider under s. 679(3)(c): public safety and public confidence in the administration of justice. (a) Public Safety [23] While the offences are undoubtedly serious, I find the public safety concern to be negligible. The applicant has a strong incentive to abide by the terms of any release, as he did in complying with his pre-trial bail, given the appeal. I am satisfied that the applicant has demonstrated on a balance of probabilities that he is not a public safety threat and will not likely commit further offences if released on bail pending his appeal. (b) Public Confidence in the Administration of Justice [24] As outlined above, the public confidence component requires courts to strike a balance between enforceability and reviewability. Enforceability [25] With respect to enforceability, “[p]ublic confidence in the administration of justice requires that judgments be enforced”: Farinacci , at para. 42. Several factors in this case weigh heavily in favour of enforceability and against the release of the applicant. The seriousness of the crime, as noted in Oland , figures in the assessment of the enforceability interest. [26] The applicant was convicted of egregious child luring under s. 172.1(1)(b) on two counts, “for the purpose of facilitating the commission of an offence of sexual assault,” and on one count of making child pornography contrary to s. 163.1(2). At sentencing, the trial judge found: “ In this particular case, the child luring committed by [the applicant] was particularly serious and involves a high level of moral blameworthiness.” However, he added: “While the communications were graphic and continued, I did not find the offender was grooming the child to eventually meet. He was using her for online sexual gratification.” [27] The trial judge pointed out several aggravating factors, including “the length of time the luring went on, the existence of an actual 13 year old victim, which was expressly conveyed to [the applicant] by the girl and the officer posing as the girl and yet he failed to desist, and the transmission of sexually explicit material, including a video of himself masturbating to a real 13 year old child”. He concluded: “in the circumstances, the sentence, even for a first offender, must be a penitentiary term, even if… it is imposed in the period of the Covid pandemic.” [28] The trial judge also referred to mitigating factors, noting the absence of a prior record, a positive pre-sentence report, the applicant’s history of secure employment, and “a supportive family who are aware of the offences.” He considered positively that the applicant “has undertaken some counselling and is prepared to continue with counselling.” The trial judge noted: “There appears to be genuine remorse for the consequence of his actions.” Despite these mitigating factors, the trial judge saw fit to impose a significant penitentiary sentence of 41 months. [29] To conclude, in my view the enforceability interests weigh heavily against release. The offences were very serious, there were aggravating factors, and the applicant was sentenced to a lengthy term of imprisonment. Reviewability [30] Moldaver J. noted in Oland , at para. 40, that the strength of the appeal plays a central role in assessing the reviewability interest. In my view, while a preliminary assessment of the strength of the appeal reveals that the grounds of appeal are arguable, they do not “ clearly surpass the minimal standard required to meet the ‘not frivolous’ criterion” (emphasis added): Oland , at para. 44. The Strength of the Appeal [31] As noted above, the applicant’s main argument is that “the trial judge erred in treating the offence of child luring pursuant to section 172.1(1)(b) in this circumstance as ‘luring’ for the purpose of any of the enumerated offences, rather than the specific offence of ‘sexual assault’ as pleaded in counts 1 and 2 of the Information.” [32] In other words, the applicant takes the position that the Crown was obliged to prove the mental element or mens rea attached to sexual assault in order to get a conviction. The applicant asserts that because the trial judge found that he “had intended never to meet with the complainant because he valued his anonymity”, it was therefore “impossible [for him] to have ‘facilitated’ the offence of a sexual assault”. Putting it in other words: “The purpose of the communications could never have been intended to facilitate the commission of the offence of sexual assault, if there was never an intention to meet in person.” The applicant cites the Supreme Court for the proposition that: “the accused must be shown to have ‘engage[d] in the prohibited communication with the specific intent of facilitating the commission of one of the designated offences’ with respect to the underage person who was the intended recipient of communication” (emphasis in original): R. v. Legare , 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 32, citing R. v. Alicandro , 2009 ONCA 133, 95 O.R. (3d) 173. [33] First, in my view the applicant overstates the trial judge’s finding. Second, he misconstrues Legare . [34] In his reasons, the trial judge found a reasonable doubt that the applicant was working towards a meeting with the 13-year-old complainant. He said: The prospect of a meeting is not the sine qua non of the offence as contemplated by s. 172.1 of the Code . Even when no meeting is arranged, an accused can “facilitate” a sexual offence with a young person. The accused may have spoken about a meeting in Kingston to continue the narrative and he may have ultimately arranged to meet the young person if the communications had continued, but I accept his communications with the young person at that stage were part of the narrative only and he wanted this to be an online anonymous relationship. In his conversation with Detective Wohlert, it was the Detective who was driving the meeting discussions. The accused did not terminate that discussion and, as I said, he may have ultimately wished to meet the young person, but he has raised a doubt that he had intentions at that time to meet the young person . [35] Contrary to the applicant’s assertion, the trial judge did not find that the applicant intended to never meet with the complainant. [36] The applicant highlights para. 32 of Fish J.’s reasons in Legare , which I more fully quote here: [T]he intention of the accused must be determined subjectively .... As Doherty J.A. stated in Alicandro , at para. 31, the accused must be shown to have “engage[d] in the prohibited communication with the specific intent of facilitating the commission of one of the designated offences” with respect to the underage person who was the intended recipient of communication. [Italics and underlining in original.] [37] However, these words must be taken in context with para. 25, which initiates and conditions the ensuing discussion, including para. 32: [38] It will immediately be seen that s. 172.1(1)(c) creates an incipient or “inchoate” offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament’s objective to close the cyberspace door before the predator gets in to prey. [Emphasis in original.] [39] I note that in R. v. Morrison , 2019 SCC 15, [2019] 2 S.C.R. 3, Moldaver J. cited Legare and affirmed, at para. 40, that “[t]here is no requirement that the accused meet or even intend to meet with the other person with a view to committing any of the designated offences”. See also Professor Hamish Stewart’s article, “ Legare : Mens Rea Matters” (2010) 70 C.R. (6th) 12. Both counsel agree that they were unable to find any cases that take the approach the applicant proposes. [40] I would not say the applicant’s case is frivolous. But it is weak in view of Fish J.’s clear language in para. 25 of Legare . It is not the mens rea of the specified offence sought to be facilitated – in this case sexual assault – that the Crown must prove. It is sufficient for the Crown to prove facilitation itself, which “includes helping to bring about and making easier or more probable – for example, by ‘luring’ or ‘grooming’ young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person’s curiosity, immaturity or precocious sexuality” (emphasis in original): Legare , at para. 28. Discussion [41] I turn to the factors to be balanced. I see the Crown’s position in the appeal as strong, and the applicant’s as weak. These vile crimes are grave, and the applicant has been sentenced to a lengthy term of imprisonment. [42] While it is relatively rare for a bail pending appeal application to be resolved on public confidence considerations, this is one of the “difficult cases ... in which the public confidence component is raised”: Oland , at para. 30. The interest in enforceability is very strong. The interest in reviewability is not. [43] Ultimately, although the reviewability interest still supports release, the applicant’s conviction on three serious counts mitigates the strength of the reviewability interest. In short, the enforceability interest outweighs the reviewability interest in this case. Were the applicant to be released pending appeal, I have no hesitation in concluding that a reasonable member of the public, informed of the egregious circumstances, would lose confidence in the administration of justice. [44] I find that the detention of the applicant is necessary in the public interest and dismiss the application for bail pending appeal. [45] I am mindful of Arbour J.A.’s comments in Farinacci , at para. 43, that the court must keep in mind a situation in which “denial of bail would render the appeal nugatory, for all practical purposes” because the sentence will have been largely served before the appeal is resolved. I therefore order that the appeal be expedited, pursuant to s. 679(10) of the Criminal Code . “P. Lauwers 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. Marshall, 2022 ONCA 84 DATE: 20220201 DOCKET: C68029 Pardu, Roberts and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and Eric Richard Marshall Appellant Vanessa Carew, for the appellant Caitlin Sharawy, for the respondent Heard: January 20, 2022 by video conference On appeal from the conviction entered on April 5, 2019 and the sentence imposed on November 21, 2019 by Justice Michelle O’Bonsawin of the Superior Court of Justice. REASONS FOR DECISION [1] The appellant appeals his convictions for sexual assault, common assault, and mischief. He also seeks leave to appeal his global sentence of four years. [2] The complainant and the appellant were long-time acquaintances who reconnected on Facebook. They made plans to get together at the appellant’s apartment on the evening of October 19, 2019 to watch videos, drink, and smoke pot. [3] The appellant met the complainant at a nearby bus stop around 10 p.m. and they walked to his apartment. Once at the apartment, the two sat together on the living room couch, watched videos, drank, and smoked. On the complainant’s evidence, at one point the appellant kissed her. She did not reciprocate, and told him that was not what the evening was about. Later, on three or four occasions when she had to lean over the back of the couch to plug in her phone, he touched her rear. Each time she reproved him, but did not make a big deal of it. [4] At some point the evening began to sour and the appellant left the couch and went to his room. The complainant was unsure whether he would return. The appellant’s roommate testified that the complainant came to her room and told her that the appellant had ditched her. They commiserated, and the roommate gave the complainant a cigarette. The complainant returned to the living room couch and occupied herself by taking selfies, the last of which was timestamped 1:02 a.m. The complainant surmised the appellant had gone to his room to sleep it off and would not be coming back. As it was late and she was unsure of how to get home at that time of night, she decided to sleep on the couch. [5] Shortly after she took the last selfie, however, the appellant returned. The trial judge accepted the complainant’s evidence that the appellant suddenly approached her and choked her for about 5 seconds, using one hand. She fought him off and fell to the floor. He told her to get out. She told him that she needed time to sort out how to get home. Her phone only worked with Wi-Fi, and the battery would not hold a charge for very long and needed to be frequently plugged in. [6] She again reached over the back of the couch to reach the electrical outlet and plug her phone charger in. The trial judge accepted the complainant’s evidence that the appellant came behind the complainant, pulled her sweatpants down, inserted his penis “in her butt”, and thrust three or four times until she was able to push him off, and found that the appellant had anally penetrated the complainant. The trial judge also found that the appellant pulled the necklace from the complainant’s neck, causing its pendant to fall off. [7] The complainant quickly gathered her things and fled. She inadvertently took a photo with her phone immediately outside the apartment door. It was timestamped shortly after 2 a.m. and showed her to be distraught. She fled the building, got lost, and collapsed on the sidewalk where she was found by a stranger who took her in and helped her place a 911 call. The claimant went to the hospital, where a sexual assault kit was administered. DNA matching the appellant was found on her external genitalia and left breast. An anal swab was inconclusive for presence of DNA matching the appellant. [8] On the appellant’s account of events, they had engaged in consensual kissing with increasing intensity, but never any form of sexual intercourse. He denied choking the complainant, breaking her necklace, or sexually assaulting her. He claimed that the complainant was upset that he had ditched her, and she began trashing the apartment before he had to physically eject her. [9] The only other witness to what transpired was the appellant’s roommate, who stayed in her room for the most part. She testified that the complainant had knocked on her door looking for the appellant after the appellant had withdrawn to his room. She was later awakened by hearing the complainant yelling “how could you do this” and “get off me”. Issues: [10] The appellant argues that the trial judge erred in four respects: 1. Misapprehending the DNA evidence and finding that it corroborated the claim that the appellant had sexually assaulted the complainant; 2. Failing to resolve material inconsistencies in the Crown’s evidence; 3. Ignoring contradictory post-offence conduct by the complainant; 4. Convicting the appellant of mischief in the absence of evidence capable of supporting a conviction. [11] With respect to the sentence appeal, the trial judge is said to have made three errors: 1. Failing to account for custody served between sentencing submissions and the date of sentence; 2. Taking into account aggravating factors that had not been proven; and 3. Effectively sentencing the appellant for aggravated assault rather than common assault. Analysis [12] With respect to the appeal against conviction, as we explain below, we do not agree that the trial judge made the errors alleged except with respect to the conviction for mischief, which we set aside. We also dismiss the appeal against sentence, with the exception of the failure to give credit for time served between the sentencing submissions and imposition of sentence, which is conceded by the Crown. (1) The DNA evidence [13] The trial judge found that the DNA evidence corroborated the complainant’s testimony. The appellant argues that the DNA evidence was neutral, and not capable of corroborating that an assault took place, as opposed to consensual activity. [14] We disagree. We understand the trial judge to have come to the conclusion that the evidence of the appellant’s DNA on the complainant’s external genitalia was to some degree confirmatory of the complainant’s testimony that the appellant had anally penetrated her, which it was. The appellant suggested that perhaps his DNA had transferred from his hand to hers, and then from her hand to her genitalia. This theory of transfer was not supported by the expert evidence and the trial judge made no error in rejecting it. It would have been better for the trial judge to have stated that the DNA evidence was confirmatory of an element of the offence – that some sexual activity had taken place – rather than corroborative of an offence having been committed. Her wording could be misinterpreted as suggesting she believed the presence of DNA was conclusive that the appellant had committed a sexual assault, but the reasons as a whole do not support such a reading, and we do not agree that she erred. (2) Failure to resolve material consistencies [15] The appellant argued that the trial judge engaged in differential scrutiny of evidence throughout, faulting the appellant for all inconsistencies in his evidence while ignoring or failing to resolve material consistencies in the Crown’s evidence. [16] One example is the trial judge’s treatment of the evidence of the registered nurse who examined the complainant. The trial judge found that some of her evidence corroborated the complainant’s version of events. The appellant argues that the trial judge should have treated all of it as neutral, except for evidence that was inconsistent with the complainant suffering injury, which the trial judge should have treated as corroborating the appellant’s version of events. The complainant had said she had bleeding cuts on her fingers, but the nurse did not record any bleeding. There was no apparent rectal injury. The complainant ticked a box on an intake form indicating the appellant had ejaculated inside her, but there was no evidence of spermatozoa found. [17] The trial judge did not err in her characterization of this evidence. Whether the complainant was bleeding at the hospital is not dispositive of whether she was bleeding when she left the apartment. The observation about the absence of visible rectal injury was not a matter of bolstering the credibility of the complainant, but of negating the appellant’s allegation that anal penetration could not have happened without causing injury. The absence of evidence of spermatozoa was neutral – the rectal swab was inconclusive, and the complainant was not cross-examined on this issue. [18] Similarly, with respect to the timing of events, the trial judge made no error in finding it immaterial that the complainant could not account with perfect detail what occurred in the hour between taking the last selfie and exiting the apartment. The complainant explained the assault and sexual assault, verbal exchanges with the appellant, and attempts made to charge and use her phone to try to arrange for someone to come and pick her up. It is not implausible that all of these events could have occurred over the course of an hour. [19] The appellant’s testimony was in many respects unbelievable, including his police statement that he could not remember who the complainant was. The roommate did not corroborate his evidence that the complainant had trashed the apartment. It was immaterial that the complainant did not remember knocking on the roommate’s door and looking for the appellant. (3) Post-offence conduct [20] Of the many other inconsistencies raised by the appellant – such as whether the complainant was able to use her phone or not, whether she knew where she was or not – the trial judge considered and rejected them. She gave reasons for doing so. There was no error. (4) Mischief charge [21] The appellant argues that there was insufficient evidence to ground a conviction for mischief, and the trial judge’s conclusion that the appellant intentionally broke the complainant’s necklace and caused the pendant to be lost was unsupported and conclusory. [22] We agree that the trial judge did not engage in any analysis of this issue that allows for meaningful appellate review. The appellant’s evidence was that the necklace broke, and that he found the pendant on the floor, but on his account the necklace came off when it got caught in the complainant’s jacket when she went to leave. The conflicting evidence was not resolved by the trial judge and the conviction on this count cannot stand. Sentence appeal (1) Presentence custody [23] The Crown concedes that the trial judge failed to account for 8 days of pre-sentence custody, which would amount to a deduction of 12 days from the global sentence. (2) Aggravating factors not proven [24] The appellant argues that in sentencing the trial judge relied on aggravating factors that were not proven: for example, that the complainant suffered physical and emotional harm, and that the complainant was vulnerable. The appellant argues there was no evidence of physical injury, the complainant did not provide a victim impact statement, and the trial judge appears to have relied overmuch on the complainant’s demeanour in giving testimony to conclude she had been traumatized. [25] We do not agree. Although the trial judge wrote at length about the complainant’s demeanour, and it would be dangerous to base findings of harm on demeanour in giving evidence, there was much else in the reasons for sentence to explain the trial judge’s conclusion. The nature of the offence itself – an anal rape – is an inherently degrading act of violence that one would not expect a victim to easily set aside: R. v. McCraw , [1991] 3 S.C.R. 72, at p. 73. The photo the complainant inadvertently took of herself while she was leaving and the 911 call also demonstrate that the complainant had been shaken by what she had just experienced. [26] With respect to the complainant being in a position of vulnerability, there was ample evidence to support that conclusion. She had been a guest in the home of a man who was much larger than she, who had suddenly and violently assaulted her. It was late at night. She did not know precisely where she was. She had no money. Her phone was unreliable. It was not immediately obvious to her how to get home, or whether she had the resources to get home. When she fled the apartment, she ended up collapsed on a sidewalk, and had to rely on the kindness of a stranger – itself a dangerous situation – to find shelter and phone for help. (3) Assault versus assault causing bodily harm [27] The trial judge made an initial error in her draft reasons in stating she was sentencing the appellant for the offence of assault causing bodily harm, rather than the offence of assault, for which he was actually convicted. When defence counsel pointed out the error, the trial judge corrected it, and stated that the sentence imposed nevertheless remained appropriate. The appellant argues that the trial judge’s error demonstrates that she imposed her sentence while believing, erroneously, that the appellant had been convicted for assault causing bodily harm, and imposed a sentence – one year in custody – befitting an assault causing bodily harm. We do not agree. The trial judge referred to the appropriate offence throughout the substance of the reasons for sentence and accurately described the evidence related to the assault. Although one year might be considered a heavy sentence for an assault, it is within the appropriate range, particularly given that the appellant is a violent recidivist and was on parole at the time of the commission of the offences. DISPOSITION [28] The appeal against conviction is allowed with respect to the conviction for mischief. The appellant’s conviction for mischief is quashed. In all other respects, the appeal against conviction is dismissed. Leave to appeal sentence is allowed, and the appeal against sentence is dismissed, except with respect to the failure to give credit for 8 days served between the sentencing submissions and imposition of sentence, which amounts to a deduction of 12 days from the appellant’s global sentence. “G. Pardu J.A.” “L.B. Roberts J.A.” “B.W. Miller J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Durant (Re), 2022 ONCA 86 DATE: 202202 01 DOCKET: C69605 Strathy C.J.O., Harvison Young and Zarnett JJ.A. IN THE MATTER OF: Bernard Durant AN APPEAL UNDER PART XX.1 OF THE CODE Jeff Marshman, for the appellant Jacob Millns, for the Attorney General of Ontario Gavin S. MacKenzie, for Ontario Shores Centre for Mental Health Sciences Heard: January 19, 2022 by video conference On appeal against the disposition of the Ontario Review Board, dated June 23, 2021. REASONS FOR DECISION Overview [1] This is an appeal from the disposition of the Ontario Review Board [the “Board”] dated June 2, 2021, ordering the appellant Bernard Durant’s continued detention in forensic custody at the Ontario Shores Centre for Mental Health Services [the “Hospital”]. The only disputed issue between the parties before the Board was whether Mr. Durant’s detention order should include the possibility that community living privileges could be extended to him in the course of the 2021-2022 reporting year at the discretion of the Hospital. [2] The appellant argues that the Board’s refusal to include such a provision was unreasonable and a reversible error because it resulted in a disposition that was neither the least onerous nor the least restrictive one available. The respondent, on the other hand, submits that given the record before the Board and the recommendations of the treatment team, the disposition was reasonable and is owed significant deference. For the reasons that follow, we are of the view that the Board’s decision was reasonable, and the appeal should be dismissed. [3] Bernard Durant was 31 years old at the time of the subject hearing. He has been under the jurisdiction of the Board since being found not criminally responsible on account of mental disorder (“NCR”) on May 27, 2013, of a number of charges. These charges all arose as a result of a series of incidents over about 6 hours, including the robbery of a convenience store while threatening to kill the attendant, stealing a car after threatening the driver, driving erratically and colliding with a parked car, and evading the police and ramming a number of police vehicles when he was boxed in. He was finally apprehended after being shot in the leg. [4] The appellant has been diagnosed with schizophrenia and a polysubstance abuse disorder, including cocaine, marijuana and alcohol. In early 2020, he was also diagnosed with borderline personality disorder. Although he has been under the jurisdiction of the board since 2013 when he was found NCR in relation to the index offences, he has not been continuously subject to a detention order. [5] After he began taking medication to manage his schizophrenia, his condition rapidly improved. He began living in the community in May 2015, first in a group home, and later in an independent Canadian Mental Health Association (“CMHA”) apartment. He was conditionally discharged in 2016, but after a period of decompensation the Board ordered his detention in November 2018. He was charged with assault and assault with a weapon after he had engaged in an altercation with a friend, hitting him over the head with a television. He has remained in detention at the Hospital since. It is clear from both the Hospital report and the Board decision that the appellant’s treatment team has, and continues to, work with him toward the goal of community reintegration. [6] The last reporting year was not a good one for Mr. Durant. In October 2020, he eloped from a sleep clinic while alone in his room. He called the police and was returned to the institution a number of hours later, having consumed both cocaine and alcohol in the meantime. In April 2021, he eloped a second time, this time barging through the unit door, attempting to steal a vehicle, stealing a bicycle and assaulting a security guard who was trying to stop him after he rode it to the nearby GO station. Mr Durant continued to hit the guard, having pinned him against a car with the bicycle, until he was tasered by police. [7] The appellant acknowledges that he presents a significant risk to the safety of the public and needs to remain detained at this point at the Hospital. The sole dispute is whether the Board erred by failing to include a provision in the detention order permitting the Hospital to grant the appellant community living privileges over the current reporting period if it becomes feasible. [8] On his behalf, Mr. Marshman argues that such a disposition would have had the benefit of rendering it possible during the 2021-2022 reporting year that in the event of dramatic improvement, the appellant could be granted some community living privileges. This would be entirely within the discretion of the Hospital. He also argues that this would have been beneficial because a community living provision would have provided the appellant with some hope as well as an incentive to work toward this goal. This would alleviate the appellant’s sense of frustration, which has, he submits, contributed to his elopement attempts. He submits that because of the failure to include the possibility of community living, the Board failed in its duty to make the least onerous and least restrictive disposition possible. [9] We disagree. The Board carefully reviewed the appellant’s personal, psychiatric and criminal history, considering the incidents occurring within that context. It began by accepting the undisputed position of all parties that the appellant remained a significant risk to the safety of the public, going on the state that the risk flows from his diagnosis of a major mental illness (schizophrenia), substance use disorder, and his personality disorder. When he decompensates, he is prone to environmental aggression as the incidents occurring in the previous year illustrated. [10] The Board relied on the uncontroverted and expert medical opinion of Dr. Chapman, whose opinion was that the appellant requires an inpatient admission at this time and that a conditional discharge would be premature. The Board accepted the Hospital’s view that his ongoing elopement risk required his continuing detention within the forensic program. [11] In addition, the Board credited the appellant with the positive steps he has been taking recently, noting his willingness to participate in and contribute to various therapy programs. It also commended him for his insight into his illness and his recognition of the fact that his illness requires that he take his medication in perpetuity. [12] In considering the appellant’s request for a community living provision, and in view of the record before it, the Board found no air of reality to the possibility that the appellant could be an appropriate candidate for community living within the current reporting year. That was because of the ongoing elopement risk and associated risks of substance abuse and decompensation. It noted that if his clinical presentation were to improve significantly, an early hearing could, and should, be convened. His next annual hearing has been scheduled to take place in June 2022. [13] Moreover, there was no evidence to support the appellant’s argument that a community living provision would help alleviate his ongoing frustration and provide an incentive for him in the course of the current reporting year. Rather, the only evidence on the point was specifically provided by Dr. Chapman at the hearing in which he disagreed with the appellant’s submission on this point: [A] committee recommendation, (indiscernible) that’s not going to happen, will only increase his frustration, and therefore also increase the tendency to take advantage of a situation where he can elope. [14] In short, the Board’s refusal to include a community living privilege provision in its disposition was amply grounded in the record before it, as was its conclusion that its disposition was the least onerous and least restrictive appropriate at this time. The decision was reasonable, and the appeal is therefore dismissed. “G.R. Strathy C.J.O.” “A. Harvison Young J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Wood, 2022 ONCA 87 DATE: 20220128 DOCKET: C64231 Fairburn A.C.J.O., Doherty and Watt JJ.A. BETWEEN Her Majesty the Queen Respondent and Shane Alan Wood Appellant Lance Beechener and Alexander Ostroff , for the appellant Christopher Webb, for the respondent Heard: October 5, 2021 by video conference On appeal from the conviction entered by Justice Peter B. Hockin of the Superior Court of Justice, sitting with a jury, on November 2, 2015. Watt J.A.: [1] Some good times and some bad times. An uncle and his nephew. Paul Curry and Shane Wood. They worked together for a time, then went their separate ways. [2] They argued. Then they reconciled. Except for their last argument when no reconciliation was possible. [3] Shane Wood killed his uncle Paul Curry. He set fire to his uncle and his uncle’s house. [4] Shane Wood was charged with first degree murder, arson and offering an indignity to his uncle’s body. A jury found him guilty on all three counts. [5] Shane Wood appeals his conviction of first degree murder. These reasons explain why I have concluded that his appeal fails and should be dismissed. The Background Facts [6] The appellant testified at trial. He admitted that he killed the deceased after they had argued but claimed he had done so in self-defence. He denied having set any fires in the deceased’s home, maintaining that the deceased had done so himself. [7] A brief summary of the evidence adduced at trial provides an adequate background for an evaluation of the grounds of appeal the appellant advances. The Principals and Their Relationship [8] The appellant and deceased worked together in a landscaping business the deceased set up in 2012 after another business venture had failed. Later that same year, the appellant resumed working alone because of a disagreement with the deceased about the appellant’s share of the profits from a lucrative landscaping contract. [9] Over the years, the relationship between the appellant and the deceased had been volatile. They would argue and reconcile. Again and again. [10] When their business relationship in the deceased’s landscaping company disintegrated, each complained about the other. The deceased characterized the appellant as tardy and lazy. The appellant claimed that the deceased did not pay him adequately for the work he (the appellant) had done. Each denigrated the other. In text messages between them. And in communications to others. [11] The appellant testified that the deceased spent most of the winter in 2012‑2013 in either Costa Rica or in Russia. The men resumed working together in the summer of 2013, but the deceased soon departed to return to Russia, leaving the appellant to manage their landscaping projects including problems with malfunctioning equipment. Although they completed the outstanding project shortly after the deceased’s return, the men argued. The Business Relationship Ends [12] In early August, 2013 the appellant left the deceased’s company to work at his own landscaping business. He offered to help the deceased if the deceased required any assistance. The appellant sent several texts about his relationship with the deceased to Gary Lazurek, a man who worked for both the appellant and the deceased. The appellant offered to pay Lazurek $40 if Lazurek would not report for work with the deceased the following day. The appellant testified that his purpose in making this offer was to keep Gary Lazurek as an employee with his (the appellant’s) own business. The Wood Chipper Discussion [13] Gary Lazurek and the appellant testified about discussions they had about getting a wood chipper, a machine used in the landscaping business. [14] Gary Lazurek testified that the appellant called him on September 13, 2013, two days before the deceased was killed, and asked him to be ready to go out of town at 3:30 the following morning. The appellant arrived at Lazurek’s home at 1:30 a.m., two hours earlier than he had asked Mr. Lazurek to be ready. Kim Rolph-Smith let the appellant into the house. The appellant was intoxicated. He explained that he had made a good deal on a wood chipper. The machine was in Tillsonburg. [15] After Gary Lazurek got dressed, he and the appellant got into Lazurek’s truck to drive to Tillsonburg to pick up the wood chipper. Instead, the appellant directed Mr. Lazurek to the deceased’s street. The appellant noticed that the deceased’s door was open. He described the deceased as a “fool”, an “idiot”, a person who “never learns”. He then directed Lazurek to continue driving around and past the deceased’s residence. They did this several times. On their final pass by the deceased’s home, the appellant asked Gary Lazurek to stop. The appellant then asked “You going to back my play, right?”. Gary Lazurek asked whether that meant that the appellant and deceased were going to have a fight. The appellant said that the deceased was “not drunk enough yet anyway”. He told Lazurek to get laid, get his affairs in order, and that he, the appellant, would get in touch with him later. Mr. Lazurek drove the appellant home. [16] The appellant gave a different version of the early morning trip to the deceased’s house. He recalled that a few days prior to September 14, 2013, Gary Lazurek told him that the deceased had asked Lazurek to take his (the deceased’s) wood chipper so that the deceased could make a fraudulent claim to his insurer that the machine had been stolen. The deceased did not want the appellant involved. Mr. Lazurek was to take the wood chipper to a friend of his, a man named Lloyd or Floyd, who lived near Woodstock. [17] The appellant walked over to Gary Lazurek’s house early one morning. Kim Rolph-Smith let the appellant in. As Gary Lazurek got dressed, Ms. Rolph‑Smith asked what they were doing. The appellant was not sure who said what, but the plan to pick up the deceased’s wood chipper and take it out of town was discussed while Ms. Rolph-Smith was present. [18] The appellant testified that he and Gary Lazurek drove over to the deceased’s house in Mr. Lazurek’s truck. The lights in the deceased’s home were on. The deceased was awake, sitting on the couch. Gary Lazurek wanted to steal the chipper. The appellant refused to help him. The appellant never said “are you going to back my play?”. Gary Lazurek then drove the appellant home. Lazurek and the Appellant: Duelling Texts [19] Throughout the rest of the day on September 14, the appellant and Gary Lazurek began an exchange of acrimonious texts. The appellant told Lazurek that he (Lazurek) could no longer work for him and that he would pay Lazurek a final $160 for the week. Lazurek replied that the appellant owed him an additional $160. He called the appellant rude. The appellant told Lazurek to “deal with it”. He then said that he would feed Lazurek’s throat his teeth and tell Lazurek’s brother his address. The men traded insults about their drinking and drug habits. Lazurek and the Deceased: The Heads-Up [20] Later that same day, Gary Lazurek and Kim Rolph-Smith drove over to the deceased’s home to tell him about what had occurred earlier, when the appellant had directed Lazurek to drive to the deceased’s home instead of Tillsonburg to pick up the wood chipper. Gary Lazurek expressed his concern that the appellant would harm the deceased. After Gary Lazurek and Ms. Rolph-Smith had left, the deceased called a friend to whom he related what Gary Lazurek had told him about the appellant. The friend suggested the deceased should call the police. The deceased rejected the suggestion. He said he was not afraid of the appellant. The Facebook Postings [21] Shortly before midnight on September 15, 2013, the appellant made two Facebook posts. By then, he had drunk eight or nine beers. He posted: RED river RED rover who wants to be OVER He testified that the post made no sense. His phone screen was smashed. He may have tried to write “red rover, red rover, who wants to come over” as an invitation to his friends. He denied that it reflected his intention to kill the deceased, or that red river reflected a river of blood he was going to spill. [22] In a longer, second post the appellant wrote about his decision to block out those who brought him down. The appellant testified that arguments with Gary Lazurek and his own father prompted this post. [23] After making the Facebook posts, the appellant said he fell asleep. The Early Morning Visit [24] The appellant testified that he woke up at about 1:45 a.m. on September 16, 2013. He decided he would walk over to the deceased’s place. The deceased was often up at this time, drinking, as he was when the appellant arrived. The two men sat down in the kitchen, drank beer and talked. A few minutes later, the appellant said “we gotta talk about Gary”. He told the deceased about the late-night drive and the texts. The deceased became agitated. He told the appellant that Gary Lazurek had come by and had told the deceased that “you guys” (Lazurek and the appellant) were driving around and the appellant said, or that Lazurek believed, that he (the appellant) wanted to fight with the deceased. The deceased said “Shane, the guy’s fucked”. [25] Tensions between the men began to escalate. The appellant felt that the deceased was minimizing his concerns about Gary Lazurek. The appellant accused the deceased of having lied about his July trip to Russia. The deceased replied “go fuck yourself, Shane, you don’t know what you are talking about”. The appellant got up and went to the washroom. The Fire Starts [26] When the appellant returned from the washroom, the deceased was feeding paper into a small fire on the floor. The Fight [27] The appellant testified that as he tried to leave the house, the deceased pushed him from behind, then swung a weapon at him, injuring the appellant’s right hand. The appellant ran downstairs as the deceased chased him. The appellant then grabbed a beer bottle from the steps and hit the deceased over the head with it. The appellant was afraid that the deceased would kill him with the weapon he had in his hand. The appellant then ran back up the stairs. [28] The appellant tried to get out the front door. The deceased tackled him. The men returned to the stairwell. Each was armed. The deceased had a knife or a barbeque fork, the appellant, a beer bottle or a pair of scissors. The fight carried on into the kitchen. There, the appellant saw small fires on the bedroom floor and bed. He told the deceased to call the fire department. Instead, the deceased swung a bucket saw at him. The appellant avoided the blow and kicked the deceased who fell on the bed. When the deceased got up, the appellant kneed him. Flames flashed, perhaps from the fuel in the saw. When the deceased continued his attack, the appellant kicked him in the head, then fled through an open window, got in his truck and drove away. [29] The appellant denied immediately attacking the deceased, killing him in the stairwell, moving his body into the bedroom, and setting the fire to conceal the nature of the deceased’s injuries. The After-the-Fact Conduct [30] When the appellant got back home, he showered, cleaned up his injured hand, and washed his clothes. He texted Gary Lazurek at 3:26 a.m. He told Lazurek that he had gone to sleep at 11:00 p.m. and had just awakened. In cross‑examination at trial, the appellant denied having sent the text to conceal his involvement in the deceased’s death. [31] The appellant lied to his other uncle Ray about how his right hand had been injured. He claimed that it had been caused by a broken mirror. He lied to the police maintaining he had not seen the deceased for a month or a month and a half. He also hid a sock with the deceased’s blood on it in an outdoor speaker in his backyard. The Forensic Evidence [32] First responders arrived at the deceased’s home about three hours after the appellant had sent his texts shortly before midnight. They found the deceased’s body on his bed, burned beyond visual recognition. [33] A fire investigator concluded that the fire in the deceased’s home had been deliberately set. It had originated on a corner of the deceased’s bed. Another fire had started in a garbage pail in the bathroom, but it did not spread beyond the container. [34] Blood from the appellant and deceased was found on various surfaces throughout the deceased’s home. The deceased’s blood was found on the porch, inside the front door, and on the wall close to the kitchen floor. His blood and a piece of his scalp were found on the stairs and a landing near the side door. The appellant’s blood was detected on a stool in the living room, as well as on a computer in the bedroom, in the living room, and on the kitchen floor. The blood of both men was found on the kitchen table and in the dining room. The Cause of Death [35] The deceased died of blood loss caused by several head and neck injuries. The blood loss would have been significant but not rapid because the wounds the deceased suffered did not penetrate any vital structures. Nor would the deceased have been immediately immobilized by his injuries or blood loss. He would have been able to continue involvement in a physical altercation. The pathologist found no soot in the deceased’s airways and no carbon monoxide in his blood. This meant that the deceased was not breathing once the fire got beyond its infancy. [36] The deceased suffered 11 sharp force injuries to: the back of his head and neck (7); his upper back (1); and his lower left abdomen (3). Multiple blunt force injuries to the deceased’s head and neck included fractures on the left side of his face. Significant force was required to cause these fractures. The Grounds of Appeal [37] The appellant advances three grounds of appeal. He says that the trial judge erred in failing: i. to admit the statements of Kim Rolph-Smith tendered by the defence; ii. to properly instruct the jury on the use it could make of evidence of the appellant’s after-the-fact conduct; and iii. to properly deal with evidence of improper conduct by one of the jurors. Ground #1: The Statement of Kim Rolph-Smith [38] This ground of appeal challenges a ruling made by the trial judge excluding evidence tendered as part of the defence case. The evidence was part of a police interview conducted of Kim Rolph-Smith on September 16, 2013, the day the deceased was killed. The specific passage proposed for admission consisted of Ms. Rolph-Smith’s recollection of a conversation about a wood chipper between Gary Lazurek and the appellant. The discussion occurred early in the morning about two days before the deceased’s death. [39] Some additional background is essential to an understanding of the error alleged and my proposed disposition of it. The Essential Background [40] Defence counsel called Kim Rolph-Smith as a witness. After some preliminary questions, it became abundantly clear that the witness had no memory of meeting either the appellant or the deceased. In the absence of the witness and jury, defence counsel indicated that he wanted to bring an application under s. 9(2) of the Canada Evidence Act ( CEA ), R.S.C., 1985, c. C-5, or seek to have at least a portion of the witness’ police interview admitted as past recollection recorded. [41] Counsel called Ms. Rolph-Smith as his only witness on the voir dire . The focal point of the inquiry was a part of the witness’ first police interview in which she described an early morning discussion between Gary Lazurek and the appellant about a wood chipper: DC: Okay. Uh, have you ever met or spoken to Shane? KS: A couple of times, yeah. DC: Okay. Can you tell me more about that? KS: Uh, he came over three o’clock in the – or, two – 1:30 in the morning and, um, wanted Gary to drive him around. DC: Okay, so when was that? KS: Within this past week. DC: Okay. Do you know what day? KS: No, I can’t tell you what day – I don’t know day, ‘cause it was DC: Okay, so he came over at 1:30 in the morning and wanted KS: … ‘cause it – ‘cause it was – it wa-, it was t-, a total surprise, like, you know, he – he said he wanted him to – to – for him to – to do some, um, what do you call it – a chipper machine for the – for the – for the business. DC: Okay. KS: So, I took it they were trying to go and get one or he was in the idea of thought possibly steal one from his uncle’s place. DC: Okay. KS: So, that’s the – that’s the impression I got. The Arguments at Trial [42] Defence counsel did not pursue the application under s. 9(2) of the CEA . He contended that the relevant passage was admissible as evidence for the truth of its contents as past recollection recorded. The trial judge was not satisfied that the passage met the requirements for admission as evidence on this basis and dismissed the application. [43] Defence counsel then sought to have the trial judge admit the same portion of the first interview, or in the alternative, both police interviews of Ms. Rolph-Smith as evidence of the truth of their contents under the principled exception to the hearsay rule. [44] On the admissibility inquiry, Ms. Rolph-Smith was again the only witness. The parties agreed that the evidence elicited on the first voir dire applied to the second, on which much of the questioning was directed to the second police interview of October 15, 2013. Ms. Rolph-Smith testified that she had no recollection of being interviewed by the police or of the events discussed on the recording. [45] Each police interview was audio recorded, but not video recorded. Ms. Rolph-Smith was not under oath and had not been warned about the consequences of lying. The Ruling of the Trial Judge [46] The trial judge was satisfied, as the trial Crown conceded, that the necessity requirement had been established. However, reliability had not been demonstrated. No evidence was adduced about the circumstances in which either interview occurred. The reliability of the passage could not be assessed. In addition, the trial judge said, the evidence had little or no probative value as evidence of an “impression”. [47] The trial judge rejected the alternative submission that both interviews should be admitted in their entirety. He rejected this alternative on the basis that, taken as a whole, the statements were of little probative value and substantial prejudice to all aspects of the appellant’s defence. The Arguments on Appeal [48] The appellant begins with the submission that Ms. Rolph-Smith’s report of her contemporaneous impression of the wood chipper discussion was circumstantial evidence that a plan to take the deceased’s wood chipper was discussed in her presence. Irrespective of the capacity of the evidence to prove what was said or the actual purpose of the trip, the statements undermined Gary Lazurek’s evidence that no such discussion took place and he was inexplicably directed by the appellant to drive to the deceased’s house. The evidence should have been admitted on this basis. [49] The appellant says that the trial judge made a further error in his assessment of the prejudicial effect of the proposed evidence in his role as gatekeeper. Four discrete errors contributed to this flawed conclusion. The trial judge violated the appellant’s right to control his own defence; failed to properly apply the relaxed approach to the admissibility of exculpatory evidence tendered by the defence; misapprehended the substance of the evidence; and failed to properly take into account the impact of evidence already admitted at trial in his assessment of prejudicial effect. [50] In addition, the appellant continues, the trial judge was mistaken in his evaluation of the probative value of the proposed evidence. Two separate errors contributed to this faulty conclusion. The judge misapprehended the appellant’s evidence about what was discussed in Ms. Rolph-Smith’s presence. And in assessing the probative value of the proposed evidence, the trial judge failed to consider the probative value of the evidence not arising from the truth of the statement. [51] The respondent rejects any suggestion of error in the trial judge’s analysis or in the conclusion he reached. Offered to prove the truth of their contents, the statements of Ms. Rolph-Smith did not satisfy the reliability requirement to be admissible under the principled exception to the hearsay rule. Their probative value was low or non-existent and their prejudicial effect, as the trial judge concluded, was substantial. This warranted exclusion under the governing principles. Nor was admission warranted under a relaxed approach to the hearsay rule. [52] The proposed testimony of Ms. Rolph-Smith was relevant to the evidence given by the appellant and by Gary Lazurek. The testimony of Gary Lazurek was relevant to the appellant’s motive to kill the deceased – money owed and animosity – and to planning and deliberation – the late-night drive to the deceased’s house two days before the murder. That the proposed evidence was relevant on the issues of motive and planning and deliberation was not sufficient to render it admissible as evidence of the truth of its contents. The hearsay rule intervened and required an exception, the principled exception. [53] The trial judge’s ruling, the respondent submits, reflects a proper application of the principled exception to the hearsay rule. No issue arose about necessity. But the appellant failed to establish reliability. Ms. Rolph-Smith could not remember the police interview nor the contents of what was said. As a result, she could not be effectively cross-examined about them including about what was said or led her to her impression about what was happening. Further, the circumstances in which the interviews were conducted provided no suitable substitutes to justify a finding of reliability. No oath. No warning about the consequences of lying. No videotaping to permit an assessment of the declarant’s demeanour. No evidence about the circumstances in which the interviews occurred. Contradiction by both Lazurek and the appellant. [54] The submission that the trial judge erred in invoking his discretion to exclude the evidence, the respondent urges, is also unavailing. The right of an accused to control the conduct of their defence entitles them to seek the admission of defence evidence. But it does not include an unfettered right to have that evidence admitted. Rules of admissibility may foreclose its reception. Relaxation of those rules does not authorize their abandonment, as for example, of the reliability requirement here. [55] The respondent takes issue with the appellant’s claim that the trial judge applied the wrong standard in excluding the evidence in the exercise of his gatekeeper function. The reasons betray any reliance on the standard applicable when the proponent of the evidence is the Crown. The language used, particularly the descriptive “substantial” in relation to the prejudicial effect of the proposed evidence, coincides with the proper standard for excluding defence evidence. As a result, the balancing should be accorded deference by this court and the conclusion left undisturbed. The Governing Principles [56] Before turning to the principles that govern my assessment of this ground of appeal, it is helpful to clarify the extent of the controversy we are required to resolve. [57] When Kim Rolph-Smith was called as the final defence witness at trial, it became quickly apparent that she denied ever having met either the deceased or the appellant and did not recall being interviewed by the police or the contents of what she apparently said there. As a result, defence counsel sought to cross‑examine her under s. 9(2) of the CEA and to have a specific portion of her first police interview received as past recollection recorded. A voir dire was held. Ms. Rolph-Smith testified as the only witness. Defence counsel did not pursue the s. 9(2) application. The trial judge dismissed the application to have the evidence received as past recollection recorded. No appeal is taken from that decision. [58] Defence counsel then sought admission of the same evidence, in the alternative both records of interview in their entirety, under the principled exception to the hearsay rule. In other words, he sought their admission as proof of the truth of their contents. The trial judge found the reliability requirement lacking in respect of the specific portion of the first interview and excluded the evidence of both interviews on the basis that their minimal probative value was exceeded by their substantial prejudicial effect. [59] It is fundamental that to be receivable in a criminal trial, an item of evidence must be relevant, material, compliant with any applicable admissibility rule, and be more probative than prejudicial according to the applicable standard: R. v. Calnen , 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 107, per Martin J. (dissenting, but not on this point). [60] As is well known, relevance is not an inherent characteristic of any item of evidence. Rather, it exists as a relation between an item of evidence and a proposition of fact that its proponent seeks to establish by its introduction. Relevance is a matter of everyday experience and common sense. The threshold for relevance is not high. Evidence is relevant if it renders the fact it seeks to establish slightly more or less probable than that fact would be without the evidence. We assess relevance in the context of the entire case and the positions of counsel: Calnen , at para. 108, per Martin J. (dissenting, but not on this point); R. v. Luciano , 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 204-206. [61] Trial judges retain the general discretion to exclude evidence that is relevant, material, and compliant with any applicable admissibility rule where an imbalance exists between the probative value of that evidence and its prejudicial effect: Calnen , at para. 110, per Martin J. (dissenting, but not on this point); R. v. White , 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 31. Where the balance settles as between probative value and prejudicial effect depends upon who is the proponent of the evidence. [62] Where the proponent of the evidence is the Crown, the exclusionary discretion is engaged where the prejudicial effect of the evidence exceeds its probative value: Calnen , at para. 107, per Martin J. (dissenting, but not on this point); White , at para. 31. See also, R. v. Mohan , [1994] 2 S.C.R. 9, at pp. 20-21; R. v. Khelawon , 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3. [63] Where the proponent of the evidence is the defence, evidence that is relevant, material, and compliant with any applicable admissibility rules may only be excluded where the prejudicial effect of that evidence substantially exceeds its probative value: R. v. Seaboyer , [1991] 2 S.C.R. 577, at p. 611; R. v. Shearing , 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 107. [64] In the absence of legal error, a misapprehension of material evidence or a conclusion that is plainly unreasonable, a trial judge’s evaluation of where the balance between probative value and prejudicial effect settles attracts substantial deference on appeal: Shearing , at para. 73; Luciano , at para. 234. [65] The admissibility rule applicable here is the hearsay rule, more specifically, the principled exception to that rule, by which evidence subject to the exclusionary effect of the rule may be received. The applicable principles are uncontroversial. [66] First, the nature of hearsay evidence. No evidence is hearsay on its face. Said in another way, hearsay is not an inherent characteristic of any item of evidence. What warrants characterization of an item of evidence as hearsay is the purpose for which that evidence is introduced. The purpose for which the evidence is adduced labels the evidence as hearsay and engages the hearsay rule: R. v. Baldree , 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 36; Khelawon , at para. 57; R. v. Tsekouras , 2017 ONCA 290, 353 C.C.C. (3d) 349, at para. 181, leave to appeal refused, [2017] S.C.C.A. No. 225. The purpose which engages the hearsay rule is when the evidence is adduced to prove the truth of the facts stated: Baldree , at para. 36. [67] Second and relatedly, it follows where the purpose for which the item of evidence is tendered is not to prove the truth of a statement’s contents, the hearsay rule is not implicated, thus does not constitute a bar to the admission of the evidence. However, removal of the hearsay rule as a bar to reception of the evidence does not mean that the evidence will be received. Another rule may intrude, or the evidence may be excluded in the exercise of judicial discretion. [68] Where evidence is not tendered or is admitted for a non-hearsay purpose it is not reached by the exclusionary aspect of the hearsay rule, thus does not require an exception to justify its admission. Evidence not tendered to prove the truth of its contents may have probative value as non-hearsay, as for example, to establish that a party had notice of certain information, was the speaker, or received threats supportive of the excuse of duress: Tsekouras , at para. 182; R. v. Evans , [1993] 3 S.C.R. 653, at pp. 662-663. [69] Third, the essential defining features of hearsay. The defining features of hearsay are the fact that the purpose for which the statement is adduced is to prove the truth of its contents and the absence of a contemporaneous opportunity to cross-examine the hearsay declarant: Baldree , at para. 30, citing Khelawon , at para. 56. Hearsay evidence is presumptively inadmissible because of the difficulties inherent in testing the reliability of the declarant’s assertion: Baldree , at para. 31; Tsekouras , at para. 147. [70] Fourth, the exceptions to the exclusionary rule. Hearsay may be admitted under a listed exception or, more recently, under the principled exception which requires its proponent to establish not only that its admission is necessary, but also that the hearsay tendered for admission is reliable: Khelawon , at paras. 2, 47; R. v. Bradshaw , 2017 SCC 35, [2017] 1 S.C.R. 865, at para. 23. [71] Fifth, the reliability requirement. A proponent may establish the threshold reliability of hearsay evidence by showing that: i. there are adequate substitutes for testing the truth and accuracy of the proposed evidence ( procedural reliability); or ii. there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy ( substantive reliability). See, Khelawon , at paras. 61-63; Bradshaw , at para. 27; R. v. Youvarajah , 2013 SCC 41, [2013] 2 S.C.R. 720, at para. 30. [72] To establish procedural reliability, the proponent must adduce evidence that adequate substitutes exist for testing the hearsay evidence since the declarant has not testified in court, under oath or its equivalent, and under the scrutiny of contemporaneous cross-examination. These surrogates must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. Typical substitutes for the usual safeguards include a video recording of the statement, the presence of an oath or its equivalent, and a warning about the consequences of lying. But some form of cross-examination is ordinarily required: Bradshaw , at para. 28. [73] Substantive reliability, the functional equivalent of Dean Wigmore’s “circumstantial guarantee of trustworthiness”, sets a higher standard for the hearsay proponent to meet. The judge or court must be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process. To determine whether the statement is inherently trustworthy, the trial judge or court can consider the circumstances in which the statement was made, as well as any evidence that corroborates or conflicts with it: Bradshaw , at paras. 30-31. Substantive reliability is established where the statement is so reliable that it is unlikely to change under cross-examination: Bradshaw , at para. 31, citing Khelawon , at para. 107. See also, R. v. Smith , [1992] 2 S.C.R. 915, at p. 937. [74] The procedural and substantive approaches to establishing threshold reliability under the principled exception to the hearsay rule are not mutually exclusive. They may work in tandem. Factors relevant to one can complement the other. But at bottom, the threshold reliability standard remains high. The statement must be reliable enough to overcome the specific hearsay dangers it presents, whether perception, memory, communication, sincerity or some combination of them: Bradshaw , at para. 32. [75] Sometimes, embedded within a hearsay statement tendered for admission is an additional hearsay statement. To permit reception in these circumstances, each level of hearsay must be admissible under a listed or the principled exception: see R. v. Starr , 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 172. [76] The final point concerns circumstantial evidence. Like any item of evidence, circumstantial evidence must be relevant, material, compliant with any applicable admissibility rule and more probative than prejudicial. Circumstantial evidence is all about inferences. An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. Inferences arise from objective facts that give rise to those inferences. Absent such facts from which the inferences may be drawn, no inference arises, only impermissible speculation and conjecture. The Principles Applied [77] In my respectful view, this ground of appeal cannot prevail. [78] At trial the principal evidence defence counsel sought to introduce was a portion of Kim Rolph-Smith’s police interview in which she described her impression of an early morning conversation between the appellant and Gary Lazurek about a wood chipper. The conversation took place about two days before the appellant killed the deceased. The purpose for which defence counsel sought to introduce this evidence and later both police interviews of Kim Rolph-Smith in their entirety was to prove the truth of what she said. [79] In light of the purpose for which defence counsel sought to introduce the evidence and the lack of any contemporaneous opportunity to cross-examine the declarant because of her memory deficit, it was incumbent on defence counsel to establish that the proposed excerpt and interviews met the necessity and reliability requirements for the principled exception to the hearsay rule. [80] The trial Crown conceded necessity because the declarant claimed no live memory of the interviews or their contents. That left reliability to be established on either or on some combination of procedural and substantive reliability. On the evidence adduced at trial, neither procedural nor substantive reliability, nor any combination of them was established. [81] Procedural reliability requires adequate substitutes for testing sources of potential error so that the trier of fact can rationally evaluate the truth and accuracy of the hearsay statement proposed for admission. No such satisfactory substitutes appear here. No video to evaluate the declarant’s demeanour. No oath or its equivalent. No warning about the need to speak truthfully and the consequences of lying. Cross-examination of the declarant is not realistically available because of the declarant’s lack of memory of relevant events and of the interviews themselves. It may not also be without significance that there appears to be some issue about the competency of the declarant as a witness. [82] The standard for substantive reliability is high. The only witness who testified on the admissibility inquiry was the declarant herself. She disclosed that the police came to her home to talk to her. Beyond that, the record is bankrupt of any evidence about the circumstances in which the interview was conducted. No evidence was adduced upon which the trial judge could be satisfied that any of the statements were so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process. Nor could it be said that any or all of the statements were so reliable that it was unlikely to change under cross‑examination. [83] It follows from what I have said that the application of the principles of necessity and reliability would not permit the introduction of the proposed evidence for the purpose of establishing the truth of their respective contents. [84] The appellant’s submissions that excluding the evidence violated his right to control his own defence and failed to give effect to the relaxed approach to the admissibility of exculpatory defence evidence are equally unpersuasive. [85] The appellant’s right to control his own defence is not unlimited. It does not entitle an accused to introduce evidence that lacks relevance or materiality or is not compliant with the applicable rules of admissibility. In much the same way, it does not permit an accused to advance a defence, justification, or excuse for which there is no evidence adduced at trial to provide it with an air of reality. [86] Relatedly, relaxation of admissibility requirements when defence counsel tenders exculpatory evidence for reception does not assist the appellant’s quest for a ruling favouring admissibility. The principle first bruited in R. v. Williams (1985), 50 O.R. (2d) 321 (C.A.), at p. 372, leave to appeal refused, [1985] S.C.C.A. No. 168, and cited with approval by Cory J. in R. v. Finta , [1994] 1 S.C.R. 701, at p. 854, does not invite an abandonment of the threshold reliability inquiry when hearsay evidence is tendered by the defence: R. v. Kimberley (2001), 56 O.R. (3d) 18 (C.A.), at para. 80, leave to appeal refused, [2002] S.C.C.A. No. 29; R. v. Post , 2007 BCCA 123, 217 C.C.C. (3d) 225, at para. 87, leave to appeal refused, [2007] S.C.C.A. No. 207. [87] In addition, both the specific portion of the first interview tendered for admission and the interviews themselves have embedded within them the declarant’s report of words spoken by others. To the extent that what others said to the declarant is tendered to prove the truth of what the others said, it too is hearsay and requires its own exception to justify admission. None do so. [88] The appellant also faults the trial judge for applying the wrong standard in exercising his discretion to exclude the excerpt and interviews on the basis that the prejudicial effect of the evidence exceeded its probative value. The essence of the submission is that the trial judge applied the standard applicable when the proponent of the evidence is the Crown, rather than the more stringent standard applicable when the evidence is adduced by the defence. [89] This submission fails for two principal reasons. The first is that the exclusionary discretion is engaged only in respect of evidence that is otherwise admissible. In this case, the appellant has failed to establish that the evidence was admissible under the principled exception to the hearsay rule or otherwise. It follows that the exclusionary discretion was not engaged. Any error in its exercise did not occasion the appellant any prejudice. [90] Second, I am not persuaded that the trial judge applied the wrong standard as alleged. The trial judge referred to the evidence as evidence of little probative value, but substantial prejudicial effect. This is consonant with the standard applied to defence evidence, not that applicable where the proponent of the evidence is the Crown. [91] The appellant’s submission that the trial judge erred in failing to consider the admissibility of the evidence for a non-hearsay purpose also fails. [92] This argument is inconsistent with the position the appellant advanced at trial. There, admission was sought on the basis of the principled exception to the hearsay rule after the claim of past recollection recorded failed. The hearsay rule is engaged and an exception required to permit reception of the evidence only where the purpose of introducing the evidence is to prove the truth of what the declarant said. Where the purpose of introducing the evidence is otherwise, as is now suggested, the hearsay rule is not engaged and no exception is required. [93] Characterizing the evidence as original evidence, thus disentangling its reception from the exclusionary grip of the hearsay rule, does not assist the appellant in his quest to demonstrate error. Every item of evidence must be relevant. At bottom, what was tendered here was a witness’ “impression” of a conversation between two others. Witnesses give evidence of what they perceive with their senses. Of sight. Of hearing. Of smell. While some exceptions exist permitting non-experts to express opinions, this evidence cannot shelter under that principle. [94] This ground of appeal fails. Ground #2: The Instructions on After-the-Fact Conduct [95] This ground of appeal alleges error in the trial judge’s instructions to the jury on their use of evidence of after-the-fact conduct in reaching their verdict. The appellant does not challenge the admissibility of the evidence, or its characterization as evidence of after-the-fact conduct, only the adequacy of the instructions about its use. [96] To better appreciate the argument advanced, it is helpful to begin with a brief description of the relevant evidence and a reference to the impugned portions of the trial judge’s instructions on its use. The Evidence [97] The evidence of after-the-fact conduct included both things done and lies told by the appellant in the immediate aftermath of the deceased’s death. The appellant: i. set fire to the deceased’s bed on which his charred body was found; ii. hid a sock stained with the deceased’s blood in an old burned speaker in his backyard; iii. texted Gary Lazurek claiming that he had gone to bed at 11:00 p.m. and awakened at 3:26 a.m. the following morning; iv. lied to his uncle Ray about how he had injured his right hand, claiming that he had cut it on a broken mirror on which he placed a bloodied towel; and v. lied to the police about not having seen the deceased for about one or one and one half months before his death. The Defence Advanced at Trial [98] The appellant admitted that he killed the deceased, but claimed he did so in lawful self-defence repelling an attack initiated by the deceased. He did not intend to kill the deceased, nor had he planned to do so. The appellant denied having set any fire in the deceased’s home. He claimed that the deceased had done so himself. The Charge to the Jury [99] The trial judge and counsel discussed the contents of the charge in advance of its delivery. On several occasions, they debated what should be said about jury use of evidence of after-the-fact conduct. R. v. Rodgerson , 2015 SCC 38, [2015] 2 S.C.R. 760, was a focal point in their discussion about the use of the evidence that the appellant set fire to the deceased’s bed. [100] The trial judge instructed the jury that they could consider all the evidence of after-the-fact conduct, along with the rest of the evidence, in deciding whether the appellant unlawfully killed the deceased. The judge explained that before the jury could use this evidence in determining whether the appellant unlawfully killed the deceased, they had to be satisfied first that the appellant said or did the things alleged to constitute the evidence of after-the-fact conduct. [101] In his instructions to the jury about the state of mind required to prove that an unlawful killing was murder, the trial judge told the jury that they could consider: i. the common-sense inference that a person intends the natural and probable consequences of their acts; ii. the evidence of the forensic pathologist who conducted the post-mortem on the deceased about the nature and extent of the injuries inflicted and the degree of force required to inflict them; iii. the appellant’s evidence about the blows he inflicted and his emotional state at the time; iv. the physical evidence at the scene as reflected in the photographs and other exhibits filed; and v. the evidence that the appellant set fire to the deceased’s bed to conceal the nature and extent of the deceased’s injuries. [102] Towards the conclusion of his charge, the trial judge gave this instruction: I instruct you, however, and I mentioned this a long time ago now, that whatever evidence I have summarized you on one issue may be used by you on any issue that you may think may be helpful to you. You can use the evidence then across the board. Everything you have heard you can use to decide this case in any manner that you wish. Okay? Just because I have been setting some of it on one issue, does not mean you cannot use it somewhere else. You can do whatever you want to, as long as it has some relevance to it, to what you are deciding. [103] The trial Crown objected to the last instruction. Defence counsel agreed. The trial judge recalled the jury and said: I indicated that the evidence you have heard may be used as you see fit, that is “across the board” was the phrase I used. I want to qualify that instruction as follows: I spoke to you of the relevance of the use of the conduct or behaviour of the accused after the assault, after the fight, including the fire and his behaviour with his Uncle Ray and the police and so forth. That evidence may be used in this limited way, to decide whether the actions of the accused were lawful or unlawful. And the evidence with respect to the setting of the fire, to decide whether the act was the state of mind for murder, that is, to conceal the extent of injury. [104] Apart from his concurrence with the trial Crown’s objection, defence counsel did not object to the instructions on the evidence of after-the-fact conduct. He expressly agreed with the trial judge’s corrective instruction. The Arguments on Appeal [105] The appellant contends that the trial judge failed to adequately instruct the jury on its use of evidence of after-the-fact conduct. Admittedly, a trial judge need not follow a set formula in providing proper instructions. But, typically, the instruction should direct the jury about the permitted and prohibited uses of this evidence and that it cannot be used for its permitted purpose unless the jury rejects any other explanation advanced for it. [106] In this case, the trial judge omitted several essential elements of a proper instruction. He provided no caution against prohibited use and his instruction on the permitted use included no limitative words. The judge failed to tell the jury that this evidence could not be used in determining whether the murder of the deceased was planned and deliberate. The jury was not cautioned that to consider this evidence they must first reject any alternate explanations for the conduct. Nor was the jury instructed, as it should have been, that they could not infer from this evidence that the appellant was not acting in self-defence or that the intent required for murder had been established unless they were satisfied that these were the only reasonable inferences that could be drawn from all the evidence. [107] The appellant points out that, in one respect, the trial judge misstated the substance of the evidence of after-the-fact conduct. The blood-stained sock the appellant put inside a speaker in his backyard was not that of the deceased as the trial judge described them. No evidence was adduced that this was the deceased’s sock. Although the blood on the sock was that of the deceased, remnants of sports socks were found on the deceased’s body. This misstatement could have borne directly on the jury’s reasoning process since this meant that the appellant had already planned to conceal his involvement before leaving the house and had not acted in self-defence as he claimed in his testimony. [108] The respondent acknowledges that the trial judge misspoke when he described the origin of the sock the appellant put in his backyard speaker. But apart from this harmless error, the respondent says that the instructions met the standard required of them. [109] Our review of jury instructions, the respondent reminds us, requires a functional approach. We are to examine the charge as a whole, mindful of the requirement that it need not be perfect, only proper. We are to determine whether the instruction enabled the trier of fact to decide the case in accordance with the governing legal principles on the evidence adduced at trial. The instructions provided here did that. What is more, an important factor in assessing their adequacy is the position of defence counsel at trial. These instructions attracted no objection from defence counsel either before or after they were delivered. [110] The respondent submits that evidence of after-the-fact conduct is neither more nor less than circumstantial evidence. Its relevance is highly context and fact specific. It is not the subject of any bright line rules, but is commonly used to assist in proof of the unlawful character of an accused’s conduct, to negate a defence rendering conduct lawful, such as self-defence, and to establish an accused’s state of mind. [111] Here, the respondent continues, the trial judge approached the issues in a series of logical steps reflecting the essential elements of the offence of first degree murder. As part of the evidence relevant to the issue of whether the appellant unlawfully caused death, thus was not acting in lawful self-defence, the trial judge instructed the jury that they could consider the evidence of after-the-fact conduct he described for them. This included the entire catalogue of the evidence of after-the-fact conduct. In connection with the question of whether the Crown had proven beyond a reasonable doubt that the unlawful killing of the deceased was murder, the trial judge instructed the jury that they could consider the evidence that the appellant set fire to the deceased’s bed to conceal the nature and extent of the injuries he had inflicted. This was the only item of evidence of after-the-fact conduct which the trial judge left to the jury on this issue. [112] The respondent argues that the trial judge’s instructions made it clear that the evidence of after-the-fact conduct was simply part of the evidence available for the jury to consider in reaching their conclusions on the issues of unlawful killing and the state of mind that accompanied it. The inferences were permissive, not mandatory, the decision of the jury. The standard of proof required of each essential element was described both generally and more specifically when the evidence was entirely circumstantial. [113] According to the respondent, cautions about evidence of after-the-fact conduct, as well as a specific direction about the need to consider and reject evidence of any alternative explanations, are context and fact-specific. In this case, the after-the-fact conduct was closely connected temporally with the offence to which it related. This was not a case where a remote connection made inference drawing more difficult and thus a caution desirable. No alternative explanations were advanced, hence the absence of instruction is of no consequence. Trial counsel did not object to the instructions given. [114] The respondent accepts that the weight of the evidence adduced at trial supports a finding that the partially burned sock with the deceased’s blood on it found in the appellant’s backyard was his sock, not that of the deceased as the trial judge misdescribed it. But this misdescription was of no moment. The central driver of its probative value was that the appellant attempted to hide evidence that linked him to the scene of the deceased’s death. The misstatement was of no practical moment in light of the evidence that the appellant set the premises on fire incinerating the body of the deceased. The Governing Principles [115] Well-established precedent governs our evaluation of the merits of this ground of appeal which alleges non-direction jury instructions about evidence of after-the-fact conduct. [116] Our approach when asked to review the adequacy of jury instructions is functional. We examine the instructions as a whole to determine whether, in the context of the entire trial, those instructions enabled the jury, as the trier of fact, to decide the case in accordance with the law and the evidence admitted at trial. The jury must be properly, but need not be perfectly instructed. The overriding question is whether the instructions, taken as a whole, properly equipped the jury to decide the case, despite the absence of instructions now said to have been required but omitted in error: Calnen , at paras. 8-9. [117] Final instructions to the jury need not follow a particular formula. The words used, the sequence followed, and related considerations fall within the discretion of the trial judge. What matters is the general sense which the words used must have conveyed, in all likelihood, to the minds of the jury: R. v. Daley , 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 30; Calnen , at para. 8. [118] In addition to these general principles, a wealth of precedent describes what is necessary in final instructions about evidence of after-the-fact conduct. [119] Evidence of after-the-fact conduct is neither more nor less than circumstantial evidence. As circumstantial evidence, it allows the trier of fact to draw inferences. Those inferences are based on logic, common sense and human experience. The inferences must be reasonable according to the measuring stick of human experience and will depend on the nature of the conduct, the inferences the proponent seeks to have drawn from it, the positions of the parties and the totality of the evidence: Calnen , at paras. 111-112 ( per Martin J., dissenting, but not on this point); R. v. McGregor , 2019 ONCA 307, 145 O.R. (3d) 641, at paras. 100-101. [120] As with any item of evidence adduced at trial, evidence of after-the-fact conduct may be relevant to and admissible for a particular purpose or more than one purpose, but not for another or other purposes. In a jury trial, the trial judge should identify for the jury the permitted and prohibited purposes for which the evidence of after-the-fact conduct may be used and that or those for which it cannot be used. The language used to provide this instruction need not follow a particular formula: Calnen , at para. 113, per Martin J. (dissenting, but not on this point); McGregor , at para. 105. [121] Typically, a jury instruction about the use of evidence of after-the-fact conduct in reaching a verdict has three components: i. identification of the evidence as after-the-fact conduct; ii. a description of the permitted use of the evidence; and iii. a description of the prohibited use of the evidence. See, Calnen , at para. 42; McGregor , at para. 106. Failure to provide an express instruction about the permitted and prohibited uses of this evidence is not always fatal: R. v. Adamson , 2018 ONCA 678, 364 C.C.C. (3d) 41, at para. 65; Calnen , at para. 5. [122] Where it is admitted, evidence of after-the-fact conduct may present some unique reasoning risks. It often consists of things done and said at a time that is temporally remote from the events that form the subject matter of the charge. This may make it more difficult to draw an inference about the prior conduct by invoking retrospective reasoning. The evidence may also appear more probative than it actually is. It may be inaccurate. It may encourage speculation, give rise to imprecise reasoning, and abet decision-makers in reaching immature conclusions. As an antidote, judges instruct jurors to take into account alternative explanations for the conduct before coming to any conclusion about the persuasive force of the evidence: Calnen , at paras. 116-117, per Martin J. (dissenting, but not on this point); McGregor , at paras. 107-108. [123] Among the issues upon which evidence of after-the-fact conduct may be relevant and admissible is proof of an accused’s mental state or intent when engaging in conduct that forms the subject matter of the charge. This includes distinguishing between different levels of culpability: Calnen , at para. 119, per Martin J. (dissenting, but not on this point). For example, an accused’s efforts at concealment may support inferences that: i. the accused was acting unlawfully when they engaged in conduct that forms the subject matter of the charge; and ii. the accused was attempting to hide the extent of the crime, for example, in a homicide case, the nature and extent of the deceased’s injuries, thus the force required to inflict them, and further, the state of mind that accompanied their infliction. See, Rodgerson , at para. 20. [124] A final point concerns the standard of proof. [125] As an item or series of items of circumstantial evidence, this evidence is not subject to the criminal standard of proof except where it is the only evidence available to establish an essential element of the offence or the offence as a whole: R. v. White , [1998] 2 S.C.R. 72, at para. 39 (“ White 1998” ); R. v. Morin , [1998] 2 S.C.R. 345, at p. 354. The Principles Applied [126] Several reasons persuade me that this ground of appeal is unavailing. [127] The essence of the complaint, as I understand it, is that the combined force of several omissions in the charge left the jury unequipped to evaluate the evidence of after-the-fact conduct in reaching their conclusion that the appellant unlawfully killed the deceased and, when doing so, had the state of mind necessary to make the unlawful killing murder. The omissions related to the prohibited use of the evidence, the obligations to consider alternative explanations, and a caution not to reach a premature conclusion based on the evidence. [128] To assess the merits of this claim of error, I begin with a weather eye on two basic principles. [129] The first is that my approach must be functional, asking whether the charge on this issue as a whole enabled the trier of fact to make proper use of this evidence in rendering its decision. The overriding question is whether the jury was properly equipped to render its decision in the absence of the instructions of which complaint is now made. The instructions as a whole must be proper but they need not be perfect. [130] The second principle has to do with the nature of the complaints advanced. These are allegations of non-direction, not misdirection. Of things left out, not things said wrong. [131] Rarely will final instructions to a jury include everything that could be said about a particular subject like the use the jury can make of various items of evidence admitted at trial. But on review, the issue is not whether something more or something different could have been said, or some direction could have been more felicitously phrased. The issue is whether, in the context of the trial as a whole, what was said was sufficient. [132] Misdirection does not occur when a judge fails to tell a jury everything that could be said about a particular subject. On its own, non-direction is not misdirection. Non-direction only becomes misdirection when something left unsaid makes wrong something that was said, or where what was left unsaid was essential to an accurate instruction on the subject: Adamson , at para. 71; R. v. Demeter (1975), 25 C.C.C. (2d) 417 (Ont. C.A.), at pp. 436‑437. [133] In this case, apart from the erroneous “across the board” reference which was later corrected, the trial judge did not say anything wrong to the jury about the use of evidence of after-the-fact conduct on the issues of the unlawfulness of the killing and the appellant’s state of mind at the time. The evidence he recited was relevant to those issues and was left as part of the evidence relevant for consideration in deciding whether the Crown had proven those essential elements of the offence beyond a reasonable doubt, provided the jury made the threshold finding required to permit consideration of the evidence. [134] Doubtless, the trial judge could have added an instruction that enjoined the use of the evidence on other issues. This could have been done expressly, or simply by adding an exclusive word such as “only” to the permitted use instruction. However, I reject the submission that such an instruction was essential as a prophylactic against improper use. The evidence was not linked directly or inferentially to any other issue. The jurors were told what it could be used for. It beggars belief that they would use it otherwise, especially in light of the corrective instruction on the “across the board” reference which advised the jurors of the use of the evidence “in this limited way”. [135] The evidence of after-the-fact conduct in this case was not, as in many, temporally remote from the killing of the deceased. Nor were there any alternate explanations advanced worthy of consideration. The lies were admitted. The forensic evidence put paid to the appellant’s claim that the deceased set fire to his own house. And the jury instructions made it clear that the jury had to first find that the appellant set the fire to use that evidence on the issues to which it was relevant. [136] The respondent acknowledges that the trial judge erred in his description of the blood-stained sock found in a burned speaker in the appellant’s backyard. The sock contained the deceased’s blood, but the preponderance of the evidence adduced at trial favoured the conclusion that the sock belonged to the appellant, not to the deceased as the trial judge advised the jury. [137] The error here related to the origin of a piece of evidence admitted at trial. The trial judge had previously told the jury that it was the jury’s recollection of the evidence that counted, not the recollections of counsel or the trial judge. Where the recollections differed, the jurors were the final arbiters of the substance of the evidence. [138] The real probative value of this evidence was that the appellant attempted to hide or otherwise dispose of evidence that linked him to the death of the deceased. The misdescription tended to indicate that the deceased was dead at the time his sock was removed, thus that he died before the fire was started, thereby was not its author. However, the forensic evidence had already provided the jury with cogent evidence to infer that the appellant set the fire. As such, the import of the misdescription was to give rise to a more limited inference – that the appellant attempted to conceal evidence. This inference remains the same regardless of who the sock belonged to. The misdescription did not attract any objection from trial counsel and caused no prejudice to the appellant. Ground #3: The Juror Inquiry [139] The final ground of appeal arises out of a communication sent by a juror to the trial judge shortly after the judge concluded his charge. The specific complaint is that the trial judge’s response reflects prejudicial error. The Essential Background [140] The appellant made two Facebook posts shortly before he killed the deceased. The texts of one of those posts was in these words RED river RED rover who wants to be OVER followed by several exclamation marks. [141] In his evidence at trial, the appellant acknowledged that the post made no sense. He explained that the screen on his cellphone was damaged and that he meant to send a text Red rover, red rover, who wants to come over as an invitation to his friends. He denied the trial Crown’s suggestion that the texts reflected his plan to kill the deceased. The trial judge left the evidence to the jury as to whether it reflected a motive to kill the deceased. The Juror’s Note [142] Around the time the trial judge concluded his corrective instruction about his earlier erroneous “across the board” reference, he received and disclosed to counsel a question received from a juror: I am aware of a song (I looked it up) by a well-known punk music duo; a song that contains lyrics that appear to have influenced Shane Wood’s last Facebook post (Red river, red rover, who wants to be over). Should I share this with other members of the jury? [143] The trial judge and counsel discussed how the question should be handled. No one suggested that an inquiry should be held to determine the suitability of the juror to continue participation in the jury’s deliberations. Counsel agreed with the trial judge’s proposed response and that he should provide it without repeating the juror’s inquiry. The jury was recalled. The judge instructed them: I have this instruction for you, members of the jury. This case must be decided on the evidence we have heard and the reasonable rational inferences from the evidence. You must not speculate. You must not look elsewhere, that is beyond the evidence. Thank you very much. The Arguments on Appeal [144] The appellant says that the trial judge should have conducted an inquiry to determine the suitability of the individual juror and the jury as a whole to continue their deliberations. The appellant accepts the strong presumption of juror impartiality. However, the presumption is rebuttable and has been rebutted here by the juror’s own admission of improper conduct. This triggered the trial judge’s obligation to conduct an inquiry. [145] The failure to conduct an inquiry, according to the appellant, deprives us, as the reviewing court, of an appropriate record to evaluate on. This, in turn, leaves us with no basis upon which we can rest assured that the juror did not share his information with his colleagues. The judge’s instruction was inadequate since the juror had already ignored a prior direction when they conducted research in the first place. A new trial should be ordered on the ground that a miscarriage of justice has occurred. [146] The respondent submits that nothing that occurred here rebutted the well‑established presumption of juror impartiality, let alone the impartiality of the jury as a whole. Nor did the trial judge’s response deprive this court of an adequate record by which to determine whether a miscarriage of justice actually or appears to have occurred. [147] The nature of the alleged irregularity is an important factor to consider in determining whether an inquiry should have been undertaken. Here, a juror “looked up” extraneous information about the source of the words contained in a text posted by the appellant. Apparently similar language appeared in the lyrics of a song. The inquiry indicated that the information had not been shared with any other jurors. The question asked was whether it could be disclosed to the other jurors. [148] In his response, the respondent continues, the trial judge did not repeat the juror’s question. This ensured that the information the juror found was not communicated to the other members of the deliberating jury. And the instruction given underscored the jury’s obligation to decide the case on the evidence adduced at trial and on no other basis. No more was required. The Governing Principles [149] Two well-established presumptions apply to jurors acting in the discharge of their duties. Each is rebuttable. The first is that jurors will discharge their duties in accordance with their oath or solemn affirmation: R. v. Bains , 2015 ONCA 677, 127 O.R. (3d) 545, at para. 61, leave to appeal refused, [2015] S.C.C.A. No. 478. The second is that jurors understand and follow the trial judge’s instructions: Bains , at para. 61, citing R. v. Corbett , [1988] 1 S.C.R. 670, at p. 695. See also, R. v. Durant , 2019 ONCA 74, 144 O.R. (3d) 465, at para. 146. [150] To rebut the presumption of juror impartiality, an appellant must demonstrate a reasonable apprehension of bias or partiality. This is not an easy task: R. v. Dowholis , 2016 ONCA 801, 341 C.C.C. (3d) 443, at paras. 18-19, 80. [151] The circumstances that may prompt an inquiry into the suitability of a juror to continue are myriad. Section 644(1) of the Criminal Code, R.S.C., 1985, c. C-46 , entitles a trial judge to discharge a juror for illness or other reasonable cause. The subsection is unrevealing about the threshold for conducting an inquiry, the factors to be considered in making that determination, or the procedure to be followed on any inquiry that is conducted. It would seem logically to follow that the decision about whether to conduct an inquiry falls within the discretion of the trial judge in much the same way as the discretion to determine the procedure to be followed on any inquiry that is held: Durant , at para. 140. See also, R. v. Giroux (2006), 207 C.C.C. (3d) 512 (Ont. C.A.), at para. 34, leave to appeal refused, [2006] S.C.C.A. No. 211. [152] Decisions under s. 644(1) of the Criminal Code about the suitability of a juror to continue are afforded substantial deference on appeal. They are set aside only when the decision is tainted by an error of law or of principle, a misapprehension of material evidence, or on the ground that the decision is plainly unreasonable: Durant , at para. 152. There would seem no principled reason to adopt a different standard where the decision under review is whether to embark on an inquiry into juror suitability. The Principles Applied [153] I would reject this ground of appeal. In my respectful view, the trial judge was not required to conduct a juror inquiry, an argument advanced for the first time in this court. Nor did he err in the remedy he chose or in the substance of what he said in his instruction. [154] The information provided to the trial judge by the juror who asked the question revealed that the juror had not followed the trial judge’s announced injunction against seeking outside information. The juror had “looked up” some words used by the appellant in a Facebook post. The words were part of the lyrics of a song. There was no suggestion that they were at all connected to the appellant or any kind of extrinsic misconduct or other mischief. The communication also revealed that the juror had not told any other jurors about his discovery. That the juror asked whether he should do so seems to confirm the truth of that statement. [155] The trial judge discussed the communications with counsel. No one suggested an inquiry was necessary. All agreed that an instruction, without repeating the inquiry, was the appropriate response. [156] Nothing that occurred here warranted a juror inquiry. The remedy afforded was a reasonable response in the circumstances. The trial judge’s decision is entitled to deference in this court. It is not cumbered by any error in law or in principle, or any misapprehension of material evidence and is not plainly unreasonable. End of story. Disposition [157] It is for these reasons that I would dismiss this appeal. Released: January 28, 2022 “J.M.F.” “David Watt J.A.” “I agree. Fairburn A.C.J.O.” “I agree. Doherty J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Longshaw, 2022 ONCA 88 DATE: 20220128 DOCKET: C67566 Fairburn A.C.J.O., Gillese and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and Justin Longshaw Appellant Jeff Carolin and Taufiq Hashmani, for the appellant Molly Flanagan, for the respondent Heard: January 27, 2022 by video conference On appeal from the convictions entered on April 18, 2018 by Justice Jane E. Kelly of the Superior Court of Justice, and from the sentence imposed on April 4, 2019. REASONS FOR DECISION [1] The appellant was convicted of offences arising from an incident at Cabana Pool Bar (“Cabana”) in Toronto on August 20, 2016. It was conceded at trial that a male wielding a firearm threatened Cabana security staff. The sole issue was identification – whether the appellant was that male. [2] Following a judge-alone trial, the appellant was convicted of two counts of threatening to cause death and one count each of possessing a dangerous weapon (a firearm), using an imitation firearm while threatening death, obstructing a peace officer by giving an incorrect name, and failing to comply with a probation order to not possess weapons. He was sentenced to 60 days’ imprisonment in addition to four years’ pre-sentence custody credit. He was designated a dangerous offender and placed on a seven-year long-term supervision order. [3] The appellant raised many grounds of appeal against conviction, effectively arguing that the verdicts were unreasonable. At the oral hearing of the appeal, the court found it unnecessary to call on the respondent Crown. We advised the parties that the appeal was dismissed, with reasons to follow. These are the promised reasons. BACKGROUND IN BRIEF [4] On August 20, 2016, after being ejected from Cabana, a man began threatening Cabana security staff. He retreated to the parking lot and returned with what appeared to be a black firearm. He continued to threaten the security staff, now while pointing a firearm at them. When he left again, one of the security staff, Mr. Osroff, followed him to the parking lot behind Cabana and called 911. He stayed on the 911 call until the police arrived. During that time, he saw the suspect near a vehicle that he later described as a “sedan Jeep”. [5] When the police arrived, Mr. Osroff pointed them to the area in the parking lot where he believed the suspect was. The police moved to that area and saw a male emerge from the back-passenger side of a blue Jeep and walk quickly away from it. The police arrested the male, who fit the description of the suspect. That male was the appellant. The appellant falsely identified himself as “Corey Barriner” on arrest. [6] The police located an imitation firearm (a black handgun) on the floor of the Jeep in front of the rear passenger seat from which the appellant had emerged. THE TRIAL DECISION [7] The trial took place over three days. The Crown called the three security staff from Cabana who had witnessed the incident and five police officers who attended the scene and were involved in arresting the appellant in the parking lot. The defence called no evidence. Its primary position at trial was that the Crown had failed to prove identity. [8] After a brief summary of the facts, the trial judge turned to the issue of identity. She summarized the descriptions of the man given by the three security staff witnesses and acknowledged the differences in those descriptions, such as the man’s footwear and height. However, she concluded that the evidence was reliable. She said the differences were to be expected because the situation on the night in question was dynamic and fluid. While they were making their observations, the staff were being threatened by a male holding what they believed was a firearm, leading them to fear for their safety and that of others. [9] Further, the trial judge found that the differences in descriptions were minor, in the context of the entirety of the evidence. Moreover, the description of the suspect reported on the 911 call was consistent with the appellant’s appearance at the time of arrest: he was a Black male, in his 20s, with cornrows, and wearing a white t-shirt and dark shorts. [10] The trial judge also noted that the situation was different from a typical identification case where witnesses have only a fleeting opportunity to observe the suspect. Here, two of the staff observed the individual for minutes during the first set of threats; three staff saw him during the second set of threats; and one of the witnesses, Mr. Osroff, never lost sight of the suspect from the time he made the second set of threats to his arrest. Despite some minor frailties in Mr. Osroff’s evidence, the trial judge accepted it. She gave thorough, compelling reasons for rejecting defence counsel’s submissions that Mr. Osroff’s evidence was unreliable and undermined in cross-examination. [11] The trial judge reminded herself of the frailties of eyewitness identification evidence before concluding that she “completely accept[ed] the evidence of the security staff” with respect to the identification of the appellant as the man who threatened them on the night in question, noting there was circumstantial evidence that supported the identification evidence. [12] The trial judge was further satisfied that the black firearm described by the three security staff and seized by the police from the Jeep was the firearm used by the appellant when threatening the officers. [13] Finally, the trial judge found that by giving a false name to the police, the appellant was guilty of obstructing a peace officer, as there was no other inference to draw from providing a false name on the evidence before her. THE GROUNDS OF APPEAL [14] The appellant submits that the verdicts are unreasonable. He says that the trial judge erred: 1. by using Mr. Osroff’s certainty that he never lost sight of the suspect as a proxy for his reliability; 2. by: a. misapprehending the additional evidence that she used to find Mr. Osroff reliable; and b. failing to critically engage with the evidence that pointed to his unreliability; 3. in her treatment of the security staff’s descriptions of the male by: a. not assessing the exculpatory descriptive evidence (i.e., the inconsistencies) against the reasonable doubt standard; b. relying only on the generic descriptive evidence that was consistent with the appellant’s appearance; c. applying different standards of reliability to the inculpatory and exculpatory descriptive evidence; and d. failing to consider the exculpatory generic descriptors against the reasonable doubt standard; 4. by relying on the in-dock identifications of the appellant; 5. by relying on generic handgun descriptions; 6. by concluding that guilt was the only reasonable inference that arose from the appellant providing a fake name; and 7. in relation to the obstructing a peace officer count only, by failing to provide reasons to support the conviction, entitling him to a new trial. [15] The appellant asks that if acquittals are entered or a new trial is ordered in respect of each offence except the charge of obstructing a peace officer, the sentence for obstructing a peace officer be varied to 30 days’ imprisonment. ANALYSIS [16] The many grounds of appeal which the appellant raises are essentially an attempt to relitigate the issue of identification. Most of the grounds amount to disagreement with the trial judge’s factual findings. We do not accept that the trial judge made any of the alleged errors and see no basis to disturb the factual findings below. [17] In cases involving eyewitness identification evidence, the trial judge must consider the eyewitness testimony in its entirety, mindful of its inherent frailties. These frailties arise most acutely in cases where eyewitnesses have only a fleeting opportunity to observe an unfamiliar person in a stressful circumstance: R. v. Pelletier , 2012 ONCA 566, 291 C.C.C. (3d) 279, at paras. 90, 95. In order to determine whether the appellant’s guilt was proven beyond a reasonable doubt, the trial judge was required to consider the eyewitness testimony in the context of the evidence as a whole: Pelletier , at para. 95. She did so in this case. [18] The trial judge considered all of the identification evidence and ultimately concluded that the appellant was the person who threatened the security staff and that the gun found in the vehicle was the gun used by the appellant to threaten the security staff. [19] Of paramount importance was the evidence of Mr. Osroff, who testified that he did not lose sight of the suspect, from the time he made the second set of threats to his arrest. After acknowledging the vigorous cross-examination and submissions of defence counsel on the reliability of that evidence, the trial judge found that his evidence with respect to the continuous observation was not undermined. Thereafter, she gave compelling reasons for that finding. [20] The main thrust of the appellant’s submissions was that the trial judge’s findings concerning Mr. Osroff’s evidence were flawed, thereby undermining the reasonableness of her conclusion on the issue of identity. We do not accept this submission. As already noted, the trial judge’s findings were compelling. We are not persuaded that there is any basis to set them aside on appeal. [21] Counsel for the appellant acknowledges that the appeal turns largely on his grounds of appeal that relate to how the trial judge addressed Mr. Osroff’s evidence. Nonetheless, he also made submissions concerning the trial judge’s treatment of the other identification witnesses. Again, we see no error in the trial judge’s findings. She explicitly recognized the frailties associated with eyewitness identification evidence and considered it with that caution in mind. She addressed the inconsistencies in the witnesses’ descriptions and gave compelling reasons for why the relatively minor differences did not cause her to conclude that evidence was unreliable. She noted that, unlike a typical identification case where there is only a fleeting opportunity to observe the suspect, in this case, the security staff witnesses had a good opportunity to observe the suspect over several minutes. The trial judge came to multiple findings of fact, all of which were available to her on the evidence adduced at trial. Those findings of fact reasonably support the convictions. We see no error in the trial judge’s approach to the evidence or the law. It is not for this court to retry the case. [22] The appellant relies on his factum for his submission that the trial judge erred in finding him guilty of obstructing a peace officer. We do not accept this submission. The trial judge found that the appellant gave a false name to the police and concluded that, on the evidence before her, there was no other inference to draw from that. While the trial judge’s reasons are brief, they are adequate, as they permit meaningful appellate review: R. v. R.E.M. , 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 30, 57. [23] The appellant’s sentence appeal was contingent on success on his conviction appeal. Because we dismiss the conviction appeal, his sentence appeal falls away. DISPOSITION [24] For these reasons, the conviction appeal is dismissed. “Fairburn A.C.J.O.” “E.E. Gillese J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Sheth v. Randhawa, 2022 ONCA 89 DATE: 20220128 DOCKET: M53070 (C69649) Simmons J.A. (Motions Judge) BETWEEN Lovera Sheth Plaintiff (Appellant/Moving Party) and Karanpaul Randhawa, TSD Law Professional Corporation, Anoop Singh Dhillon, Bindaas Capital, Ash Karia, Sujoy Pal, Dr. Mangesh Inamdar Medicine Professional Corporation, 11035738 Canada Inc., Shan Mangal and Gurpal Singh Defendants (Respondents/Responding Parties) Doug LaFramboise, for the moving party Demetrios Yiokaris, for the responding parties Anoop Singh Dhillon and TSD Law Professional Corporation Aaron Hershtal, for the responding party Karanpaul Randhawa Paul Robson, for the responding parties 11035738 Canada Inc., Shan Mangal and Gurpal Singh Matthew Harris, for the responding parties Ash Karia, Bindaas Capital, Sujoy Pal and Dr. Mangesh Inamdar Medicine Professional Corporation Heard: January 20, 2022 by video conference ENDORSEMENT Introduction [1] The moving party/appellant, Lovera Sheth, requests an order: i) setting aside the Registrar's order dismissing her appeal for delay, and ii) granting her seven days from the date of the order on this motion to perfect her appeal. [1] [2] The order under appeal was made on a motion the appellant brought in her underlying action to set aside a transfer of property and/or for damages. The motion judge treated the appellant’s motion as a motion for partial summary judgment. She dismissed the appellant’s motion and granted reverse summary judgment in favour of the responding parties dismissing the appellant’s action. [3] For the reasons that follow, I grant the appellant's request subject to conditions as set out below. Background [4] On March 9, 2020, Bindaas Capital (“Bindaas” or the “chargee”) and Brinder Nagra [2] transferred the subject property to 11035738 Canada Inc. (“1103” or the “purchaser”) pursuant to a power of sale contained in the first charge against the property. [5] The property transferred was the appellant's residence. It is undisputed that she remains in the home to date. She acquired the property in 2017 and granted or assumed first and second charges to Bindaas and others, [3] and Bindaas, for $610,000 and $160,000, respectively, at that time. There was also a third charge registered at the time in favour of Park Lane Plumbing Limited (“Park Lane”), apparently for $90,000. A fourth charge, apparently for $45,000, was later registered against the property in August 2019 in favour of Doris Joseph. [6] The appellant asserts that she did not learn of the March 9, 2020 transfer until May 2020. Soon after learning of the transfer, she commenced the underlying action and brought a motion, originally returnable on May 21, 2020, to set aside the transfer. [7] In her action, among other things, the appellant sought a declaration that the March 9, 2020 transfer was fraudulent, an order reversing the transfer and re‑registering the property in her name, and damages for loss of equity. In her motion, at least as originally framed, the appellant asked, among other things, that the March 9, 2020 transfer be deemed a nullity and that the property be re‑registered in her name. [8] Following cross-examinations, the appellant’s motion in some form [4] was heard on June 9, 2021. On the hearing date, the appellant sought an adjournment to conduct a further examination of Ash Karia, the principal of Bindaas. The responding parties opposed the request. The motion judge denied the adjournment for reasons provided orally. [9] The motion judge released her endorsement concerning the merits of the motion on June 14, 2021. According to the June 14, 2021 endorsement, the appellant argued that the responding parties (primarily, the chargee and the chargee’s solicitors (Mr. Randhawa) and the purchaser and the purchaser’s solicitors (TSD Law Professional Corporation and Mr. Dhillon)) engaged in a conspiracy to defraud her and take her property from her; and further, that the notice of sale issued by Bindaas was invalid and that the transfer was therefore a nullity. [10] In her June 14, 2021 endorsement, the motion judge dismissed the appellant's motion and granted reverse summary judgment to the responding parties dismissing the appellant's action subject to the appellant’s right to proceed with an accounting against Bindaas and its principal, Mr. Karia and subject also to the right of the purchaser to apply for payment out of $40,000 the appellant paid into court pursuant to an order made by Andre J. [11] The appellant filed her notice of appeal dated July 13, 2021 on July 14, 2021. Under rule 61.09(1)(a), the appeal should have been perfected on or before August 13, 2021. [12] On August 16, 2021, the Registrar of this court sent a notice to the appellant advising her appeal would be dismissed unless perfected by September 7, 2021. The Registrar subsequently dismissed the appellant's appeal on November 5, 2021. Appellant’s counsel apparently received notice of the dismissal on November 9, 2021. [13] The appellant’s set aside/extension motion is dated November 24, 2021. Appellant’s counsel sought to make it returnable on December 6, 2021. However, due to the unavailability of the purchaser’s lawyer for any dates in December the motion was brought returnable on January 20, 2022. Chronology of the Chargees’ Enforcement Proceedings and the Appellant’s Action [14] The following chronology [5] of the chargees’ enforcement proceedings and of the appellant’s action is relevant to the issues on this motion: · July 2018, the appellant defaulted under the first and second charges to Bindaas and others, and Bindaas; · July 30, 2018, Bindaas issued a notice of sale under charge with respect to the second charge requiring payment by September 5, 2018; · July 30, 2018, Bindaas commenced an action to enforce the second charge; · February 15, 2019, Bindaas and others issued a notice of sale under charge with respect to the first charge requiring payment by April 5, 2019; · March 8, 2019, Bindaas and others commenced an action to enforce the first charge; [6] · December 4, 2019, the appellant and the first and second chargees (Bindaas and others, and Bindaas) entered into Minutes of Settlement requiring the appellant to pay $893,000 within seven days in full and final settlement of the actions to enforce the first and second charges. In default of payment, the chargees were entitled to sign judgment for $927,465.33 representing the full amount due under the first and second charges; · January 2020, the appellant listed the property for sale; · January 29, 2020, the appellant entered into an agreement to sell the property to Bobby Abraham for $1,000,000 with a closing date of February 28, 2020; · February 13, 2020, following default in payment under the Minutes of Settlement, the first and second chargees obtained judgment [7] for $927,465.33 plus $3,127.74 for costs; · February 26, 2020, the chargee’s lawyer (Mr. Randhawa) received a message from the appellant’s lawyer’s office that the property had been sold for $1,000,000 but did not receive a copy of the agreement of purchase and sale; · unknown date, the appellant requested a discharge statement for the charges; [8] · February 27, 2020, 1103 offered to purchase the property “as is” for $970,000. The offer was accepted with a closing date of March 4, 2020. (The agreement is not in the record on this motion. Para. 23 of the motion judge’s reasons does not refer to Brinder Nagra as being a party to this offer); · February 28, 2020, Bindaas’ real estate solicitor (Mr. Devesh Gupta) sent the appellant’s real estate solicitor (Mr. Manish Kapoor) a discharge statement for the charges for $980,272. Upon being advised this amount was disputed, Mr. Randhawa advised he was no longer retained on the matter; · February 29, 2020, in response to inquiries about the discharge statement, both Mr. Randhawa and Mr. Gupta advised they were not retained by Bindaas for purposes of the discharge of the charges; · March 4, 5, and 6, 2020 – 1103’s purchase is postponed each day, finally, on March 6, 2020 to March 9, 2020; · March 6, 2020, on motion by the appellant, Harris J. fixed the amount required to discharge the first and second charges at $932,211.73 less $5,000 on account of costs; · March 9, 2020, 1103’s purchase closed and the transfer, under the power of sale contained in the first charge, from Bindaas and Nagra to 1103 was registered; · March 9, 2020, 1103 registered a charge against the property in favour of Gurpal Singh for $880,000; · March 16, 2020, on motion by the appellant, Bloom J. fixed the amount required to discharge the first and second charges at $929,498.01 less $3,500 on account of costs and ordered that on payment into court the charges would be discharged; · May 7, 2020, Bobby Abraham paid $920,988 into court (of which $800,000 was borrowed from the National Bank) and also paid $51,000 to discharge the third charge in favour of Park Lane – commencing May 1, 2020, the appellant began paying Bobby Abraham $3,131 per month on account of the National Bank loan; · unknown date, Mr. Mangal visited the property and discovered that the appellant was still occupying it: para. 38 of the motion judge’s reasons; · May 12, 2020, Anthony Forgione of Apex Property Management delivered a Notice of Trespass to the occupants of the property on behalf of 1103 requiring them to vacate on or before May 17, 2020. The Notice stated it was “further to previous notice provided to you to vacate the premise.”; · May 13, 2020, the appellant issued her statement of claim; · May 19, 2020, 1103 registered a second charge against the property in favour of Kuldip Singh Dhillon for $262,500; · July 22, 2020, the date of Mr. Randhawa’s Statement of Defence and Crossclaim; · July 28, 2020, the date of Mr. Dhillon and his law firm’s Statement of Defence and Crossclaim; · July 30, 2020, the date of the Statement of Defence and Counterclaim and Crossclaim of Bindaas and other chargees and Mr. Karia; · November 20, 2020, the purchaser replaced its previous financing with new first and second charges in the principal amounts of $900,000 and $100,000 respectively (I am unclear whether this information was before the motion judge as the details of these charges are set out in a supplementary motion record dated January 13, 2022 filed on this motion by the purchaser and its principal (Mr. Mangal)); · November 24, 2020, the purchaser and its principal (Mr. Mangal) moved for an order requiring the appellant to pay into court all expenses and costs associated with her continuing occupation of the property, or, in the alternative, for a writ of possession; [9] the appellant brought a cross-motion seeking a declaration that the March 9, 2020 purported purchase was fraudulent; Andre J. ordered that the cross-motion [10] be heard on June 9, 2021 and that the appellant pay into court $40,000 to be held in trust pending the outcome of the cross-motion; · February 2, 2021, the date of the Statement of Defence and Counterclaim and Crossclaim of 1103, its principal and Mr. Singh, the original first chargee following the sale to 1103; · March 16, 2021, the National Bank obtained a consent order for payment out of the monies paid into court by Bobby Abraham; · June 9, 2021, the appellant’s motion was heard; · June 14, 2021, the motion judge issued her endorsement; · July 14, 2021, the appellant filed her notice of appeal; · August 13, 2021, the purchaser and its principal brought a motion requesting a writ of possession for the subject property; Woollcombe J. rejected the appellant’s position that the motion judge’s order was automatically stayed by the appeal; although she found an evidentiary basis existed for issuing a writ of possession under rule 60.10, in light of the appeal and the prejudice the appellant would experience if improperly evicted, she accepted the appellant’s proposal to pay $4,500 per month rent to the purchaser pending disposition of the appeal commencing September 1, 2021 and directed that in default of payment a writ of possession would issue. The test for setting aside an administrative dismissal for delay and extending the time for perfection [15] The test on a motion of this kind is well-established. The ultimate question is whether the justice of the case warrants the order requested. Factors to be considered in making the decision are: (i) whether the appellant formed an intention to appeal within the appeal period; (ii) the length of the delay; (iii) the explanation for the delay; (iv) the merits of the proposed appeal; and (v) prejudice to the responding parties. See, for example, Paulsson v. University of Illinois , 2010 ONCA 21, at para. 2; Krawczynski v. Ralph Culp and Associates Inc. , 2019 ONCA 399, 69 C.B.R. (6th) 163, at para. 9; Frey v. MacDonald (1989), 33 C.P.C. (2d) 13 (Ont. C.A.), at p. 14; Enbridge Gas Distribution v. Froese , 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15. Discussion Criteria (i), (ii) and (iii) - Timeliness and Explanation for the delay [16] There is no issue that the appellant satisfied the first criterion of the test on this motion, having served her notice of appeal within the appeal period. [17] Relying on rule 61.09(1)(b), appellant’s counsel argued that because the appellant wished to raise issues on appeal about the denial of the adjournment request and was therefore required to obtain a transcript of the motion judge’s oral reasons, the time for perfecting this appeal should have been extended to 60 days after the transcript was filed. [18] I reject this submission. Rule 61.09(1)(b) applies where a transcript of evidence is required for the appeal. No oral evidence was called on the motion. Rule 61.09(1)(b) does not apply. If the appellant required additional time to perfect to obtain a transcript of any submissions and the motion judge’s oral reasons for refusing the adjournment request, the proper course was to move for an extension of the time to perfect prior to the dismissal for delay. [19] The responding parties contend that the delay in this matter amounts to five months and is inordinate; that the evidence demonstrates that the appellant did not maintain a consistent intention to appeal throughout that period; and that the appellant has not provided an adequate explanation for her delay: Codina v. Canadian Broadcasting Corporation , 2020 ONCA 116, at paras. 2 and 4; Dupuis v. Waterloo (City) , 2020 ONCA 96, at paras. 3-5. [20] I conclude that the period of delay is just short of four months, being the period from August 13, 2021, the date the appellant should have perfected, to December 6, 2021, the first date on which the appellant was prepared to proceed with this motion. [21] In support of their position on delay, the responding parties submit that appellant’s counsel ignored six written requests over five months to perfect the appeal and settle the form of the order under appeal. They also note that the appellant did not order the transcripts of the motion hearing until August 9, 2021, almost two months after the motion judge’s reasons were released; did not advise responding parties’ counsel that transcripts had been ordered until October 26, 2021; and did not move for an extension of time to perfect in response to the Registrar’s warning. Further, the appellant did not obtain the opinion of value she seeks to adduce as fresh evidence until November 2021, which was after her appeal was dismissed for delay. [22] I agree that the appellant did not move efficiently or with dispatch in attempting to perfect this appeal. However, I do not accept that the evidence demonstrates that she abandoned her intention to appeal at any point or that the delay in this case should be characterized as inordinate or point strongly to the dismissal of this motion. [23] I reach my conclusions for the following reasons. First, in my view, an assessment of the various factors requires a contextual approach. Each factor must be considered in the context of the overall circumstances of the case and may carry more or less weight in a particular case depending on the circumstances. Second, the record in this case suggests that appellant's counsel believed, albeit incorrectly, that the time for perfecting the appeal was governed by rule 61.09(1)(b). Third, to date, this action has not proceeded at a torrid pace. The appellant commenced her action in March 2020 and judgment was granted on a partial summary judgment motion initiated by her in June 2021. The responding parties point to procedural missteps on the part of the appellant. However, I see no indication in the record that the responding parties attempted to bring this matter to fruition more quickly. Fourth, while the responding parties maintain they were anxious to have the appeal move forward, they failed to demonstrate any urgency when consulted about scheduling this motion. The appellant was prepared to bring this motion on December 6, 2021, but in mid-November, the purchaser’s counsel indicated he had no December dates. [24] No doubt appellant’s counsel could and should have proceeded towards perfection in a more efficient manner. However, considered in the context of the overall pace of this litigation, I do not consider that the approximately four months of delay should be characterized as inordinate or that counsel's mistaken understanding of rule 61.09 should be visited on the appellant to justify refusing the requested relief. Criteria (iv) - Merits of the Appeal [25] The responding parties submit that the merits of the appeal are weak at best, or non-existent. They point to the motion judge’s detailed reasons and findings of fact; to her conclusion that most of the traditional badges of fraud are absent from the circumstantial evidence; and to the standard of review and the inherent difficulty of overturning findings of fact and findings of mixed fact and law on appeal. In addition, they underline the importance of the motion judge’s following specific findings: i) the appellant’s agreement to sell the property for $1,000,000 in February 2020 reflected fair market value (thus a sale involving no commissions for $970,000 in the same time frame did not run afoul of the chargee’s obligations); ii) the potential badge of fraud of secrecy (i.e., the chargee’s failure to advise the appellant of its pending sale) was explained by four factors: a) a reasonable belief, based on past experience, that the offer the appellant had secured for the sale of the property was an effort to delay the chargee; b) a reasonable belief that such offer had expired; c) a reasonable belief based on past experience and the fact that the appellant was still living on the property that she would attempt to thwart the chargee’s intended sale through some form of injunctive proceedings; and d) the absence of any professional obligation on the part of the chargee’s lawyer to disclose the sale to the appellant; and iii) the potential badge of fraud relating to the haste with which the power of sale was conducted was negated by several factors: a) the period of time during which the appellant had been in default under the charge (since July 2018); b) the appellant’s failure to comply with Minutes of Settlement in the actions on the covenant in the charges under which Bindaas had given her an opportunity to refinance; c) the reasonable belief that the offer the appellant had obtained was a stall or had expired; and d) the reasonable desire in all the circumstances to get on with enforcing the charge. [26] In addition, the responding parties submit there is no basis to overturn the motion judge’s ruling that the valuation evidence tendered by the appellant following cross-examinations was not admissible on the motion. Finally, they submit that the appellant will not succeed on any proposed fresh evidence application. The valuation evidence proposed to be submitted could and should have been tendered on the June 9, 2021 motion. Similarly, even assuming it could constitute fresh evidence, the decision in Di Trapani v. 9706151 Canada Ltd ., 2019 ONSC 7311 was available well before June 9, 2021. [27] I agree that the appellant is unlikely to succeed in any proposed fresh evidence application or in overturning the motion judge’s ruling that the tendered valuation evidence was inadmissible. I also agree that, given the findings made by the trial judge, the appellant faces an uphill challenge on appeal. Nonetheless, I am satisfied that the appellant has arguable grounds of appeal concerning whether the motion judge properly weighed the evidence concerning potential badges of fraud and fair market value to support her summary dismissal of the appellant’s claims for damages and/or a reconveyance of the property based on fraud and conspiracy. [28] Several of the appellant’s grounds of appeal relate to how the motion judge weighed the evidence concerning the inferences to be drawn from aspects of the responding parties’ conduct in completing the power of sale, including the following: · failing to list the property on an MLS listing service; · entering into a sale agreement on February 27, 2020, which was the day before the appellant’s proposed sale to Abraham was scheduled to close, knowing of the Abraham agreement of purchase and sale; · entering into a sale agreement with a rushed closing date; · failing to advise the appellant of the impending sale in order to avoid the possibility of injunction proceedings; · providing an inflated discharge statement, which “scuttled” the Abraham sale; · failing to advise the appellant or the subsequent chargees that the property had been sold for a considerable period after the sale was completed; · the purchaser’s failure to inspect the property; · the purchaser’s intention to “flip” the property for a profit; · the fact that within just over two months after completing the purchase, 1103 had increased the charges registered against the property to a total of $1,142,500, almost $175,000 more than it paid for the property. [29] In many cases, the manner in which a first instance judge weighs evidence will be immune from appellate review. In this case however, the motion judge appears to have premised her analysis of the responding parties’ conduct, at least in part, on the traditional badges of fraud generally associated with conveyances made to avoid creditors. Some of those factors appear to have little or no application to assessing the bona fides of a sale to a third party under a power of sale contained in a charge. [30] For example, the following factors referred to by the motion judge appear to be of little relevance: whether the vendor remained in possession and continued to use the property as his own; whether the transfer was made in the face of threatened legal proceedings; and whether the transfer documents contained false statements. [31] Further, I consider it open to question whether the trial judge assessed the evidence bearing in mind the particular context of power of sale proceedings and a chargee’s duties in that context, potentially calling into question the motion judge’s explanations for excusing the secrecy and haste of this transaction. As an example, it may be questionable whether protracted prior court proceedings in relation to a chargee’s claim for payment on the covenant can in any way relieve a chargee from its obligations when subsequently exercising a power of sale, or serve as an explanation for secrecy and haste in conducting the power of sale. A mortgagee/chargee’s obligation when selling under power of sale has been described generally as an obligation to take “reasonable precautions to obtain the true market value of the property as of the date of the sale”: Centurion Farms Ltd. v. Citifinancial Canada Inc. , 2013 ONCA 79, at para. 4. See also Gowling Lafleur Henderson LLP, Marriott and Dunn: Practice in Mortgage Remedies in Ontario , looseleaf, 5th ed. (Toronto: Carswell, 1995), c. 33. It may be questionable whether the motion judge assessed the secrecy and haste with which the sale to 1103 was carried out taking account of the chargee’s obligation in carrying out a power of sale. [32] Similarly, the motion judge appeared to give little or no weight to the failure of the chargee to obtain a judgment for possession, a writ of possession and ultimately vacant possession of the property prior to sale; the failure of the chargee to list the property on a multiple listing service; and to the purchaser’s evidence that he “assess[ed] the situation similarly to how one would assess a salvaged car”. None of these features of this transaction create confidence that the chargee obtained a proper price. [33] Further, when discussing the “traditional badges of fraud”, the motion judge noted that “1103 was a bona fide purchaser that has repeatedly tried to take possession of the property.” In making that observation, the motion judge appears to be assuming there is nothing out of the ordinary about a purchaser under a power of sale having to take steps to obtain possession of the property. [34] That is not only a questionable assumption, it may overlook a problem that other judges in this matter may also have overlooked, namely, that it is not open to a purchaser to simply move under rule 60.10 for leave to issue a writ a possession. I will discuss this further under the next heading. I simply note that the failure of a chargee to deliver vacant possession on closing, when exercising a power of sale, does not create confidence that the chargee obtained a proper price. [35] In the result, while I acknowledge that the appellant faces an uphill climb on appeal, I am satisfied she has arguable grounds of appeal. Moreover, I observe that, in general, it is desirable that cases be determined on their merits where possible rather than being dismissed over procedural shortcomings. Criteria (v) - Prejudice to the Responding Parties [36] The responding parties point to their inability to collect the costs ordered payable to them by the motion judge ($140,000) together with the carrying costs being incurred by the purchaser in relation to the property (approximately $7,600 per month) as well as the purchaser’s inability to obtain a writ of possession pending appeal as supporting their position that the appellant’s motion should be dismissed. [37] I am not persuaded that these arguments point strongly to dismissing the appellant’s motion. [38] The responding parties' entitlement to costs is dependent on the outcome of the appellant’s appeal. [39] In failing to insist on or confirm vacant possession on closing, in the context of a power of sale of a residential dwelling, the purchaser assumed the risk of being unable to obtain vacant possession and the prospect of a legal proceeding and all the steps that proceeding might entail. In my view, it is not open to the purchaser to claim that the consequences of that decision, and its decision to heavily mortgage the purchased property, in part by placing an additional charge before it had obtained vacant possession, should determine whether the appellant should be entitled to proceed with her appeal. [40] If anything, the quantum of the carrying costs and the purchaser’s failure to require vacant possession on closing may raise questions about the bona fides of the transaction. [41] I observe, in addition, that the record before me does not demonstrate that the chargees or the purchasers have taken any of the steps necessary to put the purchaser in a position to promptly obtain court enforced possession of the property. [42] The statements of claim issued by the chargees to enforce the first and second charges are not in the record. Although I consider it possible, even likely, that they included claims for possession of the charged property, that is not clear. If they included such claims, their failure to obtain an order for possession prior to the sale of the property is unexplained. [43] Further, based on my review of the record, it is not clear that either chargee could now seek an order for possession. As noted above, in footnote 6, the first chargee’s statement of claim may have been issued in contravention of s. 42(1) of the Mortgages Act , R.S.O. 1990, c. M.40. Now that the second chargee’s charge has been extinguished by the power of sale, it is not clear to me that an order for possession could be issued in the second chargee’s action. [44] In addition, nothing in the record suggests that the purchaser has commenced a proceeding that would entitle it to obtain an order for possession of the property and thereafter a writ of possession to enforce that order. The purchaser did not claim an order for possession in its Statement of Defence and Counterclaim and Crossclaim delivered in the underlying action. [45] The purchaser argues that it is entitled to obtain leave to issue a writ of possession under rule 60.10 on motion in this proceeding by virtue of its status as the registered owner of the property and that only this appeal is standing in its way. [46] The purchaser relies on a plain reading of the emphasized portions of rule 60.10(1) as set out below: 60.10(1) A writ of possession (Form 60C) may be issued only with leave of the court, obtained on motion without notice or at the time an order entitling a party to possession is made. [Emphasis added.] [47] In my view, the purchaser’s submission is wrong in law. Rule 60.10 must be read in the context of the entire rule. Rule 60 is entitled “Enforcement of Orders”. The headings over the immediately following subsections reinforce that the subject matter of Rule 60 is the enforcement of orders. Rule 60.02 is entitled “Enforcement of Order for Payment or Recovery of Money”. Rule 60.03 is entitled “Enforcement of Order for Possession of Land”. Equally important, a plain reading of rule 60.03 makes it clear that the purpose of rule 60.10 is to enable the enforcement of an order for possession: 60.03 An order for the recovery or delivery of the possession of land may be enforced by a writ of possession (Form 60C) under rule 60.10. [48] Reading Rule 60 as a whole, I consider that, like a writ of seizure and sale or a writ of sequestration, also provided for under Rule 60, a writ of possession is a tool to enforce a pre-existing court order [11] : see also Bank of Canada v. Ehtisham , 2010 ONSC 1528, at para. 9. [49] At para. 31 of his affidavit sworn August 7, 2020, the purchaser’s solicitor, Mr. Dhillon, deposes that “[a]t all material times, 1103 Inc. knew that it was purchasing the Property under Power of Sale and without possession.” On the record before me, the purchaser assumed the risk of purchasing the property without insisting on vacant possession on closing and subsequently has taken no steps to put itself in a position to obtain timely court enforced possession of the property. [50] In these circumstances, I fail to see why the purchaser’s circumstances should favour foreclosing the appellant’s right of appeal. The purchaser is not in a position to immediately obtain court enforced possession of the property if the appellant’s motion is dismissed. In any event, its carrying costs with respect to the property are currently being offset to some degree by the rental payments ordered by Woollcombe J. commencing September 2021 (in the amount of $4500 per month). Criteria (vi) - The Justice of the Case [51] In addition to their arguments about timeliness, the merits of the appeal and prejudice, the responding parties point to various other factors they say indicate the justice of the case favours dismissing the appellant’s motion. [52] These factors include: i) an assertion that 1103 is a bona fide purchaser for value of the property; ii) the appellant’s default under the charge and continuing occupation of the property; and iii) unclean hands or misrepresented evidence concerning matters such as her relationship with Bobby Abrahams, whether she raised her children at the property, and lack of explanation as to why the money to close the February 28, 2020 agreement of purchase and sale was not paid into court until May 2020. [53] As I have said, I am satisfied that the appellant has raised arguable grounds of appeal and I am not satisfied that the factors of timeliness or prejudice to the responding parties support foreclosing the appellant’s right of appeal. [54] Concerning the additional matters raised by the responding parties, item i) depends on the outcome of the appeal. [55] Concerning item ii), the issue now is not the appellant’s default under the charge. Rather, it is the propriety of the responding parties’ conduct in carrying out the sale under power of sale. That depends on the outcome of the appeal. Moreover, the issues on appeal are not restricted to the bona fides of the March 9, 2020 transfer but also include whether a proper price was obtained. [56] Concerning item iii), no doubt there are issues around the complete terms of the Abrahams’ agreement of purchase and sale and why closing funds were not paid into court until May 2020. On the other hand, there is an issue about the inflated discharge statement delivered by Bindaas’ real estate lawyer on February 28, 2020 and the failure of any lawyer on behalf of Bindaas to respond to inquiries about the statement, attend the appellant’s motions relating to the discharge amount or disclose the pending sale to 1103. [57] In all the circumstances, I am satisfied that the relief requested by the appellant should be granted but on terms concerning proceeding with the appeal. Disposition [58] Based on the foregoing reasons, the Registrar’s order dismissing the appellant’s appeal for delay shall be set aside provided that the appellant has taken all necessary steps to perfect the appeal, including filing any fresh evidence application but excluding filing the formal order under appeal and/or the transcript(s) of the motion hearing, within seven days of the release of these reasons subject to the following conditions: i) the appellant shall proceed forthwith to settle and obtain the formal order under appeal and obtain the transcript(s) of the motion hearing and shall serve and file each in a supplementary appeal book(s) as soon as possible once obtained; ii) the hearing of the appeal is expedited and a copy of this order shall be provided to the appeal scheduling unit so that the appeal may be scheduled as soon as it is perfected; and iii) this order is without prejudice to the purchasers’ right to commence an action for possession of the property if so advised. [59] The moving party may file submissions on costs within 10 days of receipt of these reasons, the responding parties may file their submissions within 10 days thereafter with all such submissions subject to a five-page limit. “Janet Simmons J.A.” [1] The moving party also requested an order that the transcripts of the motion hearing be sent to the Registrar of this court. However, it is up to counsel, not the court, to arrange for and ensure the filing of any relevant transcripts. During the oral hearing, counsel submitted that the transcripts of the motion hearing have now been filed. However, the transcript(s) are not in the court file. [2] Although Brinder Nagra was a named chargee pursuant to an assignment of charge at the time of the transfer under power of sale and was a named transferor in the transfer, the parties seem to be treating Bindaas as the chargee. [3] The first charge was originally in favour of Bindaas, Sujoy Pal and Dr. Mangesh Inamdar Medicine Professional Corporation, but it was subsequently assigned to Bindaas and Sujoy Pal on February 12, 2019 and to Bindaas and Brinder Nagra on July 11, 2019. [4] It appears that the appellant’s motion heard on June 9, 2021 may have been a cross-motion she brought in response to a motion by the purchaser and the purchaser’s principal (Shan Mangal) on November 24, 2020 requiring the appellant to pay expenses associated with her continued occupation of the property or, in the alternative, for a writ of possession: endorsement of Andre J. dated November 26, 2020; endorsement of Woollcombe J. dated August 18, 2021. [5] Because the record before me does not include the exhibits to the responding parties’ affidavits filed before the motion judge, I am unable to verify that this chronology is completely accurate. [6] The responding parties’ material is inconsistent concerning whether this action was to enforce the first charge or the second charge. At para. 28 of an affidavit sworn August 7, 2020, Mr. Dhillon, who acted for the purchaser, asserts it related to the first charge. At para. 19 of an affidavit sworn January 29, 2021, Mr. Randhawa, who acted for the chargee, asserts it relates to the second charge. As I have said, the affidavits included in record before me do not include exhibits. Because Mr. Randhawa asserts that the plaintiffs in the action were Bindaas, Pal and Inamdar Corp., the chargees in the first charge, I conclude it is more likely that this action related to the first charge. This is relevant because s. 42(1) of the Mortgages Act , R.S.O. 1990, c. M.40, prohibits action being taken to enforce a mortgage/charge during a notice period under a notice of sale. However, contravention of s. 42 likely only affects the validity of the action, not the notice of sale: Assari v. Kuchar , 2010 ONSC 4828, at para. 45. Here, the action on the first charge has been settled and judgment granted concerning the claim for payment on the covenant. To the extent that the action may have included a claim for possession, a fact which I am unable to determine based on the record before me, this issue may be relevant to the enforceability of that aspect of the claim. [7] The title of proceedings refers only to the action on the first charge, but the body of the judgment refers to both actions. [8] This comes from para. 22 of the motion judge’s reasons. However, no particulars of the date or parties involved are provided. From the context, however, it appears the discharge statement was likely requested on February 26 or 27, 2020. [9] Although not referred to in Andre J.’s endorsement, a subsequent endorsement by Woollcombe J. indicates this relief was requested. [10] In directing that the matter be heard on June 9, 2021 and that monies be paid into court, Andre J. referred to the appellant’s “counterclaim”. However, the context suggests that he was referring to the appellant’s cross-motion. [11] Nothing in these reasons should be taken as challenging the validity of the orders of Andre J. or Woollcombe J. Unappealed, they stand as valid orders.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Noureddine, 2022 ONCA 91 DATE: 20220202 DOCKET: C66593 Simmons, Pepall and Roberts JJ.A. BETWEEN Her Majesty the Queen Respondent and Chad Noureddine Applicant (Appellant) Carol Cahill, for the appellant Amy Alyea, for the respondent Heard: December 9, 2021 On appeal from the conviction entered on June 7, 2017, by Justice Edward Then of the Superior Court of Justice, sitting with a jury. REASONS FOR DECISION [1] The appellant appeals his conviction for the second degree murder of Andre Pelliccione following a trial before a judge and jury. [2] Mr. Pelliccione's body was found in a dumpster in Toronto on August 27, 2008. The appellant and four others were initially charged with first degree murder. [3] The appellant and Richard Sheridan were tried together. The other three accused pleaded guilty to manslaughter. Bryan Smith was sentenced to eight years of imprisonment; Jennifer Dunsford to five years; and Michelle Sterling to two years. All three testified for the Crown at the appellant's trial. Their testimony was the only evidence implicating the appellant in the killing. Background Facts [4] The appellant’s co-accused, Mr. Sheridan, was addicted to, and trafficked in, crack cocaine. Mr. Sheridan befriended the owner of Don Yards, a movie trailer storage facility in Toronto’s east end. The owner allowed Mr. Sheridan to reside in one of the recreational vehicles situated on the lot in order to provide security services for the premises. Mr. Sheridan in turn permitted the appellant, as well as Mr. Smith, Ms. Sterling, and Ms. Dunsford, to reside on the premises from time to time. They too were addicted to crack cocaine. They purported to assist Mr. Sheridan in providing security but actually worked in his crack cocaine operation. Mr. Sheridan was the undisputed leader of the crack cocaine operation. [5] On the evening of August 22, 2008, Mr. Pelliccione came to the Don Yards and encountered Mr. Sheridan. An argument ensued between the two men. Mr. Sheridan, the appellant, and Mr. Smith confronted Mr. Pelliccione and he was ordered to leave. According to Mr. Smith’s testimony, Mr. Pelliccione agreed to leave, but threatened to return with men and weapons and kill them all. Mr. Sheridan ordered the gates locked, knocked Mr. Pelliccione to the ground, and pepper sprayed him. Mr. Smith testified that Mr. Sheridan ordered the appellant, Mr. Smith and Ms. Dunsford to kick and punch him, which they did. The beating continued in another area behind some dumpsters. The group kept kicking and punching Mr. Pelliccione, now also using rocks. He was then dragged to another area where the beating continued at Mr. Sheridan’s direction. The appellant hit the deceased in the head with a rock, as did Mr. Smith and Ms. Dunsford. Mr. Pelliccione meanwhile begged for his life. [6] According to Mr. Smith, he suggested to Mr. Sheridan that they end the beating. The three main Crown witnesses testified [1] that Mr. Sheridan stated, “you are either with us or with [Pelliccione]”, or words to that effect. Ms. Dunsford testified that the group knew, at this point, that Mr. Pelliccione had to be killed; it was decided he was going to have to die. No one disagreed. He was then dragged to another area. Ms. Sterling emerged from a trailer and observed the appellant and Mr. Smith beating Mr. Pelliccione. Mr. Sheridan ordered that Mr. Pelliccione be placed in another trailer, trailer T19, which he was. At this stage, Mr. Pelliccione was drifting in and out of consciousness. While Mr. Pelliccione was still alive, Mr. Sheridan ordered the two women “to do what needed to be done.” They both testified that they were threatened with death if they did not comply. They proceeded to drop a 19-pound rock on his head, which was provided by the appellant. Mr. Smith testified that he heard loud thumps come from the trailer when the appellant, Ms. Dunsford and Ms. Sterling were inside. [7] In the hours that followed, the appellant collected and disposed of the bloody clothes of the two women. Everyone showered to eliminate traces of blood. Mr. Sheridan subsequently attempted to frame the owner of the Don Yards by ordering the women to spread Mr. Pelliccione’s blood on the owner’s clothing. This attempt did not prove to be a success. [8] Two days after the murder, the appellant, Ms. Sterling and Mr. Sheridan attempted to dispose of the body by placing it and the 19-pound rock in a dumpster on the premises. Mr. Pelliccione’s body was found five days later. [9] According to the testimony of Dr. Pollanen, the forensic pathologist who conducted the autopsy of Mr. Pelliccione, his ultimate cause of death was blunt force injury to the face and head and the mechanism of death was blood loss or obstruction of the upper airways and sinuses. Mr. Pelliccione had several skull fractures, a broken nose, dislocated cheek bones, and significant defensive bruising. Mr. Pelliccione was not reported to have struck a single blow in self-defence. [10] As mentioned, the five people involved were all initially charged with first degree murder and the three Crown witnesses were in custody on those charges when they gave their police statements. [11] The appellant and Mr. Sheridan were convicted of second degree murder after their first trial but successfully appealed the convictions. Their second trial again resulted in convictions for second degree murder, and the appellant’s conviction following the second trial is the subject matter of this appeal. [12] At trial, Ms. Dunsford, Mr. Smith and Ms. Sterling gave different accounts of what had happened. The jury heard extensive evidence of their discreditable backgrounds, the withdrawal of each of their first degree murder charges in exchange for manslaughter plea deals, and that they were each heavily addicted to crack cocaine which impaired their ability to remember. [13] The appellant's position at trial was that the evidence of these three Crown witnesses concerning his participation in the beating was neither credible nor reliable. All three had participated in the killing, all three were charged with first degree murder when they made statements to the police, and all three acted in their own self-interest to minimize their individual roles and embellish the roles of others. Further, there were specific problems with the evidence of each of them. [14] For instance, Ms. Sterling admitted to perjury at the appellant's first trial. She also lied to the police in the first 85 pages of her police statement claiming she was not present at the killing. Further, she was not forthcoming in her evidence at the second trial. Ms. Dunsford had given many inconsistent statements, she had a poor memory that was exacerbated by persistent heavy drug use, including drug use on the evening in question. Nonetheless, she maintained her present memory was more accurate than a previous version of the events. Mr. Smith was an unsavoury witness with a lengthy criminal record that began when he was age twelve. Grounds of Appeal [15] The appellant raises four grounds of appeal, all related to the trial judge’s jury instructions: (1) the trial judge erred by limiting the use the jury was entitled to make of Mr. Smith’s criminal record; (2) the trial judge provided an insufficient Vetrovec instruction [2] ; (3) the trial judge failed to set out the defence position on intent and motive; and (4) the trial judge erred in leaving with the jury an alternate path to conviction that had not been included in the Crown’s closing submissions. The appellant submits that this was not a balanced charge and that these errors, either individually or taken together, resulted in an unfair trial. [16] We do not agree and, for the following reasons, dismiss the appeal. Use of Mr. Smith’s Criminal Record [17] The appellant submits that the trial judge erred in limiting the use the jury could make of Mr. Smith’s criminal record to the fact, number, and nature of the convictions when assessing his credibility and the weight to be given his testimony. At trial, the appellant’s position was that Mr. Smith minimized his involvement in Mr. Pelliccione’s death and exaggerated the appellant’s involvement. On appeal, the appellant submits that the trial judge should have instructed the jury that, in addition to the fact, number and nature of Mr. Smith’s convictions, they could consider Mr. Smith’s disposition to minimize his wrongdoing when assessing whether he was similarly downplaying his role in Mr. Pelliccione’s death and exaggerating that of the appellant. To quote appellant’s counsel on appeal, when questioned about his criminal record, Mr. Smith “became the valiant hero of his own stories.” [18] We do not accept this submission. The trial judge’s instruction to consider the fact, number, and nature of previous convictions must be considered in the context of the charge as a whole. The trial judge gave a lengthy, detailed and thoughtful charge and gave a comprehensive instruction on how to assess a witness’s testimony. When he came to the instruction on criminal records, he advised the jury that the three Crown witnesses each had a criminal record and referenced many entries for Ms. Dunsford and Mr. Smith in addition to the manslaughter convictions. When instructing on the previous convictions of the three, he told the jury what they could consider and that some convictions, such as those involving dishonesty, may be more important in their assessment than others. The jury was also told to consider the age of the convictions. However, overall, the prior convictions were just one of many factors for the jury to consider in evaluating a witness’ evidence and they were encouraged to use their experience and common sense in their evaluation. [19] The trial judge also gave a special instruction with respect to Mr. Smith, Ms. Dunsford and Ms. Sterling on the “significant risk” that “an accomplice may be falsely minimizing his or her involvement”, and that the accomplice may be giving evidence favourable to the Crown because the Crown had consented to a favourable plea bargain. He gave a further instruction on the increased care required for the evidence of Mr. Smith because he was an unsavoury witness given his extensive criminal record. Considered in context, the trial judge’s instruction on the use to be made of Mr. Smith’s criminal record would not have improperly limited the jury’s consideration of his credibility. Nor would it have in any way foreclosed the jury’s consideration of a tendency to minimize his wrongdoing at the expense of others. [20] Moreover, Mr. Smith was cross-examined at length on the facts of his convictions and his tendency to portray himself as a victim. The jury would have understood the thrust of this cross-examination. The closing addresses of both defence counsel also highlighted Mr. Smith’s shortcomings and tendency to describe himself in a favourable light and to minimize his involvement in the killing of Mr. Pelliccione. For example, counsel for Mr. Sheridan argued, Mr. Smith’s “memory is clearly unreliable and, at times, his evidence, I think doesn’t really accord – it doesn’t make sense and he has a real tendency to portray himself as a victim of every bad circumstance he finds himself in.” He went on to describe Mr. Smith’s evidence on his past convictions as “preposterous”. The trial judge in his charge reiterated the appellant’s closing submission that the evidence of the three main Crown witnesses was manifestly unreliable. [21] We are satisfied that any concerns relating to any tendency by Mr. Smith to downplay his role at the expense of the appellant were fully addressed and would not have been lost on the jury. We dismiss this ground of appeal. Vetrovec Instruction [22] Second, the appellant takes issue with the trial judge’s Vetrovec instruction. There are two components to this submission. [23] As part of his instruction on the criminal records of the three main Crown witnesses, the trial judge stated that it was fair to say that none had been convicted of any other offences since the related conviction for manslaughter in 2010 and that the jury would note the efforts made by all three with respect to rehabilitation. The Vetrovec instruction followed shortly afterwards. [24] The appellant submits that the Vetrovec instruction was watered down by the trial judge’s comments on the time gaps in the criminal records and rehabilitation efforts. He also argues that the trial judge further erred by failing to mention other specific concerns relating to the veracity of the evidence of these three Crown witnesses . These concerns included Mr. Smith’s and Ms. Dunsford’s inconsistent statements and Ms. Sterling being an admitted perjurer and lying to police. [25] We do not accept these submissions. Trial judges are owed considerable deference in framing a Vetrovec caution as they are better situated than appellate courts to determine how to provide an effective and balanced caution tailored to the circumstances of the case: R. v. Zebedee , 81 O.R. (3d) 583 (C.A.), at para. 83. Moreover, a Vetrovec instruction should not be reviewed in isolation: R. v. Salah , 2015 ONCA 23, 319 C.C.C. (3d) 373, at para. 106. Here, read in the context of the proceedings and the rest of the charge, the warning served its cautionary purpose. The trial judge gave considerable guidance on the evidence of the three main Crown witnesses. He addressed their guilty pleas to manslaughter and their negotiated plea agreements, their prior criminal records, their prior inconsistent statements, and gave a special instruction relating to their role as accomplices and the danger of relying on their evidence in the absence of any confirmatory evidence. The trial judge also described additional reasons why the utmost care and caution should be exercised including the effect of the witnesses’ addiction to crack cocaine on their credibility and reliability. [26] Concerning the watering down argument, one of the factors to be considered with respect to criminal records is whether they are dated. The trial judge noted that the prior convictions were just one of many factors for the jury to consider and the brief reference to rehabilitation and the time gaps served to provide a balanced charge. When defence counsel raised an objection to this instruction at trial, the trial judge considered the issue overnight and declined to say anything further. We see no basis on which to interfere with the trial judge’s exercise of discretion. We also note that the trial judge’s brief comments about rehabilitation and the time gaps were followed by a strong Vetrovec warning, and several specific references to inconsistencies in the evidence of the three main Crown witnesses, and defence counsel’s submissions. We are satisfied the jury would not have been left in any doubt about the serious shortcomings in the evidence of these three Crown witnesses. [27] As for the appellant’s complaint that the trial judge failed to mention other specific concerns relating to the veracity of the evidence of these three Crown witnesses, this is not borne out by the charge. Apart from his more generalized instructions on how to assess the witnesses’ testimony, as mentioned, the trial judge also provided a specific instruction on accomplices and specific examples of inconsistencies and concerns relating to each witness. In particular, without objection by the Crown, the trial judge included a list of inconsistencies provided by defence counsel and advised the jury that it could be of assistance to them. We do not accept that the trial judge was required to do more. The assessment of the Crown witnesses’ credibility and reliability was squarely within the jury’s purview. We are satisfied they were well equipped to fulfill that responsibility. [28] Lastly, concerns relating to the credibility and reliability of the three were self-evident. As Watt J.A. stated in R. v. Bradey , 2015 ONCA 738, 127 O.R. (3d) 721, at para. 136: “Where an appellant claims that a Vetrovec caution is deficient because a trial judge failed to provide an exhaustive catalogue of the reasons for the caution, we should consider whether the characteristics omitted were latent or self-evident.” It was abundantly clear that the credibility and reliability of the three main Crown witnesses were very much in issue and that their testimony was potentially dangerous given that they were accomplices who had secured plea agreements. [29] We reject the submission that the effectiveness of the Vetrovec caution was diminished in any way. [30] We dismiss this ground of appeal. Relating Defence Position on Intent and Motive [31] On the issue of intent, the Crown’s position in part was that the appellant “was present while Sheridan led the discussion that they were all part of a family and Pelliccione had to die. He did not dissent. [The appellant] formed the fixed intention along with that of [Sheridan] that Pelliccione had to die.” Ms. Dunsford had described this discussion in her testimony at trial. [32] The appellant submits that the trial judge erred in failing to alert the jury to the flaws and weaknesses in the Crown’s evidence on intent. The appellant argues that there was no evidence that he was present during the discussion, was aware of what was being said, or agreed that Mr. Pelliccione had to die. The appellant also submits that the trial judge erred in leaving the question of intent with the jury because any inference that he was present for the discussion on which the Crown relies was speculative. [33] We do not accept these submissions. The trial judge began his instructions relevant to the issue of intent with a brief summary of the positions of the Crown and the defence. He then proceeded to review how intent was relevant to the different modes of participation, the relevant evidence and then reviewed in further detail the positions of counsel. This included the defence position that the Crown had not led any evidence of the appellant’s intent and that the evidence was so weak as to amount to no evidence at all. [34] Ms. Dunsford had testified that in the group discussion, it was decided that Mr. Pelliccione was going to have to die and that no one disagreed. An inference of intent was clearly available especially given that there was evidence that the appellant had been present during each escalating step of the beating, had been an active participant, including hitting and throwing rocks at Mr. Pelliccione, and had provided Ms. Dunsford and Ms. Sterling with the 19-pound rock used to hit him in T-19. The trial judge made no error in leaving this issue with the jury; an inference of intent was available on the evidence and was not speculative. Furthermore, as already discussed, the jury would have been well aware of the problems associated with Ms. Dunsford’s evidence. [35] On the issue of motive, the appellant submits that the trial judge erred by failing to state to the jury the defence position that there was no evidence that the appellant was aware of Mr. Pelliccione’s threat that he would return with men and weapons and kill them or that he took this threat seriously. As with the issue of intent, the appellant submits that the jury would have had to speculate to infer motive. [36] Again, we are satisfied that the inference that the appellant was present and aware of this threat was available on the evidence, particularly given the evidence of Mr. Smith. The trial judge exercised his discretion not to recharge the jury, having concluded that the jury was fully equipped to address this issue. We agree and would not give effect to this ground of appeal. Use of Crown Summary [37] Both the defence and the Crown provided written summaries of their positions to the trial judge following their closing addresses. The trial judge read their summaries to the jury. The defence objected, stating that the Crown had articulated an alternative path to conviction that had not been addressed in their closing, namely that the appellant had played a supervisory role and remained in the trailer to ensure that the two women killed Mr. Pelliccione. He argued that the jury should be instructed to disregard that theory, but the trial judge did not do so. Now before this court, the appellant argues that the Crown was in effect provided with a right of reply to the defence closing, deprived the defence of the opportunity to respond, and this resulted in trial unfairness. [38] We reject this ground of appeal. [39] The Crown made it clear in his pre-charge submissions that the Crown theory was that the appellant was liable for either manslaughter or second degree murder, as his participation from beginning to end was a substantial contributing cause of Mr. Pelliccione’s death. The Crown also made it clear that the appellant and Mr. Sheridan were potentially liable as either co-principals or parties to the offence. Then in his closing submissions, which were made prior to the written summaries being provided to the trial judge, the Crown stated to the jury that “Chad Noureddine provided the rock and was there to make sure they did what they were told.” [40] A trial judge has “a duty to instruct the jury on all routes to liability which arise on the evidence”: R. v. Pickton , 2010 SCC 32, [2010] 2 S.C.R. 198, at para. 19; R. v. Saleh , 2019 ONCA 819, 380 C.C.C. (3d) 445, at para. 168. Moreover, as noted by Cory J. in R. v. Rose , [1998] 3 S.C.R. 262, at para. 103, “there is no evidence that an accused who addresses the jury first is less able to defend against the persuasive aspects of the Crown jury address than an accused who goes last.” [41] The defence was alerted to the Crown’s position and the trial judge was obliged to instruct on all routes to liability. We are not persuaded that a corrective instruction was required or that any trial unfairness ensued. Disposition [42] For these reasons, we dismiss the appeal. “Janet Simmons J.A.” “S.E. Pepall J.A.” “L.B. Roberts J.A.” [1] Although all three main Crown witnesses testified they heard this statement, their evidence concerning when it was made was inconsistent. [2] Vetrovec v. The Queen , [1982] 1 S.C.R. 811.

COURT OF APPEAL FOR ONTARIO CITATION: Tharani Holdings Inc. v. Metropolitan Toronto Condominium Corporation No. 812, 2022 ONCA 93 DATE: 20220131 DOCKET: C69209 MacPherson, van Rensburg and Roberts JJ.A. BETWEEN Tharani Holdings Inc. Applicant (Appellant) and Metropolitan Toronto Condominium Corporation No. 812, Anil Jhamtani, Nina Evans, Selvan Veerasingam, Sritharan Sabaratnam, Joe Accardo and Aksharan Sritharan Respondents (Respondents) Pradeep Chand, for the appellant Karen Kisiel, for the respondents Heard: January 25, 2022 by video conference On appeal from the order of Justice Edward M. Morgan of the Superior Court of Justice, dated February 22, 2021. REASONS FOR DECISION [1] At the conclusion of the hearing of this appeal we advised that the appeal was dismissed with reasons to follow. These are our reasons. [2] The appeal concerns challenges to the administration of Metropolitan Toronto Condominium Corporation No. 812 (“MTCC 812”), which is a condominium corporation consisting of 64 commercial units and appurtenant common elements, located on Markham Road in Toronto. The affairs of MTCC 812 are governed by a board of directors consisting of five volunteer directors. The appellant Tharani Holdings Inc. (“Tharani Holdings”) owns three units in the building. Mr. Balasubramaniam Palaniappa is the principal of Tharani Holdings. [3] The appellant has pursued other proceedings respecting the management and control of the board of MTCC 812, resulting in, among other things, a court order requiring the holding of an annual general meeting. [4] The appellant commenced an application against MTCC 812, five of its current and former directors and its property manager. The notice of application, which is 22 pages long, alleges numerous breaches of the Condominium Act, 1998 , S.O. 1998, c. 19 (the “Act”), General Regulation O. Reg. 48/01, and the by‑laws and board election procedures of MTCC 812. The appellant sought, among other things, the removal of the respondent directors, the appointment of an inspector, the application of the oppression remedy, and damages. [5] The application judge dismissed the application. He noted that the appellant’s arguments, stripped to their core, concerned various alleged technical breaches of the Act or other regulations by the respondents. They lacked a “central, overarching focal point”, and were comprised of “what appear to be formalistic errors made by the [MTCC 812] board that amount to little in substance”: at para 3. He characterized the appellant’s position as follows: “[B]reach of the rules is a breach of the rules, and a breach demands a remedy regardless of the effect (or non-effect) of the breach”: at para. 18. Considering the appellant’s allegations on the whole, the application judge concluded that they failed to demonstrate any evidence of substantively harmful conduct by the respondents. [6] Although a number of issues are raised on appeal, in essence the appellant makes two arguments: that the application judge engaged in conduct giving rise to a reasonable apprehension of bias; and that he failed to conduct the necessary analysis in refusing to grant a remedy. [7] There is no merit to the bias allegation. Referring to a transcript of the hearing, the appellant points to passages where the application judge characterized the appellants’ complaints as a “litany of petty, stuff, petty disputes… and no big picture”, and asked the appellant’s counsel to provide an overview, and to indicate whether there was “anything big”, or whether it was “a litany of small, small bickering with the Board”. [8] Contrary to the appellant’s submission, these comments did not suggest that the application judge had pre-determined the issues in the application; rather, they were a reasonable effort on the part of the application judge to ascertain the basis on which the appellant was seeking various remedies, and whether there were grounds for the relief that was sought. As the application judge demonstrated, he was “open to hearing” the appellant’s substantive complaints that would give rise to a remedy. [9] As for the submissions concerning the application judge’s failure to impose certain remedies: declaring the automatic disqualification of MTCC 812’s directors for not complying with disclosure requirements under s. 29 of the Act and ss. 11.6 and 11.10 of O. Reg. 48/01; a compliance order under s. 134 of the Act; the appointment of an inspector under s. 130; or relief under the oppression remedy section, s. 135, there is no reason to interfere with the application judge’s decision that no remedy was warranted for what were essentially technical breaches. [10] First, the application judge considered the evidence and concluded that, while the directors may not have formally disclosed their identities, and the fact that in some cases their units were owned by family members or their personal corporations, the appellant knew the identities of the directors. In the absence of any actual harm to the appellant, it was within the discretion of the application judge to decline to disqualify the respondent directors. Indeed, the application judge reasonably concluded that an order disqualifying the directors and requiring a new election could put the affairs of MTCC 812 in disarray. [11] Nor did the application judge err in failing to consider or invoke the oppression remedy under s. 135 of the Act, to make a compliance order or to award damages under s. 134, or to appoint an inspector under s. 130. He reasonably concluded that, without evidence of any harm or prejudice to the appellant, there was no basis for an oppression remedy or for any other remedy. [12] On appeal the appellant did not argue that the application judge had overlooked or ignored evidence of actual harm or prejudice it had sustained as a consequence of any irregularities in MTCC 812’s administration, or point to any such evidence. Rather, the argument on appeal, as at first instance, was that any breach of the Act, regulation or condominium governing documents, required a remedy. The application judge reasonably, and in our view correctly, observed that the remedial provisions in the Act are permissive. And, contrary to the appellant’s submission, the application judge assessed the various complaints cumulatively, finding that there was no evidence, overall, of “substantively harmful conduct by the Respondents”: at para. 21. [13] The application judge was well aware and critical of the various irregularities the appellant had argued. He stated in para. 43: [A]lthough there is no real wrongdoing by the board, and the current board shall remain in place until the next election is held pursuant to the requirements of the Act, regulations and corporate by-laws, the Condo Corp’s board effectively brought this proceeding on itself. Its own lackadaisical attitude toward the rules governing its operation has prompted the Applicant’s intense scrutiny. The Applicant may be the board’s litigation adversary, but the board members and the Condo Corp’s manager seem to be their own worst enemy. [14] However, there was no evidence that the irregularities were ongoing or causing real prejudice. Notably, the application judge pointed out that the auditing of financial statements was underway, and that there was no practical value in auditing previous fiscal years without cogent evidence indicating a reason to do so. [15] In exercising his discretion to refuse a remedy under ss. 130, 134 and 135 of the Act, the application judge was entitled to conclude that the appellant’s grievances raised technical breaches of the Act that did not require a remedy. His reasons clearly set out why he dismissed the application. [16] For these reasons the appeal was dismissed, with costs to the respondents on a partial indemnity basis fixed at $5,300, inclusive of HST and disbursements. “J.C. MacPherson J.A.” “K. van Rensburg J.A.” “L.B. Roberts 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. COURT OF APPEAL FOR ONTARIO CITATION: R. v. K.T., 2022 ONCA 94 DATE: 20220202 DOCKET: C65476 Fairburn A.C.J.O., Gillese and Trotter JJ.A. BETWEEN Her Majesty the Queen Respondent and K.T. Appellant Michael Davies and Meaghan McMahon, for the appellant Jennifer Trehearne, for the respondent Heard: January 28, 2022 by video conference On appeal from the conviction entered by Justice S. March of the Ontario Court of Justice (Youth Justice Court) on January 16, 2018. REASONS FOR DECISION Overview [1] On August 13, 2016, the appellant’s father was shot through the top of his head while lying on the couch in the living room of the family home. The couch was visible from the appellant’s bedroom doorway. The bullet found lodged in the father’s head was similar to one that could have been shot from a .22 calibre rifle. A .22 calibre rifle, along with a spent .22 calibre shell, were found in the appellant’s bedroom. [2] There is no certainty around the time of death. What is certain, though, is that on the day that his father was killed, the appellant was captured on video at just after 6:00 p.m., in his father’s car, purchasing food at a fast-food restaurant close to the family home. A GPS in that vehicle established that the appellant drove from the area of the family home, to the area of the fast-food restaurant, and then on to Montreal. The appellant was arrested in Montreal the next day. In his possession were: (i) the receipt from the fast-food restaurant, confirming that the time of purchase was just after 6:00 p.m.; (ii) the father’s identification cards; (iii) the father’s credit card and bank card; (iv) the father’s cellular phone; and (v) numerous items of the appellant’s clothing and other personal items. [3] There is some dispute as to when the appellant’s brother, B.T., finished work on the day that their father was killed. B.T. was scheduled to work until 7:00 p.m., but he appears to have clocked out of work at 5:00 p.m. Whatever time he finished work, it is clear that B.T. started trying to contact his father around 7:00 p.m. so that he could get a ride home. When B.T. could not reach his father, he eventually sent him a text message, asking where he was. B.T. received no response. Ultimately, B.T. took a taxi home, arriving some time after 7:00 p.m. [4] After he arrived home, B.T. invited friends over to the family home. Although he did not testify at trial, evidence was elicited that, as the evening progressed, B.T. appeared increasingly concerned for the whereabouts of his father. Eventually B.T.’s grandfather attended at the family home and the police were called. At just before midnight, the police arrived. They found the deceased’s body secreted away in the basement. [5] The father’s head had been wrapped in a garbage bag. The appellant’s fingerprints were found on that bag. The father’s body was wrapped in a blanket. The appellant’s blood was found on that blanket. There were also water bottles found close to where the body lay. The Crown theory was that the movement of the body must have taken some effort, which may have resulted in the consumption of water. The appellant’s DNA was found on two of the water bottles. [6] This was a judge-alone circumstantial murder case where the trial judge had to resolve a third-party suspect allegation. The defence pointed to B.T. as the likely third-party suspect. [7] The trial judge provided extensive and careful reasons for finding the appellant guilty of second-degree murder. His reasons for judgment are organized around ten categories: opportunity, motive, physical evidence at the scene, cause and place of death, movement of the body, DNA evidence, fingerprint evidence, post-offence conduct evidence, recent possession of stolen property, and alternate suspect. In relation to the last category, the trial judge carefully explained why the third-party suspect defence did not raise a reasonable doubt. [8] The appellant raises three grounds of appeal. For the reasons that follow, we are unpersuaded by any of them. The Movement of the Father’s Body [9] While the trial judge found as a fact that the father was killed in the living room, having been shot in the head by the appellant, and that his body was later moved to the basement, the trial judge was unable to find as a fact that the appellant moved the body on his own. The trial judge put it this way: Although I am not able to infer that the accused had on his own moved the deceased body from the living room to the storage area in the basement, I am satisfied from the expert evidence that the deceased was killed in the living room and his body was moved to the basement storage area. There may have been other persons involved in the movement of the body but this does not raise a reasonable doubt that the accused did not shoot the deceased. [Emphasis added.] [10] The appellant contends that the trial judge’s reasons demonstrate that he accepted that there was more than one person involved in moving the deceased’s body. The appellant adds that the evidence in support of that finding was overwhelming in nature. The appellant characterizes the trial judge’s finding regarding how many people it took to move the body as a “crucial” issue on appeal because, as he argues, it undermines the trial judge’s ultimate conclusion that the appellant was the shooter. According to the appellant, once the trial judge accepted that there was another person at the scene of the crime, someone who was involved in the movement of the body, it became entirely plausible that the appellant was only an accessory after the fact to murder and not the person who actually shot his father. [11] As always, the trial judge’s reasons must be read in context. [12] First, we do not read the impugned sentence – “[t]here may have been other persons involved in the movement of the body” – as the trial judge suggesting that the appellant was not involved in moving the body. To the contrary, read in context, the trial judge’s reasons are entirely clear that, at a minimum, he found that the appellant was directly involved in moving his father’s body to the basement. The trial judge explained that conclusion by focusing upon numerous pieces of evidence, including the appellant’s DNA on the blanket in which the deceased’s body was wrapped, the appellant’s fingerprints on the garbage bag in which the deceased’s head was wrapped, and the appellant’s DNA on the water bottles found close to where the body lay. [13] Second, we do not read the impugned sentence as the trial judge suggesting that there was in fact someone else involved in moving the body. Rather, we read the trial judge as simply saying that he was not prepared to find as a fact that the appellant moved the body on his own. Accordingly, and at its highest, the impugned sentence leaves open the possibility that someone else was involved in the movement of the body. [14] Third, there was no evidence at trial that some random person went into the family home to help move the body. [15] Fourth, while the appellant advanced a third-party suspect defence, he pointed directly at B.T. as being that suspect. Yet the trial judge’s reasons make clear why he rejected the proposition that B.T. was anywhere near the family home until over an hour after the appellant had purchased his fast food and left for Montreal. Given the trial judge’s finding that, at a minimum, the appellant was involved in moving the body, and that B.T. did not go home until after the appellant had left for good, it is clear that the trial judge rejected that B.T. had anything to do with moving the body. [16] Fifth, there was no need for the trial judge to factually resolve whether someone else – whoever that may have been – helped move the father’s body to the basement. What the trial judge needed to resolve, and in fact did resolve, was who shot the appellant’s father in the head while he lay on the couch. The trial judge explained why he found beyond a reasonable doubt that it was the appellant who shot his father. The fact that the trial judge could not reach a degree of certainty as to whether the appellant moved the body to the basement on his own does nothing more than show how carefully he approached the evidence and his task. His uncertainty on that point did not dilute or render questionable the verdict. [17] Finally, this was a strong circumstantial case pointing toward the appellant as the shooter. The trial judge’s reasons demonstrate a careful consideration of that evidence, giving rise to factual conclusions that were available on the record. Among the many pieces of circumstantial evidence that formed the backdrop to the prosecution lay the fact that the father was likely killed with a single shot from .22 calibre rifle, a .22 calibre rifle was found in the appellant’s bedroom, an empty shell casing fired from a .22 calibre rifle lay nearby, and the door to the appellant’s bedroom had a sightline to where the father lay on the couch. Combined with the DNA and fingerprint evidence, as well as the reasoned rejection of the third-party suspect defence, this was a strong Crown case. Post-Offence Conduct [18] The appellant argues that the trial judge erred in his approach to the appellant’s post-offence conduct. The impugned passage follows: The after-the-fact evidence of the accused’s flight to Montreal, with his clothing packed in a bag, in the family car, together with the deceased’s cell phone and identification cards, leads me to the conclusion that the accused fled the crime scene as he was responsible for the crime. [19] The appellant argues the trial judge erred by failing to take into account that there were alternative inferences that could have been drawn for why the appellant may have gone to Montreal with his father’s belongings, as well as a packed bag, which alternative inferences undermined the probative value of this after-the-fact conduct. [20] The alternative inferences are said to arise from the trial judge’s finding that more than one person was involved in moving the body. That finding is said to act as if it were a defence admission that the appellant moved the body (after the deceased was killed by someone else). With that admission-like finding in place, the appellant argues that all of the after-the-fact conduct is easily explained by an alternative inference: that the appellant fled to Montreal, not because he was responsible for murder, but because of a panicked reaction to having been at the crime scene and having helped move the body. That alternative inference is said to deprive the after-the-fact conduct evidence of its probative value. [21] Despite the capable submissions made, we do not see it that way. [22] This entire submission rests on a foundation that we have already rejected. We do not read the trial judge’s reasons as having found that more than one person was in fact involved in moving the body. We will not repeat what has already been said on that point. Therefore, the premise that there was an admission-like finding in place falls away. [23] What we will add is the following. [24] First, there is no dispute that the trial judge instructed himself correctly on the legal principles underpinning circumstantial evidence involving after-the-fact conduct evidence and, more broadly, on circumstantial evidence in general. [25] Second, in our view, the trial judge’s reasons reveal a careful assessment of the after-the-fact conduct evidence. He took into account each of the suggested alternative inferences posited by the defence and gave reasons for rejecting them. We see no error in his application of the law to the facts as he found them. [26] Again, the reasons for judgment must be read as a whole, including the findings of fact that are well-rooted in the evidentiary record, all of which pointed toward the appellant as the shooter and away from alternative theories that were, as the trial judge said, largely rooted in speculation. [27] The appellant also argues that the trial judge’s characterization of his conduct as being “after-the-fact” is inherently problematic because no one knows when the father was killed. While the trial judge said it was before 6:00 p.m., the appellant asserts that this was an arbitrarily assigned time, one that is admitting of circular reasoning. In other words, if the father was killed after the appellant left the family home in the father’s car, then the appellant’s actions could not be properly characterized as being “after-the-fact” in nature. [28] We do not accept this characterization of the time of death as having been arbitrarily assigned. This was a factual conclusion arrived upon by the trial judge, one that is well-supported in the record. As before, the trial judge gave extensive reasons for why he said that the father was dead and hidden in the basement before the appellant left the home for the last time. The Factual Inferences Drawn [29] The appellant argues that the trial judge drew numerous unreasonable inferences. He made oral submissions on only two of these points. We will deal with them all. [30] First, the appellant contends that the trial judge made no attempt to resolve the evidence that the blood spatter evidence on the couch could have been caused by a sneeze. In our view, this was not a factual issue that needed resolution. To the contrary, no one disputed that the murder may have taken place on the couch. Indeed, having the couch as the location of the murder, as opposed to the basement, inured to the benefit of the defence, given that a significant plank of the defence argument was that the appellant alone could not have moved the body to the basement after his father was killed. [31] Second, the appellant argues that the trial judge erred by relying upon the fact that, if the father had been lying on the couch with his head pointing toward the direction of the hallway, it would have been possible to see the top of his head from the appellant’s bedroom doorway. The appellant points to the fact that it was equally possible to see the top of the father’s head from B.T.’s bedroom doorway. While this is true, it does not undermine the inferential value of the evidence. The trial judge’s observation about the position of the appellant’s bedroom doorway, relative to where the father’s head would have been had he been lying on the couch, was highly relevant, particularly given the location of the .22 calibre rifle and the spent .22 calibre shell. [32] Third, the appellant argues that the trial judge erred in attaching significance to: (i) the appellant’s DNA found on the blanket in which the body was wrapped; and (ii) the appellant’s fingerprints found on the garbage bag surrounding the father’s head. As he argued at trial, the appellant maintains that these were household items and that the appellant lived in that household. Therefore, it is unsurprising that his DNA and fingerprints were found on those items. [33] The trial judge was alive to this argument, addressed it, and rejected it. He placed evidentiary value in the proximity of the DNA and fingerprints to the body of the deceased. Although the fingerprints on the garbage bag undoubtedly carry more significant circumstantial heft, it was open to the trial judge to see both pieces of evidence in this way. Looked at against the reasons as a whole, the DNA and fingerprints were merely two more pieces of circumstantial evidence that added to a strong circumstantial case. [34] Fourth, the appellant says that the trial judge erred in placing any emphasis on the .22 calibre rifle found in the appellant’s bedroom because there was no evidence clearly linking that gun to the father’s death. The appellant argues that the trial judge contradicted himself when saying that the gun appeared to have been hidden in “haste”, particularly in light of the trial judge’s conclusion that the appellant’s departure from the family home was planned and he was not in a panic. [35] We accept the respondent’s position that there is no contradiction: one can be in haste without being in a panic. We also reject the argument that there was an absence of evidence connecting the .22 calibre rifle and shell to the death and that the trial judge erred in finding such a connection. The connection was palpable on its face. Disposition [36] The appeal is dismissed. “Fairburn A.C.J.O.” “E.E. Gillese J.A.” “G.T. Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Tutiven, 2022 ONCA 97 DATE: 20220203 DOCKET: C68453 Feldman, MacPherson and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Max Edwin Tutiven Appellant Anil K. Kapoor and Dana Achtemichuk, for the appellant Tracy Kozlowski, for the respondent Heard: January 19, 2022 by video conference On appeal from the conviction entered on October 10, 2017 and the sentence imposed on November 8, 2017 by Justice Maureen D. Forestell of the Superior Court of Justice, sitting with a jury, with reasons for sentence reported at 2017 ONSC 6689. Thorburn J.A.: [1] Max Edwin Tutiven (“the appellant”) appeals his conviction for second degree murder and seeks leave to appeal his sentence of life imprisonment with parole ineligibility for 16 years. BACKGROUND [2] On September 15, 2012, the appellant went to a gas station on Roselawn Avenue in Toronto to steal gasoline. He filled his vehicle and several cannisters with gasoline. He had done this many times before and had a lengthy criminal record. [3] Mr. Prajapati, the gas attendant, noticed that the appellant appeared to be leaving without paying. He ran across a lane of vehicles near the gasoline pumps toward the appellant with his arms outstretched and shouted “hey hey” in an apparent attempt to try and stop him. [4] Mr. Prajapati was struck by the front passenger side of the appellant’s vehicle. CCTV footage does not show the moment of impact but it is clear that Mr. Prajapati was quickly pulled under the appellant’s vehicle while several people yelled at the appellant to stop. [5] Mr. Prajapati remained trapped under the vehicle as the appellant sped down Roselawn Avenue for approximately 78 metres before his body was dislodged from the vehicle. Mr. Prajapati died of multiple blunt and crush injuries. [6] Witnesses heard screeching tires or the sounds of a loud engine. They described the loud dragging sound of Mr. Prajapati’s body. One said the sound was akin to a vehicle hitting a pylon, and the pylon getting lodged under the vehicle and kicked around, followed by a softer dragging sound. Another witness described the sound as “terrible” and sounding “very loudly like a piece of cardboard being dragged on … asphalt”. [7] The appellant said he intended to leave the gas station after stealing the gasoline but another car parked in front of his car, making it difficult for him to leave. The appellant says he was focused on the other car and did not see Mr. Prajapati approach but did hear a “hey, hey”. He says he did not feel or hear the impact of hitting Mr. Prajapati. The appellant drove out of the gas station and onto Roselawn Avenue, hitting the curb as he left the station. He said he heard something like “stop, stop” as he was leaving. He said he heard what he thought sounded like a pylon dragging under his vehicle. He said he was worried about being caught for gasoline theft and his only thought was to get out of there as quickly as possible. [8] The appellant said that after driving home that night, he received a call from his father advising that the police were looking for him. He assumed it was about the gasoline theft and went back to bed. The next day he drove to Kingston to see his friend. His friend told him he was wanted by police because the gas attendant had died. The appellant said that he went into hiding in Montréal because he knew that he was unlikely to get bail, due to his numerous prior convictions. He was arrested three years later. [9] There was no dispute at trial that the appellant struck Mr. Prajapati with his vehicle and that Mr. Prajapati died. The appellant conceded that he was guilty of manslaughter. Therefore, the only issue was whether the appellant intended to kill Mr. Prajapati. [10] The Crown contended that the appellant made a “continuous, deliberate, and seamless departure” from the gas station and that the appellant saw Mr. Prajapati before he hit him. The Crown noted that there was no evidence of pylons at the gas station and the appellant admitted to seeing no pylons. The Crown argued that the appellant’s testimony was “created to hide the truth”. [11] The appellant admitted to manslaughter, on the basis that he drove dangerously, it was objectively foreseeable that there was a risk of bodily harm, and it caused Mr. Prajapati’s death. He claimed however that he did not know he hit and was dragging Mr. Prajapati, and there were other reasonable inferences for his conduct that were inconsistent with the intent for murder. [12] The appellant submitted that his post-offence conduct before he learned he was wanted for murder, supported his submission that he did not have the intent for murder. He submitted that his post-offence conduct after he learned he was wanted for murder, was not relevant in determining whether he was guilty of murder or manslaughter. [13] The jury convicted the appellant of second-degree murder. [14] At the sentencing hearing, the Crown sought a period of parole ineligibility of 17 years. In the Crown’s view, this period of parole ineligibility was warranted as the offence demonstrated a callous disregard for life, it was committed by the appellant while he was committing other criminal offences, the appellant’s long criminal record demonstrated a commitment to a criminal lifestyle, and this offence was committed while he was on a life-time driving prohibition and probation. [15] The appellant submitted that a 17-year period of parole ineligibility was too harsh given that he admitted responsibility and expressed remorse at trial. He submitted that a 10 to 12-year period of parole ineligibility should be imposed instead. [16] The sentencing judge held that “[t]here are virtually no mitigating factors in this case” and imposed a period of parole ineligibility of 16 years. THE ISSUES ON APPEAL [17] The appellant appeals his conviction and seeks leave to appeal his sentence on the basis of his assertion that: a. The trial judge failed to inquire into evidence of juror impartiality; b. The trial judge failed to instruct the jury that post-offence conduct could be used to negate the mens rea for murder; c. The trial judge erred in her W.(D.) instruction by failing to instruct the jury that rejection of the appellant’s evidence could not be used to strengthen the Crown’s case; d. The verdict of second-degree murder was unreasonable; and e. The sentencing judge erred by failing to consider a relevant mitigating factor. [1] ANALYSIS OF THE ISSUES A. Juror Impartiality The appellant’s submission about juror partiality [18] During the challenge for cause process in the selection of jurors, a prospective juror said that this case “actually did bother me a lot” given her work with new immigrants to Canada. The prospective juror said she did not know whether she would be able to set aside her preconceived notions and decide the case fairly. The two jurors acting as triers found the prospective juror acceptable. The defence exercised a peremptory challenge to exclude the prospective juror. [19] The appellant submits that the conduct of the two jurors in finding the prospective juror to be acceptable, created a reasonable apprehension of bias on the part of the two jurors. He therefore submits that the trial judge should have conducted an inquiry into their impartiality and possibly discharged them. The appellant claims that by failing to conduct an inquiry, the trial judge made an error of law. [20] The appellant submits that the verdict should be set aside on the basis of the trial judge’s failure to inquire into juror partiality. Analysis of the issue of juror partiality [21] To demonstrate partiality, it must be clear that a juror’s beliefs, opinions or biases will prevent them from setting aside their preconceptions and deciding the case based solely on the evidence: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 107. Impartiality does not require jurors to be neutral, but jurors’ life experiences cannot interfere with their responsibility to approach the case with “an open mind, one that is free from bias, prejudice, or sympathy”: R. v. Chouhan , 2021 SCC 26, at para. 48, citing R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 195. [22] There is a strong presumption of juror impartiality: R. v. Dowholis, 2016 ONCA 801, 133 O.R. (3d) 1, at para. 18. The presumption of juror impartiality can be rebutted only if a reasonable observer would conclude that the juror’s conduct made it more likely than not that the juror, whether consciously or unconsciously, would not decide fairly: Dowholis, at para. 17. [23] The test for the reasonable apprehension of bias is “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude”: Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J.; Dowholis, at para. 19. [24] The threshold for establishing reasonable apprehension of bias is high: S. (R.D.), at paras. 112-113. Further, safeguards are in place to protect against potential sources of juror partiality. In R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 107, the Supreme Court explained these safeguards as follows: [T]he safeguards of the trial process and the instructions of the trial judge are designed to replace emotional reactions with rational, dispassionate assessment. Our long experience in the context of the trial of other serious offences suggests that our faith in this cleansing process is not misplaced. The presumption of innocence, the oath or affirmation, the diffusive effects of collective deliberation, the requirement of jury unanimity, specific directions from the trial judge and counsel, a regime of evidentiary and statutory protections, the adversarial nature of the proceedings and their general solemnity, and numerous other precautions both subtle and manifest – all collaborate to keep the jury on the path to an impartial verdict despite offence-based prejudice. [25] The triers’ acceptance of a juror who expressed uncertainty about whether she was able to decide the case fairly but did not say that her uncertainty would impede her ability to decide the case fairly, does not meet the high threshold of reasonable apprehension of bias. [26] Moreover, the trial judge did everything necessary to ensure juror impartiality. [27] Before each trier began to perform their task, the trial judge correctly instructed them that, having preconceptions about a case does not necessarily disqualify a potential juror and that what is important, is whether the potential juror “would likely be able to put their opinions aside and decide the case fairly and only on the evidence and legal instructions”. [28] Each juror swore an oath or made an affirmation to decide the case impartially. [29] After all the jurors were selected, the trial judge reminded the jury panel of their duty to decide the case only on the basis of the evidence they saw and heard and to make their decision without “sympathy, prejudice or fear”. [30] The appellant’s experienced defence counsel raised no concerns and neither party asked the judge to conduct a further inquiry into the conduct of the triers. [31] Lastly, although following jury selection, the appellant told the court there were “a couple things that I’m very, very uncomfortable with, specifically with jury selection”, he made no reference to the two jurors who were triers, their conduct, or any allegation of possible bias. Concerns about the reasonable apprehension of bias should be voiced as soon as reasonably possible: R. v. Nero, 2016 ONCA 160, 334 C.C.C. (3d) 148, at paras. 33, 36, leave to appeal refused, [2016] S.C.C.A. No. 184. [32] The appellant relies on R. v. Budai , 2001 BCCA 349, 154 C.C.C. (3d) 289, leave to appeal refused, [2001] S.C.C.A. No. 415, to submit that once aware of circumstances which raise a question as to the impartiality of a juror, the trial judge must conduct an inquiry into the circumstances. [33] However, this case is distinguishable from Budai as in Budai, unlike this case, the juror’s conduct raised a real possibility of juror misconduct. The trial judge had received reports of “improper and continuous eye contact” in the courtroom between a juror and an accused, to which the juror made an “improper response”, this had been going on for one to two months, and the parties had nodded at and recognized one another outside the courtroom: at para. 42. This was sufficient to provide a basis for the trial judge’s exercise of discretion to conduct an inquiry. [34] For these reasons there was no reasonable apprehension of bias on the part of the triers and no error of law committed by the trial judge. This ground of appeal fails. B. The Instruction On The Proper Use Of Post-Offence Conduct The appellant’s submission about the post-offence conduct [35] The jury heard evidence about post-offence conduct which the appellant claims can be categorized in two stages: (1) the appellant’s conduct after leaving the gas station until the time he learned he was wanted for murder in Kingston (“the first stage”), and (2) his conduct from the time he knew he was wanted for murder, until the time of his arrest in Montréal three years later (“the second stage”). [36] The evidence adduced on the first stage post-offence conduct was relevant to the issue of his awareness of being involved in a serious crime, and thus whether he had the intent for murder. Given that the appellant admitted he was guilty of manslaughter, the evidence adduced in respect of the second stage post-offence conduct was irrelevant to the issue of whether the death was a manslaughter or a murder. [37] The appellant claims the trial judge’s instruction about the use of post‑offence conduct was confusing and erroneous. [38] He claims the jury were told they could not use the post-offence conduct to determine the question of intent for murder (which was the sole issue of contention), but were not told how the post-offence conduct could assist in determining whether the Crown had proven its case if it did not apply to intent. Specifically, they were not told how a finding that the appellant’s actions were consistent with innocence, or consistent with someone who is not aware of having committed any serious offence, should factor into their deliberations. Analysis of the post-offence conduct issue [39] The trial judge correctly instructed the jury that the post-offence conduct evidence could be used to decide whether the Crown had proven Mr. Tutiven’s guilt beyond a reasonable doubt. [40] They were then told how they could use that evidence as follows: “[I]f you agree with [appellant’s trial counsel] Mr. Sapiano's position that manslaughter has been proven and the only issue is to decide whether the Crown has proven the intent for murder, the post-offence conduct evidence cannot be used by you at all as evidence pointing to guilt. In those circumstances you should ignore it because, in law, it has no probative value in deciding between murder and manslaughter” (emphasis added). [41] The trial judge went on to say, however, that, “ You must consider the post-offence conduct evidence that is consistent with innocence . This is the evidence that Mr. Tutiven went to his rooming house, left his car parked at his rooming house, left when he planned and did not take any steps to hide his whereabouts, went to a restaurant in Kingston with his friend. If believed, this may be seen as conduct that is consistent with someone who is not aware of having committed any serious offence” (emphasis added). [42] The question is whether the jury instruction, read in its entirety, in the context of the case, properly equipped the jury to decide the case based on the application of the applicable legal principles to the evidence: R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, at paras. 17-18. This court held in R. v. Adan, 2019 ONCA 709, at para. 35, “Whether a trial judge’s instructions were sufficient depends on the significance of the nature of the conduct involved; the use made of the evidence at trial; the instructions given about its use; and the positions of the parties about the adequacy of those instructions.” [43] Further, a failure by trial counsel to object is not decisive, but is a factor warranting consideration on appellate review: Adan, at para. 63; R. v. Jacquard , [1997] 1 S.C.R. 314 , at para. 38. A failure to object to an instruction later advanced as erroneous on appeal “may say something about the overall accuracy of the instructions, the fairness of the charge, and the seriousness of the alleged misdirection”: Aden, at para. 63; see also Jacquard, at para. 38. [44] Looking at the charge as a whole, there was no prejudice to the appellant’s right to a fair trial. [45] The appellant, through his counsel, conceded that he was guilty of manslaughter although that was ultimately a matter for the jury to decide. [46] The jurors were told they could not use the evidence to determine that the appellant had the intent necessary for murder, but they could use the evidence, to the extent it was consistent with innocence, to support a finding that the appellant was not aware of having committed any serious offence. Those instructions were correct. [47] The jury would have understood that they could use the evidence to negate mens rea for murder as they were clearly instructed that they must consider this evidence insofar as it is consistent with the appellant’s innocence both of the act and the intention to commit the act. [48] The appellant’s experienced trial counsel did not object to this instruction. During pre-charge discussions, the appellant’s trial counsel initially requested that the trial judge include after-the-fact conduct consistent with innocence in the portion of the charge on intent for murder, but then abandoned the request. [49] For these reasons, this ground of appeal fails. C. The Adequacy of the W.(D.) Instruction The appellant’s submission about the trial judge’s failure to give an O’Connor-type instruction [50] The standard W.(D.) instruction is appropriate when the trier of fact makes credibility findings based on conflicting evidence going to the essential elements of the offence: R. v. W.(D.) , [1991] 1 S.C.R. 742, at pp. 757-758. [51] In this case, the trial judge provided the standard instruction on the third step of the W.(D.) analysis as follows: Even if the testimony of Mr. Tutiven does not raise a reasonable doubt about his guilt, if after considering all the evidence and the lack of evidence, you are not satisfied beyond a reasonable doubt of his guilt, you must find him not guilty of second degree murder. […] Even if you reject his evidence and it does not raise a reasonable doubt you can only find that he assaulted Mr Prajapati if the rest of the evidence satisfies you beyond a reasonable doubt that he intended to apply force. […] Even if you reject his evidence on this point and it does not raise a reasonable doubt, you may only convict him of murder if the whole of the evidence satisfies you of his guilt beyond a reasonable doubt. [52] The appellant suggests that this instruction was insufficient. He claims that the jury should have been given a modified O’Connor instruction such as the following: If you disbelieve the accused’s evidence you should disregard it. Your rejection of or disbelief in the evidence of the accused is not evidence that you may use in determining whether the Crown has proven its case beyond a reasonable doubt. It has no probative value. You must ignore the testimony and treat it as if it had never been given. [53] The appellant suggests this instruction was necessary to ensure that if the jury disbelieved the appellant’s testimony, their disbelief was not used as additional evidence in support of the Crown’s case because disbelieving the appellant’s evidence does not mean it was fabricated. Analysis of the trial judge’s failure to give an O’Connor-type instruction [54] An O’Connor instruction is given where the Crown seeks to have the trier of fact draw an adverse inference on the basis of an alleged fabrication of an exculpatory statement by the accused, and the Crown can prove fabrication based on independent evidence: R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.), at paras. 35-37; R. v. Al-Enzi , 2021 ONCA 81, 401 C.C.C. (3d) 277, at para. 41. [55] The law distinguishes between an exculpatory statement given by an accused that is disbelieved, and one that is determined to have been fabricated to avoid culpability: R. v. Wright , 2017 ONCA 560, 354 C.C.C. (3d) 377, at para. 38; Al-Enzi, at para. 38. [56] A statement that is disbelieved is not evidence that strengthens the Crown’s case. It is simply determined to be untrue: Al-Enzi, at para. 38. On the other hand, a statement that was deliberately fabricated can support an inference of guilt because the trier of fact can draw an inference that the accused lied to conceal their guilt: Al-Enzi , at para. 38. [57] In R. v. Coutts (1998), 40 O.R. (3d) 198 (C.A.), at p. 203, leave to appeal refused, [1998] S.C.C.A. No. 450, Doherty J.A. explained the basis for the distinction between disbelief and fabrication: If triers of fact were routinely told that they could infer concoction from disbelief and use that finding of concoction as evidence of guilt, it would be far too easy to equate disbelief of an accused’s version of events with guilt and to proceed automatically from disbelief of an accused to a guilty verdict. That line of reasoning ignores the Crown’s obligation to prove an accused’s guilt beyond reasonable doubt. By limiting resort to concoction as a separate piece of circumstantial evidence to situations where there is evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused, the law seeks to avoid convictions founded ultimately on the disbelief of the accused's version of events. [58] Where the Crown asserts fabrication, the Crown must not only adduce evidence that disproves the exculpatory statement, but also adduce independent evidence that proves that the exculpatory statement was made to deflect from the accused’s guilt: Al-Enzi , at para. 39. Where independent evidence of fabrication exists, the trier of fact should be made aware of the principles governing the use to which they can put the statement: Al-Enzi, at para. 41. [59] The question to be addressed when an appellant asserts that an O’Connor instruction was warranted “is not whether an O’Connor instruction would have been appropriate, but whether the instruction given prejudiced the appellant’s right to a fair trial”: R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at para. 106, leave to appeal refused, [2010] S.C.C.A. No. 263; Al-Enzi, at para. 43. An appellate court should undertake a functional assessment of the charge, read as a whole in the context of the specific case, giving significant weight to the position advanced by trial counsel: R. v. Badgerow, 2019 ONCA 374, 146 O.R. (3d) 35, at paras. 17-19; Al-Enzi, at para. 44. Further, this court has recognized that a trial judge’s instruction highlighting the circumstances supporting fabrication may in fact work to the detriment of the accused as it may serve to emphasize the powerful case supporting fabrication: Polimac, at para. 106; Al-Enzi, at para. 45. [60] In this case, no O’Connor instruction was required as the Crown was not seeking to have the trier of fact draw an inference of guilt on the basis of an alleged fabrication of an exculpatory statement. [61] In closing submissions, Crown counsel referenced the appellant’s “false narrative” and characterized his account of events as incredible, suggesting that he was hiding the truth. Crown counsel stated that, “you should reject Mr. Tutiven’s false narrative.” [62] Crown counsel submitted that, “Throughout his testimony, rather than answering simple questions, Mr. Tutiven repeatedly chose to provide what the Crown would characterize as unresponsive answers filled with extra details to camouflage the truth.” Crown counsel stated that Mr. Tutiven’s evidence was, [A]n unbelievable story from an unbelievable storyteller. […] Mr. Tutiven, in his evidence, was argumentative, evasive, he was regularly unresponsive to even simple questions. His evidence was convoluted and often contradictory. He was inconsistent, and the Crown would say, incredible. He demonstrated no commitment to tell the truth. On the contrary, his testimony had all the hallmarks of an individual providing untruths and an unreliable witness. [63] However, while Crown counsel asserted that the appellant did not tell the truth, he did not encourage the jury to draw an inference of guilt from their disbelief of the appellant’s evidence. [64] Moreover, although the trial judge summarized the Crown’s position, including that the appellant “demonstrated no commitment to tell the truth”, the trial judge did not include anything in the jury charge from which the jury could have understood that they could draw a negative inference if they disbelieved the appellant’s account. [65] On the contrary, she emphasized the requirement that the jury be convinced of the appellant’s guilt beyond a reasonable doubt on the entirety of the evidence even if the appellant's evidence failed to raise a reasonable doubt. Further, trial counsel for the appellant did not request an instruction on the fact that evidence of disbelief could not be used to infer guilt. [66] In R. v. Badiru, 2012 ONCA 124, this court held that an O’Connor instruction on the distinction between disbelief and a finding of fabrication was not necessary, despite the fact that the Crown had stated in closing submissions that the appellant’s testimony was fabricated: at para. 23. This court held that an instruction was not mandatory as the allegedly false statement was part of defence evidence, the trial judge gave an adequate W.(D.) instruction, the Crown did not ask the jury to infer guilt from disbelief, and the defence at trial did not request the instruction sought on appeal: at para. 23. [67] For similar reasons, the instructions given in this case did not prejudice to the appellant's right to a fair trial: Polimac, at para. 106; Al-Enzi , at para. 43. [68] This ground of appeal therefore fails. D. Whether the Verdict was Reasonable The appellant’s submission about the reasonableness of the verdict [69] The appellant submits that the verdict is unreasonable, and a verdict of manslaughter should be substituted. [70] The appellant notes that the Crown’s case on the intention to commit murder was entirely circumstantial and the jury was invited to convict the appellant based on a series of common-sense propositions about what the reasonable person would have perceived on the night in question: that the appellant must have seen Mr. Prajapati, must have heard the impact, and must therefore have been aware that he had hit and/or was dragging Mr. Prajapati under his car to his untimely death. [71] The appellant submits however, that there were other reasonable inferences inconsistent with guilt and that he should therefore have been found guilty of manslaughter but not second-degree murder. Analysis of the reasonableness of the verdict issue [72] A verdict is reasonable if it is a verdict “that a properly instructed jury acting judicially could reasonably have rendered”: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55. [73] The Crown’s case for establishing the mens rea for murder was entirely circumstantial. In circumstantial cases, the trier of fact must be satisfied that the appellant’s guilt is the only reasonable conclusion available on the totality of the evidence: Villaroman, at para. 55. [74] When assessing circumstantial evidence, the trier of fact should consider other reasonable possibilities inconsistent with guilt. Other possibilities “must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense”, and not based on speculation: Villaroman, at paras. 36-37. [75] However, the evidence does not have to completely exclude other conceivable inferences and a “verdict is not unreasonable simply because ‘the alternatives do not raise a doubt’ in the jury’s mind”: Villaroman , at para. 556. It is ultimately for the trier of fact to determine if a proposed inference is reasonable enough to raise a doubt: Villaroman, at para. 56. [76] The trial judge properly cautioned the jury against too readily drawing inferences of guilt based on the circumstantial evidence: Villaroman, at para. 30. She instructed them that, [Y]ou cannot reach a verdict of guilty based on circumstantial evidence unless you were satisfied beyond a reasonable doubt that the guilt of Mr. Tutiven is the only reasonable conclusion to be drawn from the whole of the evidence. In this case, the evidence relied upon by the Crown to prove Mr. Tutiven’s state of mind is entirely circumstantial. It is important that in considering the circumstantial evidence of Mr. Tutiven’s state of mind … you consider other reasonable conclusions that are consistent with the evidence or with the lack of evidence. […] The evidence of his intention, other than his own evidence of what he intended, is entirely circumstantial. You can rely on circumstantial evidence to conclude that Mr. Tutiven intended to apply force. You should remember, however, that before relying on circumstantial evidence to infer guilt you must be satisfied beyond a reasonable doubt that the guilt of Mr. Tutiven is the only reasonable conclusion to be drawn from the whole of the evidence on this issue of his intention to apply force. Before inferring guilt, you must consider whether there are other reasonable inferences available from the evidence or lack of evidence. […] The evidence of intent that could point to guilt is wholly circumstantial. You are entitled to rely on the circumstantial evidence to infer guilt but you must be satisfied beyond a reasonable doubt that the guilt of Mr. Tutiven is the only reasonable conclusion to be drawn from the whole of the evidence. It is important that in considering the circumstantial evidence relating to Mr Tutiven’s state of mind that you consider other reasonable conclusions that are consistent with the evidence or with the lack of evidence. [77] In order to decide whether the appellant was guilty of manslaughter or murder, the only issues the jury had to decide were whether (a) the appellant saw Mr. Prajapati before he ran him over, or (b) the appellant became aware sometime after hitting Mr. Prajapati that he was dragging a person underneath his car and did not stop driving. If the Crown proved either, the requirement of intent for murder pursuant to s. 229(a)(ii) of the Criminal Code was satisfied. [78] The instant that Mr. Prajapati was run over was not captured on CCTV footage. However, before he was hit, Mr. Prajapati can be seen in CCTV footage moving forward toward the appellant’s vehicle after seeing the appellant fill his tank with gasoline and appearing to leave without paying. The gas station was brightly lit and Mr. Prajapati wore a bright yellow and red Shell uniform that was plainly visible. A witness testified that Mr. Prajapati shouted “hey” in an apparent attempt to stop the appellant. [79] CCTV footage shows that the appellant’s vehicle briefly flashed its brake lights, then moved forward from pump five, in lane three, into lane two in the very direction Mr. Prajapati was running. In another CCTV video, Mr. Prajapati appeared running toward the front passenger side of the appellant’s vehicle, with his hands raised. The CCTV footage suggests that the appellant was not engaged in complex driving manoeuvres at the moment Mr. Prajapati was struck and therefore was not distracted before he sped away. [80] As the appellant sped away from the gas station, Mr. Prajapati’s body was under the appellant’s vehicle. Mr. Prajapati weighed approximately 70 kilograms and his body was dragged approximately 78 metres before it was dislodged from the vehicle. [81] Two witnesses who were at the gas station testified that they saw Mr. Prajapati stand in front of the appellant’s vehicle with his hands raised trying to stop the vehicle when the vehicle accelerated. The witnesses testified that the vehicle hit him, and then kept driving, dragging Mr. Prajapati. [82] One of the witnesses, who was inside his car with the window down during the incident, said that as Mr. Prajapati was dragged down the street, he could hear people screaming for the driver to stop from their balconies in a nearby apartment building on Roselawn Avenue. Another witness in the apartment building, heard the vehicle leave the scene, dragging something, and then heard the dragging stop and someone yell, “Call 911”. [83] The appellant said that he heard what he thought was a pylon under the vehicle but he agreed that he did not see a pylon in or around the gas station. [84] The appellant suggests that Mr. Prajapati could have tripped and fallen in front of the appellant’s vehicle. The appellant’s trial counsel did not raise this suggestion to any of the Crown witnesses. This suggestion was advanced for the first time in the defence closing address. Further, there is no evidence or lack of evidence to support this submission. A witness described that Mr. Prajapati was upright, with his hands up to stop the vehicle, when he was hit, and that his hands made contact with the hood of the vehicle. The jury, properly instructed, was entitled to reject this submission as not being a reasonable possibility. [85] Taken together, the fact that Mr. Prajapati was hit from the front passenger side of the appellant’s vehicle in a well-lit area wearing brightly-coloured clothing, that Mr. Prajapati’s 70 kilograms were dragged under the appellant’s vehicle for approximately 78 metres, many witnesses heard the body being dragged, people screamed that he stop, the appellant heard a “hey, hey” before he left the gas station and something like “stop, stop” as he was leaving, and that he felt his vehicle dragging something as he left, were sufficient to enable the jury to conclude that the appellant was guilty of second degree murder. [86] There was ample evidence to allow the jury to (a) reject the possibility that Mr. Prajapati tripped and fell in front of the appellant’s vehicle just as the appellant was speeding away, and (b) be satisfied beyond a reasonable doubt that the appellant either saw Mr. Prajapati and deliberately ran him over, or realized after he struck Mr. Prajapati that he was dragging someone under his vehicle and continued to speed away without stopping. [87] For the above reasons, this ground of appeal fails. E. The Sentence Appeal [88] The Crown sought 17 years’ parole ineligibility, the appellant sought 10 to 12 years, and the sentencing judge imposed a period of 16 years’ parole ineligibility. The appellant claims this is excessive and fails to consider his remorse and acceptance of responsibility as a mitigating factor. [89] Sentencing decisions are subject to deference and will only be varied where (i) the sentence is demonstrably unfit, or (ii) the sentencing judge made an error in principle that had an impact on the sentence imposed, including an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor on sentencing: R. v. Lacasse, 2015 SCC 64, [2014] 3 S.C.R. 1089, at paras. 41-44; R. v. Friesen , 2020 SCC 9, at paras. 25-26. [90] In this case, the sentencing judge did not fail to consider that the appellant took some responsibility for what he had done. She determined however that no mitigating value attached to it, as his was a “late admission of some limited responsibility” after three years spent evading arrest. [91] She committed no error in principle in arriving at this conclusion nor is the sentence demonstrably unfit. [92] This ground of appeal fails. CONCLUSION [93] For the above reasons, I would dismiss the conviction appeal. While leave to appeal the sentence is granted, I would dismiss the sentence appeal. Released: February 3, 2022 “K.F.” “J.A. Thorburn J.A.” “I agree. K. Feldman J.A.” “I agree. J.C. MacPherson J.A.” [1] In oral argument, the appellant abandoned his argument that the trial judge should not have left the jury with dangerous driving as a route of liability for second degree murder.

COURT OF APPEAL FOR ONTARIO CITATION: Asghar v. Toronto (City), 2022 ONCA 98 DATE: 20220203 DOCKET: C68901, C68902 & C68903 Pepall, Brown and Thorburn JJ.A. DOCKET: C68901 BETWEEN Sajjad Asghar Plaintiff (Appellant) and The City of Toronto, The Mayor John Tory, The Toronto Police Service Board (Members Chair) Jim Hart, Marie Moliner (Vice-Chair), Mayor John Tory, Lisa Kostakis, Michael Ford Councilor, Councilor Frances Nunziata, Ainsworth M. Morgan, The Toronto Police Chief (Interim) James Ramer and The Toronto Police Deputy Chief Peter Yuen Defendants (Respondents) DOCKET: C68902 AND BETWEEN Sajjad Asghar Plaintiff (Appellant) and The Toronto Police Service Board (Members Chair) Jim Hart, Marie Moliner (Vice-Chair), Mayor John Tory, Michael Ford Councilor, Councilor Frances Nunziata, Ainsworth M. Morgan, Lisa Kostakis, The Toronto Police Chief (Ex-Incumbent) Mark Saunders and The Toronto Police Special Constable Joseph Pihura # 90483 Defendants (Respondents) DOCKET: C68903 AND BETWEEN Sajjad Asghar Plaintiff (Appellant) and The City of Toronto, The Mayor John Tory, The Toronto Police Service Board (Members Chair) Jim Hart, Marie Moliner (Vice-Chair), Mayor John Tory, Lisa Kostakis, Michael Ford Councilor, Councilor Frances Nunziata, Ainsworth M. Morgan, The Toronto Police Chief (Interim) James Ramer, The Toronto Police Deputy Chief (Ex-Incumbent) Mark Saunders, The Toronto Police Deputy Chief Peter Yuen Defendants (Respondents) Sajjad Asghar, acting in person Jonathan Thoburn, for the respondents Heard: January 31, 2022 by video conference On appeal from the order of Justice Jane Ferguson of the Superior Court of Justice, dated November 19, 2020. REASONS FOR DECISION [1] The appellant, Sajjad Asghar, appeals from the November 19, 2020 dismissal of his actions numbered CV-20-645467, CV-20-647046 and CV-20-648878 pursuant to Rule 2.1.01 of the Rules of Civil Procedure. [2] Under that Rule, the court may stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court. [3] The motion judge followed the correct procedures, received and reviewed the parties’ submissions, and determined that each of the actions was frivolous, vexatious and an abuse of the process of the court. Each was incapable of success. She accordingly dismissed the three actions. [4] We agree with her findings and her conclusion. These were the clearest of cases and the motion judge’s decision was fully justified. [5] The motion judge also granted ancillary relief relating to fee waivers. Prior to doing so, she advised the parties in three identical endorsements dated November 5, 2020 that she was considering revoking the fee waivers and requiring the appellant to obtain permission of a judge prior to obtaining any further fee waivers in this or in any related proceedings, and requested the appellant to make written submissions in response. In her dismissal of the three actions, she incorporated those terms relating to fee waivers. [6] Such a determination was not unlawful as alleged by the appellant. Rather, it was a legitimate and necessary exercise of the motion judge’s jurisdiction. [7] We dismiss all three appeals. The appellant is to pay the respondents’ costs fixed in the amount of $2,500 inclusive of disbursements and applicable tax. “S.E. Pepall J.A.” “David Brown J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Biya, 2022 ONCA 99 DATE: 20220201 DOCKET: M53046 (C66597) Lauwers J.A. (Motion Judge) BETWEEN Her Majesty the Queen Respondent (Moving Party) and Abadula Biya Appellant (Responding Party) Abadula Biya, acting in person Lula Ahmed, acting in person Biya Abajabel, acting in person Jeremy Tatum, for the moving party Heard: January 13 and 28, 2022 by video conference REASONS FOR DECISION [1] Abadula Biya was convicted and sentenced for charges relating to the unauthorized possession of a firearm and ammunition, possession of a Schedule 1 controlled substance (MDEA) for the purposes of trafficking, and possession of the proceeds of crime. His appeal was successful: R. v. Biya , 2021 ONCA 171. The conviction was quashed, and a new trial was ordered. [2] The Crown applies for forfeiture of the July 16, 2020 release order that Mr. Biya and his sureties entered into under s. 771 of the Criminal Code , R.S.C. 1985, c. C-46 . Mr. Biya’s two named sureties are his father, Biya Abajabel, and his mother, Lula Ahmed. The sureties pledged $20,000 in support of Mr. Biya’s release. [3] The sureties confirmed when entering into the release orders their understanding that: “[F]ailure on the part of [Mr. Biya] to follow any of the conditions in this release order could lead to the forfeiture of the amount of money that has been promised or deposited.” [4] One of the terms of the release order was: 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 attending court, or meeting with your lawyer, or for purposes of complying with this or any other court Order or iii. for purposes of travelling directly to, from and while at work or school or iv. when you are in the presence of your surety. [5] The Crown states that on at least October 3 and 6, 2020, Mr. Biya did not comply with that condition of the release order and breached his bail. On December 16, 2020, he pleaded guilty to the October 3, 2020 breach charge. The October 6, 2020 breach facts, and other facts forming part of the circumstances of the offence, were read into the record as part of the plea agreement and the sentence to be imposed. Mr. Biya was sentenced to 59 days of custody less 29 days of enhanced pre-trial custody credit. [6] On November 12, 2021, this court endorsed the default of the July 16, 2020 release order. Section 771 of the Criminal Code mandates a forfeiture hearing for the $20,000 that Mr. Biya and his sureties pledged in support of his release on bail pending appeal. They must now show cause why full forfeiture should not be ordered in the circumstances. [7] A concern came to light in the writing of this decision, which led the Executive Legal Officer of the court to send a letter to the Crown, Mr. Biya and his parents inviting further submissions. The letter stated: The order dated July 16, 2020… indicates at p. 2 that the sureties promised to pay the amount of $20,000 (without deposit). However, while the order notes a corresponding $20,000 obligation on the part of Mr. Biya, the box confirming that obligation has not been checked off. The Crown seeks to have the forfeiture enforced against Mr. Biya as well as his parents, despite the absence of a check in the box for Mr. Biya. [8] In the release order I made on March 15, 2019, and in subsequent release orders by Nordheimer J.A. dated October 4, 2019 and by Paciocco J.A. dated December 13, 2019, the following provision appears: “IT IS ORDERED that the said appellant [Mr. Biya] shall forthwith be brought before a Justice of The Peace, and upon entering into a recognizance in the amount of $20,000.00, without a deposit, with the following sureties Biya Abajabel $20,000.00, Lula Ahmed $20,000.00, be admitted to bail upon the following conditions…” [9] An amendment to s. 515 of the Criminal Code came into force on December 18, 2019, which provided that it was no longer mandatory that the accused promise to pay a specified amount for failing to comply with the conditions of the order. This led to a change in the form of the release order. The order of Hourigan J.A. dated April 9, 2020 and, as the Executive Legal Officer’s letter notes, the order of Pardu J.A. dated July 16, 2020 did not check off the box requiring Mr. Biya to be personally liable for the specified amount. [10] I do not accept Mr. Biya’s submission that he always understood that it was only the sureties and not him who were responsible for forfeiture. All of the release orders other than the last two make it very clear that he had personal financial obligations. [11] In the synopsis read into the record on Mr. Biya’s prosecution for breaching his recognizance, the additional information provided to the court states: From September 5th, 2019 to October 6th, 2020 police have conducted 12 bail compliance checks in which they spoke to the accused’s parents (sureties) and his brother. The family members told police that the accused was at work at Birchmount and Eglinton. The accused has not worked at his place of employment since August of 2019. [12] This was a breach and is within the time frame of my original release order, dated March 15, 2019, when Mr. Biya was plainly liable to pay the recognizance upon a breach. Mr. Biya admitted to the truth of the facts in the synopsis when he pleaded guilty to breaching his recognizance. In the circumstances, I conclude that I have jurisdiction to require forfeiture of bail from Mr. Biya and his parents. [13] The legal principles applicable to bail forfeiture were set out in this court’s decision in Canada (Attorney General) v. Horvath , 2009 ONCA 732, 248 C.C.C. (3d) 1 and summarized by Durno J. in R. v. Griffiths , 2019 ONSC 4044, at paras.  22-31. [14] The onus is on the sureties to show on a balance of probabilities that they should not be required to pay the full amount: Horvath , at para. 27. The court has discretion in determining how much of the amount should be forfeited: Horvath , at para. 5. Trotter J.A., in his text, The Law of Bail in Canada , loose-leaf, 3rd ed. (Toronto: Thomson Reuters Canada, 2010), describes the role of sureties as “effectively guarantee[ing] that the accused will attend in court and will abide by the conditions imposed”: at para. 6-8. The “pull of bail” is an expression used to capture the expectation that an offender will comply with the bail conditions rather than subject the sureties to personal liability: Horvath , at para. 40. The realistic prospect of actual forfeiture when bail is breached is needed to maintain the effectiveness of the system: Horvath , at para. 41. Trotter J.A. noted, at para. 13-1, that the effect of potential forfeiture “would be seriously diluted by widespread knowledge that the procedure is only invoked sporadically.” [15] However, the court noted in Horvath , at paras. 45-46, that where a large amount is posted for bail, the pull of bail can sometimes be satisfied with less than full forfeiture while maintaining the credibility and effectiveness of the bail system. [16] In Horvath the court noted, at para. 51, that “the diligence of the surety is only one factor relevant to a forfeiture hearing.” Durno J. assembled a list of factors in Griffiths , at para. 31, that a judge may consider at a forfeiture hearing. I pick out several that are relevant to this proceeding: (a) The nature of the relationship between the sureties and the accused, as well as the level of control they had over the accused’s behaviour; (b) The sureties’ intended role in the supervision where more than one surety signs; (c) The sureties’ diligence; (d) The sureties’ post-breach conduct, especially attempts to assist the police in apprehending the accused; (e) The amount of the recognizance; (f) The sureties’ means at the time the release order was signed; and (g) Any significant change in the sureties’ financial situation between the time the recognizance was entered and the breach, and particularly between the breach and the forfeiture hearing. [17] Mr. Biya, his father and his mother all spoke at the hearing. [18] Mr. Biya was contrite and remorseful. He admitted to actively misleading his parents about his going to school and his working long after he ceased both activities. He has been struggling to find a job, but his criminal record now stands in the way, quite apart from the economic conditions and the influence of COVID-19. He is hoping to return to school and in the meantime is looking for a minimum wage job. He would be well advised to speak to the John Howard Society, Dixon Hall’s Employment Services, or The Career Foundation. [19] His mother Ms. Ahmed stated that she is on disability, and that she and her family, including four other children, have come through a bout with COVID-19. Mr. Biya’s father Mr. Abajabel is currently 68 years old and retired. This is a poor family. Both Mr. Biya’s parents were apologetic. His mother explained that she drove him to school and to work on occasions in the early days of his bail, but that both she and her husband trusted their son. [20] It is quite clear to me that full forfeiture, which the Crown is not seeking in this case, would be a crushing financial blow, one from which this family could not recover. While maintaining the credibility of the bail system means that forfeiture must have teeth, that is a matter of proportionality. [21] The Crown submits that Mr. Biya’s parents could have been more diligent in their supervision, but he believes that they assisted in locating Mr. Biya and having him present himself to the police for arrest. [22] In my view, Mr. Abajabel and Ms. Ahmed must bear some financial responsibility for failing to attend to their duties with sufficient diligence. I also believe that Mr. Biya himself must pay something. But the family’s circumstances, and the general economic conditions, do not justify a large forfeiture. [23] I therefore order Mr. Biya to pay by way of forfeiture of bail $1,500 over the course of two years, subject to further order of the court if his financial circumstances change, and I order that Mr. Abajabel and Ms. Ahmed each forfeit the sum of $750 and pay the amount over one year, subject to further order of this court if their financial circumstances change. I will remain seized of this matter and require the reattendance of the parties before me at a date to be fixed by the court in about six months. [24] Mr. Biya may be served at his email address: “ * ”. His parents may be served at the email address provided to the court. If those email addresses change in the future, Mr. Biya and his parents must email the court at coa.e-file@ontario.ca or call the Motions Desk at 416-327-5025 . “P. Lauwers J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. C.O., 2022 ONCA 103 DATE: 20220204 DOCKET: C69144 & C69145 Doherty, Trotter and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and C.O. and N. P. Appellants Paul Calarco, for the appellant C.O. Gideon McMaster, for the appellant N.P. Jennifer Trehearne, for the respondent Heard: June 4, 2021 by video conference On appeal from the order of Justice Faye E. McWatt of the Superior Court of Justice, dated July 3, 2020, and reported at 2020 ONSC 4076, allowing an appeal from the acquittals entered on October 11, 2019, by Justice R. Silverstein of the Ontario Court of Justice. Doherty J.A.: I. OVERVIEW [1] The appellants, C.O. and N.P., are common-law partners. J. is their daughter. She was four years old at the time of the relevant events. [2] In June 2017, the police executed a search warrant on the appellants’ apartment in Toronto. The search warrant was unrelated to the offences which are the subject of this appeal. The apartment was appallingly filthy and J.’s personal hygiene was equally bad. The police took J. and turned her over to the child welfare authorities. [3] The appellants were charged with the failure to provide J. with the necessaries of life contrary to s. 215(2)(a)(i), and with forcibly confining J. contrary to s. 279(2) of the Criminal Code , R.S.C., 1985, c. C-46 . On the failure to provide necessaries charge, the Crown alleged the appellants’ failure to attend to J.’s personal hygiene, coupled with the very unsanitary conditions in the apartment, put J.’s health and safety at risk, and demonstrated a marked departure from the conduct of a reasonably prudent parent. On the unlawful confinement charge, the Crown alleged the appellants effectively locked J. in the filthy bedroom at night. The Crown maintained, that in doing so, the appellants went well beyond the “lawful authority” defence in s. 279(2) of the Criminal Code . [4] The Crown proceeded summarily. The trial judge acquitted the appellants on both counts. [5] The Crown appealed the acquittals to the Superior Court. The Summary Conviction Appeal Court Judge (the “SCAJ”) allowed the appeals and quashed the acquittals of both C.O. and N.P. She entered convictions against both on the necessaries of life charge and ordered a new trial on the unlawful confinement charge. [1] [6] The appellants applied for, and obtained, leave to appeal to this court from the judgment of the SCAJ. They seek an order restoring the acquittals. II. THE FACTS [7] When the police entered the appellants’ apartment they found partially eaten food throughout the apartment and cigarettes and garbage all over the living room floor. Some of the closets were full of bags containing garbage. The apartment reeked of urine and feces. There were flies everywhere and the walls were covered with fly feces. [8] J.’s bedroom was particularly dirty. Her pillow and her bed smelled of urine. There was food on the mattress and insects buzzing around the food. The police found urine and feces on J.’s bedroom floor and a pile of old feces in her closet. J.’s pants were wet with urine and covered in grime. She was so dirty she had to be bathed before she could be medically examined. One of the officers testified that it was “impossible to breathe” in J.’s bedroom because the stench was so overpowering. [9] The evidence did not show exactly how long J. had been living in the conditions observed by the police when they executed the search warrant. The trial judge did, however, accept the evidence that the conditions in the apartment, 11 days before the warrant was executed, were much the same as the conditions at the time the warrant was executed. There was also some evidence the appellants and J. had lived in very unsanitary conditions at another residence, about two or three years earlier. [10] A psychologist who prepared a report for the Children’s Aid Society about four months after J.’s apprehension described J.’s cognitive functioning and motor skills as within the average range. J. showed lower levels of self-regulation and adaptive functioning as well as poor socialization. Her hyperactivity, impulsivity, and distractibility suggested she was at risk to develop an attention deficit disorder. [11] It is unclear whether the psychologist was aware of the extremely unsanitary conditions in J.’s home. In any event, he was not asked to offer any opinion as to what effect, if any, those conditions had on J.’s psychological status. [12] J.’s great-grandfather described J. as a bubbly, energetic and happy child before her apprehension by the authorities. He had been in the appellants’ apartment about four months before the police executed the search warrant. He described the apartment as “untidy”. He also indicated that whenever he saw J. she seemed clean and well dressed. [13] J.’s great-grandfather assumed custody of J. sometime after she was apprehended by the child welfare authorities. He took steps to improve her socialization and her interpersonal skills. She was diagnosed with ADHD after she started to live with her great-grandfather. [14] When the police executed the warrant they found J.’s bedroom door closed. The doorknob on J.’s bedroom was attached by a rope to the doorknob on the bathroom across the hall. The rope prevented J. from opening her door from the inside. J’s inability to open her bedroom door when the rope was in place led to the unlawful confinement charge. [15] Neither appellant testified but both gave statements to the police that were admitted at trial. They explained that J.’ s door was tied shut during the evening because she had a tendency to leave her bedroom and get into things in the apartment, including laundry detergent and other dangerous materials. Sometimes, J. would scatter the material about her bedroom, but sometimes she would put it in her mouth. The appellants told the police they had taken J. to the Poison Control Centre more than once. [16] According to the appellants, if J. needed to go to the bathroom during the night she would call out and one of the appellants would come from their bedroom and take her to the bathroom. As the condition of J.’s bedroom demonstrates, there were times when she urinated and defecated in her bedroom. She may not have called out to her parents, or she may have called out and the appellants either did not hear J., or chose to ignore her. [17] In their statements to the police, the appellants explained that J. was a very active and somewhat destructive child with a tendency to get into things, some of which were dangerous. She would also smear her own feces on the wall of her bedroom. The appellants insisted they repeatedly tried to clean up the mess J. made. [18] Although both appellants tended to understate the extremely unsanitary conditions in the apartment, and to fixate on J.’s conduct when explaining those conditions, both ultimately acknowledged in their statements that they were responsible for letting matters get so out of hand. [19] There was no evidence that J. was malnourished, ill, or had been physically abused. There was also no evidence J. was ever locked in her bedroom when her parents were not in the apartment. [20] The appellants were extremely poor. They had real difficulty making ends meet and keeping food on the table. III. THE REASONS OF THE TRIAL JUDGE (i) The unlawful confinement charge [21] As indicated above, the unlawful confinement charge was based on the confinement of J. in her bedroom during the evenings. The trial judge accepted that the appellants confined J. in her bedroom. He recognized that the confinement of a child by a parent was justified if the confinement was “in accordance with the best interests of the child”: R. v. Magoon , 2018 SCC 14, [2018] 1 S.C.R. 309, at para. 68. The best interests of the child can include health and safety concerns. [22] The trial judge also acknowledged that the confinement of a child by a parent for whatever purpose could not be justified if the conduct “surpasses any acceptable form of parenting” and reflects the exploitation of authority for an improper purpose: Magoon , at para. 68. [23] The trial judge, at para. 37, accepted the explanation offered by the appellants for confining J. in her bedroom at night. He acquitted on the unlawful confinement charge stating, at para. 39: I am not convinced beyond a reasonable doubt that this confinement falls outside the category of the restriction of liberty that parents are lawfully entitled to resort to in accordance with the best interests of their child. (ii) The failure to provide necessaries charge [24] The failure to provide necessaries charge arose out of the state of J.’s personal hygiene and the extremely unsanitary conditions in the apartment. It was common ground that the appellants owed a legal duty under s. 215(1)(a) of the Criminal Code to provide J. with the necessaries of life. The Crown alleged the appellants’ failure to attend to J.’s personal hygiene needs, and to maintain even minimally sanitary conditions in the apartment, constituted a failure to provide the necessaries of life, leaving J. in “destitute or necessitous circumstances”. The Crown further maintained that leaving four-year-old J. in a filthy room over many days demonstrated a marked departure from what a reasonable parent would do. [25] The trial judge held, that to establish the offence under s. 215(2)(a)(i), the Crown had to prove that J.’s personal hygiene and the extremely unsanitary conditions in which she lived posed a risk of harm to J. The trial judge noted the Crown had led no evidence that J. was either harmed by the unsanitary living conditions or that those conditions created a risk of harm to J. The trial judge declined the Crown’s invitation to take judicial notice that living in the extremely unsanitary conditions in the apartment posed a risk to J.’s health. The trial judge said, at para. 63: Although I personally strongly suspect that the unsanitary environment created by the defendants posed a non-trifling risk of harm to [J.], for the reasons set out above, I refuse to take judicial notice of that fact. It should also be noted that whether a judge takes notice of adjudicative facts is discretionary. [citation omitted]. Expert evidence on these questions was readily available to the Crown in this prosecution. Any public health professional could have addressed these issues. [26] The trial judge held that the failure to prove a risk of harm to J. necessitated the acquittal of the appellants on the failure to provide necessaries charge. IV. THE REASONS OF THE SCAJ (i) The unlawful confinement charge [27] The SCAJ concluded the trial judge failed to consider the conditions of J.’s confinement when determining whether the confinement was a lawful restriction of J.’s liberty. She held the appellants’ explanation that they had confined J. to protect her, even if true, was not determinative on the unlawful confinement charge. She said, at para. 64: While the reason behind confining J. was relevant, the trial judge erred in not considering the condition of the room and the state of J. as factors in the analysis of whether this was an acceptable form of parenting. By simply accepting that the respondents were lawfully entitled to confine J. to prevent her from getting into cleaning supplies ignores the context in which she was confined. [28] The SCAJ quashed the acquittals on the unlawful confinement charge and ordered a new trial. (ii) The failure to provide necessaries charge [29] The SCAJ found that the trial judge made three errors in relation to the failure to provide necessaries charge. First, the trial judge erred in holding the Crown had to prove a risk of harm to J. as an essential element of a charge under s. 215(2)(a)(i): Reasons, at para. 26. Second, if proof of some risk of harm was required, the trial judge erred in failing to consider the risk of psychological harm to J.: Reasons, at paras. 49-50. Third, the trial judge erred in holding he needed evidence quantifying the degree of risk to J. posed by the extremely unsanitary environment in which she was living: Reasons, at paras. 56-57. The SCAJ concluded that even if, contrary to her conclusion, the Crown was required to prove the conditions posed a risk of harm to the child, the trial judge’s finding that the conditions were potentially harmful to J., was enough to establish a risk of harm to J. and justify a conviction under s. 215(2)(a)(i). [30] The SCAJ quashed the acquittals and entered convictions on the failure to provide necessaries charge. V. THE GROUNDS OF APPEAL Ground #1: Did the SCAJ err in law in setting aside the acquittals on the unlawful confinement charge? [31] The appellants submit that the SCAJ ignored the trial judge’s finding that the appellants locked J. in her bedroom at night to prevent her from getting into the dangerous cleaning products kept in other parts of the apartment. Counsel submits that it was open to the trial judge to accept the appellants’ explanation, and to find, based on that explanation, that the appellants restricted J.’s liberty to protect her health and safety. The appellants therefore acted within the “lawful authority” defence in s. 279(2). [32] Counsel further contends that the SCAJ made findings of fact that were unsupported by the evidence and used those findings to support her conclusion that J. was unlawfully confined. Counsel points to the following as unsupportable findings of fact made by the SCAJ: · J. had no access to the toilet at night; · J. was confined without access to food; and · J. was confined for disciplinary purposes. [33] There is merit to the appellants’ claim that the SCAJ went beyond her limited authority to review findings of fact and made factual findings that were unsupported by the evidence. I need not, however, wrestle those submissions to the ground. [34] The appeal, as it relates to the unlawful confinement convictions, can be resolved by addressing the argument that once the trial judge accepted the appellants’ evidence that they had confined J. to protect her health and safety, the confinement was lawful and it was unnecessary to consider the conditions of the confinement. [35] The “lawful authority” defence at s. 279(2) in cases involving parents and their children recognizes that parents are entitled, if not obligated, by virtue of their parental duties and responsibilities to confine their children in the best interests of the children. The “lawful authority” defence however extends only to conduct which is a reasonable exercise of parental authority done in furtherance of parental duties and responsibilities. Parental conduct that is abusive, harmful to the child, degrading or otherwise beyond the bounds of acceptable parenting cannot shelter under the “lawful authority” defence: Magoon , at paras. 64-68; R. v. Bottineau , 2006 O.J. No. 1864 (Ont. S.C.), at para. 121, aff’d 2011 ONCA 194, 269 C.C.C. (3d) 227, at paras. 101-103, leave to appeal refused, [2011] S.C.C.A. No. 455. [36] It flows from the focus on the reasonableness of the parental exercise of authority that the “lawful authority” defence in s. 279(2) as applied in the parent/child situation must address not only the reason behind the confinement but also the factual context in which the confinement occurs. The court must consider the purpose, nature, and extent of the confinement in determining whether that confinement was a lawful exercise of parental authority over the child: R. v. Kematch, 2010 MBCA 18, 252 C.C.C. (3d) 349, at para. 104. [37] The parents’ reason for imposing the restraint on the child’s liberty will obviously be a key consideration. It is not however, the only relevant consideration. Other factors such as the location, manner, and duration of the confinement will also be potentially relevant, as no doubt will other considerations. [38] I agree with the SCAJ that the conditions of the room in which the appellants confined J. was relevant to whether the confinement was lawful. J.’s room was the dirtiest room in a very dirty apartment. There is an obvious difference when measuring the legitimacy of the exercise of parental authority, between confining a young child at night in a “normal” bedroom in which the child routinely sleeps and confining that same child in that same room when the room has become more akin to a garbage can or a toilet than a bedroom. [39] A trier of fact could well conclude, even if the appellants acted out of legitimate concern for J.’s safety, that locking her in a filthy, foul-smelling room, replete with human feces, decaying foods, and countless flies, was harmful, degrading and well beyond the bounds of acceptable parenting. The appellants’ failure to attend to J.’s personal hygiene while she was locked in her room only added to the degrading nature of the confinement. [40] I would dismiss the appeal on the unlawful confinement charge. Ground #2: Did the SCAJ err in quashing the acquittals on the failure to provide necessaries charge? (a) Is risk of harm an element of the offence created by s. 215(2)(a)(i)? [41] The trial judge and the SCAJ differed as to whether the Crown had to prove a risk of harm to J. to establish an offence under s. 215(2)(a)(i). For the reasons that follow, I agree with the trial judge – risk of harm is an element of the offence. Indeed, on a close analysis of the elements of the offence in s. 215(2)(a)(i), it is plain that risk of harm as a consequence of the parents’ dereliction of duty is woven throughout the conduct and fault requirements of that offence. [42] Section 215 is found in the part of the Criminal Code headed “Duties Tending to Preservation of Life”. Among the duties identified in s. 215 is the obligation on a parent to provide the necessaries of life to a child: Criminal Code , s. 215(1)(a). The duty placed on parents – to provide the necessaries of life to their children – is intended to protect children under the charge of their parents. It requires parents to protect children from the harm to their health and safety associated with the failure to provide the necessaries of life to children. Clearly, the duty puts a positive obligation on parents to act to protect their children from harm. The duty is reinforced by criminal sanctions for the failure to perform the duty in some circumstances. As I will explain, protection of children from harm in the context of the duty created by s. 215(1)(a) must include protection of children from the risk of harm associated with the failure to provide necessaries: see R. v. S.J. , 2015 ONCA 97, 124 O.R. (3d) 595, paras. 64-65, leave to appeal refused, [2015] S.C.C.A. No. 146. [43] Section 215(2) creates two offences. Subsection (i), the charge under which the appellants were prosecuted, makes it an offence for a parent, who owes a duty to provide the necessaries of life to a child under 16, to fail to perform that duty, if the child is in “destitute or necessitous circumstances”. [44] Section 215(2)(a)(ii) is not directly in play on this appeal. It is, however, closely related to the offence created under subsection (i). An understanding of the elements of the offence under (ii) is important to a proper reading of the offence created in (i). Just as with subsection (i), the offence under subsection (ii) requires proof of the duty to provide the necessaries of life and proof of the failure to perform that duty. Subsection (ii) goes on, however, to require the Crown to prove one of three consequences flowing from the failure to provide necessaries. The Crown must prove: · the failure to perform the duty endangered the life of the child; · the failure to perform the duty caused permanent endangerment to the health of the child; or · the failure to perform the duty was likely to cause permanent endangerment to the health of the child. [45] As is evident from a reading of s. 215(2), the conduct forbidden by the two offences created by that section differs in one way. Under subsection (i), the Crown must prove the child was in “destitute or necessitous circumstances” when the parent failed to provide a necessary of life. Under the offence created by subsection (ii), the Crown must prove that the failure to provide the necessaries of life led to one of the three consequences to the child described in subsection (ii). [46] Although both offences are punishable by the same penalty, the consequences forbidden by subsection (ii) make it the more serious of the two offences. It is also the most commonly charged of the two offences. [47] I turn next to a more detailed consideration of the essential elements of the offence created by s. 215(2)(a)(i). I will begin with the three elements of the conduct component (the actus reus ) and then turn to the fault component (the mens rea ) of the offence. [48] The first element, the duty on the appellants to provide necessaries of life to J., is acknowledged. [49] The second element of the conduct component requires proof of a failure to provide the “necessaries of life”. That phrase is not defined in the Criminal Code . It is probably impossible to provide an exhaustive list of the things that could constitute “the necessaries of life”. The meaning and scope of the phrase is informed by the purpose of the statutory duty created and depends, to some extent, on the specific circumstances. “Necessaries of life” capture those things which are integral to the health and safety of the child. Some specifics, like food, are self-evidently “necessaries of life”. Other things, like protection of children from physical harm, are also necessaries of life, but their meaning is situation specific. A necessary is something which, if not provided by the parent, will result in harm to the child’s health or safety. Protection of a child from harm is itself a necessary of life: R. v. Popen (1981), 60 C.C.C. (2d) 232 (Ont. C.A.), at p. 240; R. v. Peterson (2005), 201 C.C.C. (3d) 220 (Ont. C.A.), at para. 34, leave to appeal refused, [2005] S.C.C.A. No. 539; S.J. , at paras. 50-51. [50] Defining the phrase “necessaries of life” by reference to those things necessary to protect a child from harm to the child’s health or safety must include protection from risk of that harm if the section’s protective purpose is to be served. A reading of the phrase “necessaries of life” that triggered the obligation to provide necessaries only after harm had occurred to the child, would neuter much of the protective purpose of the duty created by s. 215(1)(a). On this view, a parent’s duty to protect the child from harm would arise only after the parent’s failure to act had caused harm to the child. The protection would come too late for the child. [51] The duty to protect, which underlies the duty to provide the necessaries of life, does not demand that a parent protect a child from risk of all harms, no matter how minor or speculative. The harm in question must be reasonably foreseeable in the circumstances. One cannot meaningfully talk of a duty to protect from a harm in the absence of any reasonable basis to conclude there is at least a risk of that harm. The harm must also relate to the child’s ongoing health and safety, and not merely the child’s comfort or wellbeing. The duty imposed by s. 215(1)(a) is not to be the ideal parent. If the foreseeable harm to the child is minor and transitory, a failure to protect against that harm will not constitute a failure to provide the necessaries of life. [52] The third element of the conduct component of s. 215(2)(a)(i) requires that the Crown demonstrate that the child was in “destitute or necessitous circumstances” when the parent failed to provide protection from harm. The words “destitute or necessitous” must mean more than a child who has not been provided with the necessaries of life. Otherwise, the requirement that the child be in “destitute or necessitous circumstances” would add nothing. The offence would consist solely of failing to provide the necessaries of life. On the language of s. 215, a parent’s failure to provide the necessaries of life, standing alone, is clearly not a crime. [53] There is relatively little authority on the meaning of the phrase “destitute or necessitous circumstances”: see S.J. , at para. 56. Both words refer to the child’s condition when the parent fails in the duty to provide the necessaries of life. Both words refer to a child who is in need of the necessary that was not provided by the parent. The child’s need is assessed by the impact of the failure to provide that necessary on the child’s health and safety. If the failure to provide the alleged necessary harms the child’s health or safety, or puts the child’s health or safety at risk, it can be said the child is in need of protection from that harm, and therefore in “destitute or necessitous circumstances”: see S.J. , at para. 64. [54] I accept there is an overlap in subsection (i) between the definition of “necessaries of life” and the condition of being “in destitute or necessitous circumstances”. This overlap makes it somewhat difficult to parse out the separate elements of the conduct prohibited by subsection (i). However, given that neither offence in s. 215(2) makes it a crime to fail to provide the necessaries of life without more, the duty of the parent to provide the necessaries of life must be addressed separately from the further requirement that the child be in “destitute or necessitous circumstances”. [55] Even though the two elements must be considered separately, I would think that, in most cases, a child who is not provided with a necessary of life will be in necessitous circumstances. There may, however, be situations in which a parent has failed to provide a necessary, but that failure has not resulted in the child being harmed or facing the risk of harm. For example, a parent may fail to provide a child with food over several days. However, the child may be old enough, and have sufficient resources and independence, to attend to her own food needs. In those circumstances, while the parent has failed to provide a necessary of life, the child is not harmed or at risk of harm as a consequence of that failure. Consequently, the child is not in “destitute or necessitous circumstances”. [2] [56] It is not clear to me how the SCAJ defined “necessitous circumstances”. Parts of her reasons (paras. 41-45) suggest that the SCAJ moved directly from a determination that J. had not been provided with the necessaries of life to a further finding that she was in necessitous circumstances. As outlined above, this approach effectively creates the offence of failing to provide the necessaries of life. [57] I am also satisfied that the SCAJ misinterpreted this court’s judgment in S.J. At para. 64, Pepall J.A. said: Section 215(2)(a)(i) addresses the situation in which the parents’ failure to perform their duties under s. 215(1)(a) puts the child to whom the duty is owed at risk of harm because of the child’s dire circumstances (destitute or necessitous). [58] The SCAJ described the above passage as referable to “the purpose” of the offence creating provisions in s. 215(2). With respect, in this part of her reasons, Pepall J.A. was identifying the elements of the two offences and differentiating between the elements required by each offence. Her description of “necessitous circumstances”, as referable to a child who was “at risk of harm”, was a description of the essential element of the offence under subsection (i), which differentiated that offence from the offence under subsection (ii). The SCAJ was obliged to accept and apply the interpretation of the elements of the offence created by subsection (i), provided by Pepall J.A. [59] The SCAJ also rejected the submission that risk of harm was implicit in the requirement of “necessitous circumstances” because, in her view, that interpretation would make s. 215(2)(a)(i) “somewhat redundant”: Reasons, at para. 39. The SCAJ viewed the requirement that the Crown prove risk of harm to the child under subsection (i) as being very similar to the requirement in subsection (ii) that the Crown prove one of the three consequences identified in that provision. [60] I cannot agree. The offence created by subsection (ii) speaks to specific identified consequences to the child. Those consequences are all potentially different from, and more serious than, the risk to the child’s health or safety required to show “necessitous circumstances”. I see no difficulty distinguishing between the two offences. [61] The SCAJ also rejected the trial judge’s interpretation of “necessitous circumstances”, in part, because she read the trial judge as requiring that the Crown prove the circumstances were “extremely serious” before the child could be said to be in “necessitous circumstances”: Reasons, at paras. 32-35. With respect, the SCAJ misread the trial judge’s reasons. He rejected an interpretation of serious harm in favour of one that would require the Crown to prove some risk of harm: Reasons, at paras. 49-55. The SCAJ’s misreading of the trial judge’s reasons may explain why the SCAJ saw the trial judge’s interpretation as creating a significant overlap or redundancy in the two offences created by s. 215(2). [62] In addition to the conduct component ( actus reus ) of the offence, the Crown is also required to prove a fault component ( mens rea ). The Supreme Court of Canada has fashioned a constitutionally-compliant level of objective conduct-based fault premised on a comparison, using the “marked departure” metric, between the accused’s conduct and the conduct of a reasonably prudent parent. [63] The approach to fault finding under s. 215(2)(a) is set out by Lamer C.J. in R. v. Naglik , [1993] 3 S.C.R. 122, at p. 143. That case involved a charge under s. 215(2)(a)(ii). The Chief Justice described the fault component in these terms: Section 215(2)(a)(ii) punishes a marked departure from the conduct of a reasonably prudent parent in circumstances where it was objectively foreseeable that the failure to provide the necessaries of life would lead to a risk of danger to the life, or a risk of permanent endangerment to health, of the child. [64] Adapting the language of Lamer C.J. to the offence created by s. 215(2)(a)(i), the fault component consists of conduct which shows a marked departure from the conduct of a reasonably prudent parent in circumstances in which it was objectively foreseeable the child was in “necessitous circumstances”. That is, circumstances in which the child’s health or safety were at risk and the child was in need of protection. The requirement that the Crown prove, as part of the harm element, that it was reasonably foreseeable to a prudent parent that the child was in need of protection, dictates that there must be some foreseeable risk of harm. Foreseeable risk of harm is, therefore, integral to the fault requirement for the offences created by s. 215(2)(a). [65] In summary, risk of harm to the child’s health or safety informs both the scope of the duty to provide the necessaries of life in a given circumstance, and the child’s need for those necessaries. Furthermore, the objective fault requirement inevitably leads to a risk assessment on the way to determining whether the accused conduct constituted a marked departure from the conduct of a reasonably prudent parent in the same circumstances. (b) Did the trial judge err in refusing to take judicial notice of the risk posed to J.’s health and safety? [66] The Crown chose not to lead any evidence, expert or otherwise, about the risk posed to J.’s health and safety by her living conditions. Instead, the Crown asked the judge to take judicial notice that the conditions posed a risk to J.’s health and safety. The trial judge was prepared to take judicial notice that bacteria from human waste caused disease. The trial judge was not, however, prepared to go any further. Specifically, he was not prepared to quantify the risk of disease or take judicial notice that the risk of harm to J., as a result of the conditions in the apartment, was “beyond de minimis ”: Reasons, para. 58. [67] The trial judge referred to the leading authorities on judicial notice. He correctly pointed out that taking judicial notice was ultimately an exercise in the discretion of the trial judge. He also observed that trial judges should be less inclined to take judicial notice of adjudicative facts at the centre of the dispute. The nature of the risk, if any, posed to J.’s health and safety by her living conditions was at the very heart of the factual dispute in this trial. [68] I share the trial judge’s surprise that the Crown did not lead expert evidence about specific health threats faced by J. as a consequence of her living conditions. I also acknowledge this court owes deference to the trial judge’s conclusion that he would not resort to judicial notice. The trial judge’s decision to not take judicial notice is not, however, beyond appellate review. [69] With respect, I think the trial judge took an unreasonably narrow view of the application of judicial notice in this case. He did so by focusing individually on factors relevant to J.’s living conditions. The question was not whether he could take judicial notice that the presence of feces of a certain age posed a risk to J.’s health, the question was whether the totality of the conditions described posed a risk. The trial judge’s focus on individual items referenced in the description of J.’s living conditions led him to fail to consider whether he could take judicial notice of a risk to J.’s health posed by the overall conditions. [70] Second, the trial judge considered whether to take judicial notice in the abstract, rather than by contextualizing that question, having regard to certain unchallenged facts. There were at least three features of the evidence that the trial judge should have specifically factored into his determination of the extent to which he could take judicial notice of the risk to J.’s health posed by her living conditions. [71] First, and I think most importantly, J. was four years old. The trial judge should have taken judicial notice that a young child, like J., is much more susceptible to bacteria-borne diseases than is an adult, not only for physiological reasons, but because a four-year-old child is ill-equipped, emotionally and intellectually, to take any steps to reduce the risks posed by those conditions. [72] Second, J. was not exposed to the unsanitary conditions momentarily or intermittently. J. lived in these conditions for at least 11 days. Nor does the evidence suggest, that but for the arrival of the police on another matter, anything would have changed. There is no reason to think J. would not have continued to live in these conditions. In considering whether to take judicial notice, the trial judge should have taken into account the length and nature of J.’s exposure to the bacteria-infected conditions. [73] Third, there was unchallenged evidence that, while J. was in her filthy room, she would smear her hands with feces and rub them on the wall. She also ate in her room. The trial judge should have taken into account, when deciding whether to take judicial notice, the nature of the activities engaged in by J. and whether those activities substantially increased the risks associated with J.’s living conditions. [74] I am satisfied that had the trial judge considered the cumulative effect of the conditions in J.’s room, and had the trial judge contextualized his judicial notice assessment by reference to J.’s age, the length and nature of her exposure to the conditions, and the activities in which she was engaged while in those conditions, he would inevitably have taken judicial notice that J.’s personal hygiene and her living conditions posed a real risk to her health. (c) Will psychological harm suffice under s. 225(2)(a)(i)? [75] It is not necessary to decide this question to resolve this appeal. Nor do I think the question should be decided on this record. There is virtually no evidence that could connect any psychological difficulty J. might have with her living conditions at the relevant time. The psychologist who saw J. did not draw any such connection. (d) Could the appellants’ poverty provide a defence? [76] Both appellants suggest that their poverty had something to do with their culpability. The appellants were poor. However, there was no evidence suggesting the appellants’ poverty prevented them from providing the necessaries of life in issue here. Conclusion [77] I would dismiss the appeals. I would remit the matter to the trial court for sentencing. Released: “February 4, 2022 DD” “Doherty J.A.” “I agree. G.T. Trotter J.A.” “I agree Thorburn J.A.” [1] The SCAJ ordered a new trial on the confinement charge as the Crown did not seek a conviction on that charge. The Crown also indicated that if a conviction was entered on the failure to provide necessaries charge, it would not proceed with the re-trial on the unlawful confinement charge. [2] Section 215(4)(d) creates an exception to the requirement that the Crown prove the child was necessitous. Even if the child is being provided with necessaries by another person, the parent will still be convicted. While s. 215(4)(d) eliminates many of the situations in which a child would not be necessitous, even though not provided with the necessaries of life by their parents, the existence of the exception does confirm, to some extent, the interpretation of the phrase “destitute or necessitous circumstance” advanced above, otherwise there would be no need for the exception.

COURT OF APPEAL FOR ONTARIO CITATION: Devi Financial Inc. v. Everwood Place Ltd., 2022 ONCA 104 DATE: 20220204 DOCKET: C69325 Tulloch, Pardu and Harvison Young JJ.A. BETWEEN Devi Financial Inc. Moving Party (Respondent) and Everwood Place Ltd., Hyde Park Crossing Ltd. and Trevor Bond Responding Parties (Appellants) Rod R. Refcio and William T.J. Chapman, for the appellants Daniel K. Reason, for the respondent Heard: January 14, 2022, by video conference On appeal from the judgment of Justice Spencer Nicholson of the Superior Court of Justice, dated March 16, 2021. REASONS FOR DECISION [1] The appellant Trevor Bond appeals from the summary judgment granted in favour of the respondent Devi Financial Inc. (“Devi”). The motion judge concluded that there was no genuine issue requiring a trial on the question of whether the appellant had personally guaranteed the mortgage debt lent by Devi. [2] The corporate appellants defaulted on a mortgage given by them which was ostensibly guaranteed personally by the appellant Trevor Bond. [3] The facts may be briefly stated. Everwood Place Ltd. (“Everwood”) and Hyde Park Crossing Ltd. (“Hyde Park”) are corporations that own two separate pieces of property in the City of London. Mr. Bond is the principal of both corporations and an experienced and successful businessman. The appellants Everwood and Hyde Park granted mortgages over the properties to secure financing in the amount of $2,650,000. [4] The financing at issue in these proceedings replaced prior financing. In September 2018, Devi offered mortgage financing in respect of the two pieces of property. Devi agreed to lend $2,650,000 at an interest rate of 11% per annum over a one-year term ending in July 2019. As security for the loan, the respondent was to receive a first charge/mortgage over each piece of property. [5] Devi required that Mr. Bond enter into a guarantee. In the course of the negotiations for the financing, he provided a financial disclosure statement to Devi which indicated that, as of the end of April 2018, he had a net worth of $16,415,000. Mr. Bond also executed a Guarantor’s Consent to Electronic Registration of Charge. The money was advanced, and the charge/mortgage was registered on September 17, 2018 for a one year term. The respondent was also granted a General Security Agreement, which was duly registered pursuant to the Personal Property Security Act , R.S.O. 1990, c. P.10 (“PPSA”). [6] The parties subsequently agreed to an extension of the mortgage so that it would mature on January 25, 2020. The interest rate was increased to 12% per annum, calculated and payable monthly in the amount of $26,500.00 from and after July 25, 2019. [7] The appellants fell into default of the loan very shortly after the parties reached the extension agreement. The respondent gave the appellants a number of opportunities to bring the loan into good standing but, while a few payments were ultimately made in the fall of 2019, no payments were made after November 4, 2019. As of November 25, 2019, the next payment was due. [8] The respondent delivered a demand letter dated November 28, 2019, containing a statement of amounts necessary to bring the mortgage into good standing as of December 10, 2019, along with a Notice of Intention of Enforce Security under the Bankruptcy and Insolvency Act , R.S.C., 1985, c. B-3, dated November 28, 2019. A Notice of Sale under Charge/Mortgage was delivered to the appellants on December 11, 2019, giving them until January 22, 2020, to bring the mortgage into good standing. The Issues [9] The appellants raise three arguments on appeal.  We would not give effect to any of them for the following reasons. [10] First, they submit that the motion judge erred in granting summary judgment without resorting to the fact finding powers set out in r. 20 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, in relation to Mr. Bond’s position that he was signing the guarantee as agent for the corporations and not on his own behalf. [11] It is common ground that the motion judge articulated the correct test governing the availability of summary judgment: Hryniak v. Mauldin , 2014 SCC 7, [2014] 1 S.C.R. 87. [12] The appellants argue, however, that he erred in applying the test because in finding that Mr. Bond signed as personal guarantor in the face of his evidence that he thought he was signing as agent for his corporations, the motion judge was making a credibility finding that was unavailable given that he failed to rely on any of the fact finding powers under r. 20. [13] We disagree. The documentation was clear that Mr. Bond was signing as a personal guarantor. The task facing the motion judge was the construction of the contractual documentation before him, including the loan agreements and the guarantee. Any objective interpretation of these documents gives rise to the conclusion that Mr. Bond signed as personal guarantor. There is no ambiguity that could give rise to the admissibility and relevance of Mr. Bond’s personal understanding: Arora v. Whirlpool Canada LP , 2013 ONCA 657, 118 O.R. (3d) 113, at para. 24. [14] This is a matter of straightforward contract interpretation between sophisticated and represented parties. The grounds which could give rise to the relevance of Mr. Bond’s personal understanding of the documentation he signed, such as non est factum , misrepresentation, or unconscionability or unequal bargaining power were not pleaded. The motion judge correctly found that nothing in Mr. Bond’s affidavit or cross-examination could have made out any such defence. In addition, as the motion judge observed, leave to amend was not sought. [15] In short, the motion judge’s conclusion that Mr. Bond was liable as a personal guarantor was driven by the law on contract interpretation and not by any credibility finding with respect to Mr. Bond. [16] The appellants also submit that the motion judge erred in finding that the amount due to the respondent was $3,214,264.15 inclusive of interest. [17] In particular, they argue that the motion judge erred in including a “bonus” of three months’ interest of $93,619.34 as a result of the fact that the 2018 mortgage was not discharged but rather extended. [18] We see no error on the part of the motion judge. This too was a simple question of contractual interpretation. There was no ambiguity. [19] On reviewing the respective commitment letters given in 2018 and then in 2019, it is clear that the two “bonuses” were to be triggered by different circumstances. The 2019 commitment letter provided that the mortgage could be prepaid if the chargor/mortgagor paid three months’ interest to the chargee/mortgagee. That did not occur in this case and so that bonus did not apply. The motion judge continued, however, to explain that the 2018 bonus provision as set out in the original Schedule did apply: [75] …the bonus set out in the original Schedule is triggered (1) if the Charge\Mortgage is not discharged on its maturity, or (2) if it is not renewed or extended. The only sensible reading of these clauses…in my opinion, is that in the event that the defendants did not pay out the loan on its maturity date, or agree to extend it to a new maturity date, the bonus would be activated. Reading these two provisions together, to avoid the bonus the defendants had to discharge the mortgage on its maturity date. [76]    Thus, the bonus was not activated when the parties agreed to the extension in July of 2019. It was, however, triggered when the current extension ended and the mortgage was neither discharged, nor extended. In my opinion, the bonus is properly included in the amount owing to the plaintiff. That is what the parties agreed upon. [20] Finally, the appellants submit that the motion judge erred in rejecting their argument that the respondent failed to provide adequate notice and that the power of sale was therefore not available to it. [21] This submission also fails. The appellants had been in default of payment for more than 15 days when the Notice of Sale was sent to it on December 11, 2019. The Notice set out the amount outstanding and gave the chargor appellants until January 22, 2020, to pay the amounts set out. This was more than 35 days. The motion judge made no error in his interpretation of the standard clause, noting that it does not require 15 days’ notice but simply requires that, if the chargor is in default of making a payment for at least 15 days, 35 days’ notice can be given until the chargee will enter on and lease or sell the land. Conclusion and Costs [22] For these reasons, the appeal is dismissed. [23] Given the terms of the contract, the respondent is entitled to its costs on a solicitor-client basis. Costs of the appeal are payable by the appellants to the respondent in the amount of $7,500 as claimed. “M. Tulloch J.A.” “G. Pardu J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Burgess v. University Health Network, 2022 ONCA 105 DATE: 20220207 DOCKET: C69085 Huscroft, Sossin and Favreau JJ.A. BETWEEN Steven Burgess, Natasha Burgess, Clara Burgess by her litigation guardian Steven Burgess, and Ella Burgess, by her litigation guardian Steven Burgess Plaintiffs/Moving Parties (Appellants) and University Health Network, Altum Health, Dr. Linda Dvali, Dr. Amer Al-Kudmani, and Jane Doe Defendants/Responding Parties (Respondents) Martin P. Forget and Riley McIntyre, for the appellants Daniel Girlando, for the respondent University Health Network Andrew Kalamut and Emilie Bruneau, for the respondents Dr. Linda Dvali and Dr. Amer Al-Kudmani Heard: January 31, 2022 by video conference On appeal from the order of Justice Kevin B. Phillips of the Superior Court of Justice, dated January 7, 2021. REASONS FOR DECISION [1] This appeal is from the order of the motion judge dismissing the appellants’ motion to extend the timetable and dismissing the appellants’ action. For the following reasons, the appeal is dismissed. BACKGROUND [2] The facts giving rise to the action are straightforward. Steven Burgess injured his arm in a cycling accident in 2011 while working as a by-law enforcement officer for the City of Ottawa. He received benefits under the Workplace Safety and Insurance Act, 1997 , S.O. 1997, c. 16, Sched. A (the “WSIA”). [3] On June 17, 2014, on the eve of the expiry of the limitation period, this action was commenced by Statement of Claim. The appellants allege that the care he received at the respondent hospital, including surgery on his right arm, made the injury he sustained worse. The appellants also claimed against the respondent physicians who provided him with treatment. None of the respondents filed defences. [4] The WSIA subrogates any action of a plaintiff to his or her employer. In this case, the plaintiff’s action was subrogated to the City of Ottawa (the “City”). Under s. 30 of the WSIA, the appellants were required to obtain the City’s consent prior to issuing their claim. It was in the City’s discretion whether to grant that consent. [5] The appellants accepted that the action could only be commenced or continued with the City’s consent. They first contacted the City to obtain its consent in 2015. Based on oral communications, appellants’ counsel (not the same counsel as counsel arguing the appeal) proceeded from that time forward on the basis that the City’s consent was forthcoming. The respondents, advised of the purported consent in 2015, requested that it be provided to them in writing. The City, however, did not provide the requested consent in writing. Negotiations proceeded between 2015 and 2017 on the terms of the agreement between the City and the appellants. No agreement was reached. [6] The negotiations ended in 2017, and no further steps were taken to obtain the City’s consent for over two years. In June 2019, just before the matter was to be administratively dismissed for delay, the appellants served their notice of motion for a status hearing to extend the set down date. While the original return date for the status hearing was September 2019, several adjournments followed and the status hearing did not occur until January 2021. [7] In November 2020, two months before the parties were scheduled to appear on the status hearing, the appellants finally obtained the City’s written consent. [8] At the status hearing, pursuant to r. 48.14 of the Rules of Civil Procedure , R.R.O. 1990, Reg 194, the motion judge dismissed the motion to extend the set down date and dismissed the action for delay. He held that the appellants failed to provide an acceptable explanation for the delay in prosecuting their action, and that the appellants had failed to rebut the presumption of prejudice that would result if the action were permitted to proceed. ANALYSIS [9] All parties agree that the motion judge is entitled to deference in his decision to dismiss the motion for an extension of time and to dismiss the action for delay. The dismissal order may only be set aside if the motion judge has made a palpable and overriding error of fact, or reached a decision based on an erroneous legal principle reviewable on a correctness standard: 1196158 Ontario Inc. v. 6274013 Canada Ltd. , 2012 ONCA 544 , 112 O.R. (3d) 56, at para. 16. [10] Rule 48.14 of the Rules of Civil Procedure states: (1) Unless the court orders otherwise, the registrar shall dismiss an action for delay in either of the following circumstances, subject to subrules (4) to (8): 1. The action has not been set down for trial or terminated by any means by the later of the fifth anniversary of the commencement of the action and January 1, 2017. (5) If the parties do not consent to a timetable under subrule (4), any party may, before the expiry of the applicable period referred to in subrule (1), bring a motion for a status hearing. (6) For the purposes of subrule (5), the hearing of the motion shall be convened as a status hearing. (7) At a status hearing, the plaintiff shall show cause why the action should not be dismissed for delay, and the court may, (a) dismiss the action for delay; or (b) if the court is satisfied that the action should proceed, (i) set deadlines for the completion of the remaining steps necessary to have the action set down for trial or restored to a trial list, as the case may be, and order that it be set down for trial or restored to a trial list within a specified time, (ii) adjourn the status hearing on such terms as are just, (iii) if Rule 77 may apply to the action, assign the action for case management under that Rule, subject to the direction of the regional senior judge, or (iv) make such other order as is just. [11] Rule 48.14 requires that courts balance the objective of resolving disputes on their merits with the objective of resolving disputes in a timely and efficient manner in order to maintain public confidence in the administration of justice. The role of the judge presiding over a status hearing is to ensure that justice is served for all of the litigants: 1196158 Ontario Inc. , at para. 41. [12] On a motion under r. 48.14, the moving party must establish that (a) there was an acceptable explanation for the delay; and (b) if the action were allowed to proceed, the defendant(s) would suffer no non-compensable prejudice; Faris v. Eftimovski , 2013 ONCA 360, at para. 11. In this case, the motion judge found that the appellants had not established either prong of the test. [13] The appellants assert that the motion judge misapprehended or overlooked certain evidence, resulting in palpable and overriding errors. Specifically, the appellants contend that the motion judge erred in finding: (a) that the delay was caused by the appellants; (b) that the respondents did not acquiesce to the delay; and (c) that the respondents would suffer non-compensable prejudice. As a result of these errors, the appellants argue the motion judge’s decision should be set aside and their action reinstated, with an extension of time to set the action down for trial. [14] The appellants rely on Mihoren v. Quesnel , 2021 ONCA 898, released after the motion judge’s decision. In Mihoren , at para. 36, this court held that, in the context of an appeal from an administrative dismissal of an action, a plaintiff’s explanation for delay should be considered contextually. The appellants argue that although this case is not an administrative dismissal, the motion judge in this case should have considered the appellants’ explanation of their delay contextually. [15] The respondents argue that the evidence before the motion judge supports his finding that the appellants’ decision to pursue better financial terms in exchange for the City’s consent does not amount to an acceptable explanation for the inordinate delay over the five-year period after the claim was issued. Moreover, it was reasonable for the motion judge to find that the respondents never waived or acquiesced in respect of the delay. [16] We agree. In our view, nothing in this case turns on the way in which the appropriate test is described. The motion judge considered the record, including the relevant context, and concluded that the delay was both inordinate and not acceptably explained by the appellants. That finding is amply justified. [17] The respondents argue that, while the inordinate delay was in itself a sufficient basis to decide the motion, the motion judge reasonably found that the appellants had failed to rebut the presumption of prejudice caused by the unexplained delay. According to the respondents, it was open to the motion judge to determine that the memories of individuals, including the yet to be identified nurse defendant Jane Doe, would be compromised, and that the fairness of any trial would be jeopardized. [18] We agree. This is an unusual case, in that the action was never properly commenced. Moreover, by the time the matter got to the motion judge, virtually no steps had been taken. No statement of defence was filed – with the appellants’ consent – no affidavits of documents had been exchanged, and no examinations for discovery had taken place. This court has recognized that the passage of an inordinate length of time after a cause of action arises presumptively gives rise to trial fairness concerns. As Sharpe J.A. stated in 1196158 Ontario Inc. , at para. 42: “If flexibility is permitted to descend into toleration of laxness, fairness itself will be frustrated. As the status hearing judge recognized, even if there is no actual prejudice, allowing stale claims to proceed will often be unfair to the litigants.” The problem is pronounced in this case, and the appellants have presented no persuasive argument to rebut this presumption. [19] In our view, there is no basis to disturb the motion judge’s decision. There was ample evidence in the record on which to base his conclusion on both prongs of the r. 48.14 test. We do not accept the argument that he committed palpable and overriding errors in doing so. DISPOSITION [20] The appeal is dismissed, with costs to the respondents. [21] The parties have agreed on the quantum of costs. Pursuant to that agreement, the appellants shall pay $5,000 to the respondent physicians and $2,500 to the respondent hospital. “Grant Huscroft J.A.” “L. Sossin J.A.” “ L. Favreau J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Calleja v. Ahmadi, 2022 ONCA 106 DATE: 20220202 DOCKET: C69220 Huscroft, Sossin and Favreau JJ.A. BETWEEN Anna Calleja Plaintiff/Defendant by Counterclaim (Respondent) and Aliakbar Ahmadi Defendant/Plaintiff by Counterclaim (Appellant) Mitchell Wine and Jonathan Beiles, for the appellant Varoujan Arman and Philip Yang, for the respondent Heard: February 1, 2022 by video conference On appeal from the order of Justice Audrey P. Ramsay of the Superior Court of Justice, dated March 3, 2021. REASONS FOR DECISION [1] The appellant argues that the motion judge erred in finding that the respondent met her duty to mitigate following his breach of the contract of purchase and sale, and erred in granting summary judgment to the respondent as a result. The appellant also argues that the motion judge’s reasons are inadequate. [2] We reject these submissions. [3] First, as to the adequacy of the reasons, reasons are not judged against a standard of perfection. They need not address every issue raised nor need they address all of the issues in detail. Reasons are judged functionally. They are to be read as a whole. They must explain the result so that the losing party knows why it lost, and they must permit meaningful appellate review. [4] We are satisfied that the motion judge’s reasons are responsive to the issues raised and permit appellate review. The appellant lost the case because he failed to meet his burden to establish that the respondent failed in her duty to mitigate damages. [5] There was no question that the appellant breached the contract to buy the respondent’s house for $2 million. All that was at issue was whether the respondent reasonably mitigated her damages when she sold the house to a third party for $1.91 million. [6] The motion judge found that she did. Her decision is amply supported by the record and is reasonable. The respondent was under no obligation to grant the appellant an extension to complete the purchase. The appellant had already been granted one extension and not only did he fail to close, but he also failed to pay the carrying costs that were a condition of granting the extension. [7] The respondent was entitled to consider the contract at an end when the appellant failed to close on January 14, 2020 – the second closing date. The burden was on the appellant to establish that the respondent failed to mitigate after this date. [8] There is no merit to the appellant’s argument that the respondent failed to mitigate by not considering his subsequent offers and assurances, or by not replying to all of them. She was under no obligation to deal with him any further. She was required to take only reasonable steps in mitigation and the motion judge made no error in finding that she did so. Indeed, she listed the property with a real estate agent and negotiated the price upwards by over $100,000 from the initial offer she received, thus limiting the damages owed by the appellant. [9] Finally, the motion judge made no error in concluding that this was an appropriate case for summary judgment. Nothing turned on the credibility of the parties. [10] The appeal is dismissed. The respondent is entitled to costs in the agreed amount of $11,500, all inclusive. “Grant Huscroft J.A.” “Sossin J.A.” “L. Favreau J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Cottage Advisors of Canada Inc. v. Prince Edward Vacant Land Condominium Corporation No. 10, 2022 ONCA 107 DATE: 20220204 DOCKET: C69232 Doherty, Tulloch and Sossin JJ.A. BETWEEN Cottage Advisors of Canada Inc. Appellant (Applicant) and Prince Edward Vacant Land Condominium Corporation No. 10 Respondent (Respondent) Megan Mackey, for the appellant Jason Mangano, for the respondent Heard: January 6, 2022 by video conference On appeal from the order of Justice Paul Schabas of the Superior Court of Justice dated February 17, 2021, with reasons reported at 2021 ONSC 1203. REASONS FOR DECISION I [1] The respondent, Prince Edward Vacant Land Condominium Corporation No. 10 (“the Condominium”), is a 237-unit cottage resort built near the Sandbanks in Prince Edward County, Ontario. The units are individually owned. The property is a summer resort, complete with pools, sports courts, and a fitness centre. The resort is not open in the winter. The units cannot be used as primary residences. [2] From the outset, it was understood the owners of individual units could rent out their units on a short-term basis when they were not using them. Some owners chose to do so, and others did not. As of this application, over half of the unit owners rented out their units on a short-term basis. Renters had access to the common amenities on the property. [3] The appellant, Cottage Advisors of Canada Inc. (“CAC”), has been involved in the Condominium from the beginning. CAC was the developer and declarant of the Condominium. It has owned multiple units in the Condominium from the outset. At the time of the application, CAC owned 25 units. [4] The resort opened by 2011. CAC, through a sister company (“SSVRM”), provided management services for the Condominium and onsite rental services for those unit owners who wished to rent their units. SSVRM charged fees for those services. A by-law passed in July 2011 directed that renters would be subject to a “rental amenity fee charged by the Corporation from time to time”. SSVRM collected the amenity fee. None of the unit owners, including CAC, ever challenged the fee. [5] The Condominium has been operating under the authority of a Board of Directors since 2016. The relationship between the Board and SSVRM has deteriorated over the years. The Condominium and SSVRM have litigated over SSVRM’s voting rights. The Condominium Board also terminated SSVRM’s management agreement. CAC takes the position that the Board is controlled by owners who do not rent and favours the interests of that group over the owners who do rent. CAC is an owner/renter. [6] The Board decided it would take over the oversight, control and management of the rental activities at the Condominium. In furtherance of that goal, the Board introduced By-Law No. 7 in November 2020. The By-Law passed overwhelmingly by a vote of 155 for and 16 against. CAC did not vote its 25 votes. [7] By-Law No. 7 addressed various aspects of the rental activities. CAC challenged the vires and reasonableness of several components of the By-Law. The application judge struck down parts of the By-Law and upheld other parts. There is no appeal from the part of the application judge’s order striking down parts of the By-Law. CAC does, however, appeal the application judge’s refusal to strike down two specific components of By-Law No. 7. [8] First, CAC submits the application judge erred in holding the Condominium had the authority to charge owners who rented their units an administrative fee of about $120 each time the unit was rented. According to the By-Law, the fee was intended to cover costs associated with the renting process, e.g. registering renters, providing parking passes, and controlling access to the property. [9] Second, CAC argues the application judge was wrong in upholding the Condominium’s power to impose an amenity fee of $310 per week. The fee was payable by any owner who rented his unit and was intended to compensate for additional wear and tear on facilities and additional staffing costs said to relate to short-term renting. [10] CAC, like the application judge, begins with bedrock principles. Condominium corporations are creatures of statute. By-Laws passed by a condominium must be consistent with the declaration establishing the condominium and authorized under the terms of the Condominium Act, 1998 , S.O. 1998, c. 19. A by-law which is either inconsistent with the condominium’s declaration or not authorized by the Condominium Act is ultra vires : Condominium Act , 1998, ss. 56(6)-(8). [11] CAC submits that under the terms of the Condominium’s Declaration, common expenses must be shared equally among the units. Section 84(1) of the Condominium Act, 1998 requires that owners contribute to common expenses in the proportions specified in the declaration. CAC contends what the Condominium calls amenity and administrative fees are in reality fees directed toward the payment of common expenses. Under the terms of By-Law No. 7, they are not payable equally by all unit owners. Instead, unit owners who rent pay more and thereby subsidize the non-renting owners. CAC contends that the part of By-Law No. 7 which provides for administrative and amenity fees payable by owners who rent are inconsistent, both with the Condominium Declaration and the Condominium Act, 1998 . They cannot stand according to CAC. [12] While CAC’s primary argument is that the relevant parts of the By-Law are ultra vires the Condominium, it also argues those parts of the By-Law are oppressive, contrary to s. 135 of the Condominium Act, 1998 . [13] It is appropriate to begin the consideration of CAC’s submissions by reference to the Condominium Declaration. Section 22 states: The Cottage Units are part of a “Cottage Resort Community” and are zoned Tourist/Commercial; and it is intended that the Cottage Unit shall be rented as tourist accommodation when not being used by the Owner. The rental of any Cottage Unit shall be governed by the Rules and Regulations with respect to the rental of Cottage Units approved by the Board from time-to-time. [14] It is explicit in s. 22 that the Condominium consists of units owned by owners who do not rent and owners who do rent their units. It is equally explicit that those who choose to rent their units will be governed in part by “Rules and Regulations with respect to the rental of Cottage Units approved by the Board”. [15] The question becomes whether the By-Law, to the extent that it sets an administrative fee and an amenity fee in respect of rented units, is a “Rule or Regulation with respect to the rental of Cottage Units”. [16] This court does not answer that question as a matter of first impression, but must have regard to the application judge’s factual findings and due deference to the Board’s own interpretation of the powers granted to it under the Declaration: London Condominium Corp. No. 13 v. Awaraji , 2007 ONCA 154, at para. 6. [17] The application judge was satisfied that the fees offset costs attributable to the renting activities of some of the owners: Reasons, at paras. 32, 34. That finding was available on the evidence adduced on the application. The manner in which fees attributable to renting have historically been treated by the Condominium provide strong support for that conclusion. Amenity fees attributable to costs relating to renting units have been part of the operation of the Condominium from the outset when CAC was in control of the operation. [18] The Board’s interpretation of its powers under s. 22 of the Declaration is not unreasonable. Nor is it inconsistent with any provisions in the Condominium Act, 1998 . [19] Nor can the By-Laws providing for the fees be characterized as “oppressive” within the meaning of s. 135 of the Condominium Act, 1998 . Oppressive conduct connotes conduct that runs contrary to the reasonable expectations of those said to be oppressed. Once again, the history of charging these kinds of fees throughout the life and operation of the Condominium belies any claim that the owners who rented did not anticipate and agree to such fees: see Walia Properties Ltd. v. York Condominium Corp. No. 478 , 2007 CanLII 31573, at paras. 23-24 (Ont. Sup. Ct.). [20] Any argument that the By-Laws were oppressive falls under the weight of the application judge’s finding that there was a reasonable basis upon which the Board could conclude the renting activities generated added costs and expenses. The revenue generated by the fees lowered the common expenses of all unit owners equally. As the application judge appropriately put it, at para. 42: The By-law reflects a reasonable balancing which is confirmed by the overwhelming vote of the owners in favour of it. [21] The appeal is dismissed. [22] The respondent is entitled to costs of the appeal, fixed at $15,000, inclusive of taxes and disbursements. We see no reason to modify the costs order made by the application judge. However, if the parties wish to make submissions on that issue, they may do so in writing within 7 days of the release of these reasons. The submissions shall not exceed 3 pages. “Doherty J.A.” “M. Tulloch J.A.” “L. Sossin J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. (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. Simpson-Fry, 2022 ONCA 108 DATE: 20220203 DOCKET: C62658 Tulloch, Pardu and Harvison Young JJ.A. BETWEEN Her Majesty the Queen Respondent and Jamie Simpson-Fry Appellant Jamie Simpson-Fry, acting in person Avene Derwa, for the respondent Heard: January 13, 2022 by video conference On appeal from the convictions entered by Justice Joseph A. De Filippis of the Ontario Court of Justice, dated December 19, 2014. REASONS FOR DECISION [1] The appellant was convicted of sexual assault, forcible confinement, uttering threats, and breach of probation arising from an unprovoked attack on a stranger. The sentencing judge found the appellant to be a dangerous offender and sentenced him to indeterminate custody. [2] The appellant appealed both his conviction and sentence. His sentence appeal was bifurcated and was heard on September 17, 2021, after which it was dismissed: R. v. Simpson-Fry , 2021 ONCA 647. [3] Before this panel, only the conviction appeal was pursued. The appellant initially advanced two main grounds of appeal, both on the basis of a wrongly procured guilty plea, resulting in his conviction on the current charges. [4] His first ground of appeal was that of ineffective assistance of counsel. Under this ground, the appellant asserted that he was misled by his trial counsel to follow a trial process and procedure that impeded his rights to a full answer and defence. In his notice of appeal, he claimed that at trial he wanted to challenge the statement of facts that was read into evidence by the Crown, but he was advised against doing so. As a result, he acceded to the incorrect facts and did not take the stand in his defence, nor call any evidence, leaving no opportunity to contest the charges against him. In oral argument before this panel, the appellant indicated that he was no longer pursuing his ineffective assistance of counsel claim but still argued that he was misled in proceeding with his trial in the way that it unfolded, by not contesting the statement of facts read into evidence by the Crown. The core of his argument is an attack on the trial procedure advanced by both the defence and the Crown at trial and accepted by the trial judge. [5] Second, the appellant claims that the trial judge was biased and misapprehended the evidence. He claims that the trial judge essentially “rubberstamped” comments and opinions from the complainant, the police, and two psychiatrists. [6] We would not give effect to any of the appellant’s arguments, and as such, for the following reasons, we dismiss the appeal. [7] The underlying facts which give rise to this appeal are not in dispute. On October 13, 2013, at 2:30 a.m., the complainant was walking home alone. The complainant observed a stranger, who later turned out to be the appellant, stumbling, and he appeared drunk. He asked her for directions and a cigarette, and the complainant attempted to evade him. He then grabbed her from behind. The appellant threatened to break her neck if she screamed, pushed her onto a nearby front lawn, and brutally raped her. During the assault, the appellant was mumbling and stated that he was very drunk. Following the assault, he told her to get up and said he would kill her if she ever told anyone about what happened. [8] The complainant reported the incident to her parents and the police. She was then transported to a hospital where a sexual assault examination was conducted. Swabs of her skin and clothing were taken for DNA comparisons, which subsequently matched the DNA profile of the appellant. [9] At trial, the appellant attempted to plead guilty, but he indicated that he had been too intoxicated at the time to remember the incident and what happened. As such, he was not in a position to contest the Crown’s evidence. The trial judge refused to accept the guilty plea on those terms. The appellant then changed his plea to not guilty, and he consented to a process in which the Crown would read out a statement of facts on which the prosecution’s case was based, after which defence counsel would decline to make submissions contesting the charges. At the trial, defence counsel explained that the appellant “was severely intoxicated” and “blacked out… as a result of excessive drinking combined with the drug GBH.” As a result, the appellant submitted that he was not in a position to contest the charges, raise the defence of consent, or contest the DNA evidence implicating him. The appellant waived the reading of the formal election, called no evidence, and made no submissions. [10] The trial judge summarized the trial procedure that was followed at trial, at para. 2 of the sentencing decision: The defendant had indicated he wished to plead guilty to the charges on the basis that he could not confirm or deny the facts alleged because of intoxication. I declined to accept such a plea… On consent, the Crown read in the evidence that would have been given by witnesses and filed photographs and other exhibits. The Defence elected not to challenge the prosecution evidence, or call other evidence or make submissions. On this basis I was satisfied that the Crown had proven guilt beyond a reasonable doubt. [Citations omitted.] [11] In essence, the hearing proceeded by way of what this court has described as the functional equivalent of nolo contendre . While a formal plea of nolo contendre is not possible under the Criminal Code , R.S.C. 1985, c. C-46, its functional equivalence has developed in Ontario courts, as explained in R. v. Anderson , 2021 ONCA 333, at para. 53: The procedure is invoked frequently, but not exclusively, when the adequacy of the case for the Crown depends on certain evidence the admissibility of which is contested by the accused and is subject to pre-trial challenge and a ruling on admissibility. If the evidence is admitted, under a plea of not guilty, the accused accepts the case for the Crown, whether based on an agreed statement of facts or otherwise, and adduces no defence evidence. A finding of guilt follows. When this occurs, the accused preserves the right to challenge the evidentiary ruling on appeal, a right foreclosed if the plea had been guilty and could not be set aside on appeal. [12] As advised by this court in Anderson , at para. 54, the presiding judge confirmed with the appellant that he understood the potential legal risks of proceeding in this fashion. The purpose of doing so is to protect the fairness of the proceedings and prevent an unreliable verdict: see R. v. R.P ., 2013 ONCA 53, 295 C.C.C. (3d) 28, at para. 66; see also R. v. D.M.G. , 2011 ONCA 343, 105 O.R. (3d) 481, at para. 59. Under s. 655 of the Criminal Code , the appellant admitted to the facts as read in by the Crown. The Crown also tendered photographic evidence and the complainant’s statement to police. [13] The trial record reflects considerable efforts by the parties to ensure that the appellant understood the legal ramifications of the process followed. As mentioned, at a pre-trial meeting, the trial judge explained the option for the appellant to plead not guilty but admit to evidence read in by the Crown and waive his right to challenge it. The appellant would be convicted if the trial judge was satisfied that the essential elements had been proven. At the hearing, the Crown again explained the process that would be followed and its implications. At trial, the trial judge reminded the appellant of their discussion at the pre-trial meeting, and the appellant confirmed that he remembered the discussion. The appellant also confirmed that he did not have any questions about the process as it was explained by the Crown. [14] We therefore cannot agree that the appellant was unaware of the impact of admitting the facts. Accordingly, we see no error in the way the trial proceeded or on the part of the trial judge. [15] It follows that we equally reject the appellant’s submission that the trial judge was biased or “rubberstamped” evidence from witnesses. The appellant chose not to challenge the evidence, adduce other evidence, or make any submissions. The appellant cannot now complain that the trial judge accepted uncontested evidence. The trial judge was entitled to do so in the circumstances, and we see no error in his decision. [16] The appeal is dismissed. “M. Tulloch J.A.” “G. Pardu J.A.” “A. Harvison Young J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Lynch, 2022 ONCA 109 DATE: 20220207 DOCKET: C69329 Paciocco, Nordheimer and Sossin JJ.A. BETWEEN Her Majesty the Queen Appellant and Paul Lynch Respondent Sarah Egan, for the appellant Christopher Morris, for the respondent Heard: January 14, 2022 by video conference On appeal from the sentence imposed by Justice Malcolm McLeod of the Ontario Court of Justice on April 8, 2021. Nordheimer J.A.: [1] The Crown seeks leave to appeal the sentence of four years imposed on Mr. Lynch from his convictions for various drug offences, including trafficking in cocaine, trafficking in fentanyl, possession of cocaine for the purpose of trafficking, and possession of the proceeds of crime. For the following reasons, I would grant leave to appeal, allow the appeal, and increase the sentence to six years. A. Background [2] The respondent sold an undercover officer fentanyl or cocaine on six occasions. Prior to the completion of the seventh transaction, he was arrested and charged with the various drug offences I have mentioned. The respondent pleaded guilty to the offences. In doing so, he accepted responsibility for a total of 965.01 grams of cocaine, 149.28 grams of MDMA and 41.37 grams of fentanyl. The trial judge sentenced the respondent to four years. The Crown had sought a sentence of ten years. The defence had sought a sentence of three years. [3] The trial judge gave detailed reasons for the sentence that he imposed. In the course of his reasons, the trial judge expressed a general dissatisfaction with the approach to sentencing in drug cases. He referred to statistics relating to the over-incarceration of individuals who commit drug offences. He also criticized what he perceived to be the overuse of penitentiary terms of imprisonment for some drug offenders. [4] The trial judge then went on to express other concerns with the current state of the law on the sentencing of persons convicted of drug offences. Among other things, the trial judge said: [T]he punitive sanction of incarceration should be reserved for a narrowly defined category of serious offences. The extent to which we have ignored that instruction has created the crisis of over-incarceration . Mr. Lynch was convicted of serious offences for which the punitive sanction of incarceration is required. But in determining the harshness of the sentence, it is important to pay attention to the big picture and acknowledge that our over-reliance on the punitive sanction of incarceration is rooted in the fact that we place undue weight on the principles of denunciation and deterrence . Despite the obvious inference that the punitive strategy applied to heroin distribution contributed to the crisis resulting from oxycontin distribution and then fentanyl; the criminal justice system determined that the same approach must be applied, with even greater rigor. It would be contrary to principles of justice to impose a harsh punitive sanction on a lower level drug trafficker as if he was the representative of the principals of the trafficking enterprise. Harsh punitive sanctions are required for lower level traffickers in fentanyl, but those sanctions should be within the range established for low level traffickers in dangerous drugs. It must be borne in mind that the fact that the OCA issued a blanket endorsement of the practice of punishing an offender more severely than he deserved is difficult to reconcile with the principles of justice and fairness. [Emphasis added.] [5] The trial judge proceeded to consider the range of sentence for the offences that were before him. He reviewed the existing case law and concluded that the range of sentence for a mid-level trafficker (which he considered the respondent to be) dealing in fentanyl was five to eight years. He compared that to what he found to be the range for a mid-level trafficker dealing in cocaine, four to six years. [6] The trial judge then considered the impact that the respondent’s guilty plea should have on the ultimate sentence. He expressed the view that a guilty plea “must be given significant weight” and that it “must result in a sentence which is significantly lower” than would be imposed on a person found guilty after trial. The trial judge then criticized what he viewed as the practice of failing to give the appropriate weight to a plea of guilt. He said: By the same token, it is hard to imagine that in such a case, the criminal justice system could be permitted to simply accept the plea as providing the opportunity to impose a harsh sentence of incarceration in the upper penitentiary range simply to send a message. What would the message be? That he was a sucker for thinking that our purpose was to promote a sense of responsibility in offenders, or that we were interested in restorative justice and mitigating the harm done to society by acting on principles of justice and fairness? [7] Finally, the trial judge noted that appellate courts have “frequently supported sentencing judges who chose a harsh punishment as their preferred message, finding it to be a matter of discretion”. The trial judge commented that this discretion “must cut both ways”, a result that he appeared to believe had not been happening. [8] Ultimately, the trial judge imposed a sentence of four years. He acknowledged that he might have chosen a sentence at the upper limit of the range, that is, six or seven years, but that there was “no basis to think it would constitute a more effective message to others in the community”. B. Issues on Appeal [9] The Crown seeks leave to appeal the sentence and alleges three errors committed by the trial judge: first, that he erred by failing to give sufficient weight to the principles of denunciation and deterrence; second, that he erred by overemphasizing the respondent’s guilty plea; and third, that he imposed a sentence that was demonstrably unfit. C. Analysis [10] In my view, the trial judge made fundamental errors in his reasons leading to the sentence he imposed. Among others, he misidentified the range of sentence for mid-level traffickers in cocaine and then used that erroneous range in drawing his comparison to the range of sentence for mid-level traffickers in fentanyl, thereby misapprehending the gravity of the offence. He also erred in principle in evaluating the respondent’s degree of moral blameworthiness. The trial judge also gave erroneous consideration to the respondent’s guilty plea, including by failing to take into account that one of the reasons underlying a range of sentence is that the lower end of the range has already made some effort to account for specific mitigating factors, such as a plea of guilt. [11] Before turning to those errors, I must comment on the general tenor and approach of the trial judge’s reasons. There is an existing debate over the appropriateness of judges in lower courts negatively commenting on, or criticizing, the reasons of higher courts. Some argue that the only appropriate place for such criticism is in law review articles or similar forums, but it is not appropriate in judicial reasons. Others argue that it is appropriate, in certain circumstances, for such criticisms to be included in judicial reasons, but within defined limits. [12] I do not propose to weigh into that debate. I will say that I can certainly appreciate that trial judges may, from time to time, become frustrated with a particular approach that is developed by appellate courts. Trial judges are on the front lines of the justice system and they will be the first to see if a particular approach is either not working or has become outdated. Measured expressions of that frustration may be a mechanism whereby appellate courts can become aware of the problem and, hopefully, correct it. After all, our approach to sentencing is not, and should not be, fixed in stone. Sentences may increase or decrease as societal and judicial knowledge and attitudes about certain offences change: R. v. Parranto , 2021 SCC 46, 463 D.L.R. (4th) 389, at para. 22. Trial judges are likely to be the first to become aware of such changes. It may also be that the expression of that frustration by trial judges will draw the attention of those in government who may choose to legislate a correction. [13] However, to the degree that a judge of a lower court considers it necessary to critically comment within their judicial decisions on the decisions of higher courts, it is important that this be done with discretion and in measured terms. Unless undertaken with care, criticisms by lower courts of the decisions of higher courts can undermine confidence in the administration of justice by needlessly denigrating the fairness of the law, or the authority of those who administer it. In this case, the trial judge, while expressing some very legitimate concerns about the current approach to sentencing, crossed over the line. Indeed, some of the comments made by the trial judge enabled the Crown to argue credibly that the trial judge paid lip service to the principles of denunciation and deterrence but ignored them in application. Given the errors in principle that I am about to describe, I need not pursue this ground of appeal, so I will say no more about it. (1) The trial judge’s specific errors [14] Returning then to the errors involved, the trial judge erred in concluding that the range of sentence for mid-level traffickers of cocaine is four to six years. Decisions of this court have established that the range for such offenders is five to eight years: see, for example, R. v. Maone , 2020 ONCA 461, at paras. 12-13. Further, fentanyl is a more dangerous drug than is cocaine. To the degree that the trial judge used his comparison of these ranges to justify a lower sentence in this case, he erred. [15] To be clear, the trial judge initially correctly identified the sentencing range in this case as between six and eight years. However, he then incorrectly lowered that range by his erroneous comparison to what he thought was the comparative range for cocaine. He appears to have adopted this approach because of his view that all dangerous drugs should be treated the same when it comes to sentencing. That view itself reflects error. It is a well-established principle that drugs vary in the degree of danger that they represent to those who consume them. Consequently, the more dangerous the drug being trafficked, the higher the penalty that will be imposed. Fentanyl is now known to be a much more dangerous drug than almost any other. That reality directs that a sentence imposed for trafficking in fentanyl should be as long or longer than a corresponding sentence for trafficking in cocaine: R. v. Olvedi , 2021 ONCA 518, 157 O.R. (3d) 583, at para. 56, leave to appeal to S.C.C. requested, 39854. [16] Relatedly, the trial judge engaged in erroneous reasoning in situating the respondent’s moral blameworthiness, a key consideration in determining his degree of responsibility and hence a proportionate and fit sentence. First, the trial judge made extensive comments about the level of culpability of “lower level traffickers in fentanyl”, notwithstanding his finding that the respondent was a mid‑level trafficker. The comments he made about low-level traffickers are concerning, and clearly influenced his perception of the respondent’s level of moral blameworthiness. The trial judge suggested, for example, that “in large part, the culpability of lower level traffickers in fentanyl were similar to lower level traffickers in other drugs, because they are usually the same people.” Even if true, the fact that fentanyl traffickers may be the same people that traffic in other drugs has no bearing on their moral blameworthiness for choosing to traffic in fentanyl, a particularly dangerous drug. As the majority recognized in Parranto , at para. 70, moral culpability rises with the risk of serious harm the trafficker is prepared to expose others to. [17] There is good reason for this. The problems that dangerous drugs pose for our society are well known. They involve drug addiction, adverse health consequences and, unfortunately all too often, death. Further, drugs are often sold to already vulnerable people thereby exacerbating their difficult circumstances. Still further, there are the indirect costs to society through increased health care expense, increased demands on the health care system, increases in robberies or other forms of criminal activity, and increases in violence. Simply put, the greater those risks are when a particular drug is being trafficked, the greater the offender’s culpability or moral blameworthiness for choosing to traffic in that drug. [18] The trial judge also erroneously downplayed the respondent’s role in all of these consequences when he said that the respondent was not “the representative of the principals of the trafficking enterprise”, who “[produce] fentanyl as a more powerful opioid”. Of course, those at the top of the supply chain deserve harsher sentences. But the fact that the respondent was not at the pinnacle of the drug dealing empire does not reduce the respondent’s level of moral blameworthiness or mean that his actions are not serious. The producers of a product cannot get it into the hands of the consumer if there is no one to sell and deliver it. [19] I also do not accept the trial judge’s apparent effort to diminish the moral blameworthiness of the respondent’s conduct by suggesting that his “culpability as a drug trafficker doesn’t increase because of the number of times the police set him up for transactions before finally making an arrest”. This is not a situation where the police provided an irresistible opportunity to the respondent to do something that he would not otherwise have been inclined to do, as that concept is discussed in entrapment cases. Nor is it a case where the police simply engaged repeatedly in similar conduct to escalate the number of counts that could be laid. What the multiple occasions, on which he sold drugs to the undercover officer, served to show was that the respondent was an active drug dealer who was not only prepared, but able, to scale up his supply of drugs to meet the demands of his customer, even when the transactions engaged significant sums of money or included fentanyl. The initial transaction was for the sale of 1.55 grams of cocaine for $150. Transactions involving more cocaine followed. Then came the fentanyl trafficking. The last proposed transaction was for $12,300 of cocaine. Upon his arrest, the respondent and a second male were found in possession of a total of 572.29 grams of cocaine and 149.28 grams of MDMA. The respondent ultimately took responsibility for all drugs sold or seized, including the drugs seized from the second male. In my view, rather than lessening the respondent’s moral blameworthiness through repetition, the repeated transactions, increasing in seriousness, exposed the scale of his drug trafficking enterprise and amplified his moral blameworthiness. [20] The trial judge also erred in overemphasizing the guilty plea in this case. He did so in at least two respects. The first is that the mitigating effect of a guilty plea will vary in weight from case to case: R. v. Daya , 2007 ONCA 693, 229 O.A.C. 291, at para. 15. A guilty plea where there is a genuine issue for trial may be worthy of more weight than a guilty plea in a case where the outcome of a trial is evident to all concerned. Similarly, a guilty plea in a complicated case, where the trial may take many weeks of court time, may also be worthy of greater weight than one given in the context of a case where the trial would last a day or two. Simply put, one cannot adopt a universal approach to the significance of a guilty plea as a mitigating factor. There is no indication that the trial judge gave any regard to the circumstances surrounding the respondent’s guilty plea, which came in the face of an overwhelming case. [21] Second, the trial judge erred in evaluating the effect that the guilty plea should have on how the respondent should be sentenced relative to the sentencing range. In saying all of this, I recognize that simply departing from a range of sentence may not itself constitute an error justifying appellate intervention: Parranto , at para. 29. Appellate intervention is warranted, however, where the reason for the departure is an erroneous understanding of the factors leading to the adoption of the range or a rejection of the range as flawed. In this case, the trial judge committed both of these errors. [22] The trial judge failed to recognize that the range of sentence allows for the application of mitigating factors such as guilty pleas. That is why there is a range. Sentences at the lower end of the range will be justified by the individual mitigating factors of the case. Indeed, mitigating factors may justify going below the bottom end of the range. Among those mitigating factors is a guilty plea. However, the fact that the accused person has pleaded guilty will not, by itself, generally justify going below the bottom of the range, particularly not in a case such as this where, as the trial judge recognized, the respondent’s “background and circumstances do not entitle him to exceptional leniency”. [23] These errors infected the sentence that was imposed. They rendered the sentence an unfit one, given the circumstances underlying the offences. It thus falls to this court to determine the appropriate sentence. (2) The appropriate sentence [24] While the Crown asked for a ten-year sentence before the trial judge, and repeated that request in its factum, at the hearing the Crown reduced the request to a sentence of eight years. This reduction resulted, at least in part, from the recent decision of Parranto where the Supreme Court of Canada upheld ten-year sentences for individuals who were higher level drug dealers than the respondent was. [25] The Crown’s requested sentence is not unreasonable in the circumstances of this case. Indeed, it reflects the level of sentence suggested by this court: “generally, offenders — even first offenders — who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences”: R. v. Loor , 2017 ONCA 696, at para. 50. In fashioning an appropriate sentence, it must not be forgotten that the respondent was also convicted of trafficking in almost a kilogram of cocaine. [26] However, the Crown’s requested sentence fails to give adequate consideration to the fact that the respondent pleaded guilty. While the trial judge and I might differ on the level of mitigation that should be applied for a plea of guilt in these circumstances, I do not quarrel with him that it is a significant mitigating factor. I am also cognizant of the fact that the respondent has a criminal record consisting of only a single entry, unrelated to drug activity. He is also relatively young – 29 years of age at the time of the offences. Consequently, after accounting for these mitigating factors, I would impose a sentence of six years. D. Conclusion [27] The motion for leave to appeal the sentence is granted. The appeal is allowed. The sentence of four years is set aside, and, in its place, a sentence of six years is substituted. The credit of six months for time spent on strict bail is not challenged so the ultimate sentence to be served is five and one-half years. Released: February 7, 2022 “David M. Paciocco J.A.” “I.V.B. Nordheimer J.A.” “I agree. David M. Paciocco J.A.” “I agree. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Paddy-Cannon v. Canada (Attorney General), 2022 ONCA 110 DATE: 20220207 DOCKET: C67642 Lauwers, Coroza and Sossin JJ.A. BETWEEN Darlene Marie Paddy-Cannon, Rosemarie Ethel Christie and Sharon Geraldine Cannon Plaintiffs (Appellants) and The Attorney General of Canada and Katherine Cannon Defendants (Respondents) Rosemarie Ethel Christie, acting in person Michael J. Prestell and Connor Barbeau, for the respondent Katherine Cannon Daniel Luxat, for the respondent the Attorney General of Canada Heard: September 2, 2021 by video conference On appeal from the judgment of Justice J. Christopher Corkery, dated September 30, 2019, with reasons reported at 2019 ONSC 5665. Coroza J.A.: A. OVERVIEW [1] Darlene Marie Paddy-Cannon, Rosemarie Ethel Christie, and Sharon Geraldine Cannon, the appellants, are sisters. The respondent Katherine Cannon is their aunt. The appellants lived with Katherine and her family when they were children, during which time they allege that Katherine physically abused them. The allegations relate to events that began over fifty years ago, when the appellants were very young. [2] The appellants sued Katherine for damages, alleging assault and battery. They also claimed damages against the Attorney General of Canada (“Canada”) for breaching its fiduciary duty to protect them from physical abuse by Katherine. [3] In his reasons for judgment, the trial judge framed the issues raised by the appellants’ claim in the following way: 1. Did Katherine Cannon physically abuse the appellants as they allege? 2. If the answer to question one is yes, what damages are the appellants entitled to? 3. If the answer to question one is yes, did Canada owe the appellants a fiduciary duty or a duty of care at common law and, if so, did they breach that duty? [4] The trial judge found that the appellants were credible witnesses. However, he was not persuaded that the appellants were physically abused by Katherine. He concluded that the passage of several decades made it impossible for him to determine that the appellants’ evidence was reliable. He dismissed the claim. Since the claim against Canada was predicated on the allegation of physical abuse by Katherine, that claim was also dismissed. [5] The appellants appeal, alleging several errors in the trial judge’s analysis. [6] As I will explain below, I have concluded that the trial judge’s decision must be set aside. In my respectful view, the trial judge’s assessment of the appellants’ reliability reveals an error in principle. While I agree with the trial judge that the passage of time was a factor to be taken into account, in my view, he considered this factor as nearly determinative and without following the guidance set out by the Supreme Court of Canada in R. v. W. (R.) , [1992] 2 S.C.R. 122, on how to assess the evidence of adults testifying to events of abuse that occurred when they were children. B. BACKGROUND FACTS (1) The Family Arrangement [7] Sharon, Darlene, and Rosemarie were born in 1959, 1960, and 1963 respectively. The appellants are all members of the Thunderchild First Nation, an independent Cree First Nations band in Turtleford, Saskatchewan. [8] The appellants’ parents separated in the early 1960s and their father brought them to Ontario, to his mother’s home, planning to have his mother raise the children. However, on or about May 1, 1965, she died. [9] After their grandmother’s death, the appellants went to live with the respondent Katherine and her family. Katherine lived with her husband and their three children. Darlene arrived first, aged four and a half; a few months later, Rosemarie came, aged eighteen months old; and roughly three years later, Sharon joined, aged between eight and ten. [10] Katherine was 81 years old at the time of trial. While raising her children, she worked as a custodian at the school her children attended. Katherine states that she is Algonquin and a Chief, but the appellants contest this and have asked this court to consider fresh evidence in the form of documents that they claim demonstrates that this assertion is false. (2) The Assaults [11] The appellants alleged that Katherine physically abused them while in her care and that this abuse was known to other members of the household. Katherine, her husband, and her children deny the allegations. [12] To support their case, the three appellants testified as well as Sharon’s psychologist. The appellants testified to various forms of abuse. (a) Darlene’s Allegations [13] Darlene remembers Katherine beating her with her hands, a leather belt, and a teacher’s razor strap, specifically on her lower back, buttocks, and upper legs. According to Darlene, these beatings were a regular occurrence and in response to Katherine’s mood when Darlene, for example, spilled milk, did not come when called, or wore a boy’s army jacket at school once. Darlene witnessed her sister, Rosemarie, being beaten until she stopped breathing and her face turned blue. Darlene testified that Katherine’s daughters saw the beatings but never received the belt themselves. Darlene said that Katherine told her that if she reached out to anyone for help, she would kill them. (b) Rosemarie’s Allegations [14] Rosemarie remembers being hit frequently, also on the buttocks, and often with the belt. She testified that the three sisters were mostly beaten together and that the only people who saw it, other than the appellants, were Katherine’s daughters. Rosemarie does not remember every incident. (c) Sharon’s Allegations [15] Sharon remembers Katherine beating her sister Rosemarie with a razor strap. At trial, when asked to describe the beatings, Sharon could only recall a couple of incidents. She testified to having issues with her memories. Sharon recalled more of a feeling of constant fear of Katherine and general feelings of what she believes was PTSD living in that home. Sharon did recall being beaten in the kitchen, around the head and face, until blood was drawn. Sharon contacted the Children’s Aid Society (“CAS”), requesting to meet with someone while Katherine was not home, but did not get a chance to speak to the CAS worker without Katherine being present. [16] The appellants testified to recollections of verbal abuse in addition to the physical abuse. The appellants eventually left Katherine’s home and, at some point after that, lived with their father in Peterborough for a period of time. The exact circumstances of their departure are contested, but at the time of leaving Katherine’s home, the appellants were teenagers. (d) Katherine’s Evidence [17] Six witnesses testified at trial on behalf of the respondent Katherine: herself, her husband, two of her daughters, her son-in-law, and her niece. [18] Katherine denied the appellants’ allegations. The only physical discipline she used on the appellants and her own children was slapping their hands if they did something dangerous. She testified that Rosemarie used to have seizures, prompting Katherine, based on instructions she had received from medical professionals, to slap Rosemarie on the diaper and shake her. Katherine denied calling the appellants’ parents rude names and testified that, to her and her husband, it felt like the appellants were their daughters. [19] Katherine’s daughters testified that the appellants were an integrated part of the family. They received the same treatment, the same gifts on birthdays and Christmas, travelled together for camping vacations, and suffered the same discipline, in particular, being spanked on the hands or being put in a “time out”. Both daughters testified that a belt or strap was never used. [20] Katherine’s niece was close with the family, especially Rosemarie. She testified that she never saw any physical punishment by Katherine, though may have heard threats of physical punishment. Katherine’s brother-in-law testified to the same, that he could not recall Katherine physically hitting any of the children and never saw a belt or razor strap being used. [21] Katherine’s two daughters recalled Rosemarie’s seizures, while Katherine’s husband and brother-in-law did not. [22] The testimonies overall reveal very different factual accounts, and as the trial judge noted, both versions cannot be true. (e) Canada [23] Canada called no evidence at trial. The claim against Canada was predicated on the appellants’ allegation of physical abuse by their aunt, and Canada took no position on the appellants’ claim against Katherine. [24] According to the appellants, Canada, through the federal department of Indian Affairs as it existed then, advised the CAS in Belleville in 1966 that it believed it would be in the best interests of the children to return them to their home reserve, but then Canada failed to manage this return or monitor their placement, breaching its fiduciary duty to protect the appellants by leaving them in the respondent Katherine’s care. [25] Canada takes the position that it inquired with the appellants’ maternal relatives and advised the CAS that maternal relatives were indeed willing to care for them. Canada offered to arrange their travel to Saskatchewan. However, the CAS rejected this idea. According to the CAS, the appellants were not in need of protection and would not be apprehended and relocated to Saskatchewan. Canada argued that it did not have the legal authority to decide what was in the best interests of the appellants. That authority belonged to the provincial CAS in Belleville. C. DECISION BELOW [26] The trial judge’s reasons contain a lengthy summary of the evidence, a discussion of some of the relevant legal principles, and then a very brief conclusory assessment of the appellants’ evidence, comprised of no more than six paragraphs. The trial judge’s reasons include no analysis of the evidence of the respondent Katherine, except for a brief, conclusory mention that all the witnesses presented as credible. [1] [27] In his assessment of the evidence, the trial judge found that the appellants presented as credible and appeared to be sincere, truthful, and honest. He recognized that each experienced a traumatic and tragic childhood. However, he concluded that “[i]n this case, the passage of several decades make it impossible for me to determine that the [appellants’] evidence is reliable.” As I read his reasons, he found the appellants’ evidence unreliable for two primary reasons. First, their testimony often lacked specifics because all three appellants relied on generalizations, introducing their testimony with phrases such as “Sometimes”, “I believe”, and “As I recall”. Second, their testimony was inconsistent with each other’s as to details of the assaults, for example, whether they were primarily beaten individually or collectively. D. POSITIONS OF THE PARTIES (1) Appellants’ Position [28] At the hearing, the panel was advised that Rosemarie planned to argue the appeal on behalf of all three appellants (and that neither Sharon nor Darlene would be appearing on video). We allowed Rosemarie to argue on behalf of all the appellants because we were satisfied that they shared common ground and were raising the same grounds of appeal. Collectively, these grounds of appeal amount to an overarching complaint about how the trial judge assessed their evidence. (2) Katherine’s Position [29] For her part, the respondent Katherine argues that the trial judge carefully considered all of the trial evidence and in finding that the appellants were not reliable, the trial judge relied on significant and material inconsistencies in the testimonies of the three appellants regarding how the beatings occurred, the number of them, whether the appellants were together or apart, and even whether certain beatings actually did occur. The respondent Katherine argues that in the absence of palpable and overriding error, the trial judge is owed deference. (3) Canada’s Position [30] The respondent Canada repeats the arguments made at trial. It submits that while there may have been an agreement in 1965 between Canada and Ontario regarding the provision of welfare services, that specific agreement concerned welfare services on a reserve. That is not the situation here – the Cannon home was not on reserve, just provincial land. Therefore, the provincial CAS had legal authority and Canada was not liable for the alleged assaults, if they, in fact, had occurred. E. DISCUSSION (1) Overview [31] For the purposes of this appeal, I need only address the appellants’ submission that the trial judge improperly determined they were not reliable witnesses because of the passage of time. The appellants contend that the passage of time did not relieve the trial judge of his duty to assess the evidence especially in the context of beatings of the appellants as young children. In my view, this submission has substantial merit. [32] I start with the observation that on appeal, I must keep in mind that there is a presumption that the trial judge correctly applied the law, particularly regarding the relationship between reliability and credibility, and that on a functional and contextual reading of trial reasons, the focus is whether the trial judge turned his mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns: R. v. G.F. , 2021 SCC 20, 71 C.R. (7th) 1, at para. 82. [33] It is undisputed that when adult witnesses testify about events that occurred when they were children, in general their evidence should be assessed by the criteria applicable to adult witnesses: W. (R.) , at p. 134. However , inconsistencies and lack of memory in that testimony must be considered in the context of the age of the witness at the time of the events: W. (R.) , at p. 134; see also R. v. Pindus , 2018 ONCA 55, at para. 37; R. v. Radcliffe , 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 34, leave to appeal refused, [2017] S.C.C.A. No. 274. I do not suggest that a trial judge is required to make explicit reference to these principles in reasons for judgment. However, I must be satisfied that the trial judge applied the appropriate principles. [34] The trial judge’s very brief analysis in this case reveals that he was mindful that the events had occurred some time ago. Before turning to the appellants’ evidence, the trial judge mentioned that the allegations related to events that began over fifty years ago, when the appellants were very young. [35] Respectfully, however, the trial judge’s approach to the appellants’ testimony reveals that he allowed the passage of time to overwhelm his analysis, and his criticisms of the appellants’ testimony indicate that he was not alive to the principles for assessing adult testimony of childhood abuse. (2) The trial judge erred in his approach to the appellants’ testimony [36] For ease of reference, I set out the trial judge’s analysis on the witnesses’ evidence in its entirety: [219] All of the witnesses in this case presented as credible. The [appellants] in particular, like the complainant in R. v. Sanichar , appeared to be sincere, truthful, and honest. I have no difficulty in recognizing that they experienced traumatic and tragic childhoods. It may well be that much of the trauma is attributable to their experiences in the Cannon home. However, the trial was not an inquiry. The Court’s task is not to determine what happened in the Cannon home. The issue I must determine is whether the [appellants] have proven on a balance of probabilities the physical abuse that they allege occurred. [220] In this case, the passage of several decades make it impossible for me to determine that the [appellants’] evidence is reliable . Considering all of the evidence, I am not persuaded that the physical abuse that they described actually occurred . [221] Much of the evidence provided by the [appellants] was framed in generalizations and lacking in detail and specifics. Testimony often included sentences that were introduced with the words, “I believe…”, “As I recall…”, “Sometimes…”. It is understandable that there would be some uncertainty given the passage of so much time. It was difficult, however, to understand what parts of their evidence the [appellants] were actually certain of, if any. [222] There were inconsistencies in the evidence of one [appellant] compared to another. For example, Rosemarie testified that the majority of time the [appellants] were beaten together. She had to go upstairs and get her sisters to come down to the kitchen, where they would line up and get the belt because of her. Darlene testified about several incidents she remembered when she was beaten alone. She said she would be beaten if she cried when Rosemarie was beaten. They were not collectively whipped every time, it depended on Katherine’s decision. Sharon described the two incidents she recalled of being beaten herself and one incident she saw four-year-old Rosie being beaten with a strap, but no incidents of being lined up for a collective beating. [223] Rosemarie acknowledged that she does not remember all of the incidents she believed occurred. They come back in pieces. Sharon testified that she could swear that she didn’t get hit, but she has been told that’s inaccurate. [224] There are too many uncertainties and too many inconsistencies in the evidence of the [appellants] for me to determine that it is reliable. [Emphasis added.] [37] In his reasons, the trial judge referenced this court’s decision in R. v. Sanichar , 2012 ONCA 117, 280 C.C.C. (3d) 500, rev’d, 2013 SCC 4, [2013] 1 S.C.R. 54. In that case, Blair J.A. for the majority stated that in cases involving historic acts of sexual and physical abuse, particular scrutiny is called for in approaching the reliability of the evidence. The trier of fact must be mindful of serious inconsistencies in a witness’s account as well as the subtle influences that may have distorted memory over time: Sanichar , at paras. 38-39. The passage of time may influence the witness’s ability to observe, recall and recount the events at issue accurately: Sanichar , at para. 70, per Laskin J.A. (dissenting, but not on this point). The trial judge was clearly alive to this caution in Sanichar. [2] [38] Sanichar does not, however, instruct a trial judge to reject witness testimony as unreliable because time has passed. The trial judge concluded that “[i]n this case, the passage of several decades make it impossible for me to determine that the [appellants’] evidence is reliable.” His reasons reveal that he treated the passage of time as nearly determinative of the appellants’ unreliability. Respectfully, the passage of time cannot overwhelm a trier of fact’s assessment of the evidence, and I agree with the appellants’ submission that treating the passage of time as determinative in this case is akin to imposing a limitation period on the appellants’ claim. This is the wrong approach. [39] I accept that Sanichar advises triers of fact to be mindful of time, and appropriately cautious, when assessing testimony of events from a distant past. However, as noted above, W. (R.) and other cases require that when assessing the testimony of adults trying to recount childhood memories, triers of fact must also be mindful of the context when addressing inconsistencies and a lack of memory. [40] In W. (R.) , McLachlin J. (as she then was) stated, at p. 134: It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to “adult” or “child” standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying . [Emphasis added.] [41] In Pindus , Laskin J.A. stated, at para. 37, that “when an adult witness gives evidence about events that took place in childhood, inconsistencies and lack of memory have to be considered in the context of the age of the witness at the time of the events.” [42] In my view, the emphasis the trial judge placed on two aspects of the appellants’ testimony demonstrates that he was not alive to the context of the age of the appellants at the time of the events to which they were testifying. [43] First, the trial judge criticized the appellants’ evidence as framed in generalizations and lacking in detail because they used the phrases “Sometimes”, “I believe”, and “As I recall”. However, the appellants were children when the assaults allegedly occurred. The mere fact that they prefaced many of their answers with these qualifications did not, by itself, mean that their evidence was unreliable. Indeed, it is hardly surprising that a witness who is testifying to things that occurred decades ago would use these words. [44] Furthermore, it seems to me that the record does not support the trial judge’s finding that their evidence lacked detail. Without opining on the appellants’ reliability, several examples in their accounts reveal a high level of detail, suggesting the trial judge was overly critical of this evidence and overemphasized the passage of time. [45] For example, Rosemarie was able to recall that she was first hit when she was about four or five and playing with a bottle of aspirin by filling it up with water. She recounted that she was grabbed by the shoulder, dragged by Katherine to the kitchen who started to hit her, and then taken to the living room where she was thrown on the couch. She also recounted other incidents where she was hit by a belt. [46] Darlene, for example, was able to recall specific incidents that provoked Katherine to physical abuse, such as spilling milk or wearing a boy’s army jacket at school, and she testified that the first belt Katherine used was thirty-six inches long and about two and a half inches wide before she switched to using a razor strap. According to Darlene, this razor strap had been given to Katherine by Mrs. Quay, a schoolteacher. [47] Sharon testified that while she had difficulty recalling events and had blocked out several memories in her mind, she did recall some very “vivid acts” of being beaten with a leather belt, razor strap, or by hand. Sharon also described one specific incident when she was struck in the head, the face, and the nose in the kitchen area by Katherine and one of Katherine’s daughters, Karen, and that she was positive that “blood was running” after the beating. [48] Second, the trial judge did not point to any internal inconsistencies in the appellants’ individual accounts but noted that they were not consistent with each other’s descriptions of the mechanics of the beatings. He listed three inconsistencies that undermined their reliability: Rosemarie said they were beaten together; Darlene said she was beaten alone but would be beaten if she cried when Rosemarie was beaten; and Sharon recalled two incidents of being beaten herself and one incident when she saw Rosemarie being beaten with a strap. [49] It is unclear why this inconsistency about being beaten collectively or individually disqualified the appellants’ testimony about events which occurred when they were all children. The trial judge did not explain how these contradictions detracted from the core of their story, and reviewing his reasons in light of the record, it remains unclear as to why he did not consider these inconsistencies as “peripheral”: see W. (R.) , at p. 134. [50] To be clear, it is not an error for a trial judge to take notice of specific phrases used by a witness and inconsistencies between accounts as part of their overall assessment of the testimony of a witness. It goes without saying that inconsistencies can be a significant factor in determining the credibility and reliability of that evidence. However, the analysis here is too sparse. These two examples clearly played a major role in the assessment of the evidence. The trial judge’s focus on these two examples appears out of line with how a trier of fact must approach adult testimony as to events from childhood. [51] Respectfully, because the analysis is so brief, the passage of time treated as nearly determinative, and the appellants’ testimony criticized without sufficient explanation or acknowledgement of context, I conclude that the trial judge’s finding that the appellants were unreliable was arrived at by an error in principle. A new trial is warranted. [52] There are several reasons why a new trial is the appropriate remedy. First, we do not have the advantage that the trial judge had of hearing these witnesses firsthand. Second, there are no specific findings as to the respondent Katherine’s witnesses, other than they were credible. Third, the trial judge’s reasons are practically silent as to the claim against Canada. Therefore, it is not in the interests of justice or feasible on a practical level to simply decide this case on the record filed. [53] As set out above, Canada’s involvement in the appeal is intertwined with the specific finding that the appellants’ complaints had not been proven. During the oral hearing of this appeal, counsel for Canada agreed that it would have been preferable for the trial judge to have made findings on the viability of the claim against it, but since the parties in the court below asserted that the claim against Canada was entirely predicated on the finding that there was a tort, the trial judge did not address the issue of Canada’s liability. [54] Since the trial judge did not make any findings on the issue of Canada’s liability, and the parties may end up taking the same approach in addressing the claim against Canada, in my view, the forum to litigate the claim against Canada is at a new trial. F. DISPOSITION [55] For these reasons, I would allow the appeal and order a new trial. In light of this conclusion, it is not necessary to address the appellants’ application for fresh evidence and the other grounds of appeal. However, I note that the respondent Katherine agrees that the trial judge in his reasons did misstate the evidence of Darlene concerning Rosemarie’s seizures and that he misidentified the perpetrator who allegedly molested Darlene as the brother of Darlene’s mother when it was actually alleged to be Katherine’s brother. There is no need to comment further on these errors because they are not germane to my decision to allow the appeal. [56] The court will accept written costs submission of no more than five pages in length relating to the appeal costs and the trial costs beginning with the appellants. They should file their submissions within 15 days after the release of these reasons. The respondents Katherine and Canada shall have 15 days to respond. [3] Released: February 7, 2022 “P.L.” “S Coroza J.A.” “I agree. P. Lauwers J.A.” “I agree. Sossin J.A.” [1] In Champoux v. Jefremova , 2021 ONCA 92, Hourigan J.A. noted, at para. 21, that there is nothing impermissible in providing a detailed factual recitation in reasons for judgment but that it “is not a substitute for a considered analysis of the issues.” I agree with his observation that “[w]hat frequently happens when reasons begin with a very detailed recitation of the evidence is that when it comes time to grapple with the issues in the case, the analysis is largely conclusory”: at para. 21; see also Welton v. United Lands Corporation Ltd. , 2020 ONCA 322, 64 C.C.E.L. (4th) 265, at para. 61. This description applies to the reasons in this case. [2] Sanichar was overturned on appeal because the Supreme Court of Canada, agreeing with Laskin J.A.’s dissent, held that there was no requirement in law for a trial judge to self-instruct on the dangers of convicting because the complainant’s evidence related to historic events and suffered from various frailties. However, the majority’s comments as to reliability were not directly overturned and remain instructive. [3] Canada advised the panel during oral submissions that it was not seeking costs of the appeal.

COURT OF APPEAL FOR ONTARIO CITATION: Franchetti v. Huggins, 2022 ONCA 111 DATE: 20220207 DOCKET: C69243 Lauwers, Huscroft and Coroza JJ.A. BETWEEN Charles Franchetti and Emily Thomas and Benjamin Franchetti pursuant to The Family Law Act, R.S.O. 1990, c. F.3, as amended Plaintiffs (Respondents) and Alan Douglas Huggins, Basil Mills, 1729780 Ontario Inc., c.o.b. as Jovy’s Bar & Café , Zelijka Stankovic-Zubic , Shannon Malouin, Niagara Health System-Greater Niagara General Site, Dr. Rajeshwar Hanmiah, Dr. F. Gadhafi, Pamela Lockey, Marlene Caldwell, Dr. Charles L. Consky, and Dr. Gerald D. Scaife Defendants ( Appellants ) Roman Botiuk, for the appellants Benjamin Salsberg, for the respondents Heard: January 24, 2022 by video conference On appeal from the order of Justice David L. Edwards of the Superior Court of Justice, dated February 25, 2021, with reasons at 2021 ONSC 1435. REASONS FOR DECISION [1] This is an appeal by 1729780 Ontario Inc., carrying on business as Jovy’s Bar & Café (“Jovy’s Bar”), and its owner Zelijka Stankovic-Zubic, from the motion judge’s decision refusing to set aside their noting of default. For the reasons set out below, the appeal is dismissed. The Factual Background [2] The respondent, Charles Franchetti, was assaulted on May 26, 2011 by another patron at Jovy’s Bar. The statement of claim was served on Jovy’s Bar, Ms. Stankovic-Zubic, and Ms. Malouin, an employee, in April 2013. In March 2014, counsel for the respondents advised the appellants that they would be noted in default if they did not file a statement of defence. After getting no response, counsel noted the appellants in default on March 13, 2014. [3] Jovy’s Bar and Ms. Stankovic-Zubic brought a motion for an order setting aside their noting of default. The respondents opposed. The other defendants consented, apart from Ms. Malouin, who did not participate. [4] Ms. Stankovic-Zubic deposed that she sought legal advice from a lawyer, Zijad Saskin. According to Ms. Stankovic-Zubic, his advice was that she did not have to file a statement of defence because she had no insurance, and it was therefore not “tactically worthwhile” for the respondents to sue her. She did not provide the date of that visit, but counsel for the respondents, Mr. Toomath, deposed that Mr. Saskin called him around October 3, 2017. They discussed damages briefly. Mr. Saskin did not request an extension of time or a waiver of the requirement that a statement of defence be filed. Mr. Toomath later refused to consent to a request to have the noting of default set aside. The case has been pre-tried and a non-jury trial has been set for October 2022. The Standard of Review [5] Whether to set aside a noting of default is a discretionary decision: Intact Insurance Company v. Kisel , 2015 ONCA 205, 125 O.R. (3d) 365, at para. 12. Lower courts’ discretionary decisions are entitled to appellate deference, but “will be reversible where that court misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice”: Penner v. Niagara , 2013 SCC 19, [2013] 2 S.C.R. 125, at para. 27. The court added: “Reversing a lower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations”. The Governing Principles: Setting Aside a Noting of Default [6] The Rules of Civil Procedure , R.R.O. 1990, Reg. 194 are meant to be taken seriously by plaintiffs and defendants. Under r. 1.04(1), the rules are to be “liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.” Further, with respect to a failure to comply with the rules, the court, under r. 2.01(1)(a) “may grant all necessary…relief, on such terms as are just, to secure the just determination of the real matters in dispute”. [7] Rules 18.01 and 18.02 oblige a defendant to respond with a statement of defence within 20-30 days of the date the defendant is served with the statement of claim. The consequences of failing to respond can be dire. Under r. 19.01, the claimant may have the defendant noted in default. A defendant noted in default under r. 19.02(1) “is deemed to admit the truth of all allegations of fact made under the statement of claim” and may not otherwise participate in the action, other than by bringing a motion to set aside the noting of default. The next dire consequence is that after noting the defendant in default, in certain circumstances the plaintiff may move for default judgment under r. 19.04. [8] Under r. 19.03, a defendant noted in default may move to have the noting of default set aside, and this may be ordered “on such terms as are just.” In the context of an action that had been dismissed for delay, Weiler J.A. discussed several guiding principles that are also relevant to setting aside a noting of default: H.B. Fuller Company v. Rogers , 2015 ONCA 173, 386 D.L.R. (4th) 262, at paras. 25-29. These include the strong preference for deciding civil actions on their merits, the desire to construe rules and procedural orders non-technically and in a way that gets the parties to the real merits, and whether there is non-compensable prejudice to either party. [9] There are many cases discussing the criteria for setting aside a noting of default. See particularly Laskin J.A.’s detailed exposition in Kisel , at para. 13. To summarize the jurisprudence, the following factors have been found to be relevant in considering whether a noting of default should be set aside: (1) The parties’ behaviour; (2) The length of the defendant’s delay; (3) The reasons for the delay; (4) The complexity and value of the claim; (5) Whether setting aside the noting of default would prejudice a party relying on it; (6) The balance of prejudice as between the parties; and (7) Whether the defendant has an arguable defence on the merits. [10] These factors are not exhaustive nor are they to be applied as rigid rules. An arguable defence on the merits may justify the court in exercising its discretion to set aside a default judgment, and for that purpose it is sufficient for the defence to have an “air of reality”: Mountain View Farms Ltd. v. McQueen , 2014 ONCA 194, 119 O.R. (3d) 561, at para. 51. However, perhaps because requests to set aside noting in default usually occur early in the litigation process, unlike this case, courts will rarely require a defendant who has been noted in default to show an arguable defence on the merits. In a case such as this one involving a significant delay, the moving party is required to show an arguable case on the merits. The Motion Judge’s Decision [11] The motion judge instructed himself on the factors from Kisel and made the following determinations: (1) The behaviour of the plaintiff and defendant: Mr. Franchetti behaved appropriately in pursuing his claim, while Ms. Stankovic-Zubic did not since she did not seek legal advice until approximately three years after she received the statement of claim. (2) The length of the defendants’ delay: There are two periods of delay. First, there was the delay between the service of the statement of claim in April 2013 and Ms. Stankovic-Zubic seeking legal advice in October 2017 from Mr. Saskin. The second delay occurred between October 2017 and February 2020, when Ms. Stankovic-Zubic again sought legal advice, this time from her present counsel, Mr. Botiuk, who took action. (3) The reasons for the delay : The first period of delay is unexplained. The reason offered for the second period of delay is that Ms. Stankovic-Zubic was following erroneous advice from Mr. Saskin, who has since been disbarred. There is no corroboration of this advice from Mr. Saskin, nor any supporting documentation. (4) The complexity and value of the claim: The claim is complex and involves a significant sum of money. There are claims against the parties involved in the bar incident, as well as against doctors and a hospital for events that occurred during treatment. (5) Prejudice to a party relying upon the default: There is significant prejudice to the parties noted in default since they will not be able to contest liability and damages, and may be held responsible for a potentially significant amount of damages. On the other hand, there is prejudice to Mr. Franchetti. He is in ill health, and although the incident occurred in 2011, the trial will likely not take place until October 2022. [12] With respect to prejudice, the motion judge noted that counsel for Ms. Stankovic-Zubic argued that prejudice to Mr. Franchetti could “mostly be alleviated by his agreement to not examine the plaintiff and the other defendants.” However, the motion judge was concerned about trial scheduling and noted that Mr. Franchetti might seek an earlier trial date after waiving the jury. The jury has since been waived without any effect on the scheduled trial date. [13] After considering these factors, the motion judge declined to set aside the noting of default. He emphasised that no reason was offered for the initial period of delay. As for the second period of delay, he found it “highly unlikely that a trained lawyer would advise a client to ignore a Statement of Claim” and refused to accept this justification based solely on Ms. Stankovic-Zubic’s uncorroborated affidavit. The Principles Applied [14] The appellants’ counsel asserted that their defence on the merits – that the attack at Jovy’s Bar was unforeseen and unforeseeable – is arguable and has an air of reality. We agree. But that is only part of the picture, albeit one that the motion judge did not consider. [15] With respect to the delay, counsel admitted that the initial decision by his clients not to defend was “strategic” or tactical, and that the appellants proceeded on the erroneous advice that the absence of insurance on the bar made them unlikely targets for legal action. Ms. Stankovic-Zubic deposed that obtaining insurance had been prohibitively expensive in light of the bar’s low-cost business model, although as counsel noted, licensed bars must be insured as a matter of law. This court is reluctant to provide relief to parties who make strategic decisions that turn out to be wrong. [16] The appellants’ counsel was candid in admitting that the explanation for the appellants’ delay in responding to the lawsuit was weak, but he asserted that any prejudice to the respondents could be alleviated by agreeing to strong terms that would ensure that the trial could proceed as scheduled, including setting aside the right to discovery. He added that he would not be calling expert evidence. [17] The motion judge was clearly disturbed by the appellants’ behaviour. He said: “I agree that courts should strive to have matters determined on their merits and not be defeated by technical defaults, but parties are responsible for the[ir] actions, not only with respect to those actions upon which a cause of action arose, but thereafter as well.” We agree. [18] The motion judge’s analysis was relatively brief on the issue of prejudice, but respondents’ counsel pointed out that the litigation ground would shift significantly if the default were set aside. In particular, the respondents would be obliged to prove the appellants’ fault over a decade after the critical event, and over eight years after the noting of default deemed liability to be admitted. This outcome is unacceptable in a situation where the trial is imminent, and the necessary evidence is difficult to get. Counsel for the appellants admitted that the server, who might well have over-served the patron who attacked Mr. Franchetti, cannot be located, and also that the bar’s records are sparse and may not exist at all for that time. Had these elements of prejudice been made known to the motion judge, they would only have shifted the balance of prejudice even more in favour of the respondents. [19] The appeal is dismissed with costs in favour of the respondents fixed at $10,000 all-inclusive. “P. Lauwers J.A.” “Grant Huscroft J.A.” “S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Maisonneuve v. Clark, 2022 ONCA 113 DATE: 20220208 DOCKET: C69277 Huscroft, Sossin and Favreau JJ.A. BETWEEN Jean Maisonneuve and 3721094 Canada Inc. Applicants (Respondents) and Christopher Clark and Lanciter Consulting Inc. Respondents (Appellants) Bryce Dillon, for the appellants David Cutler, for the respondents Heard: February 1, 2022 by videoconference On appeal from the order of Justice Sally A. Gomery of the Superior Court of Justice, dated March 16, 2021, with reasons reported at 2021 ONSC 1960. REASONS FOR DECISION [1] This appeal deals with the application of a limitation period to an arbitration agreement. [2] The personal appellant and respondent are cousins who were in business together as shareholders of various companies, including Eastern Ontario Real Estate Investors Inc. (“EOREI”). [3] Their relationship deteriorated over the years and, in early 2016, they referred their business disputes to arbitration. In September 2016, the parties reached an agreement on all issues in dispute except for one. As part of the agreement, the personal appellant agreed to transfer all his shares in EOREI to the personal respondent. However, the parties were not able to agree on the payment of various expenses associated with EOREI. The mutual release the parties signed in the context of their overall settlement provided that this outstanding issue was to be referred to arbitration. This term of the release was worded as follows: The undersigned agree and understand that there is one issue that is not covered by the Mutual Release and it is as set out in this paragraph (the “Excluded Issue”). Maisonneuve takes the position that Clark is responsible for certain EOREI related costs and expenses incurred prior and subsequent to the Acceptance date. Conversely, Clark takes the position that he is not responsible for any EOREI related costs and expenses prior and subsequent to the Acceptance date and, if he is responsible for any EOREI related costs and expenses, then he disputes Maisonneuve’s accounting thereof. If the parties are unable to resolve the Excluded Issue as between them, then the Excluded Issue shall be fully and finally referred to the Arbitrator for resolution. The Arbitrator’s decision shall not be subject to any appeal, either of law, fact or mixed law and fact. [Emphasis added.] [4] The parties signed the release on September 26 and 27, 2016. In 2017, the parties became involved in litigation over the validity of the settlement agreement as a whole. On January 31, 2018, in the context of settlement negotiations regarding the litigation, the appellants’ lawyer took the position that there would be no negotiations over the EOREI expenses. [5] In June 2019, the respondents’ lawyer wrote to the appellants’ lawyer seeking to initiate the arbitration over the EOREI expenses. The appellants refused the request to arbitrate on the basis that it was time-barred. [6] In September 2019, the respondents commenced an application to the Superior Court to appoint an arbitrator. On the application, the appellants took the position that the arbitration was time-barred because the parties had agreed that the referral for arbitration would take place within 90 days of the signing of the settlement agreement or, in the alternative, that the two-year limitation period in the Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B, applied and the respondents were required to commence the arbitration within two years of the date when the parties signed the settlement agreement. [7] The application judge held that there was no agreement that the parties would conduct the arbitration within 90 days of the agreement. She also held that the arbitration was not barred by the two-year limitation period in the Limitations Act, 2002 because, based on s. 5(1)(a)(iv) of the Act, it was not evident that the arbitration was “appropriate” until it was clear that the dispute could not be resolved through negotiations. In reaching this conclusion, the application judge relied on the wording of the arbitration clause and the context of the negotiations leading up to the September 2016 settlement. Ultimately, she found that the respondents should have known by January 31, 2018 that a negotiated settlement of the EOREI expenses was not possible based on the communications between the parties’ counsel. On that basis, she found that the respondents commenced the application within the two-year limitation period. [8] On appeal, the appellants do not challenge the application judge’s finding that there was no agreement that the arbitration would take place within 90 days. However, they challenge her finding that the two-year limitation period started to run on January 31, 2018 rather than in September 2016, when the parties signed the agreement. [9] We do not agree that the application judge made any reversible errors. [10] The only issue on the appeal is the application judge’s interpretation of the arbitration agreement. This is not a standard form contract and, accordingly, the application judge’s decision is owed deference and the palpable and overriding error standard of review applies. [11] The appellants essentially raise four arguments on appeal. [12] First, the appellants argue that the application judge erred in failing to apply this court’s decision in Markel Insurance Company of Canada v. ING Insurance Company of Canada , 2012 ONCA 218, 109 O.R. (3d) 652, to the interpretation of the arbitration clause. We reject this argument. In Markel , this court addressed the limitation period that applies to s. 275(4) of the Insurance Act , R.S.O. 1990, c. I.8, which provides that “[i]f the insurers are unable to agree with respect to indemnification under this section, the dispute shall be resolved through arbitration under the Arbitration Act, 1991 ”. In Markel , this court held that negotiation was not a precondition to arbitration and, therefore, the limitation period does not start to run at the conclusion of unsuccessful negotiations. The application judge here distinguished Markel on the basis that in that case this court was interpreting a statutory provision rather than a provision in an agreement. She explained that, in the context of an agreement, the factual matrix is also relevant to understanding the party’s intentions. In addition, she found that the differences between the wording of s. 275(4) of the Insurance Act and the arbitration clause here are significant. She found that the use of the word “then” in the arbitration clause adds a temporal component that makes the clause “both temporal and conditional”. An attempt at informal resolution is a prerequisite to arbitration. The application judge made no palpable and overriding error in reaching this conclusion. The distinctions she drew between Markel and the circumstances of this case were available on the law and on the record before her. [13] Second, the appellants also argue that the application judge made a palpable and overriding error in finding that it was not clear at the time the parties agreed to the arbitration clause in September 2016 that they would not participate in any further negotiations over the EOREI expenses. In making this argument, the appellants ask this court to review and reweigh correspondence between the parties leading up to the agreement to arbitrate. It is evident from the decision that the application judge reviewed the correspondence at issue and concluded that it represented an “evolution” in the personal appellant’s position. While the appellant initially insisted that there would be no discussion of the EOREI expenses claim, the application judge found that by the time the agreement was concluded he had “entered into Minutes that not only acknowledged Maisonneuve’s claim for the expenses but contemplated that the parties could resolve the issue as between them prior to resorting to arbitration”. The application judge made this finding based on her review of the correspondence and the wording of the arbitration clause. Her finding is entitled to deference and we see no palpable and overriding error. [14] Third, the appellants argue that the application judge erred in relying on the decisions in PQ Licensing S.A. v. LPQ Central Canada Inc. , 2018 ONCA 331, and L-3 Communication SPAR Aerospace Limited v. CAE Inc. , 2010 ONSC 7133, as authority for the proposition that the limitation period that applies to an arbitration clause may not start to run until the parties have exhausted attempts at informal resolution. The appellants argue that the arbitration clauses in those cases were different and the preconditions for enforcement much clearer than in this case. While this may be true, it does not detract from our conclusion that the application judge made no palpable and overriding error in her interpretation of the arbitration clause as including a precondition in this case. [15] Finally, the appellants argue that the application judge’s decision will lead to uncertainty with respect to the application of limitation periods to arbitration clauses because it is necessarily difficult to ascertain when negotiations are at an end. We reject this argument. The application judge’s decision was based on the specific wording of this arbitration clause and the circumstances in which it was negotiated. Parties are free to agree to arbitration clauses that make no reference to the possibility of an informal agreement or that are more specific about the steps and timing leading to arbitration. In this case, as stated by the application judge, it was open to the appellants to let the respondents know at any time that no further negotiations would take place. Indeed, this is what occurred in January 2018, which the application judge found triggered the start of the limitation period. [16] For these reasons, we dismiss the appeal. [17] The respondents are entitled to costs in the agreed amount of $5,000. “Grant Huscroft J.A.” “L. Sossin J.A.” “L. Favreau J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Fresco v. Canadian Imperial Bank of Commerce, 2022 ONCA 115 DATE: 20220209 DOCKET: C68590, C68649 & C68801 Lauwers, Harvison Young and Sossin JJ.A. BETWEEN Dara Fresco Plaintiff (Respondent) and Canadian Imperial Bank of Commerce Defendant (Appellant) Linda Plumpton, Sarah Whitmore, Ryan Lax, Lara Guest, Henry Federer, John Field, Lauri Reesor and Elisha Jamieson-Davies, for the appellant David F. O’Connor, J. Adam Dewar, Louis Sokolov, Steven Barrett, Peter Engelmann, Louis Century and Jody Brown, for the respondent Heard: September 28-29, 2021 On appeal from the judgments of Justice Edward P. Belobaba of the Superior Court of Justice, dated March 30, 2020, with reasons reported at 2020 ONSC 75, 63 C.C.E.L. (4th) 60, dated August 10, 2020, with reasons reported at 2020 ONSC 4288, 66 C.C.E.L. (4th) 244, and dated October 21, 2020, with reasons reported at 2020 ONSC 6098. Lauwers and Sossin JJ.A.: A. OVERVIEW [1] In 2007, Dara Fresco started a class action against the Canadian Imperial Bank of Commerce on behalf of 31,000 customer service employees who had worked for the Bank between 1993 and 2009. She claimed that two of the Bank’s policies enabled it to permit its employees to work overtime hours without appropriate compensation, contrary to the Canada Labour Code . [1] [2] Two competing narratives set the scene. The Bank argued that its policies aimed to stop unnecessary overtime in order to control costs and to prevent overwork. To the contrary, Ms. Fresco argues that these policies resulted in the Bank getting the economic value of overtime work without compensating employees as required by the Code. [3] The first overtime policy, which applied to employees in the retail branch network from February 1, 1993 to April 10, 2006, covered all class members (the “1993 Overtime Policy”). It provided for additional compensation where employees worked more than 8 hours a day or 37.5 hours a week, but required that employees get management approval before working overtime in order to receive payment (pre-approval). There was no provision for getting management approval after the overtime hours were worked (post-approval). The second policy, which applied to all of the Bank’s lines of business, was put in place starting on April 10, 2006 (the “2006 Overtime Policy”). This policy maintained the pre-approval requirement, but also allowed for post-approval in extenuating circumstances where approval was sought as soon as possible after the overtime work was done. [4] This class action concerns the application of the Canada Labour Code to these two overtime policies. This court certified eight common issues in 2012. [2] The motion judge heard two summary judgment motions on the merits, one brought by each side. [5] The motion judge released three decisions leading to these appeals. On liability, he granted summary judgment to Ms. Fresco as the representative plaintiff. [3] On damages, he certified aggregate damages as a common issue, leaving the merits of the proposed methodology for determining the class members’ individual damages entitlements to be assessed at a later stage. [4] On limitations, he dismissed the Bank’s summary judgment motion for a class-wide limitations order and left the Bank’s limitation defences to be addressed at the individual hearing stage. [5] [6] For the reasons that follow, we would dismiss the Bank’s appeals. B. THE ISSUES [7] Corresponding to the motion judge’s three decisions, the Bank brings three appeals. The Bank’s liability appeal raises two issues: 1. Did the motion judge misinterpret s. 174 of the Code? 2. In considering whether the Bank’s system-wide overtime policies and related practices contravened the requirements of the Code and the regulations under it, did the motion judge err in finding that the following were “institutional impediments” to the overtime claims of class members: (a) the Bank’s 1993 and 2006 Overtime Policies; and (b) the Bank’s record-keeping practices for tracking and compensating overtime hours? [8] The Bank’s damages appeal raises one issue: 3. Did the motion judge err in certifying aggregate damages because this court had already determined that such damages are not available in this case? [9] The Bank’s limitations appeal raises two issues: 4. Did the motion judge err by requiring the Bank to prove discoverability could be resolved on a class-wide basis, thereby reversing the onus of proof? 5. Did the motion judge err in refusing to answer the Bank’s constitutional question regarding the extra-territorial application of s. 28 of the Ontario Class Proceedings Act ? [10] We address each of these issues in turn. [11] The Bank also submits that the motion judge did not directly address the evidence explaining its perspective but only the evidence supporting Ms. Fresco’s perspective as set out in her written submissions. The Bank argues that this was an error in itself and renders the reasons inadequate as a matter of law. We would not give effect to this submission. In our view, the motion judge took a broader view of the evidence than the Bank submits, as we point out from time to time. C. Analysis (1) The motion judge did not misinterpret s. 174 of the Code [12] This issue relates to the first two certified common issues in the class action: 1. Are any parts of the Defendant's Overtime Policies (from February 1, 1993 to the present) unlawful, void or unenforceable for contravening the Canada Labour Code ? 2. Did the Defendant have a duty (in contract or otherwise) to prevent Class Members from working, or a duty not to permit or not to encourage Class Members to work, overtime hours for which they were not properly compensated or for which the Defendant would not pay? [13] To address these common issues, the motion judge had to interpret and apply s. 174 of the Canada Labour Code , which provides: Overtime pay or time off 174 (1) Subject to any regulations made under section 175, when an employee is required or permitted to work overtime, they are entitled to (a) be paid for the overtime at a rate of wages not less than one and one-half times their regular rate of wages; or (b) be granted not less than one and one-half hours of time off with pay for each hour of overtime worked, subject to subsections (2) to (5). [14] Then Code provisions make clear that the standard hours of work cannot exceed eight hours per day and forty hours per week. An employee who is “required or permitted” to work more than the standard hours of work must be paid time and a half. Additionally, under s. 24(2) of the Canada Labour Standards Regulations , [6] every employer is required to record the hours worked each day by every employee and keep this information on file for at least three years. (a) The motion judge’s interpretation [15] Against this legislative backdrop, what does the expression “required or permitted” in s. 174 of the Code mean? In his liability reasons, the motion judge focused on the interpretation of the word “permitted” and noted that “[t]he policy question is whether ‘permitted’ should be interpreted narrowly favouring the employer (and meaning ‘impliedly required’) or more broadly favouring the employee (and meaning ‘allowed’ or ‘not prevented’)”. [7] He cited Machtinger v. HOJ Industries , in which the Supreme Court answered this interpretive question in favour of employees, taking into account the power dynamics in the modern workplace and the importance of employment standards legislation: The harm which the Act seeks to remedy is that individual employees, and, in particular non-unionized employees, are often in an unequal bargaining position in relation to their employers.… Accordingly, an interpretation of the Act which encourages employers to comply with the minimum requirements of the Act, and so extends its protections to as many employees as possible, is to be favoured over one that does not. [8] [16] The motion judge explained that the labour arbitration cases interpreting s. 174 of the Code have, with only one exception, viewed the section as a worker protection provision in which “permitted” means “allow” or “fail to prevent”. He listed the main takeaways from the case law interpreting “permitted” in the context of overtime work as follows: ▪ The Code imposes liability for overtime “whenever it is permitted, even if it is not required or authorized. The intent of the Code is to protect employees who are simply allowed to work overtime without pay.” ▪ An employer cannot “simply look the other way when an employee is working beyond the standard hours” then claim the work was not required or permitted. ▪ An employer cannot “avoid these statutory obligations by knowingly permitting employees to work overtime and then later taking the position the overtime was not authorized. This is in fact the mischief sought to be avoided by the use of the word ‘permitted’ in Section 174.” ▪ In other words, an employer is liable for permitting overtime if it “acquiesce[s] by its failure to prevent.” [9] [17] The motion judge accordingly restated the standard under s. 174 as: “When an employee is required or allowed to work or is not prevented from working in excess of the standard hours of work, the employee shall be paid for the overtime at a rate of wages not less than one and one-half times his regular rate of wages.” [10] We accept the motion judge’s interpretation of s. 174, which is well-supported by the case law. (b) The Bank’s overtime policies breached s. 174 of the Code as interpreted by the motion judge [18] We outline the parties’ arguments. The Bank makes two interrelated arguments about its overtime policies, one focussing on the purposes of its policies and the other focussing on the scope of its duties under the Code. [19] First, the Bank highlights that the Code gives the employer the right to determine when overtime hours will be worked. The Bank argues that, respectful of the Code’s direction that an employer must pay overtime that it requires or permits, its overtime policies were developed for the purpose of discouraging overtime work. They were never intended to permit overtime work that was not compensated. [20] The Bank argues that in finding the policies to be inconsistent with the Code, the motion judge ignored evidence in the policies themselves, which formed part of the employment contracts, that the Bank intended to comply with the Code. The Bank points to the 1993 Overtime Policy, which expressly stated that overtime work in excess of 8 hours in a day or 37.5 hours over a week would be paid. It also reminded employees to obtain the “approval of their supervisor or manager” before working overtime and instructs: “It is against the law to not pay overtime.” The text of the 2006 Overtime Policy, under the “Intent” heading, reads: “CIBC has developed this Employee Overtime Policy (Canada) to help management align our resources appropriately and in accordance with the legal and regulatory framework governing overtime.” The Bank argues that the clear intent of the policies was to comply with the Code. Accordingly, the Bank submits that the motion judge erred by interpreting the policies contrary to “the objective intention” of the Bank and a “common sense” reading of the policies’ text. [11] [21] In response, the respondent argues that the motivation behind a policy is not relevant to whether it breaches the Code. Because the Bank’s policies caused uncompensated overtime on a systemic basis, the Bank breached s. 174 of the Code. [22] Second, the Bank submits that although authorization was a pre-condition for working overtime hours, it was not a pre-condition for compensation . The 1993 Overtime Policy set out that employees would be compensated for overtime that a manager pre-approved. The 2006 Overtime Policy provided for both pre- and post-approval, each of which would result in compensation. The 2006 Overtime Policy read, in part: In order for employees to be compensated for overtime hours worked, the hours must be pre-approved by a manager in advance. Overtime, for which prior management approval was not obtained, will not be compensated unless there are extenuating circumstances and approval is obtained as soon as possible afterwards. [23] The Bank argues that pre-approval allowed it to control its employees’ hours of work and allocate resources in a cost-effective manner while compensating employees for overtime hours worked, as it was permitted to do, according to the authorities. The Bank relies on the principle that an employer must have knowledge of the overtime worked and that the employer must expressly or impliedly indicate that the work could be undertaken. In other words, “[e]mployees cannot unilaterally elect to perform work outside of their scheduled hours of work and claim compensation for such work at overtime rates or even at straight time rates”. [12] [24] The Bank submits that the motion judge’s interpretation of the Code imposes a positive duty on an employer to prevent overtime hours it does not want to be worked, and requires the employer to prevent employees from working overtime hours that the employer is not aware are being worked. The Bank submits that imposing this positive duty is contrary to the Act and the approach taken in Lafarge , to the effect that overtime hours cannot be considered “required or permitted” where the employer has no knowledge of the work. [25] The respondent relies on a countervailing line of arbitral decisions, which holds “that ‘permitted’ does not put the onus on the employee to seek permission; instead overtime is ‘required or permitted’ if an employer knows or ought to know that an employee is working overtime but fails to take reasonable steps to prevent the employee from working”. [13] The respondent also argues that the motion judge’s interpretation is consistent with the remedial purpose of the Code and case law which requires a liberal and generous interpretation of the protections afforded to employees. [26] The motion judge held that the onus falls on the employer to show how the policy ensured all overtime hours were compensated. Relying on the T-Line Services line of cases, the motion judge’s focus was on whether the Bank breached its duty to the class by permitting or failing to prevent overtime hours, yet creating a system that all but prohibited overtime compensation. He concluded: In my view, the plaintiff has established that both the 1993 and 2006 overtime policies contravened the requirements set out in s. 174 of the Code . The parties filed expert reports to support their respective submissions. There is no need for me to rely [on] or even refer to these reports. I find that the defendant bank breached its statutory and contractual duty to the class member employees. I can make this finding by simply contrasting the language of the defendant’s system-wide policies with s. 174 of the Code . [14] [27] With respect to the 1993 Overtime Policy, the motion judge found that the imposition of a pre-approval requirement as a precondition for overtime compensation was more restrictive than the “required or permitted” language in s. 174 of the Code. With respect to the 2006 Overtime Policy, he found that the addition of possible post-approval in extenuating circumstances did not cure the deficiencies because the Code required that overtime be paid whenever such hours were required or permitted, without exception. However, the motion judge concluded that pre-authorization or post-approval requirements did not, in and of themselves, violate the Code; rather, it was the effect of making one or the other a pre-condition for payment that constituted the violation. [28] As the motion judge pointed out, most arbitral decisions agree that s. 174 does impose a positive duty on employers to actively prevent employees from working overtime hours. This duty does not conflict with the employer’s right to manage its workforce. This duty does not subject an employer to indeterminate liability because the employer will not be found to have permitted overtime work unless the employer has actual or constructive knowledge that its employees are working beyond the hours permitted under the Code. The risk of silence in the face of actual or constructive knowledge falls on the employer. The motion judge did not impose a duty on employers to compensate employees for overtime hours of which it was not aware because an employer cannot be said to permit what it does not know. [29] Moreover, as we set out below, the motion judge did not simply rely on the wording of the policies in finding liability. He also made findings of fact on the evidence that support his conclusion that the effect of the Bank’s overtime policies was that it failed to prevent overtime from being worked without compensation. [30] We do not accept the Bank’s submission that the motion judge erred in his interpretation of the Code or its application to the Bank’s overtime policies. We find no legal error in the motion judge’s finding that, read as a whole, and together with the surrounding evidence of manuals, circulars and guidelines, the Bank’s overtime policies required pre-authorization (or post-authorization in extenuating circumstances in the case of the 2006 Overtime Policy). Overtime hours that were permitted but not authorized under the policies would not be paid, contrary to the Code. [31] We turn now to the second issue. (2) The motion judge did not err in finding that the Bank’s system-wide overtime policies and record-keeping practices breached its duties under the Code and its regulations [32] In considering whether the Bank’s system-wide overtime policies and related practices contravened the requirements of the Code and the regulations under it, the motion judge did not err in finding that (a) the Bank’s 1993 and 2006 Overtime Policies; and (b) the Bank’s record-keeping practices for tracking and compensating overtime hours were “institutional impediments” to the overtime claims of class members. (a) What is an “institutional impediment”? [33] The language of “institutional impediment” draws on the comments of Strathy J. (as he then was) in Fulawka v. Bank of Nova Scotia . [15] He stated: “The understandable need for managers to control overtime costs and the pre-approval requirement in the policy create institutional impediments to claims for overtime pay.” [16] The motion judge echoed this language in the decision below, noting with respect to this court’s certification decision: Chief Justice Winkler, writing for a unanimous Court, made clear that in order to prevail at the common issues trial, the plaintiff would have to prove that CIBC’s system-wide overtime policy and related practices were “institutional impediments” to class member overtime claims that were otherwise compensable under the Code. [17] [34] In the barest terms, an impediment is “institutional” and therefore systemic if it is a characteristic of the operation of the employment system. When considering whether an employer’s policy or practice serves as an institutional impediment, the operative question is how employees were harmed by it. If the policy creates a systemic hurdle to appropriate compensation, then it operates as an institutional impediment. This is the case even if there were some employees who were not, in practice, denied compensation as a result of the policy. [35] In this court’s certification decision, Winkler C.J.O. concluded that the lower courts’ view of the pre-approval policies “ignore[d] the factual assertions in the pleadings about the alleged reality of the workplace in CIBC retail branches.” [18] He noted that the “claim does not turn exclusively or even primarily on the per se legality of the [policies]”. [19] Rather, the alleged breach resulted from the interaction between the policies and the actual work assigned and recorded. [36] Ultimately, this court certified the action because “CIBC’s overtime policies governing overtime compensation and the accompanying standard forms that class members submit when requesting such compensation, apply to all class members”. [20] The issue, according to Winkler C.J.O., was “whether CIBC had a duty to implement an overtime system that satisfies its obligations under the Code , and whether its actual system met these obligations”. [21] [37] Similarly, in Cavanaugh v. Grenville Christian College , this court upheld a trial decision that found the defendant school to be systemically negligent because it caused harm through its “operational” characteristics. [22] The trial judge had rejected Grenville’s argument that the inflictions of harm were “one-offs” concerning individual students and that the harm was systemic because it flowed from Greenville’s character as an institution. In upholding the trial judge’s treatment of the systemic breach issue, van Rensburg J.A. stated: “The trial judge recognized that systemic negligence involved an assessment of how the school was run – its practices and the extent to which the practices created a risk of harm.” [23] (b) The Bank’s overtime policies were institutional impediments [38] The motion judge summarized the basis for his finding of liability in the following terms: “The bank’s unlawful overtime policies and hours-of-work recording practices were systemic or institutional impediments. That is, they were system-wide in nature and they impeded class member overtime claims that were otherwise compensable under the Code.” [24] [39] In other words, the motion judge found that the policies link the class members and their claims and create the class. The Bank’s breach was not systemic because it prevented all employees from receiving overtime compensation; rather, the breach was systemic because the policies acted as an institutional impediment for any employee that earned overtime compensation. The policies imposed additional hurdles on employees seeking overtime compensation systemically across the institution. [40] The Bank argues that “the plaintiff’s systemic claim for breach of the class members’ employment contracts could only succeed on the merits if a causal link existed between class members’ claims for uncompensated overtime and CIBC’s policies and practices”. The Bank points out that the overtime policies were applied flexibly and that pre-approval was granted regularly. The Bank referred to evidence of 80 internal audits conducted between 2002 and 2009, 77 of which found no failure to compensate for overtime. The three audits that did find problems led to remedial action. [41] The Bank asserts that the motion judge did not have sufficient evidence to conclude that its policies caused any employees to work overtime hours without compensation. [42] However, the Bank’s argument misunderstands the motion judge’s reasoning. His approach flows from the systemic nature of the breaches. The Bank’s breaches were systemic because the regular denial of overtime pay resulted from the interaction between the Bank’s overtime policies, the Code, and its workforce. The analysis does not boil down to “an issue of numbers” because it does not depend on the interaction between individual managers and employees. [25] The motion judge expressed the test for liability under the third certified common issue, as: “One, has the plaintiff established that at least some of the class members worked uncompensated overtime? And two, has the plaintiff established that it is more likely than not that these hours of uncompensated overtime work were permitted or not prevented by the defendant bank?” [26] [43] We agree with the motion judge’s approach. The class cannot establish that the Bank deprived class members of overtime compensation without first showing that such compensation was due: “What is a breach is failing to pay overtime that is actually owed”. [27] [44] To succeed on this aspect of the claim, the respondent did not need to show that every class member was owed overtime compensation, but only that some class members were owed compensation because they were not paid as a result of the operation of the Bank’s overtime policies. [45] It was therefore necessary for the motion judge to find that the policies in fact deprived some employees of overtime compensation. He found that some of the class members did work uncompensated overtime. There was ample evidence in the record to support this finding, including an open forum survey, a workplace effectiveness project, and theme reports. This evidence, produced by the Bank, included specific references to Bank employees working overtime hours that were not compensated. For example, the motion judge points to “hundreds of comments” relating to overtime in employee survey evidence produced by the Bank. [28] [46] The motion judge’s line of analysis is consistent with other cases analyzing systemic breaches. For example, in Insurance Corp. of British Columbia , the arbitrator found irrelevant the employer’s argument that unpaid overtime was not a “pervasive” issue. The arbitrator wrote that the claim “is not an issue of numbers.” [29] The plaintiff in that case needed only to show that some employees worked beyond their regular hours because the issue was whether the employer “failed to put mechanisms in place to… prevent employees working beyond their regularly scheduled shifts.” [30] [47] As we stated above, it is more appropriate to ask how employees were denied overtime compensation than to ask how many employees were denied compensation. Here, the respondent had to show that employees were denied overtime compensation because of the operation of the policies. The motion judge found that she did so. Since the policies impact the class in its entirety, this finding establishes the Bank’s liability to the class as a whole. (c) The Bank’s record-keeping practices were institutional impediments [48] This issue on appeal relates to the third certified question in the class action: 3. Did the Defendant have a duty (in contract or otherwise) to accurately record and maintain a record of all hours worked by Class Members to ensure that Class Members were appropriately compensated for same? [49] Earlier we noted that under s. 24(2) of the Regulations, every employer is required to record the hours worked each day by every employee and keep this information on file for at least three years. [50] In the Bank’s submission, the Regulations require employers to keep records of the time worked and the compensation paid (including for overtime hours) for a period of three years. It does not specify the manner of such recording. [51] The Bank delegated the task of recording compensated hours to individual branch managers. After 2003, the Bank relied on a human resources software program, PeopleSoft, to record hours. The Bank’s evidence was that this software met the industry standard at the time. [52] The Bank’s record keeping consisted of timesheets. Managers were responsible for inputting overtime hours into the payroll system and ensuring payment, including time off in lieu of payment if elected by the employee. The Bank produced evidence from various affiants that employees completed timesheets daily or when their hours of work differed from their standard hours. According to the Bank, there was no “direct evidence” that only “approved” hours were recorded on these timesheets. [53] The Bank challenges the motion judge’s assessment that “[i]n the vast majority of cases, the only hours recorded were the regular hours and the approved overtime hours”, as opposed to all overtime hours worked. The Bank argues that the motion judge “ignored” its evidence on this point, and that there was no evidence in the record capable of supporting his conclusion. [54] The motion judge relied on the systemic nature of the respondent’s claims to explain his finding of a breach on this basis: Despite the defendant’s submissions to the contrary, I have no difficulty finding on the evidence before me that actual hours of work were not recorded. This was a system-wide, indeed systemic deficiency, that contravened the Code . The defendant bank expected and directed class members to write down their actual hours only on an “exceptional basis… when they sought to be paid for hours worked beyond their regularly scheduled hours.” The timesheet that the bank says was used for seeking post-approval expressly repeats the pre-approval requirement. To reiterate, system-wide policies told class members that overtime work would not be compensated unless it was pre-approved (or post-approved in extenuating circumstances after 2006). Hours worked that were otherwise permitted (not prevented) were not recorded and not compensated. [31] [55] Consequently, the motion judge accepted the respondent’s position that the Bank had breached its duty to the class to ensure that all their hours of work were recorded, and that all required or permitted overtime was compensated. [56] We reiterate that resolving the issue of liability in a systemic class action is not a question of numbers. It was unnecessary for the motion judge to quantify the number of cases where uncompensated overtime hours were not captured due to the Bank’s system of record-keeping. To support a finding of a breach of this common issue, the motion judge had to find instances in which some employees’ real hours of work were not recorded due to the record-keeping system. Having done so, it was not material whether this occurred in a majority of cases. [57] Based on his evaluation of the evidence, the motion judge accepted that the actual hours of work might have been recorded for some employees at some branches on some occasions. However, he found the Bank was deficient in having no system to ensure this was done consistently across all branches. There was sufficient evidence in the record to support such a conclusion. [58] The motion judge relied, for example, on admissions contained in bank documents entitled “Overtime Policy Canada - Compliance Monitoring” [32] and Overtime Monitoring Reports”, which indicated that PeopleSoft was not used to track actual hours worked and that the Bank was unable to determine whether an employee worked overtime due to that lack of tracking. [59] In our view, based on the evidence before the motion judge, it would have been preferable if he had refrained from quantifying the occasions when the Bank’s system of record-keeping led to overtime hours not being recorded. That said, we see no basis for interfering with the motion judge’s finding on this aspect of the liability analysis. (3) The motion judge did not err in certifying the aggregate damages issue [60] A plaintiff’s access to damages determined in the aggregate is governed by s. 24 of the Class Proceedings Act , which provides: 24 (1) The court may determine the aggregate or a part of a defendant’s liability to class members and give judgment accordingly where, (a) monetary relief is claimed on behalf of some or all class members; (b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant’s monetary liability; (c) the aggregate or a part of the defendant's liability to some or all class members can reasonably be determined without proof by individual class members. [61] We address the background to this issue, the test for certifying an aggregate damages issue, and whether this court’s refusal to certify an aggregate damages common issue is res judicata . (a) Background [62] On the appeal of the certification motion, this court refused to certify the proposed common issue concerning the aggregate assessment of damages. Winkler C.J.O. stated: “For the reasons given in Fulawka , at paras. 110-39, the preconditions in s. 24(1) of the CPA for ordering an aggregate assessment of monetary relief cannot be satisfied in this case.” [33] [63] The particular stumbling block in Fulawka concerned the language of s. 24 (1)(c), which requires that “the aggregate or a part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members.” In Fulawka , this court found that because the “proposed method is based on proof from a limited subsection of the class, it… impermissibly requires proof from individual class members in order to arrive at an aggregate damages figure.” [34] Winkler C.J.O. summarized: “[A]n aggregate assessment of monetary relief may only be certified as a common issue where resolving the other certifiable common issues could be determinative of monetary liability and where the quantum of damages could ‘reasonably’ be calculated without proof by individual class members.” [35] [64] Despite this court’s refusal to certify the aggregate damages question, the plaintiff sought an order directing an assessment of aggregate damages (or certifying aggregate damages as a new common issue) and directing the Bank to produce paper and electronic records relevant to the aggregate assessment. The motion judge heard further argument and certified a ninth common issue: 9. Can the defendant’s monetary liability be determined on an aggregate basis? If so, in what amount? [36] The motion judge adjourned the balance of the damages hearing “to await the plaintiff's aggregate damages report and the defendant bank’s response”. [37] [65] The Bank challenges the certification of the aggregate damages issue on two grounds: (i) the proposed methodology does not meet the legal test for certifying the aggregate damages issue, and (ii) this court finally determined that aggregate damages were not available in this case, so the matter is res judicata . We address these arguments, both of which we reject, in turn. (b) The test for certifying the aggregate damages issue is met [66] Apart from the requirements under s. 24(1) of the Act, there are also jurisprudential governing principles. (i) The governing principles for certifying an aggregate damages common issue [67] The test for certifying aggregate damages as a common question is whether there is “a ‘reasonable likelihood’ that the conditions required in s. 24 of the Class Proceedings Act for determining aggregate damages would be satisfied if the [plaintiff is] otherwise successful at the common issues trial”. [38] [68] The Supreme Court considered the standard for evaluating a plaintiff’s proposed methodology in Pro-Sys Consultants Ltd. v. Microsoft Corporation . [39] Rothstein J. said: “[T]he expert methodology must be sufficiently credible or plausible to establish some basis in fact for the commonality requirement”. [40] As Karakatsanis J. explained in her partly dissenting reasons in Atlantic Lottery Corp. Inc. v. Babstock , this means that the methodology must offer “a realistic prospect of assessing class-wide monetary relief in the aggregate”. [41] [69] Rothstein J. added in Pro-Sys that the methodology “cannot be purely theoretical or hypothetical, but must be grounded in the facts” and there must be some evidence that data is available. [42] He noted that “resolving conflicts between the experts is an issue for the trial judge and not one that should be engaged in at certification”. [43] Finally, Rothstein J. found that the common issues trial judge has the “ultimate” responsibility for deciding whether aggregate damages are available. [44] (ii) The motion judge’s reasoning [70] The motion judge saw his responsibility as determining whether the methodology proposed by the plaintiff’s expert offered a “reasonable possibility” of assessing damages in the aggregate without proof by individual class members, and that the methodology would result “in a fair and sufficiently reliable determination of the defendant’s monetary liability”. [45] [71] The motion judge described the proposed methodology. It is “based on a review of the defendant bank’s electronic records (currently housed in nine internal computer systems) that contain time-stamped data showing, among other things, the daily start and stop times of the employee’s computer.” [46] He explained: “In essence, the proposed methodology would reconstruct timesheets for class members not by using random sampling but by reviewing and using all the relevant time-stamped data that is available in the bank’s computer systems.” [47] The motion judge was confident in the methodology because it had been used successfully in “scores of [American] unpaid overtime cases.” [48] He added that the respondent’s expert had reviewed the limited available data respecting five employees, which helped inform the formulation of his proposed methodology. [49] [72] This led the motion judge to conclude “that it is reasonably possible that [the expert’s] proposed methodology, based mainly on the defendant bank’s time-stamped computer data, can fairly determine all or part of the bank’s monetary liability without proof by individual members.” [50] He pointed out that “the defendant bank will have ample opportunity to challenge the reliability of the ‘time-stamped data’ approach, and if there are evidentiary gaps, to contest the statistical integrity of the suggested ‘extrapolation’ techniques or the legality of random sampling.” [51] [73] As we discuss in more detail below, the motion judge took the position that Pro-Sys , which was decided after this court’s refusal to certify the aggregate damages question, allowed him to reconsider the aggregate damages certification issue. (iii) The governing principles applied [74] The motion judge properly expressed the standard for certifying aggregate damages as being “whether there is a reasonable likelihood that the methodology suggested by the plaintiff’s expert can determine damages in the aggregate without proof by individual class members”. [52] He cited Markson and observed that the “reasonable likelihood” standard originated in Cullity J.’s comments in Vezina v. Loblaw Companies Ltd . [53] [75] The motion judge added this footnote, with which the Bank takes issue: Cullity J. refers to “the possibility of such an assessment.” Also, if one Googles the meaning of “reasonable likelihood” one finds that courts and tribunals in other common law countries understand “reasonable likelihood” as meaning something more than “possible” but not much more – that is, the meaning given is “not fanciful or remote and more than merely plausible.” Whatever the nuance, “reasonable likelihood” is more akin to “reasonable possibility” and thus a relatively low standard. [54] The Bank argues that the motion judge erred in adopting a “reasonable possibility” test instead of the “reasonable likelihood” one. [76] We would not give effect to this argument because, on the facts of the case, the “reasonable likelihood” standard has been met, for all the reasons the motion judge provided about the methodology. To paraphrase Pro-Sys , the proposed methodology is sufficiently credible or plausible to establish some basis in fact for the commonality requirement, and it offers a realistic prospect of assessing class-wide monetary relief in the aggregate that is grounded in the facts and the available data. It is the task of the trial judge, not the certification motion judge, to resolve any conflicts between the experts. [77] We now turn to the Bank’s other assertion, which is that because this court had previously finally determined that aggregate damages were not available in this case, the matter is res judicata . (c) This court’s decision refusing to certify aggregate damages does not render the issue res judicata [78] We address the doctrine of res judicata in three steps: the governing principles; the motion judge’s reasoning; and the principles applied. (i) The governing principles for res judicata [79] The governing principles for the issue estoppel branch of res judicata were prescribed by the Supreme Court in Danyluk v. Ainsworth Technologies Inc . [55] A party is prohibited from re-litigating an issue where (1) the same issue has been previously decided; (2) that judicial decision was final; and, (3) the parties are the same. Binnie J. stated the purpose of the doctrine: The law rightly seeks a finality to litigation. To advance that objective, it requires litigants to put their best foot forward to establish the truth of their allegations when first called upon to do so. A litigant, to use the vernacular, is only entitled to one bite at the cherry. [56] He added: “The underlying purpose [of issue estoppel] is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case.” [57] [80] Tulloch J.A. considered the rationale for preventing re-litigation in the context of the abuse of process doctrine in The Catalyst Capital Group Inc. v. VimpelCom Ltd . [58] He noted: “The law… seeks to avoid re-litigation primarily for two reasons: first, to prevent overlap and wasting judicial resources; and second, to avoid the risk of inconsistent findings.” [59] [81] Even where the three requirements for issue estoppel are met, the courts retain a residual discretion to refuse to apply the doctrine. Finch J.A. stated in British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. : The doctrine of issue estoppel is designed as an implement of justice, and a protection against injustice. It inevitably calls upon the exercise of a judicial discretion to achieve fairness according to the circumstances of each case. [60] Binnie J. adopted this statement in Danyluk . [61] He commented  that “[t]he objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case.” [62] [82] This court commented on the judicial discretion to refuse to apply issue estoppel in Schweneke v. Ontario . [63] Doherty and Feldman JJ.A. stated: “In exercising the discretion the court must ask – is there something in the circumstances of this case such that the usual operation of the doctrine of issue estoppel would work an injustice?” [64] More recently, this court discussed the role of discretion in declining to apply res judicata and the related doctrine of abuse of process in Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company) . [65] [83] Because declining to give effect to issue estoppel is a matter of discretion, this court owes deference to a motion judge’s decision and should only intervene “if the motions judge misdirected himself, came to a decision that is so clearly wrong as to be an injustice, or gave no or insufficient weight to relevant considerations.” [66] (ii) The motion judge’s decision [84] In his damages decision, the motion judge took the position that he was free to add aggregate damages as a ninth common issue, despite this court’s earlier refusal, on two bases. First, he determined that the doctrine of res judicata did not strictly apply because the proposed methodology was different than the initial sampling methodology this court rejected. Second, he noted that in Pro-Sys , which was released after this court’s certification decision, the Supreme Court established that the trial judge has ultimate authority “to add an aggregate damages question even where this very question was rejected at certification.” [67] (iii) The governing principles applied [85] In Pro-Sys , Rothstein J. held that the trial judge has ultimate responsibility for deciding whether aggregate damages are available: The question of whether damages assessed in the aggregate are an appropriate remedy can be certified as a common issue. However, this common issue is only determined at the common issues trial after a finding of liability has been made. The ultimate decision as to whether the aggregate damages provisions of the CPA should be available is one that should be left to the common issues trial judge. Further, the failure to propose or certify aggregate damages, or another remedy, as a common issue does not preclude a trial judge from invoking the provisions if considered appropriate once liability is found . [68] [86] We make two observations about these words in Pro-Sys . First, the Supreme Court does not discourage the identification of aggregate damages as an issue to be certified at the outset. This makes sense because early identification of an issue is always a good thing. Second, the Supreme Court leaves the final decision about the availability of aggregate damages to the trial judge, even where the issue was not previously proposed or certified. This too makes sense because the trial judge becomes deeply familiar with the case as it crystallizes, which makes the trial judge uniquely able to make the appropriate call. [87] Does the law’s clarification or change in Pro-Sys displace this court’s refusal to certify aggregate damages as a common issue? In our view, it does. This court made the “ultimate decision” that the Supreme Court later stipulated “should be left to the common issues trial judge”. In other words, neither the certification judge’s refusal nor this court’s refusal on appeal to certify aggregate damages as a common issue should be the final disposition. We are obliged to give effect to Pro-Sys . [69] Accordingly, the motion judge was correct in concluding on the basis of Pro-Sys that as the common issues judge, he had the ultimate authority to certify the aggregate damages common issue. [88] However, we add that Pro-Sys does not displace this court’s earlier legal ruling on sampling as a methodology for determining aggregate damages. The motion judge alluded quite fairly to the implication of potential gaps in the evidence: “If the time-stamped data reveals gaps in the evidence, where complete data cannot be obtained, then statistical sampling or extrapolation (back-casting and forecasting) would be used to fill in the gaps.” [70] This raises the prospect that this court’s legal finding that random sampling of the class members is not an acceptable method for determining aggregate damages might need to be revisited. [89] The motion judge has taken the strong position that Winkler C.J.O.’s analysis of the sampling methodology was “probably wrong”, but he explained that the question was premature in this case: “We won’t know until the plaintiff’s proposed damages report is completed and submitted whether there are any evidentiary gaps and whether statistical sampling will actually be used to fill in these gaps.” [71] [90] Time will tell if statistical sampling will be needed to fill evidentiary gaps. If it is used, then the Bank could challenge the result based on this court’s ruling on the sampling methodology. It will then be open to the respondent to argue, based on a full evidentiary record, that this court’s decision was wrong and should be set aside. (4) In determining whether the Bank had a class-wide limitations defence, the motion judge did not err in requiring the Bank to prove discoverability could be resolved on a class-wide basis [91] This court did not certify the effect of limitation periods as a common issue. Winkler C.J.O. said: “The issue of limitation periods is not an ingredient of the class members’ claims, but instead may be relied upon by CIBC in its defence.” [72] He continued: “The question of how individual issues are best resolved is a procedural matter that would follow after the common issues trial.” Despite these words, the Bank cross-moved for summary judgment on the limitation issue. [92] An effective class-wide limitation defence would greatly assist the Bank, which is faced by a class period that begins on February 1, 1993, when the 1993 Overtime Policy took effect, and ends on June 18, 2009, the certification date approved by this court. The class action is national in scope, with a 16-year class period and about 31,000 class members. [93] The Bank focused on two arguments. The first concerns the application of the “discoverability” test in Ontario’s Limitations Act [73] and its analogs in Saskatchewan and Alberta’s respective limitations statutes. The second concerns the non-application of the “appropriate means” aspect of discoverability to claimants residing in parts of Canada in which the relevant limitations legislation does not include a statutory discoverability test. (a) The legislated discoverability test [94] The Bank’s argument hinges on the issue of discoverability. Section 5 of Ontario’s Limitations Act provides: 5 (1) A claim is discovered on the earlier of, (a) the day on which the person with the claim first knew, (i) that the injury, loss or damage had occurred, (ii) that the injury, loss or damage was caused by or contributed to by an act or omission, (iii) that the act or omission was that of the person against whom the claim is made, and (iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and (b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). (2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. [95] The motion judge discussed the test set by s. 5: “[L]imitation periods begin to run as soon as the claimant reasonably discovers that she has sustained a loss, that the loss was caused by the defendant and that taking legal action was appropriate.” [74] The motion judge noted that: “Every time a class member received their bi-weekly pay, they would have known if they had been paid for overtime, and if not, that this loss was caused by their defendant employer.” [75] Accordingly, the first two branches of the test were met. [96] The discoverability issue rested, for the motion judge, on the third branch: whether class members knew taking legal action was appropriate. This turns on the interpretation of ss. 5(1)(a)(iv) and 5(1)(b). [97] The motion judge found that the “appropriate means” requirement applied so that the limitations period would “not begin to run if taking legal action was not reasonably appropriate given the plaintiff’s circumstances.” [76] He gave two main reasons for concluding that the “appropriate means” test was not met. First, “some (and perhaps many) of the class members feared reprisal and were afraid that they might lose their job if they sued the bank for unpaid overtime”. [77] Second, “some (and perhaps many) of the class members reasonably relied on the bank’s repeated misrepresentations throughout the 16-year class period that the bank’s overtime policies complied with federal labour law.” [78] [98] The motion judge found that these reasons combined to require individual assessments of when discoverability was met for an individual claimant, consistent with the general rule that “the viability of a limitations defence is best determined on an individual basis with individual assessments – hence its usual relegation to the individual hearings phase.” [79] The motion judge concluded: The defendant bank has not established on the evidence that the limitation period that applies to every class member’s claim (outside the limitation periods noted in its Schedule) can be determined in common on a class-wide basis and that individual discoverability is not needed. In my view, the evidence strongly suggests that individual discovery will be needed in at least some cases to fairly determine whether the class member delayed in taking legal action because they were in reasonable fear of losing their job; because they reasonably relied on the bank’s misrepresentations about the legality of its overtime policy; or because they were otherwise impeded by the bank’s systemic policies and practices. [80] [99] We are not persuaded that the first factor, that “some (and perhaps many) of the class members feared reprisal and were afraid that they might lose their job if they sued the bank for unpaid overtime” is a valid basis on which the limitations period can be suspended. However, there is merit in the second factor of reasonable reliance on misrepresentation. The applicable law is set out in this court’s decision in Presley v. Van Dusen . [81] Sharpe J.A. discussed the governing principles, and then referred to one of the “guiding principles” expressed by Pardu J.A. in Presidential MSH Corp. v. Marr Foster & Co. LLP : “Resort to legal action may be ‘inappropriate’ in cases where the plaintiff is relying on the superior knowledge and expertise of the defendant, which often, although not exclusively, occurs in a professional relationship.” [82] [100] Sharpe J.A. added: Moreover, reliance on superior knowledge and expertise sufficient to delay commencing proceedings is not restricted to strictly professional relationships. I acknowledge that the previous cases where this court has made a finding that it was reasonable for the plaintiff to rely on the defendant’s superior knowledge and expertise have concerned defendants belonging to traditional expert professions.... However, recent Superior Court decisions have applied the superior knowledge and expertise prong of Presidential MSH to persons who are members of non-traditional professions or who are not professionals at all. [83] He pointed to a case involving a franchisor-franchisee relationship, and another involving portfolio managers and investors. The categories are not closed. [84] [101] On the facts of this case, it is quite plausible, as the motion judge found, that some class members reasonably relied on the Bank’s misrepresentations that its overtime policies complied with federal labour law. The influence of this factor on individual class members is really a matter best left to individual assessment, as this court noted in the earlier certification decision. (b) Common law discoverability [102] The Bank’s second argument is that the question of whether a class member knew that a proceeding was an “appropriate means” to remedy unpaid overtime is only relevant to class members’ claims governed by statutes that include such discoverability language, that is, claims in Ontario, Saskatchewan, and Alberta. On that basis, a class-wide limitations order would be appropriate for all other claims. The Bank adds that this argument might also extend to claims in Ontario, Saskatchewan, and Alberta that predate the amendments adding discoverability language into the statutory text. [103] The Bank argues that the “appropriate means” criterion in s. 5(1)(a)(iv) of the Limitations Act is not an element of the common law discoverability rules, relying on 407 ETR Concession Company Limited v. Day and other cases. [85] We do not agree that common law discoverability rules could not be found to function in an equivalent manner. The ordinary development of the common law means that the categories are not closed. Whether this argument has traction is a matter to be decided on the individual assessments and not on a fact-free, class-wide basis. (c) Reversing the onus [104] The Bank also argues that the motion judge effectively reversed the burden of proof applicable to discoverability. Once it had proven that the claimants were aware of their claims, the Bank argues that “the burden was on the plaintiff to establish that there was a basis to delay the running of the limitations period.” [105] We would not give effect to this argument. Having moved for summary judgment, the onus was on the Bank to establish that it was so entitled. In any event, as we explain above, the respondent has established a sufficient basis to require the application of the limitations defence to be worked out on an individual basis. (5) The motion judge did not err in refusing to address the purported extra-provincial reach of s. 28 of the Class Proceedings Act [106] This class proceeding has a national reach, with class members across the provinces. The Bank argues that because limitation periods affect the substantive rights of plaintiffs and defendants, they fall squarely within provincial power over “property and civil rights” under s. 92(13) of the Constitution Act, 1867 . Accordingly, because Ontario may not legislate extra-territorially with respect to substantive rights, s. 28(1) of the Act – which suspends the running of limitation periods in favour of class members – should not serve to suspend the limitation periods applicable under local legislation to claims of class members who reside outside of Ontario. [107] The motion judge declined to consider this constitutional argument, on the basis that ruling on the extra-territorial applicability of s. 28 would be premature. He stated: The defendant bank has asked that I rule on the s. 28(1) extra-provincial question even if I dismiss its request for a class-wide limitations order because this constitutional question may arise again at the individual hearings stage. I decline to do so. This litigation may never reach an individual hearings stage. The constitutional question is premature. [86] [108] The Bank asks this court to consider this constitutional question on the basis that it must be resolved for all claims governed by non-Ontario law. It asserts that rendering a decision on a class-wide basis would preserve judicial economy, efficiency, and consistency in results. [109] We decline to decide this issue in the absence of a lower court decision and in the absence of a better evidentiary landscape. We agree with the motion judge that the issue is premature, and we therefore also decline to remit the matter back to him for resolution. Courts should not decide constitutional questions unnecessarily. [87] D. Disposition [110] We would dismiss the appeal with costs payable to the respondent. If the parties are unable to agree on costs, then the respondent may file a written submission no more than three pages in length within ten days of the date of the release of these reasons; the appellant may file a written submission no more than three pages in length within ten days of the date the respondent’s submission is due; and the respondent may file a reply submission no more than one page in length within five days of the date the appellant’s submission is due. Released: February 9, 2022 “P.L.” “P. Lauwers J.A.” “L. Sossin J.A.” “I agree. Harvison Young J.A.” [1] Canada Labour Code , R.S.C. 1985, c. L-2. [2] Fresco v. Canadian Imperial Bank of Commerce , 2012 ONCA 444, 111 O.R. (3d) 501, leave to appeal refused, [2012] S.C.C.A. No. 379 (“ Fresco (ONCA)”). [3] Fresco v. Canadian Imperial Bank of Commerce , 2020 ONSC 75, 63 C.C.E.L. (4th) 60 (“ Fresco Liability Decision”). [4] Fresco v. Canadian Imperial Bank of Commerce , 2020 ONSC 4288, 66 C.C.E.L. (4th) 244 (“ Fresco Damages Decision”). [5] Fresco v. Canadian Imperial Bank of Commerce , 2020 ONSC 6098 (“ Fresco Limitations Decision”). [6] Canada Labour Standards Regulations , C.R.C. 1978, c. 986 (the “Regulations”). [7] Fresco Liability Decision , at para. 16. [8] Machtinger v. HOJ Industries , [1992] 1 S.C.R. 986, at p. 1003. [9] Fresco Liability Decision , at para. 17 (footnotes omitted). [10] Fresco Liability Decision , at para. 24 (emphasis added). [11] See Sattva Capital Corp. v. Creston Moly Corp. , 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 55. [12] Cooper Tool Group Ltd. v. U.S.W.A., Local 6497 (1975), 10 L.A.C. (2d) 407 (Ont. Arb. Bd.), at p. 410, cited in Lafarge Canada Inc. Construction Materials v. CMSG , [2000] C.L.A.D. No. 376 at para. 15, and Koscis Transport Ltd. and Chabaylo (Re) , [2003] C.L.A.D. No. 519, arbitral decisions on which the Bank also relies, among others. [13] Fresco v. Canadian Imperial Bank of Commerce , 2010 ONSC 4724, 323 D.L.R. (4th) 376 (Div. Ct.), at para. 171, per Sachs J. (dissenting), rev’d Fresco (ONCA). Sachs J. cites the cases T-Line Services Ltd. v. Morin , [1997] C.L.A.D. No. 422; RSB Logistic Inc. v. Hale , [1999] C.L.A.D. No. 548; and Kindersley Transport Ltd. v. Semchyshen , [2002] C.L.A.D. No. 4. [14] Fresco Liability Decision , at para. 39 (emphasis added). [15] Fulawka v. Bank of Nova Scotia , 2010 ONSC 1148, 101 O.R. (3d) 93 (“ Fulawka (ONSC)”). This decision concerned the initial motion underlying the parallel certification case of Fulawka v. Bank of Nova Scotia , 2012 ONCA 443, 111 O.R. (3d) 346, leave to appeal refused, [2012] S.C.C.A. No. 326 (“ Fulawka (ONCA)”). [16] Fulawka (ONSC), at para. 78 (emphasis added). [17] Fresco Liability Decision , at para. 9 (footnotes omitted). [18] Fresco (ONCA) , at para. 73. [19] Fresco (ONCA) , at para. 84. [20] Fresco (ONCA) , at para. 103. [21] Fresco (ONCA) , at para. 104. [22] Cavanaugh v. Grenville Christian College , 2021 ONCA 755, 72 E.T.R. (4th) 28. [23] Cavanaugh , at para. 78. [24] Fresco Liability Decision , at para. 92 (footnotes omitted). [25] Insurance Corp. of British Columbia and COPE Local 378 (Unpaid Overtime Claim), Re , [2012] B.C.W.L.D. 7745, at para. 31. [26] Fresco Liability Decision , at para. 62. [27] Baroch v. Canada Cartage , 2015 ONSC 40, 66 C.P.C. (7th) 72, at para. 37. [28] Fresco Liability Decision , at paras. 71, 84. This is a critical instance in which the Bank’s complaints about the motion judge’s treatment of the evidence simply do not bear close scrutiny. [29] Insurance Corp. of British Columbia , at para. 31. [30] Insurance Corp. of British Columbia , at para. 54. [31] Fresco Liability Decision , at paras. 54-55 (emphasis added; footnote omitted). [32] The Bank takes issue with the motion judge’s treatment of this evidence. The Bank points out that at paras. 57 and 58 of the liability reasons, the motion judge appears to cite passages from two different compliance monitoring documents. In fact, both quoted passages are from the same document. The inference the Bank invites us to draw, based on the presentation of this evidence in the respondent’s written submissions, is that the motion judge merely relied upon the respondent’s factum instead of engaging with the record, because he referred in para. 58 to “ a Compliance Monitoring Report” rather than “ the Compliance Monitoring Report”, to which he had referred in para. 57. We decline to draw this inference. The document clearly states that “time worked is not recorded except for the purpose of payment of overtime for salaried employees or other purpose”. The motion judge made appropriate use of this evidence in concluding that actual hours worked were not being systematically tracked for non-salaried employees. [33] Fresco (ONCA) , at para. 109. [34] Fulawka (ONCA) , at para. 137. [35] Fulawka (ONCA) , at para. 139. [36] Fresco Damages Decision, at para. 45 (emphasis in original). [37] Fresco Damages Decision, at para. 52. [38] Shah v. LG Chem Ltd ., 2018 ONCA 819, 142 O.R. (3d) 721, at para. 104, leave to appeal refused, [2018] S.C.C.A. No. 520, citing Markson v. MBNA Canada Bank , 2007 ONCA 334, 85 O.R. (3d) 321, leave to appeal refused, [2007] S.C.C.A. No. 346. [39] Pro-Sys Consultants Ltd. v. Microsoft Corporation , 2013 SCC 57, [2013] 3 S.C.R. 477. [40] Pro-Sys , at para. 118. [41] Atlantic Lottery Corp. Inc. v. Babstock , 2020 SCC 19, 447 D.L.R. (4th) 543, at para. 157. [42] Pro-Sys , at para. 118. [43] Pro-Sys , at para. 126. [44] Pro-Sys , at para. 134. [45] Fresco Damages Decision, at para. 33. [46] Fresco Damages Decision, at para. 35. [47] Fresco Damages Decision, at para. 38. [48] Fresco Damages Decision, at para. 39. [49] Fresco Damages Decision, at para. 47. [50] Fresco Damages Decision, at para. 39 (emphasis in original). [51] Fresco Damages Decision, at para. 44. [52] Fresco Damages Decision, at para. 27 (emphasis added). [53] Vezina v. Loblaw Companies Ltd . (2005), 17 C.P.C. (6th) 307 (Ont. S.C.), at para. 25. [54] Fresco Damages Decision, at footnote 26. [55] Danyluk v. Ainsworth Technologies Inc . , 2001 SCC 44, [2001] 2 S.C.R. 460, at para. 25. [56] Danyluk , at para. 18. [57] Danyluk , at para. 33. [58] The Catalyst Capital Group Inc. v. VimpelCom Ltd ., 2019 ONCA 354 , 145 O.R. (3d) 759 , leave to appeal refused, [2019] S.C.C.A. No. 284. [59] The Catalyst Capital Group , at para. 63. [60] British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1, at para. 32. [61] Danyluk , at para. 63. [62] Danyluk , at para. 67. [63] Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), leave to appeal refused, [2000] S.C.C.A. No. 168. [64] Schweneke , at para. 38. [65] Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company) , 2021 ONCA 141, 457 D.L.R. (4th) 530, at paras. 36-37. [66] Catalyst Capital , at para. 24. [67] Fresco Damages Decision, at para. 24, citing Pro-Sys , at para. 134. [68] Pro-Sys , at para. 134 (emphasis added). [69] See R. v. Henry , 2005 SCC 76, [2005] 3 S.C.R. 609, at paras. 53-57. [70] Fresco Damages Decision, at para. 36. [71] Fresco Damages Decision, at paras. 21, 51. [72] Fresco (ONCA), at para. 108. [73] Limitations Act, 2002 , S.O. 2002, c. 24, Sched. B. [74] Fresco Limitations Decision, at para. 24 (emphasis in original). [75] Fresco Limitations Decision, at para. 25. [76] Fresco Limitations Decision, at para. 31. [77] Fresco Limitations Decision, at para. 33. [78] Fresco Limitations Decision, at para. 33. [79] Fresco Limitations Decision, at para. 3. [80] Fresco Limitations Decision, at para. 52 (emphasis in original). [81] Presley v. Van Dusen , 2019 ONCA 66, 144 O.R. (3d) 305. [82] Presley , at para. 18, quoting Presidential MSH Corp. v. Marr Foster & Co. LLP , 2017 ONCA 325, 135 O.R.(3d) 321, at para. 26. [83] Presley , at para. 22 (internal citations omitted). [84] This is especially true since, as this court stated in Nasr Hospitality Services Inc. v. Intact Insurance , 2018 ONCA 725, 142 O.R. (3d) 561, at para. 51, “ Presidential MSH does not purport to offer an exhaustive list of circumstances in which a proceeding might not be an appropriate means”. [85] 407 ETR Concession Company Limited v. Day , 2016 ONCA 709, 133 O.R. (3d) 762, at para. 33, leave to appeal refused, [2016] S.C.C.A. No. 509. See Gillham v. Lake of Bays (Township) , 2018 ONCA 667, 425 D.L.R. (4th) 178, at para. 35, and generally Peixeiro v. Haberman , [1997] 3 S.C.R. 549, at paras. 36-37 and Pioneer Corp. v. Godfrey , 2019 SCC 42, 37 D.L.R. (4th) 383, at para. 32. [86] Fresco Limitations Decision, at para. 23. [87] See R. v. Drury , 2020 ONCA 502, 391 C.C.C. (3d) 18, at para. 84, citing Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) , [1995] 2 S.C.R. 97, and Ontario Deputy Judges Assn. v. Ontario (2006), 80 O.R. (3d) 481, at para. 40.

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Beran, 2022 ONCA 116 DATE: 20220210 DOCKET: C69798 Miller, Trotter and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Marcin Beran Appellant Marcin Beran, acting in person Jacob Millns, for the respondent Heard: February 7, 2022 by video conference On appeal from the sentence imposed on July 15, 2021 by Justice Kathryn L Hawke of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant advanced two grounds of appeal of his sentence for firearms related offences: (1) that the sentence is overly harsh and oppressive, and (2) the sentencing judge did not take into account the onerous conditions of incarceration the appellant has experienced as a result of the frequent lockdowns imposed to combat the spread of Covid in institutional settings. [2] With respect to the first ground, we do not agree that the sentencing judge made any errors of principle or misapprehended any material facts. The sentence imposed was not significantly higher than that proposed by the defence at trial. It was well within the available range. We do not agree with the submission that the fact there was no evidence the gun was used as part of a drug dealing enterprise renders the sentence unfit. [3] The application of a Duncan credit is a discretionary matter, and there is no basis on which we would interfere with the sentencing judge’s exercise of discretion. She referenced all the relevant principles and clearly and sympathetically recounted the appellant’s evidence of the harsh conditions that he has (and has continued) to experience. The sentencing judge factored these harsh conditions into the sentencing process as a mitigating factor, as she was required to do. She was not required to do anything further, such as provide a mathematical calculation of a sentencing credit. This ground of appeal must fail as well. DISPOSITION [4] Leave to appeal sentence is granted, and the appeal of sentence is dismissed. “B.W. Miller J.A.” “Gary Trotter J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Janeiro, 2022 ONCA 118 DATE: 20220210 DOCKET: C68712 Paciocco, Nordheimer and Sossin JJ.A. BETWEEN Her Majesty the Queen Respondent and Kevin Janeiro Appellant Colleen McKeown, for the appellant Kristen Pollock, for the respondent Heard: January 11, 2022 by video conference On appeal from the convictions entered on February 11, 2020 by Justice Enno J. Meijers of the Ontario Court of Justice. Paciocco J.A.: OVERVIEW [1] Mr. Janeiro appeals his convictions on charges related to the robbery of a donut shop in Bradford, Ontario. For the reasons that follow, I am persuaded that his convictions are unreasonable, and that the trial judge materially misapprehended the evidence with respect to the identity of the robber. I would therefore set aside Mr. Janeiro’s convictions and substitute verdicts of acquittal. [2] I would also have allowed the appeal of the trial judge’s rejection of Mr. Janeiro’s “lost evidence” Charter application. MATERIAL FACTS [3] On November 7, 2011, shortly before 12:42 a.m. when officers from the South Simcoe Police Service were dispatched to the scene, a Country Style donut shop located at 396 Holland Street West in Bradford, was robbed by a person wearing a ski mask or balaclava and who brandished what the donut shop clerk believed to be a firearm. The clerk was the sole donut shop employee working, and the sole person in the donut shop during the robbery. The robbery was captured on video by a security camera inside the premises (the “security video”). Despite the security video and the description provided by the clerk, the robber could not be identified. [4] During the investigation, forensic evidence that may have been linked to the robber was discovered, consisting of: (1) five unknown fingerprints suitable for comparison on a white plastic “kitchen” garbage bag the robber left on the counter near the cash register; (2) DNA from saliva found over two hours after the robbery approximately 60 metres from the donut shop on the sidewalk in front of the China Garden Restaurant, located at 382 Holland Street West; and (3) DNA from what appeared to be fresh vomit found in a black ski mask (the “balaclava”) that was found in the parking lot of the Bradford District High School at 70 Professor Day Drive, located kitty-corner from the donut shop some 260 metres away. [5] Despite the collection of all of this evidence, it did not immediately lead to the identification of a suspect and the case went “cold,” but it was not closed. [6] In January 2017, more than five years after the robbery, Mr. Janeiro was convicted of a criminal offence, which required him to provide a DNA sample for deposit with the National DNA data bank. On April 12, 2017, a routine computer search conducted by the RCMP Information Centre using Mr. Janeiro’s DNA profile identified a “hit” relative to the saliva sample that had been found in front of the China Garden. The Royal Canadian Mounted Police Information Centre notified the Centre of Forensic Sciences (“CFS”), who notified the South Simcoe Police Service on April 13, 2017. Although there was no evidence linking the saliva to the robbery other than its general proximity to the donut shop and its discovery approximately two hours after the robbery, this made Mr. Janeiro a suspect. He would have been 18 years of age at the time of the robbery. [7] Mr. Janeiro’s DNA proved not to be consistent with the DNA found on the balaclava, but in the opinion of a fingerprint examiner, one of the five fingerprints suitable for comparison from the garbage bag was made by Mr. Janeiro’s left thumb. [8] Mr. Janeiro was charged with robbery with a handgun, contrary to s. 344(1)(a) of the Criminal Code , R.S.C., 1985, c. C-46, and with having his face masked with intent to commit an indictable offence, contrary to s. 351(2) of the Criminal Code . He was tried before a judge of the Ontario Court of Justice. A blended Charter voir dire was conducted during the trial relating to the loss (described below) by the police of the security video depicting the robbery. At the trial, the only live issues were the identity of the robber, and whether the Crown could establish that the robber brandished a “firearm” as defined in s. 2 of the Criminal Code . I will describe the evidence that was presented. The Forensic Evidence [9] An Agreed Statement of Fact (“ASF”) describing the discovery of the three items of forensic evidence – the fingerprint, the saliva and the balaclava – was admitted at the outset of the trial. [10] A CFS DNA report that was appended to the ASF stated that the probability of a randomly selected individual unrelated to Mr. Janeiro coincidentally sharing the DNA profile of the saliva was estimated to be greater than one in one trillion. [11] The appended CFS report relating to the DNA from the balaclava confirmed that the DNA profiles from Mr. Janeiro and the balaclava were “from two different individuals”. [12] With respect to the fingerprints located on the garbage bag, the ASF confirmed that in the opinion of Cst. McCallum, the identification officer who examined the bag, there were “five distinct areas of ‘friction ridge impression detail’ (unknown fingerprints) that were suitable for comparison to known ‘friction ridge impressions’ (known fingerprints)”. Paragraph 9 of the AFS recorded that Cst. McCallum “compared one impression found on the bag to known impressions (fingerprints) that were taken from Mr. Janeiro on April 21, 2016”. Paragraph 10 stated that on September 1, 2017, Cst. McCallum concluded that the “impression #R5 was made by the left thumb of [Mr. Janeiro]”. The Testimony of the Clerk [13] The clerk, the sole eyewitness to the robbery, testified on December 2, 2019, slightly more than eight years after the robbery. She described being behind the counter at what she estimated to be 2:00 a.m. when she observed a person wearing a “ski mask” enter the store, pull out a gun and approach her. In cross‑examination she agreed that “for that night it was unusual for someone to be wearing a ski mask”, adding that, “it wasn’t cold enough to be wearing a ski mask”. She based that opinion on her observation that she did not have to wear a jacket when stepping outside to smoke a cigarette. [14] The clerk testified that when she saw the robber, she felt panicked and was shaking but walked over to the cash register. Although she tried to stay as calm as possible, she had difficulties remembering the codes required to operate the cash register. The robber asked her several times, “do you want to play games” and pointed the gun at her head, including while holding the gun with two hands. [15] The robber had a white plastic bag and a grey plastic bag. The robber set the white bag on the counter. While pointing the gun with one hand, the robber removed the bills, “around sixty dollars”, from the cash drawer, which the clerk had placed on the counter on top of the white bag. The robber put the money in the grey bag and left. [16] During her testimony the clerk referred to the robber by using male pronouns. When asked why, she said, “it sounded like a male”. She also said he sounded young. [17] The clerk described the robber as wearing a brown hoodie with some “graffiti” on it and baggy pants. She said the hood of the hoodie was down, but the robber was wearing a black “ski mask” with two openings for the eyes. She could not recall if there was an opening for the mouth. The skin that could be seen through the eye holes of the “ski mask” was white, but she could not see hair colour. In her testimony, the clerk described the robber as “just a little bit taller” than her, and said she was 5 feet 2 inches. No description of the robber’s build was offered, and no other identifying features were noted. [18] When asked if the robber was wearing gloves, the clerk testified that she “originally … thought” he might have been wearing gloves but said, “I can’t really recall”. Although she expressed uncertainty on this point in the police statement that she provided shortly after the robbery, the clerk had told the police that she believed that the robber “must have” been wearing “gloves” or “regular mittens”, and that she thought she remembered seeing them. She was shown her statement to refresh her memory as to whether the robber in fact wore gloves, but it did not assist her. She was not asked to adopt the statements she had made to the police. [19] In the following exchange, the clerk offered testimony relating to the balaclava the robber was wearing, which she called a “ski mask”: Q.      Okay. Do you recall a few days after this happening an officer showing you a photo of a mask? A.      I do remember and I remember telling him that it was not the mask. Q.      Okay. The Court:   I’m sorry. A.      I do remember. I just don’t, I remember telling him that it wasn’t the mask. Q.      Do you remember what, what the mask looked like in the photo? A.      It was, it was a different type of style. That’s all I can really remember right now. Q.      Okay. So, you don’t remember what made it different? A.      I think that it had … No. It just, it was a different style altogether. [20] Mr. Janeiro’s trial counsel returned to this line of questioning in cross‑examination: Q.      And I’m going to suggest to you that at the time what you told the officer was actually that you weren’t sure if it was the same mask. Does that sound right? A.      More than likely. Q.      And that, further, that you had thought that there was no mouth hole on the mask the person was wearing but that you weren’t sure? A.      Correct. [21] PC Fawcett, who had been assigned as the Officer in Charge (“OIC”) of the investigation, testified that on December 6, 2011, he showed the clerk “pictures of the ski mask that was seized”. He then described the “photo” that he showed her as “a photo of the, of the ski mask that our scenes of crime officer took”. He continued, “I believe it was the so, a photo from where it was seized from”. The photos of the balaclava taken “from where it was seized” show the balaclava laying on the ground, crumpled, as it was found. None of those photographs are close up photos of the balaclava that clearly depict its features. [22] The balaclava that was seized was not shown to the clerk but was made an exhibit at the trial through PC Fawcett. With the exhibit in hand he described the balaclava as black, with “two eyelets” and a “mouth hole lid”. The Security Video [23] The security video that captured the robbery on DVD was filmed by a ceiling mounted security camera in the donut shop. The camera was pointed towards the public doors at the front of the donut shop and provided a view of customers as they approached the counter. The security video was seized and viewed by four police officers of the Criminal Investigation Bureau (“CIB”) as part of the investigation. By the time of trial, the security video had gone missing. [24] At the outset of the trial, Mr. Janeiro brought a “lost evidence” Charter challenge claiming that the loss of the security video violated his ss. 7 and 11(d) rights guaranteed by the Canadian Charter of Rights and Freedoms . He requested that this breach be remedied by a stay of the proceedings. As indicated, the evidence relevant to this Charter motion was heard during the trial as part of a blended voir dire . [25] Evidence presented during the blended voir dire confirmed that on December 5, 2011, the security video came into the possession of the OIC, PC Fawcett, then of the CIB. PC Fawcett never made a copy of the security video, although he said that the practice for logging digital evidence had since changed and that at the time of his testimony digital evidence would be uploaded on a server. PC Fawcett kept the security video in a file folder along with photographs in a locked drawer that belonged to him in the criminal investigation office. The security video remained there after the donut shop robbery investigation was designated as “inactive pending further” due to the absence of new leads in the summer of 2012. [26] PC Fawcett testified that when he was transferred to the “uniform branch” three years later, in 2015, he secured permission to store multiple videos in his possession in a cabinet in a CIB office where case files were placed by officers who transfer from the unit. He labelled the security video with the occurrence number for the donut shop robbery and then placed it in an unlabelled brown evidence bag, along with multiple other unrelated videos. He then placed the unmarked evidence bag containing these congregated videos in a cabinet in the CIB office, accessible to CIB personnel. The key to the cabinet lock was kept in the lock itself, and the cabinet was not otherwise kept locked. [27] PC Fawcett testified that although there is a locked property room where evidence is logged by identification officers, and it was “procedure” to store evidence there, he had never seen the locked property room used to store digital evidence, and that there was “no procedure with regards to digital evidence”. He explained, “when I think of a property room, I think of, I don’t know, stolen items recovered or drugs and that sort of thing would go in a property room”. [28] PC Fawcett also provided evidence that he had viewed the security video on one occasion but took no notes of his observations. His testimony reflected no meaningful recollection of the details of the security video. He explained that “it was eight years ago”. He said that he did not recall observing a firearm, or whether the robber wore gloves, and believed that the video was in colour but was unsure of this. [29] In 2017, after the donut shop robbery investigation was reactivated following the DNA “hit” relating to Mr. Janeiro, DC Johnson was assigned as OIC. He looked unsuccessfully for the security video. He testified that he looked in the locked and controlled property room, noting that this is where he stores the surveillance videos that come into his possession. He also reached out to the “records department” to locate the security video without success. DC Johnson testified that an investigator might hold onto a video while working on it, but he would put the whole file in the property room if the investigation became inactive, commenting, “well, it’s kind of, everybody does it”. [30] DC Johnson contacted PC Fawcett to assist him in his search and upon learning that the security video had been placed in a paper bag inside the CIB office, DC Johnson recalled seeing a “paper bag that had a bunch of videos in it” in the CIB office. He said that all police officers, and not just CIB officers, would have had access to the CIB office, and that it contains multiple filing cabinets, some of which remain unlocked. He testified that the CIB office was not kept locked at the time, but it has since become practice to do so. He said he searched for the security video on multiple occasions but “didn’t find the bag”. [31] DC Johnson testified that he was unaware whether PC Fawcett had also personally searched the office to find the missing security video, but PC Fawcett testified that he did so on more than one occasion, without success. He even looked in old storage bins in the CIB office but never found the evidence bag of videos. [32] DC Johnson also testified that he had viewed the security video on November 9, 2011, with a view to determining whether “persons of interest” known to him may have been responsible for the robbery or could provide material information. He was particularly interested in checking clothing. He did not view the entire video but prepared a supplementary report of what he observed. He relied heavily on this supplementary report when testifying, stating that he did not remember the content of the video at the time of trial. He believed the video had been in colour because he noted colours in his report. In his testimony he referred only to a “white” horizontal stripe running down the robber’s pant leg, “from hip to toe”. He also testified that the video enabled him to see sufficient detail so that he could see that the robber’s finger was on the trigger of the “gun”. [33] DC Johnson recorded two additional observations relevant to this appeal. First, he inferred that the robber was left-hand dominant because the robber used his left hand when holding the gun with only one hand. He used his right hand when reaching into the till. [34] Second, DC Johnson observed that the robber appeared to be the approximate height of the bottom of a poster on a front door to the donut shop. After standing next to the poster, DC Johnson estimated that the robber was approximately 5 feet 9½ inches, his own height, or little bit taller or shorter when allowing for the camera angle. During cross-examination, he agreed that he could not be “confident in a sort of more precise height measurement” because the camera was not at eye level. Moreover, the public entrance had two sets of doors. DC Johnson testified that he could not recall whether the poster was on the inside doors or the outside doors. [35] Mr. Todd Ferrier, a retired police officer and a Sergeant at the time of the robbery, also testified to viewing the security video on a computer monitor at the donut shop the night of the robbery. He was interested in identifying areas of investigative interest. Specifically, he was looking for areas the robber touched, with a view to identifying fingerprints. [36] Retired Sgt. Ferrier testified that he did not have an “exact” memory of the contents of the video but had taken notes. In those notes he recorded the chronology of the very brief robbery, which he estimated lasted no more than two minutes. That chronology matched very closely the sequence of events that the clerk had described. [37] He also testified that the security camera captured the point of entry and the “cash”. He noted that the robber had not touched the counter but had touched the door handle upon leaving. He had not recorded a description of the robber but suggested that the robber would not have been wearing gloves. This suggestion was not based on memory or a recorded direct observation, but on extrapolation. Retired Sgt. Ferrier inferred that this must be the case, otherwise there would have been no point in his own efforts to identify locations the robber had touched. [38] PC Dietrich testified that he watched the video at the donut shop with then Sgt. Ferrier. He testified that the video was in colour, but “definitely was not high definition”. While attempting to get the most accurate description of the robber possible, he made notes of the description of the robber that he “saw” on the video. He recorded, “male, black handgun, black sweater, gloves”. He said he described the perpetrator as a man because that is how it was described in the dispatch, but he agreed that he did not make an independent assessment of the robber’s gender based on his observations of the video itself. He also testified that he could not offer a description of the height of the robber from the video. Mr. Janeiro’s Testimony [39] Mr. Janeiro testified in his own defence. He denied being the robber. He also denied having access to firearms or fake guns. In the course of his evidence, he said he was approximately 5 feet 7 inches and left-handed. [40] Mr. Janeiro testified that at the time of the robbery he lived a 30 second walk from the donut shop and worked at a Sobeys grocery store, also a 30 second walk from his place of residence. He had no specific recollection of where he was the night of the robbery, and when asked if he could recall walking by any place that was closed off by police tape he said “I think I might have. But I guess it’s a really long time ago. So, I don’t even remember any place actually to be honest”. [41] During cross-examination, the Crown explored the “coincidence” that Mr. Janeiro’s saliva would be on the sidewalk in front of the China Garden on the same night the robbery occurred and where his fingerprint was identified on the bag left behind by the robber. When asked, “and were you in the habit back in November of 2011 of going for walks at 12:30 at night”, Mr. Janeiro said, “I could say yes”. He continued, “I’m a teenager. We’re out at night”. He did not know what he would have been doing in front of the China Garden at that time, commenting that he could have been walking to get a slice of pizza, or meeting friends. He said he did not remember whether he was working the night of the robbery but agreed that if he was working that night, he would probably not have had to pass by the China Garden to get home. He said it would not be a “coincidence” for him to be “walking past the donut shop at 12:30 [at night]” because it was not uncommon for him to do so. He also testified that he smokes and has a habit of spitting. [42] In cross-examination, the Crown explored Mr. Janeiro’s familiarity with the donut shop. Mr. Janeiro testified that he was unsure of how many times he would have gone to the donut shop during his night shift at Sobeys, estimating maybe one or two or three times, although he had no specific recollection of it being “a regular thing”. He said he did not notice how many people were working at the donut shop at night but did not disagree with the Crown’s suggestion that at that time of night there would be a skeleton staff working. [43] When asked, “do you remember hearing about this incident at Country Style?” He said, “I don’t remember”. In response to follow up questions, he said he heard about it but does not remember when he did, commenting it was “so long ago”. [44] Mr. Janeiro testified that he did not know how his fingerprint ended up on a bag used in the robbery. When pressed for an explanation he said that perhaps he brought the bag to work and threw it out or disposed of it. He then said he recalled reading a statement from the clerk in an online news article, he is pretty sure after he heard about the robbery, in which she said that the robber was a “bum”, and he suggested that the “bum” may have searched through the trash and retrieved the bag. [45] When the Crown explored whether Mr. Janeiro would have been motivated to commit the robbery to get money for drugs, Mr. Janeiro admitted to using marijuana at the time but denied using hard drugs at that period in his life. The Decisions (1) The Reasons for Conviction [46] The trial judge convicted Mr. Janeiro of the included offence of robbery, contrary to s. 344(1)(b) of the Criminal Code , but not of the charged offence of robbery with a firearm. The trial judge had been left in reasonable doubt as to whether the robber had been armed with a real or imitation firearm. He also convicted Mr. Janeiro of having his face masked, contrary to s. 351(2) of the Criminal Code. [47] The trial judge’s Reasons for Judgment address both his reasons for convicting Mr. Janeiro, and for rejecting his “lost evidence” Charter application. [48] In finding Mr. Janeiro guilty, the trial judge concluded that the clerk was a “clear and strong witness” who provided a “clear, consistent and compelling” narrative. In contrast, he found Mr. Janeiro to be a “cagey” and unreliable witness who seemed to contrive explanations when pressed by the Crown. The trial judge did not believe Mr. Janeiro’s evidence, nor was he left in a reasonable doubt by it, and he was persuaded on the balance of the evidence that the Crown had established beyond a reasonable doubt that Mr. Janeiro was the robber. [49] In summarizing his conclusion as to Mr. Janeiro’s guilt, the trial judge said: The juxtaposition of all the circumstances, as related by the Crown, especially the fresh spit containing DNA that matches Mr. Janeiro’s profile in front of the restaurant, the scene of the robbery, and his fingerprint on the bag being placed on the counter by the robber, in my view lead inescapably to the conclusion beyond a reasonable doubt that Mr. Janeiro was the robber. [50] I will describe in more detail the trial judge’s reasons relating to the material evidence in the case. The Description of the Robber [51] Based on the testimony of the clerk, the trial judge found that the robber was a “white male”. The trial judge recounted DC Johnson’s conclusion that the robber was left hand dominant because he held the gun in his left hand, and he said DC Johnson “deduced that the robber’s height was about five-nine”. He noted that Mr. Janeiro testified that he was left-handed and “approximately five-seven”. And he recounted the Crown’s submission that the robber is “about [Mr. Janeiro’s] height” and “the robber appears to be left-handed, as is Mr. Janeiro”. [52] No mention was made of the clerk’s estimate that the robber was “just a little bit taller” than her height of 5 feet 2 inches. The Fingerprint Evidence [53] During the course of his reasoning, the trial judge referred to the fingerprint evidence. He said that the police “were able to retrieve an identifiable fingerprint” from the plastic bag that was left on the counter by the robber.” Shortly after, he said: The police also compared the Friction Ridge impression, or the fingerprint impression, detail from the fingerprint found on the bag at the scene , left by the perpetrator, and compared them with the known fingerprint sample from Mr. Janeiro. Constable McCallum concluded that the unknown print had been left by the left thumb of Mr. Janeiro. [Emphasis added.] [54] There was not, in fact, “an identifiable fingerprint” on the plastic bag. There were five of them. No mention was made by the trial judge of the four fingerprints that remained unidentified. [55] In the course of his Reasons for Judgment, the trial judge recounted that the clerk “thought” the robber “had gloves on, but she could not be certain about that”. He also recounted how then Sgt. Ferrier “surmised that the suspect was not gloved because he did note what the suspect did and did not touch”, and he recounted P.C. Dietrich’s evidence that based on the security video, he described the suspect as having gloves. The trial judge did not make any finding relating to whether the robber had been wearing gloves, saying, “whether or not the robber had gloves would not in my view change the relevance of the fingerprint on the bag”. The Saliva [56] The trial judge recounted the DNA evidence that demonstrated that Mr. Janeiro deposited the saliva that was found on the sidewalk in front of the China Garden. He also recounted the defence position that there is no evidence that the saliva was left before the robbery, or that it is connected to the robbery. [57] The trial judge expressed two reasons for rejecting the theory that the saliva may have been left after the robbery. First, he said that, had this occurred, one would expect Mr. Janeiro to have remembered walking by the police tape or the large police presence, even after the years that had passed, as the robbery was a major occurrence. He then said: Photos 16 and 22, of the agreed statement of fact, show the view inside the restaurant from the outside entrance facing Melrose Street. Photo 20 shows the view inside the Country Style restaurant from the sidewalk on Holland Street where the spit was found. A pretty compelling argument could be made that the robber was taking in the broader view available through the front window of the restaurant from Holland Street to be sure that the clerk was alone before going inside. In other words, casing the target. [58] In fact, as the Crown conceded during oral argument on appeal, photo 20 does not show the view inside the donut shop from where the spit was found. It shows the view into the donut shop from the sidewalk directly across from the donut shop. None of the photos show the view into the donut shop that one would have from where the saliva was found, but, as can be seen on the Google map image that was included in the ASF, the perspective from where the saliva was located to the front of the donut shop engages a much sharper angle and involves a greater viewing distance. Put simply, it is materially misleading to assess how opportune the view into the donut shop was from where the saliva was left, by looking at the view depicted in photo 20. The Balaclava [59] The trial judge recounted the discovery of the balaclava in the parking lot of a high school, located kitty-corner of the donut shop, approximately 260 metres away, and he noted that the DNA profile generated from a swab from the balaclava “did not match the profile from the sidewalk”. [60] He recounted that the clerk described the “ski mask” as having two eye holes. On three occasions, he stated that the police showed her the balaclava that was seized by the police from the high school, and that she said, “that it was not the same one as the robber wore”. In fact, that was not the evidence. As described above, PC Fawcett showed the clerk a photograph of the balaclava as it lay on the ground. The trial judge made no mention of the clerk’s testimony in cross‑examination in which she agreed with defence counsel that what she likely told the officer was that she could not say whether it was the balaclava the robber wore. [61] With respect to the balaclava that was put into evidence, the trial judge held that he was, “satisfied that that was the mask that [the clerk] testified about when she said it did not match the one that the robber wore”. (2) The Reasons for Rejecting the “Lost Evidence” Charter Motion [62] The trial judge recognized that the security video was “disclosable evidence” but denied Mr. Janeiro’s Charter application, finding that although better steps could have been taken, “the process [for storing the security video] described by PC Fawcett was reasonable in all of the circumstances”. He also found that the loss of the security video was not so prejudicial to Mr. Janeiro’s right to full answer and defence that its loss impaired his right to receive a fair trial. [63] In describing the steps that PC Fawcett took in storing the video in January 2015 as he was leaving the CIB, the trial judge said, “he took the video, as well as other evidence from other cases, put it in an evidence bag, labelled the occurrence number, and stored it in an evidence filing cabinet in the CIB office.” He repeated later in his reasons that he “kept the video in a labelled bag, in a filing cabinet where other such evidence was kept, in a detective office, in a police station.” In fact, when asked if the brown paper bag was labelled, PC Fawcett said, “No. It wasn’t”. Nor did PC Fawcett describe the cabinet he put the bag into as an “evidence filing cabinet”. He said that case files were kept by officers who transfer from the CIB in the cabinet in the Criminal Investigations Unit, where the key was left in the lock. [64] The trial judge understood that in assessing the reasonableness of the steps taken, he should consider the relevance of the evidence. He concluded that the security video was of “little help” on the issue of identity and said, “the video’s usefulness to what would have been at the crux of the case is in my view largely peripheral”. He explained: [The] sum total of what [the police] could glean with respect to identity from the video was not much at all. A male with a black sweater, an opinion he might be left hand dominant, and his approximate height. Specifically, they could not tell from the video weight, skin colour, or eye colour, or hair colour, or appearance of the face. [65] The trial judge recognized that the security video may have shed light on the details of the balaclava, enabling the clerk’s evidence to be challenged, but concluded that “we do not know”, and “given the forensic evidence that is before the court, the balaclava is in my view a bit of a side issue”. As for the suggestion that the video might clarify whether the robber was wearing gloves, “whether or not the robber had gloves would not in my view change the relevance of the fingerprint on the bag”. [66] He also found that “in any case, the video has been viewed by police officers who took notes and were available for cross-examination”. THE ISSUES [67] Mr. Janeiro appeals his convictions on three grounds. It is convenient to consider the first two grounds together. The issues on appeal can therefore be described as follows: A. Did the trial judge err by arriving at an unreasonable verdict and/or misapprehending evidence? B. Did the trial judge err in denying Mr. Janeiro’s “lost evidence” Charter application? [68] I would allow both grounds of appeal. A. Did the trial judge err by arriving at an unreasonable verdict and/Or misapprehending evidence? [69] I am persuaded that the verdicts arrived at by the trial judge are unreasonable, and that the trial judge materially misapprehended the evidence. The Legal Principles (1) Unreasonable Verdicts [70] A verdict will be unreasonable if it is one that a properly instructed trier of fact could not reasonably have rendered on the totality of the evidence: R. v. W.H. , 2013 SCC 22, [2013] 2 S.C.R. 180, at para. 26; R. v. Yebes , [1987] 2 S.C.R. 168, at para. 23; and see R. v. Biniaris , 2000 SCC 15, [2000] 1 S.C.R. 381. In assessing whether this is so, appellate courts must afford great deference to the trier of fact, including by paying due regard to the advantages the trier of fact had at trial: R. v. W.H. , at paras. 2, 27; Biniaris , at paras. 36-37. As Doherty J.A. explained in R. v. Mars , (2006) 205 C.C.C. (3d) 376 (Ont. C.A.) at para. 3: Where the reasonableness of the verdict is raised, the appellate court must review the entirety of the evidence using its accumulated training and experience to determine not whether the appellate court would have convicted the appellant, but whether a reasonable trier‑of-fact properly instructed and acting judicially could have convicted. [71] Guidance has been given on the application of this standard in cases that depend wholly or substantially on circumstantial evidence: R. v. Lights , 2020 ONCA 128, 149 O.R. (3d) 273, at para. 36. In R. v. Villaroman , 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55, Cromwell J. instructed: Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence. [72] The inquiry identified in Villaroman is helpful because it tests the reasonableness of the verdict bearing in mind the standard that is required to prove guilt beyond a reasonable doubt based on circumstantial evidence. As Doherty J.A. affirmed in Mars , at para. 4, “[w]hen assessing the reasonableness of a verdict, the appellate court must have regard to the burden of proof applicable in a criminal case”. A verdict will not be unreasonable on this standard if a trier of fact, acting judicially, could reasonably have been satisfied that the accused’s guilt is the only reasonable conclusion: R. v. Youssef , 2018 ONCA 16, 428 D.L.R. (4th) 612, at para. 4, aff’d 2018 SCC 49, [2018] 3 S.C.R. 259. [73] This is a case that turns wholly on circumstantial evidence. Apart from whether the Crown proved that the object observed by the clerk was a “firearm”, the sole contested issue at trial was whether the Crown had proved beyond a reasonable doubt that Mr. Janeiro was the robber, and there was no direct evidence on this key question. [74] Although the reasonableness of any conviction turns on the specific facts of the case, the decision in Mars is useful in considering the application of the unreasonable verdict test in a case that turns wholly or mainly on fingerprint evidence. In Mars , a conviction that depended on a fingerprint on a pizza box that had been used by robbers to entice the victims to open the door to their home was found to be unreasonable because the presence of the fingerprint alone was not evidence that the accused’s fingerprint came to be on the box in connection with the robbery. As Doherty J.A. explained, at para. 20: In this case, the fingerprint evidence clearly established that the appellant had touched the pizza box at some point in time. However, the probative value of the fingerprint evidence on the charges depended upon whether the entirety of the evidence reasonably permitted the inference that the appellant touched the pizza box in connection with the robbery and not at some other time and place. The fingerprint evidence standing alone did not permit any inference as to when the appellant’s fingerprint was placed on the pizza box. The reasonableness of the verdicts, therefore, turns on whether the inference that the appellant touched the pizza box in connection with the robbery could reasonably be drawn from the evidence other than the fingerprint evidence itself. [75] In R. v. D.D.T. , 2009 ONCA 918, [2009] O.J. No. 5486, at para. 15, Epstein J.A. suggested a “two-stage approach” in reviewing the reasonableness of verdicts that depend on fingerprint evidence in identifying the perpetrator: The first stage involves an examination of the reasonableness of the inference that the fingerprints were placed on the object with connection to the crime, at the relevant time and place. The second stage involves an examination of the soundness of the conclusion that the totality of the evidence and reasonable inferences available to the trial judge were sufficient to prove the appellant’s guilt beyond a reasonable doubt. (2) Misapprehensions of Evidence [76] A trial judge may misapprehend evidence by a failure to consider evidence relevant to a material issue in the case, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence: R. v. Morrissey , (1995) 22 O.R. (3d) 514 (Ont. C.A.), at p. 538. If such errors do not constitute errors of law, which they generally do not, a misapprehension of evidence will not alone ground a successful appeal unless “those errors play an essential part in the reasoning process resulting in a conviction”: Morrissey at p. 541 quoted in R. v. Lohrer , 2004 SCC 90, [2004] 3 S.C.R. 732 at paras. 1, 2. If misapprehensions of evidence were essential to the verdict, the verdict is not true, the trial has been unfair, and a miscarriage of justice will have occurred: Morrissey , at p. 541. This is a stringent standard that does not apply to peripheral reasoning, but to material errors that go beyond the narrative of the judgment: Lohrer , at para. 4. [77] In Morrissey , at p. 540-41, Doherty J.A. described the relationship between misapprehensions of evidence and an unreasonable verdict. Simply put, a verdict can be unreasonable without a misapprehension of evidence, and misapprehensions of evidence will not, on their own, render a verdict unreasonable. That said, “a finding that the trial judge did misapprehend the evidence can … figure prominently in an argument that the resulting verdict was unreasonable”: Morrissey , at p. 540-41. [78] Although an unreasonableness decision can be informed by misapprehensions of evidence, an appeal court should resolve whether the verdict is unreasonable before considering whether a misapprehension of justice has, on its own, constituted a miscarriage of justice: Morrissey , at p. 540. The Convictions Were Unreasonable [79] No issue can be taken with the trial judge’s decision to reject Mr. Janeiro’s testimony. He was entitled to do so. The issue in this case is whether a trial judge could reasonably convict based on the remaining evidence. [80] I will begin with the eyewitness testimony. The clerk’s testimony supported a reasonable inference that the robber was a young male, based on her testimony that the robber’s voice sounded young and male. It also supported the inference that the robber was white, from her observation into the balaclava’s eye holes. She also estimated the robber’s height as slightly over 5 feet 2 inches. Beyond this, her testimony did not contribute any further evidence identifying the robber. [81] The only other direct testimony capable of providing evidence relevant to the robber’s identity was offered by DC Johnson, consisting of what the trial judge called DC Johnson’s “opinion” that the robber “might be left hand dominant”, arising from the hand he held the gun with, and DC Johnson’s height estimate of approximately 5 feet 9 ½ inches, which was derived from an imperfect experiment using a poster in the donut shop. [82] Assuming that a trier of fact might reasonably disregard the clerk’s height estimate, which was materially inconsistent with Mr. Janeiro being the perpetrator, and accept DC Johnson’s height estimate, the most that could be said from the eyewitness evidence is that both Mr. Janeiro and the robber are white, young, males, possibly around the same height, and that the robber may have been left handed, as Mr. Janeiro is. [83] Those similarities, of course, remain generic. Mr. Janeiro cannot be ruled out as the perpetrator if the clerk’s height estimate is disregarded, but the eyewitness description evidence contributes little in identifying him as the robber. As the trial judge observed in his decision, the “essential issue” of “identity” is largely informed by the scientific evidence, namely the fingerprint evidence and the DNA evidence. Because the DNA evidence obtained from the balaclava was not inculpatory, the reasonableness of the conviction comes down to the fingerprint evidence and the DNA evidence obtained from the saliva located on the sidewalk. I will address each item of forensic evidence, in turn. [84] The Mars case illustrates the challenges the fingerprint evidence poses. The fingerprint on the plastic bag used by the robber proved that Mr. Janeiro touched the bag, but it is incapable, on its own, of proving that he touched the bag in connection with the robbery. This is not a case where there is circumstantial evidence showing that this forensic evidence was deposited during the event, such as in R. v. Samuels , 2009 ONCA 719, where a fingerprint on a motor vehicle was in the same location the perpetrator was seen to touch it, and bore indications of direction and movement consistent with the manner in which the perpetrator was seen to touch the vehicle. To the contrary, there is evidence creating doubt about whether the print was deposited on the bag during the robbery. [85] First, although the trial judge only referred to the one matching fingerprint in his Reasons for Judgment, there were in fact five fingerprints on the bag that were suitable for comparison. Only one fingerprint was linked by evidence to Mr. Janeiro. As the Crown fairly conceded during oral argument on appeal, the evidence does not eliminate the possibility that those other prints on the bag could belong to one or more other individuals who also touched the bag. [86] Second, there was evidence from Cst. Dietrich that the robber was wearing gloves, a conflicting inference from retired Sgt. Ferrier derived from his own conduct that the robber must not have had gloves on, and testimony from the clerk that she believed he had gloves on but could not remember for certain. This conflict in the evidence is material because if the robber was wearing gloves, the prospect that the robber’s fingerprints were placed on the bag during the robbery is reduced, if not eliminated. I therefore disagree with the trial judge’s conclusion that “whether or not the robber had gloves would not in my view change the relevance of the fingerprint on the bag”. But I leave my disagreement with the trial judge’s reasoning aside in evaluating the reasonableness of the verdicts. The instant point is that the prospect that the robber may have been wearing gloves reinforces the possibility that the fingerprint attributable to Mr. Janeiro is not linked to the robbery. [87] The Crown seeks to overcome the Mars problem – the absence of evidence that the fingerprint is linked to the robbery – by arguing that there is an additional piece of evidence linking Mr. Janeiro to the offence – namely, the DNA evidence obtained from the saliva. [88] I do not dispute that additional evidence can overcome the Mars problem. In Youssef , for example, Mr. Youssef’s DNA found on a knife left behind by the perpetrator could not alone link Mr. Youssef to the crime, but that deficit was overcome when additional DNA from Mr. Youssef was found on a t-shirt in the getaway car. Similarly, in R. v. Wills , 2014 ONCA 178, 308 C.C.C. (3d) 109, aff’d 2014 SCC 73, [2014] 3 S.C.R. 612, Mr. Wills’ DNA was found on a bandana left at the scene, another bandana on the ground on the flight path the perpetrators took, and he was later found in possession of a weapon similar in appearance to the description of the weapon used in the crime – a police baton. [89] The problem with the Crown’s attempt to use the DNA saliva evidence to accomplish a similar outcome in this case is that, unlike in Youssef and Wills , there is no evidence linking the additional evidence – the saliva on the sidewalk – to the robbery. This is not a case where the DNA was extracted from the crime scene or a known flight path, nor was it on an object or vehicle linked to the crime scene. The saliva was found approximately two hours after the robbery approximately 60 metres away from the donut shop on a public sidewalk where Mr. Janeiro could reasonably be expected to have been. Nobody observed the robber in that location either before or after the robbery. Put simply, the DNA put Mr. Janeiro on a public sidewalk in front of a business within metres of his home and his place of employment at some point in time on the evening or night of the robbery. It did not put him at the robbery or otherwise connect him to the robbery. [90] There are problems with the trial judge’s decision that inform the reasonableness inquiry as they explain why the reasoning that he relied upon cannot overcome the unreasonable verdict challenge. [91] First, the trial judge appears to have rejected defence counsel’s submission that Mr. Janeiro could have deposited the saliva while innocently on the sidewalk after the robbery, primarily on the basis that Mr. Janeiro did not recall seeing police tape or police activity at the donut shop, something he would have remembered four years later had he been there. Even if the reasonableness of this arguably questionable inference is left unchallenged, it does not address whether Mr. Janeiro innocently deposited the saliva prior to the robbery or while it was occurring, possibilities that cannot be ruled out or diminished on the evidence. [92] Second, the trial judge attempted to draw the link between the saliva and the robbery based on the “pretty compelling argument … that the robber was taking in the broader view available through the front window of the restaurant from Holland Street to be sure that the clerk was alone before going inside. In other words, casing the target.” As I have described, the trial judge based this inference on the view inside the donut shop depicted in photo 20. In fact, photo 20 did not show the view from where the saliva was located. Photo 20 was taken from outside the donut shop itself, with a vantage point that was directly across from donut shop. In contrast, the view into the window from where the saliva was deposited was on a materially sharper angle. Although the distance between the location where photo 20 was taken and the location where the saliva was found was not measured, it is evident from the Google map image that was included in the ASF that the photographer was much closer to the donut shop when photo 20 was taken than they would have been if photo 20 had been taken from where the saliva was found. Put simply, the angle and distance between where the saliva was deposited and the donut shop materially weaken any suggestion that the robber would have chosen that location to “case” the donut shop. [93] In any event, even leaving aside the distorting impression that using the wrong photo would have produced for the trial judge, the inference that the robber stood on the sidewalk before the robbery to “case the target” was entirely speculative in the absence of supporting evidence, such as evidence that prior to the robbery someone was seen or filmed standing there, or evidence indicating that this was an unusual location to be and provides a hidden, opportune vantage point. [94] The Crown seeks to overcome the absence of a connection between the DNA from the saliva and the robbery by emphasizing the unlikelihood of coincidence that Mr. Janeiro’s DNA would be found in saliva approximately 60 metres from the scene of a robbery in which Mr. Janeiro’s fingerprint was located on a plastic bag used by the robber. The flaw in this reasoning is significant. As indicated, there is absolutely no evidence that this saliva is linked to the robber, or the robbery, and no evidence that diminishes the realistic prospect that Mr. Janeiro, an 18-year old who lived and worked in close proximity to where the saliva was located, could have innocently been in that location when he spit. If the saliva cannot be linked to the robbery, it cannot stand as evidence that Mr. Janeiro was the robber. Moreover, it is entirely circular to rely on Mr. Janeiro’s fingerprint to infer that the saliva must have been connected to the robbery, only to then infer from the saliva that the fingerprint must itself have been connected to the robbery, as opposed to having been placed on the bag on a prior occasion unconnected to the robbery. [95] Finally, the eyewitness description evidence is not discriminating enough to support a reasonable inference that Mr. Janeiro’s fingerprint came to be on the plastic bag in connection with the robbery. As I have pointed out in paras. 82-83 above, the eyewitness description evidence lacks the kind of detail that could meaningfully link Mr. Janeiro to the robbery. [96] In my view, the verdicts, both of which depended on the presentation of sufficient identification evidence to establish Mr. Janeiro’s identity as the robber beyond a reasonable doubt, were therefore unreasonable. Having laid out the details and having pointed out the limitations of the evidence, I can explain in summary form why the verdict is unreasonable. Simply put, I am persuaded that it would not be reasonable for a trier of fact to be satisfied that the accused’s guilt is the only reasonable conclusion that arises in this case, where the accused’s fingerprint is identified along with four unidentified fingerprints as having been placed at some unknown time on a plastic bag used in the robbery; where the description of the robber is limited, indistinct and generic; where there is absolutely no other evidence linking the accused to the robbery; and where it is not suspicious for the accused to have possibly been present in the neighbourhood of the robbery around the time it occurred. [97] I would set aside the convictions as unreasonable and substitute verdicts of acquittal. There Were Material Misapprehensions of the Evidence [98] In explaining that the verdict is unreasonable, I have already described instances where the trial judge materially misapprehended the evidence. I will review them here. [99] With respect to the fingerprint evidence, the trial judge said that the police “were able to retrieve an identifiable fingerprint” from the bag. That is incorrect. There were five identifiable fingerprints on the bag, only one of which had been identified as belonging to Mr. Janeiro. I have explained the materiality of the fact that there were five identifiable fingerprints, not one. [100] The trial judge also failed, in my view, to give proper consideration to the evidence that the robber may have been wearing gloves, believing that it was not relevant. The Mars decision makes clear that a fingerprint linked to a crime scene is not incriminating unless there is a basis for concluding that the fingerprint was placed on the object in connection to the crime, at the relevant time and place. These errors materially and mistakenly increased the probative value of the fingerprint evidence in the mind of the trial judge. [101] With respect to the DNA from the saliva, the trial judge mistakenly believed that photo 20 showed the view from the location of the saliva into the donut shop. This mistake materially supported his conclusion that the DNA evidence obtained from the saliva was linked to the crime. [102] Mr. Janeiro argues that the trial judge also misapprehended the clerk’s evidence when he said that she testified that the balaclava was not the same “ski mask” that the robber wore. He argues that given the clerk’s agreement during cross-examination that she likely told the officers that she was not sure if it was the same mask, this does not accurately represent her testimony. I would not give effect to this argument, given that a trier of fact is entitled to accept all, some, or none of the evidence a witness gives. The clerk did testify at one point that the balaclava was not the same “ski mask” the robber wore. It was open to the trial judge to act upon that testimony in preference to the balance of her evidence, and the trial judge may have been doing so as opposed to misapprehending her evidence. [103] Having said this, the trial judge did misapprehend the evidence when finding that the police showed the clerk the balaclava itself when she told them “it was not the mask” that the robber wore. That is not what happened. The police showed her a photo of the balaclava as it lay on the ground. The photos of the balaclava laying on the ground that were placed in evidence do not depict the features of the balaclava with the clarity that seeing the actual item would. In my view, this was a material error. There were already significant challenges in accepting the clerk’s testimony that the balaclava the police located was not the “ski mask” worn by the robber, including: (1) the answer she gave on cross-examination that I describe immediately above in para. 102; (2) her inability to identify any features that were different; (3) her inability to recall whether the “ski mask” had a mouth hole; (4) the fact that both the balaclava found by the police and the “ski mask” worn by the robber shared the two characteristics she could describe – they were both black and both had two eye holes; (5) her testimony that it was not cold enough to be wearing a balaclava, thereby reducing the prospect that a balaclava unconnected to the robbery would happen to be laying nearby in the parking lot of the high school; and (6) evidence that the officers had information that the robber fled in the direction of the high school where the balaclava was found. In this context, had the trial judge appreciated that the clerk had never been shown the actual balaclava or a clear photo of its characteristics when eliminating it as the mask she saw, he may not have accepted her testimony that it was not the same “ski mask” that she observed. [104] I have borne in mind the admonition that misapprehensions of evidence on peripheral points do not lead to reversible error; only “errors [that] play an essential part in the reasoning process resulting in a conviction” will lead to reversible error: Morrissey at p. 541; quoted in Lohrer , at paras 1, 2. I have already explained why I would find that each of these errors was material. The misapprehensions relating to the fingerprint evidence and the saliva DNA evidence had the effect of materially inflating their probative value in a problematic Crown case that depended on the probative value of this evidence. Meanwhile, the misapprehension related to the potentially exculpatory balaclava DNA evidence had the effect of deflating its probative value. Beyond any doubt, together, these errors played an essential part in the reasoning process that resulted in Mr. Janeiro’s conviction. The convictions were not, therefore, true verdicts and the misapprehensions of evidence caused a miscarriage of justice. I would allow this ground of appeal. Had I not found the verdicts to be unreasonable, I would have ordered a new trial. B. Did the trial judge err in denying the “lost evidence” Charter application? [105] In my view, the trial judge erred in denying the “lost evidence” Charter application. Although this issue may appear moot in light of the decision that I have already arrived at, it is not. As I will explain, I would remedy the “lost evidence” Charter breach I identify by drawing an inference contrary to the Crown that had the lost security video been available, it would not have assisted the Crown. This inference reinforces the unreasonableness of the verdicts that I have identified. [106] I have considered the issues in the order that I have because of the well settled admonition that unless the appropriateness of a stay of proceedings is manifest at the outset of trial, applications for stays of proceeding should not be adjudicated until after the evidence in the case has been heard so that issues of prejudice can be more meaningfully assessed: R. v. Bero, 137 O.A.C. 336, 151 C.C.C. (3d) 545 (Ont. C.A.), at para. 18. That same admonition applies, for similar reasons, to the order in which a denial of a stay of proceedings should be considered on appeal. The Legal Principles [107] Where a Charter applicant has shown that disclosable evidence has been lost, a Charter breach contrary to s. 7 will be found unless the Crown has provided a satisfactory explanation for that loss, thereby demonstrating that an abuse of process has not occurred. The Crown may do so by establishing that the evidence has not been destroyed or lost by unacceptable negligence, that is, negligence that goes beyond mere negligence. This can be accomplished by showing that reasonable steps were taken in the circumstances to preserve the evidence, bearing in mind the relevance that the evidence was perceived to have at the time it was lost or destroyed: R. v. La , [1997] 2 S.C.R. 680, at paras. 20-22; R. v. Hersi , 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 30. [108] Indeed, the relevance or importance of the evidence is an important consideration in setting the degree of care expected. As the relevance of the evidence increases, so too does the degree of care required in preserving the evidence: La , at para. 21; Hersi , at para. 30. Similarly, as the relevance decreases, the required degree of care is reduced. In R. v. Sheng , 2010 ONCA 296, 254 C.C.C. (3d) 153, for example, before audiotapes of police interviews were destroyed, a decision had been made not to charge the accused. The investigation was reopened only years later. This reduced the reasonable perception of the importance of the evidence at the time it was destroyed, lowering the standard of care required. [109] Alternatively, a Charter applicant will succeed even in the face of a satisfactory explanation for the loss or destruction of evidence if they establish that the lost evidence is so important that its loss undermines the fairness of the trial: La , at para. 24. This is a difficult hurdle. In Bero , at paras. 49, 52, Doherty J.A. made it clear that showing a reasonable possibility that the lost evidence could have assisted the defence is not enough to establish that the right to full answer and defence has been undermined. This is so even though the inability to determine whether the lost evidence was harmful, neutral, or helpful to the defence may arise because of the loss of the evidence by the police. In order to demonstrate irremediable prejudice when seeking a remedy, a Charter applicant must establish that the evidence would have played an important role in their defence. I see no reason why the same standard would not apply in determining whether a Charter breach occurred on the basis that the loss of evidence undermined the fairness of the trial. [110] Since it is entirely unknown in this case whether the lost security video would have aided or harmed Mr. Janeiro’s position, I will say no more about this branch of the lost evidence test and I will examine whether a breach occurred by considering solely whether the lost security video was destroyed or lost by unacceptable negligence. [111] If a breach is identified on either of the alternative bases I have just described, the second question – the appropriate remedy – arises. In this case, Mr. Janeiro sought a stay of proceedings. As I will reinforce below, that remedy is provided only in extraordinary circumstances, where real irremediable prejudice to the right to full answer and defence has occurred: La , at paras. 23, 24; Hersi , at para. 25; Bero , at para. 42. The Trial Judge Erred in Finding There Was No Charter Breach [112] In my view, the trial judge made three errors in determining that the Crown had shown that the police had taken reasonable steps to preserve this evidence and had not lost the evidence as the result of unacceptable negligence. [113] First, he once again misapprehended the evidence. He found that before he placed the exhibit bag containing the security video into a cabinet in the CIB office, PC Fawcett labelled it. That was not the evidence. PC Fawcett said he did not label the brown paper exhibit bag. This was therefore a case where the security video was stored in an unmarked bag, not a case where the contents of the bag could be readily identified. [114] Second, the trial judge erred in principle in concluding that the security video was of “little help” and “largely peripheral” with respect to the issue of identity, a determination that reinforced his conclusion that PC Fawcett’s storage plan was adequate. In fact, the video was not peripheral. It was a “silent witness” to the entire robbery, providing many, if not all, of the observations that the clerk testified to. Indeed, had the clerk become unavailable to testify, the security video could have been used by the Crown in her stead in prosecuting the case. On this ground alone, a reasonable police officer, properly informed of the prosecution’s disclosure obligations, would have understood the need to take significant care in preserving this evidence. [115] The trial judge formed the view that the video was of “little help” and “largely peripheral” because he incorrectly evaluated its relevance based solely on whether the video showed identifying detail of the robber. I make no quibble with the apparent shortcomings of the security video in disclosing identifiable features of the robber. However, the security video may have informed the degree of confidence that could be put in DC Johnson’s height estimate. More importantly, as the trial judge recognized, the security video may have clarified whether the robber was wearing gloves or provided information relevant to whether the balaclava that was found was the one worn by the robber. [116] The trial judge considered the role that the video would play in clarifying whether the robber was wearing gloves to be irrelevant to the probative value of the fingerprint. I have already expressed my disagreement with that suggestion; given that the probative value of the fingerprint evidence turned on a determination of whether there was evidence that could link the fingerprint to the robber, this detail was important. [117] The trial judge also concluded that the unavailability of the video depicting the balaclava was unimportant because “the balaclava is in my view a bit of a side issue.” With respect, the question of whether the balaclava that was found was the same one worn by the robber was not a side issue. It was a central issue. If there was a reasonable doubt about whether the balaclava found with fresh vomit inside from a third party was the balaclava that the robber wore, the balaclava evidence would have been powerful exculpatory evidence. There is no question that the security video would have provided the trier of fact with observations that could have assisted them in determining whether the balaclava DNA evidence could be disregarded, or whether it raised a reasonable doubt about Mr. Janeiro’s identity as the robber. [118] Third, the trial judge erred in concluding that the notes that the police officers took when watching the security video diminished the importance of preserving the security video itself. That conclusion is not reasonably available given that the police notes gave rise to disagreement between the officers on the important question of whether the robber was wearing gloves at the time of the robbery. [119] Moreover, I take issue with the trial judge’s conclusion that “several police officers viewed the video and took notes with an eye to gleaning from it any information it could yield as to the identity of the robber”. PC Fawcett took no notes. DC Johnson watched only part of the security video to look for persons of interest known to him. Apart from describing the pants worn by the robber, DC Johnson gave no evidence from his notes about the description of the robber. Retired Sgt. Ferrier took no notes of the robber’s appearance either, given that his interest was in finding areas where fingerprints may have been left. PC Dietrich alone testified that he attempted to record his observations of the robber, but he did not even mention the balaclava that was worn or describe the pants depicted in the video, as DC Johnson did. The notes of the officer’s observations of the security video, such as they were, do not materially diminish the importance of preserving the security video itself. It was contrary to the evidence for the trial judge to find so. [120] Given the material factual and legal errors made by the trial judge, it is not appropriate to defer to his conclusion that PC Fawcett took reasonable steps to preserve the security video. Based on the evidence, even in light of the factual findings made by the trial judge, I would find that Mr. Janeiro established a s. 7 Charter breach on the basis that the loss of the evidence was not satisfactorily explained. [121] I begin with the fact that the security video was important evidence that required care in its preservation. As I say, it depicted the entire robbery, and although it was not in high definition, the coloured security video had sufficient resolution to enable DC Johnson to determine that the robber’s finger was on the trigger of the “gun”. The fact that the investigation was inactive does not diminish the importance of this evidence since the investigation remained open in the expectation that new evidence could emerge. [122] I agree with the trial judge that no issue can be taken with PC Fawcett’s decision to keep the security video in a locked drawer in his office prior to his transfer. Problems emerged when PC Fawcett left the unit and decided to preserve important evidence relating to the serious charge of robbery with a firearm by putting it into an unmarked brown paper bag along with unrelated videos from other investigations and then placing that unmarked brown paper bag into a cabinet in the CIB office, accessible to all police officers. This was far removed from secure or responsible storage. There is no evidence that the bag was filed in an orderly way. It was placed in a “communal filing cabinet” ordinarily used for case files. Moreover, the contents of the bag were not catalogued, and the bag was not labelled to assist in the ready identification of its contents. And those contents were mixed randomly instead of being segregated according to case. Given that the bag was unmarked and filled with videos from unrelated cases, there was every possibility that, if they could find it, numerous officers connected to various investigations would have reason to disturb, or even take or move the bag in connection with their own matters. [123] PC Fawcett chose this method of storage for important evidence notwithstanding the availability of a controlled property room where evidence is logged, and in the face of his knowledge that it was “procedure” to store evidence there. For some unexplained reason, he believed that digital evidence was somehow different, contrary to DC Thomson’s testimony that “everybody” stored their video evidence in the property room. Although I believe it to be a difficult finding to make on the evidence I have just described, I do accept that it was open to the trial judge to find, as he did, that there was no specific policy that video evidence was to be stored in the property room and that “it was left to each officer” to determine how to store video evidence. However, that does not alter my view that the choice that PC Fawcett made was not reasonable in all the circumstances. Much more should readily be expected of police officers, who control important evidence on which individual liberty will be determined. [124] In my view, given the importance of this evidence, the steps that PC Fawcett took to preserve that evidence were more than merely negligent, and resulted in the loss of evidence that may well have assisted Mr. Janeiro in his defence. In all the circumstances, I would find that the loss of the evidence breached s. 7 of the Charter . [125] I would not, however, stay the proceedings based on this breach. A stay is a remedy of last resort, reserved for the clearest of cases where important evidence has been deliberately destroyed, where the unacceptable negligence is extreme enough to cause irreparable harm to the integrity of the justice system, or where the accused establishes that the loss of the evidence has irreparably deprived them of evidence without which they cannot effectively present a defence: Bero , at paras. 42-44. [126] An alternative remedy is to invite the trier of fact to infer that the lost evidence would not have assisted the Crown: Hersi , at paras. 35-36. I would apply that remedy in this case. I would infer that the security video would not have assisted the Crown in showing that the robber was not wearing gloves, or in demonstrating that the balaclava differed from the balaclava that was put into evidence, or in providing verification for the legitimacy of DC Thomson’s height estimate. These inferences reinforce the finding I have already made that Mr. Janeiro’s convictions are unreasonable. CONCLUSION [127] I would allow the appeal, set aside Mr. Janeiro’s convictions, and substitute verdicts of acquittal. Released: February 10, 2022 “David M. Paciocco J.A.” “David M. Paciocco J.A.” “I agree. I.V.B. Nordheimer J.A.” “I agree. Sossin J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Zakos, 2022 ONCA 121 DATE: 20220211 DOCKET: C68429 Feldman, MacPherson and Thorburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Thomas Zakos Appellant Thomas F. Balka, for the appellants David Quayat, for the respondent Heard: January 18, 2022 by video conference On appeal from the convictions entered on October 26, 2018 by Justice Sharon Lavine of the Superior Court of Justice, and from the dismissal of an application for a stay of proceedings on March 1, 2019. Thorburn J.A.: OVERVIEW [1] The appellant, Thomas Zakos, appeals his convictions for three counts of trafficking in cocaine, and possession of the proceeds of crime. He has served his sentence. [2] The appellant claims he was entrapped by the police and that the trial judge therefore erred in declining to stay the charges against him. [3] The issues to be addressed are: i. When Detective Constable Green gave the appellant the opportunity to traffic cocaine; ii. Whether Detective Constable Green formed a reasonable suspicion that the appellant was already engaged in trafficking before giving him the opportunity to traffic cocaine; and iii. Whether the circumstances in this case are the same as in the case of Mr. Williams, one of the appellants in R. v. Ahmad , 2020 SCC 11 (“ Ahmad SCC ”), such that the appellant should also be found to have been entrapped. BACKGROUND FACTS [4] On July 20, 2016, Detective Constable Green received an anonymous tip. The tip was that Thomas Zakos, who went by the name “TJ”, was a cocaine and marijuana dealer who conducted his drug deals at the Ultramar gas station near Durham College in Oshawa, using the cellphone number 613-329-8098. [5] After receiving the tip, Detective Constable Green checked the police record management system and MTO records and found a person named Thomas Zakos with an address in Lyndhurst, Ontario who had no criminal record. [6] Detective Constable Green continued his investigation of this tip by texting the target at the number 613-329-8098. He and the target exchanged the following text messages: Green : This tj? 8098 : Who is this Green : Scot, got your number from my cousin. You still around the college? 8098 : Who’s your cousin 8098 : Yes still close but I moved Green : Jay said he got off you at the gas station a while back. U good for powder? 8098 : How much were you looking for Green : How much for a b? 8098 : 230 8098 : Real nice Green : That’s good man… Good stuff tho? 8098 : It’s real nice. haven’t had a complaint all year haha Green : When can u meet? 8098 : Let me text me roommate he can meet you I’m out of town. Green : Ok let me know. how long u think he’ll be? 8098 : An hour, I think. Green : you want me to message you or your roommate 8098 : 289-928-5474. [7] Detective Constable Green then sent a text message to the phone number given to him by the target, 289-928-5474. Later that day, Detective Constable Green purchased 2.8 grams of cocaine from the appellant’s contact at 1756 McGill Court in Oshawa. [8] On July 21, 2016, Detective Constable Green again texted 613-329-8098 (the number for TJ) and arranged to purchase a “half ball” of cocaine. He collected 1.76 grams of cocaine later that day from the appellant’s contact at 1756 McGill Court. [9] Later in the evening on July 21, 2016, Detective Constable Green attended 1756 McGill Court again. The appellant met him at the door and went down to the basement of the residence to retrieve the drugs. Detective Constable Green purchased a “half ball” of cocaine from the appellant for $130. [10] Early in the morning on July 22, 2016, a search warrant was executed at the premises and the appellant was arrested. Thirty-three grams of cocaine were found on a desk in the basement of the residence. (The appellant was acquitted of the charge of possession for the purpose of trafficking relating to the 33 grams of cocaine. The trial judge held that the area where the 33 grams were found was accessible to all and that there were no personal identifiers nearby linking it to the appellant. She therefore concluded that, in all the circumstances, the Crown had not proven beyond a reasonable doubt that the appellant had knowledge and some measure of control over the package.) [11] The appellant was convicted of three charges of trafficking in cocaine from July 20 to July 22, 2016, and possession of the proceeds of crime. THE APPLICATION FOR A STAY OF PROCEEDINGS [12] After his conviction but before being sentenced, the appellant sought a stay of proceedings on the grounds that he had been entrapped. [13] He claimed he was provided the opportunity to traffic cocaine when Detective Constable Green asked the appellant, “U good for powder?” (In drug parlance, cocaine in powder form). He further claimed that at this point, police had not yet formed a reasonable suspicion that the appellant was engaged in criminal activity or that the phone line was being used to traffic cocaine. This, he said, was entrapment by Detective Constable Green and for this reason, a stay of proceedings should be entered. [14] The respondent took the position that the appellant was not entrapped as the question “U good for powder?” was simply an open-ended, exploratory question about whether the appellant was a drug dealer. It was not until Detective Constable Green asked, “How much for a b?” that the appellant was given the opportunity to commit the offence of trafficking cocaine, which he did. The respondent therefore claimed the appellant was not entrapped. THE TRIAL JUDGE’S DECISION ON THE ISSUE OF ENTRAPMENT [15] The trial judge dismissed the appellant’s application for a stay of proceedings. She held that the appellant was not entrapped because: This was not a random call or random virtue testing, but a focused investigation directed at a particular phone line. Although the person on the phone did not confirm he was TJ, he did not question it or redirect the caller. Moreover, he continued to engage in conversation responding that he was still around the college, adding to the development of reasonable suspicion. The call continued, not with a request to purchase a specific quantity of drugs but a less definite and still, more in the nature of an exploratory question, employing language commonly used in the drug trade. Applying the principles and tests set out in Williams and Ahmad , I find that Detective Constable Green had a reasonable suspicion that the phone line was being used as a means for a prospective drug buyer to contact the seller and arrange to purchase drugs and was engaged in a bona fide inquiry. […] As a result, Mr. Zakos and Mr. Walsh have not met their burden of establishing entrapment on a balance of probabilities. It is not one of the clearest of cases warranting a stay. THE ISSUES ON THIS APPEAL [16] The appellant’s position on this appeal is that the trial judge erred in concluding that he was not entrapped by Detective Constable Green. Specifically, he claims the trial judge erred: i. in deciding that Detective Constable Green’s question, “U good for powder” did not provide the appellant an opportunity to commit a crime, and ii. in holding that Detective Constable Green did not provide the appellant with the opportunity to traffic cocaine until he asked, “How much for a b?” [17] The trial judge relied on this court’s decision in R. v. Ahmad, 2018 ONCA 534, 141 O.R. (3d) 241 (“ Ahmad ONCA ”), rev’d in part, 2020 SCC 11 (“ Ahmad SCC ”). [18] The trial judge did not have the benefit of the Supreme Court’s judgment in Ahmad SCC when she rendered her decision on this application. [19] The appellant claims his situation is indistinguishable from that of Mr. Williams, one of the appellants in Ahmad SCC , who received a stay of proceedings by the Supreme Court on the grounds that he was entrapped. As such, he claims a stay of proceedings should be entered. [20] Before analyzing the circumstances in this case, I will set out the legal test for finding entrapment. THE LAW OF ENTRAPMENT What is Entrapment? [21] Entrapment is the “conception and planning of an offence by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer”: R. v. Mack , [1988] 2 S.C.R. 903, at pp. 917-18, citing Sorrells v. United States , 287 U.S. 435 (1932), at p. 454. [22] Entrapment is not a defence. It is an application of the doctrine of abuse of process for which the remedy is to stay the proceedings: Mack , at pp. 938-42; Ahmad SCC, at paras. 16-17. Reasons for the Entrapment Remedy [23] Entrapment recognizes that the state may not engage in conduct that violates the notions of decency and fair play as the ends do not justify the means utilized: Mack, at pp. 938-40; Ahmad SCC, at para. 16. T he administration of justice would be brought into disrepute if the state were permitted to punish someone whom the state itself caused to transgress: Mack, at pp. 938-42, 944; Ahmad SCC , at paras. 16-17. [24] The entrapment framework balances the need to protect privacy interests and personal freedom from state intrusion against the state’s legitimate interests in investigating and prosecuting crime: Mack, at pp. 941-42; Ahmad SCC, at para. 22. [25] In Mack, Lamer J. (as he then was), explained, at p. 941: There is perhaps a sense that the police should not themselves commit crimes or engage in unlawful activity solely for the purpose of entrapping others, as this seems to militate against the principle of the rule of law. We may feel that the manufacture of crime is not an appropriate use of the police power.... Ultimately, we may be saying that there are inherent limits on the power of the state to manipulate people and events for the purpose of attaining the specific objective of obtaining convictions. These reasons and others support the view that there is a societal interest in limiting the use of entrapment techniques by the state. [26] He noted, at p. 917: There is a crucial distinction, one which is not easy to draw, however, between the police or their agents–acting on reasonable suspicion or in the course of a bona fide inquiry–providing an opportunity to a person to commit a crime, and the state actually creating a crime for the purpose of prosecution. The former is completely acceptable as is police conduct that is directed only at obtaining evidence of an offence when committed. The concern is rather with law enforcement techniques that involve conduct that the citizenry cannot tolerate. [Emphasis in original; citations omitted.] [27] Because the state is not permitted to engage in abusive police conduct , where police are involved in the commission of an offence, entrapment is made out and a stay of proceedings will be entered: Mack, at para. 942; Ahmad SCC, at para. 16. [28] A finding of entrapment is reserved for the “clearest of cases” of intolerable state conduct: Mack , at pp. 976-77; R. v. Ray, 2020 ONCA 351, 155 O.R. (3d) 481, at para. 36. The Two Branches of Entrapment [29] There are two alternative branches of entrapment, either of which may lead to a finding of entrapment justifying a stay of proceedings: i. Where police offer an individual the opportunity to commit an offence without acting on a reasonable suspicion that the individual is already engaged in that type of criminal activity or pursuant to a bona fide inquiry; or ii. Where, although acting with reasonable suspicion or pursuant to a bona fide inquiry, police go beyond providing an opportunity to commit an offence and induce a person to commit an offence: Mack , at pp. 964‑65; Ahmad SCC , at para. 15 . The Factors to be Considered on the First Branch of Entrapment [30] The parties agree that while the appellant was given the opportunity to traffic cocaine, he was not induced to do so. As such, only the first branch of entrapment is at issue in this case, that is, whether Detective Constable Green offered the appellant the opportunity to traffic cocaine without reasonably suspecting that he was engaged in trafficking cocaine. A. Reasonable suspicion as a prerequisite to providing an opportunity to commit an offence [31] Entrapment under the first branch is made out when police provide the accused with an opportunity to commit an offence, without first having a reasonable suspicion that either “(1) a specific person is engaged in criminal activity; (2) people are carrying out criminal activity at a specific location, sometimes referred to as a bona fide inquiry”: Ahmad SCC, at para. 19, citing Mack, at pp. 956, 959. A bona fide inquiry is not a separate and freestanding way to entrap an individual, but describes the reasonable suspicion standard in a location: Ahmad SCC, at para. 20; R. v. Henry-Osborne , 2021 ONCA 561, at para. 16. [32] In the context of a dial-a-dope operation, police must have a reasonable suspicion that the person answering the phone is already engaged in drug trafficking before providing an opportunity to traffic drugs: Ahmad SCC, at para. 42; Henry-Osborne, at para. 16. The factors supporting reasonable suspicion may relate to the individual, the telephone number, or both: Ahmad SCC, at para. 42. [33] When police receive a tip, a police officer may develop reasonable suspicion before contacting the target , or in the course of a conversation with the target: Ahmad SCC , at para. 54. [34] If the police have not formed a reasonable suspicion before making the call, they must form a reasonable suspicion in the course of the call before providing an opportunity to commit a crime: Ahmad SCC , at para. 69. [35] The difficulty lies in determining at what point in a conversation exploration ends, and an opportunity to commit an offence is provided. B. What constitutes reasonable suspicion [36] Reasonable suspicion requires a “constellation of objectively discernible facts” giving the officer “reasonable cause to suspect” that a certain kind of offence is being committed by a particular person in a particular place: Ahmad SCC, at para. 46, citing R. v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) , at p. 501. [37] The “reasonable suspicion standard requires only the possibility, rather than the probability, of criminal activity”: Ahmad SCC, at para. 46. The suspicion must be “focused, precise, reasonable, and based in ‘objective facts that stand up to independent scrutiny’”: Ahmad SCC, at para. 46, citing R. v. MacKenzie , 2013 SCC 50, [2013] 3 S.C.R. 250 , at para. 74. [38] Reasonable suspicion is not an “unduly onerous” standard: Mack, at p. 958; Ahmad SCC , at para. 45. [39] The majority in R. v. Bank , 2021 ABCA 223, 406 C.C.C. (3d) 329, at para. 104, noted that: [A] court cannot convict an accused of a criminal offence unless the Crown has proved the physical and mental elements of the crime beyond a reasonable doubt.… because of the severity of the consequences of a criminal conviction.… A lesser degree of certainty is needed to validate an arrest — which, while it temporarily deprives a person of his or her liberty, it results in no verdict of criminal wrongdoing.... And a still lesser degree of certainty is needed to justify a police officer interacting with a target and presenting him or her with an opportunity to commit a crime — or not. [40] The primary purpose of the reasonable suspicion standard is to permit meaningful judicial review of police conduct: Ahmad SCC, at paras. 24, 45-46 & 83. [41] In assessing whether a case for reasonable suspicion has been made out, the analysis of objective reasonableness should be conducted through the lens of a reasonable person “standing in the shoes of the police officer”: MacKenzie , at para. 63; Bank , at para. 113. An officer’s training or experience can make otherwise equivocal information probative of criminal activity: Ahmad SCC, at para. 47. [42] However, hunches grounded in an officer’s experience are not sufficient, and deference is not owed to a police officer’s view of the circumstances based on their training or experience: MacKenzie, at para. 64; R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 47. Reasonable suspicion remains an objective standard that must withstand judicial scrutiny: MacKenzie, at para. 64; Chehil, at para. 26. [43] A bare tip from an unknown source that someone is dealing drugs from a phone number is therefore insufficient to create reasonable suspicion: Ahmed SCC, at paras. 4, 53. However, a reasonable suspicion may develop if this information is supplemented by the discovery of other facts in the course of a post-tip investigation. [44] Corroboration of the tip must suggest that it is “reliable in its assertion of illegality”, not just in its identification of a particular person: Ahmad SCC, at para. 50, citing Florida v. J. L., 529 U.S. 266 (2000), at p. 272. The target’s responsiveness to details in the tip, and to slang used in drug trafficking, along with other factors, may reinforce the reliability of the tip: Ahmad SCC , at para. 55. C.      The difference between exploratory questions and questions that provide the accused with an opportunity to commit an offence [45] Police can make exploratory requests of the target without providing an opportunity to traffic, “including asking whether they sell drugs”: Ahmad SCC , at para. 66. [46] In R. v. Imoro , 2010 ONCA 122, 251 C.C.C. (3d) 131, at para. 16, aff’d 2010 SCC 50, [2010] 3 S.C.R. 62, Laskin J.A. for this court also held that the officer’s question to the target, “Can you hook me up?” was simply an exploratory question. And in R. v. Ralph , 2014 ONCA 3, 313 O.A.C. 384, at para. 32, leave to appeal refused, [2014] S.C.C.A. No. 262, Rosenberg J.A. for this court held that the words “I need product” was a “legitimate investigative step.” In Ralph, the appellants’ response together with the tip was sufficient to provide the officer with reasonable suspicion. Rosenberg J.A. held , at para. 2, that “[t]he exact words of the telephone conversation are important for the entrapment issue.” [47] The majority in Ahmad SCC , at paras. 64-66, held that, [A]n opportunity to commit an offence is offered when the officer says something to which the accused can commit an offence by simply answering “yes.” [ ] An opportunity has been provided only when the terms of the deal have narrowed to the point that the request is for a specific type of drug and, therefore, the target can commit an offence by simply agreeing to provide what the officer has requested. In some cases, a request to purchase a specific quantity of drugs will suffice.... [C]ourts have consistently recognized that a request to purchase a specific type of drug during the conversation will amount to an opportunity to commit a crime. [Emphasis added.] [48] In determining when an opportunity is provided, the majority in Ahmad SCC adopted the characterization of the trial judge, Trotter J. (as he then was), of the difference between exploratory conversation and creating an opportunity to traffic, in R. v. Williams, 2014 ONSC 2370, 141 O.R. (3d) 241, rev’d in part on other grounds, 2020 SCC 11. Trotter J. held, at para. 27, that: The distinction between statements such as “I need product”/“Can you hook me up?”/ “Are you around?” /“Where are you?”, on the one hand, and “I need 80” /“I need 40” /“I need 6 greens”/“I need half a B”, on the other, might appear quite subtle. However, the latter statements, involving requests to purchase a specific quantity of drugs, are more definite and less exploratory. With the former, the possibility of a deal still needs to be explored and developed; with the latter, all the accused needs to say is say “yes.” [Emphasis added.] [49] In sum, the feature that distinguishes exploratory statements from those that create an opportunity to commit an offence seems to be the making of an offer to purchase, such that all the target must do is accept the terms. A court must examine all the circumstances, including the language used in the communication with the target, in determining whether police formed a reasonable suspicion before providing an opportunity: Ahmad SCC, at para. 61. [50] The words used, the meaning of the words used, and the context of the words in the conversation up to the point the question or statement at issue is made, are all factors to be considered in determining whether there was an offer to purchase: Ahmad SCC , at paras. 61-66. The police officer’s language to the target must be an offer that, if accepted, would constitute an offence. [51] Entrapment is not made out if the opportunity to commit an offence is made after police have a reasonable suspicion that the target is engaged in specific criminal activity or that specific criminal activity is taking place at a specific location: Ahmad SCC , at para. 19. ANALYSIS AND CONCLUSION The Issue [52] The appellant claims Detective Constable Green gave him the opportunity to traffic cocaine when he asked, “U good for powder?” and that, at this point, Detective Constable Green did not have reasonable suspicion that he was trafficking cocaine. As such, he claims he was entrapped. [53] The respondent submits that the appellant was not given the opportunity to traffic cocaine until Detective Constable Green asked him, “How much for a b?”. By this time, Detective Constable Green had formed a reasonable suspicion before he provided the opportunity to traffic cocaine such that the appellant was not entrapped. [54] The key issue is whether Detective Constable Green provided the opportunity to traffic cocaine before he had reasonable suspicion that the appellant was trafficking cocaine. [55] In deciding whether a question is merely exploratory or constitutes an opportunity to commit an offence, one must look at the words used, the meaning of the words, and the context of the conversation up to the point the question or statement at issue is made. [56] Whether there was entrapment in this case depends on the meaning of the words “U good for powder?” and whether they constitute an opportunity to traffic. [57] If the question “U good for powder?” is merely an exploratory question, there was no entrapment, as the appellant’s response to the question was sufficient to ground a reasonable suspicion. However, if the words constitute an opportunity to traffic cocaine, as the appellant suggests, the appellant was entrapped, as Detective Constable Green did not have sufficient information before this question was asked to ground a reasonable suspicion. Detective Constable Green’s Exploration of the Tip [58] Detective Constable Green did not have a reasonable suspicion about the target prior to making the call as the tip was from an anonymous source. The further information he obtained about the target did not corroborate the tip, as there was no confirmation that the target lived in the area where the deals were alleged to take place, or that he had prior criminal convictions: see Ahmad SCC , at para. 50. He therefore needed to conduct further exploration to corroborate the tip he had received that the target was selling marijuana and cocaine near Durham College using the cellphone number provided. [59] Detective Constable Green texted the number to pursue his inquiry into the tip. He needed to obtain further information about whether the target was engaged in trafficking or that the phone number was used by someone engaged in trafficking. [60] When Detective Constable Green asked the target if he was TJ, the target did not deny that he was TJ nor did he redirect his text. Instead, the target engaged in conversation and confirmed that he was still around Durham College, thereby confirming some details of the tip. However, this was not sufficient to form a reasonable suspicion that the target was selling cocaine, because it did not strengthen the reliability of the tip “in its assertion of illegality”: Ahmad SCC , at paras. 50, 80, citing J. L. , at p. 272. The Significance of the Question “U good for powder?” and the Development of a Reasonable Suspicion [61] Detective Constable Green then asked, “U good for powder?” [62] Detective Constable Green testified that powder means cocaine. [63] This was not an opportunity to traffic cocaine. There was (i) no offer on the part of Officer Green to buy cocaine, and (ii) no terms of an offer discussed. As such, the terms of the deal had not been narrowed to the point where the appellant could commit an offence by responding affirmatively to what Detective Constable Green requested. At most, he was asking whether the appellant had cocaine to sell. As this court found in Imoro, at para. 16, the question amounted to whether the appellant was a drug dealer. As such, this question did not provide the appellant the opportunity to traffic cocaine. [64] Once the appellant answered, “How much were you looking for”, Detective Constable Green had sufficient information to generate a reasonable suspicion that the appellant trafficked cocaine. He had (i) received the tip that a person who went by the name TJ sold cocaine and marijuana near Durham College and used an 8098 telephone number , (ii) some information in the tip had been verified including the appellant’s location near Durham College, (iii) the appellant did not deny that he was TJ, suggest the caller had the wrong number or redirect the call and instead, continued to converse with Detective Constable Green, and (iv) the appellant responded positively to Detective Constable Green’s use of language particular to the drug subculture: “U good for powder?” by asking “How much were you looking for”. [65] Having connected the tip to the person on the phone, the aspect of the tip that asserted illegality was corroborated by the appellant’s understanding of drug trafficking slang and willingness to engage in it: see Ahmad SCC, at para. 75. Taken together, these factors grounded a reasonable possibility that the appellant was involved in drug trafficking: see Ahmad SCC, at para. 76. [66] Drawing the distinction at this juncture is consistent with the need to balance protecting privacy interests and personal freedom from state intrusion and the state’s legitimate interest in investigating and prosecuting crime: see Mack, at pp. 941-42; Ahmad SCC, at para. 22. The Significance of the Question “How much for a b?” [67] Detective Constable Green then asked the target the further question, “How much for a b?” The appellant replied, “230”. [68] The question “How much for a b?” provided the appellant with the opportunity to commit the offence of trafficking cocaine. As noted above, it is the specific offer to purchase the drugs that amounts to an opportunity to commit the crime: Ahmad SCC , at para. 59; Imoro , at paras. 3, 16 . [69] By the time Detective Constable Green asked, “How much for a b?”, he had a reasonable suspicion that the appellant was involved in trafficking cocaine and it was therefore permissible to provide the appellant the opportunity to commit the offence. Whether the Facts in this Case are Indistinguishable from Those in Mr. Williams’ Case [70] I do not accept the appellant’s submission that this case is indistinguishable from the case of Mr. Williams, one of the appellants in Ahmad SCC . In both cases, the police were working from a tip that the individual was a cocaine dealer and contacted the number they were given in the tip. However, unlike this case, in the case of Mr. Williams , immediately after introducing himself, the police officer requested a specific quantity of cocaine from Mr. Williams. This was an offer to purchase, which offer was accepted. The exchange was as follows: Male : Hello. Canepa : Jay? Male : Yeah. Canepa : You around? Male : Who is this? Canepa : It’s Vinny. Male : Vinny who? Canepa : Vinny. Jesse from Queen and Jarvis gave me your name . . . your number. Said you could help me out. I need 80. Male : Okay. You have to come to me. [71] In the case of Mr. Williams, as soon as the target confirmed who he was, the officer presented an opportunity to traffic drugs by asking to purchase a specific quantity, “80”, slang for a dollar amount of cocaine. Once Mr. Williams responded “Okay” the offence of trafficking by offer was complete: Ahmad SCC, at para. 79. [72] However, there was nothing in Mr. Williams’ responses before the officer provided the opportunity to traffic that suggested the phone number was being used to traffic drugs. Mr. Williams responded positively to the name “Jay” provided in the tip, but this corroboration of one aspect of the tip was not enough to ground a reasonable suspicion as it does not strengthen the tip “in its assertion of illegality”: Ahmad SCC , at para. 80, citing J. L. , at p. 272. [73] Therefore, in Mr. Williams’ circumstances , the police provided the opportunity to traffic cocaine without yet having reasonable suspicion that Mr. Williams was selling cocaine. In this case, the question “How much for a b?” constituted an opportunity to traffic. Unlike the situation involving Mr. Williams , Detective Constable Green provided the opportunity to traffic after he had formed reasonable suspicion, based on the information he had and the appellant’s response to the question “U good for powder?” [74] As such, this case is distinguishable from the circumstances in Mr. Williams’ case, discussed in Ahmad SCC . CONCLUSION [75] For the above reasons, while the trial judge did not have the benefit of the Supreme Court’s decision in Ahmad SCC , I see no error in her analysis or her conclusion that the appellant was not entrapped. [76] I would therefore dismiss the appeal. Released: February 11, 2022 “K.F.” “J.A. Thorburn J.A.” “I agree. K. Feldman J.A.” “I agree. J.C. MacPherson J.A.”

COUR D’APPEL DE L’ONTARIO RÉFÉRENCE : R. c. Mohamed, 2022 ONCA 124 DATE: 20220201 DOSSIER: M53132 (C69159) Le Juge Rouleau (juge de motion) ENTRE Sa Majesté la reine Intimée et Mubarak Mohamed Requérant Nicholas St-Pierre, pour le requérant Davin Michael Garg, pour l ’intimée Date de l’audience : le 28 janvier 2022 par visioconférence INSCRIPTION [1] Le requérant sollicite une mise en liberté sous caution en attendant la décision de son appel. La couronne oppose la demande. [2] La couronne ne conteste pas que l’appel n’est pas futile ou que le requérant se livrera en conformité avec les termes de l’ordonnance. Par contre la couronne maintient que l e requérant ne s’est pas acquitté de son fardeau sur le troisième critère décrit dans l’arrêt R. c. Oland , 2017 CSC 17, [2017] 1 R.C.S. 250, c’est-à-dire de démontrer que sa détention n’est pas nécessaire dans l’intérêt public. Le critère de l’intérêt public comporte deux volets : la sécurité publique et la confiance du public envers l ’administration de la justice. [3] Quant au deuxième volet, la cour doit balancer deux considérations opposées : la force exécutoire du jugement et le caractère révisable de celui-ci. [4] La couronne souligne correctement qu ’il s’agit ici d’une infraction sérieuse. Le requérant a commis une agression sexuelle contre une jeune femme qui comprenait la pénétration de son vagin avec le pénis du requérant. La plaignante demeure traumatisée par cet incident. [5] De plus, la couronne signale que le requérant possède un casier judiciaire pertinent ayant été condamné pour des infractions à plusieurs reprises de 2015 au présent. Notamment, son casier judiciaire comporte plusieurs condamnations pour défaut de se conformer à son engagement en attendant l ’issue de son procès en cette affaire. [6] La peine imposée en l’espèce est de quatre ans et, à date, le requérant a purgé près d’un an de celle-ci. En ce qui a trait aux moyens d’appel, la couronne maintient que ceux-ci sont faibles et tentent de remettre en cause les conclusions du juge concernant la crédibilité des témoins, domaine où un juge du procès commande une déférence particulière. [7] Finalement, la couronne est d’avis que le plan de surveillance est insuffisant. Deux des cautions proposées par le requérant étaient des cautions chargées de superviser le requérant au moment de son bris avant le procès. Ceci, la couronne explique, laisse entendre que les cautions proposées ne sont pas capables d ’assurer la bonne conduite de l’appelant. [8] À mon avis, la demande doit être accordée. Puisque l ’appel n’a pas encore été mis en état, il est difficile d’évaluer la force des moyens d’appels avancés. L’avocat du requérant explique que le requérant lui-même a préparé son avis d’appel. Son avocat propose maintenant d’avancer de différents moyens d’appel que ceux présentés dans l’avis d’appel déposé à la cour. Les moyens d’appel qu’il propose maintenant ne sont pas, à mon avis, frivoles. Il soulève des questions qui ne sont pas strictement liées à la crédibilité des témoins. Il a, par exemple, identifié deux instances o ù , selon lui, le juge de première instance se serait engagé dans de la spéculation non permise. [9] En ce qui a trait au plan de surveillance, le requérant reconnait qu ’il a violé ses engagements en attendant l’issu de son procès, mais, ceci dit, il a par la suite plaidé coupable à cette infraction et, pour presque un an avant le procès, n ’a commis aucun bris additionnel. De plus, une troisième caution s’ajoute aux deux cautions originales, et tous les trois s’engagent à s’acquitter de leur devoir de façon consciencieuse. [10] L’avocat du requérant maintient qu’il peut mettre le dossier en état assez rapidement. Il reconnait que l’infraction est certainement sérieuse, mais le fait que le requérant a déjà purgé près d ’un an de sa peine est certainement pertinent à la confiance du public envers l ’administration de la justice. [11] L’avocat du requérant a reconnu au cours de la plaidoirie que les conditions qu’il proposait ne sont pas appropriées dans les circonstances et que les conditions qui étaient en place dans la période qui a mené au procès sont préférables. Je suis d’accord. [12] Pour ces motifs, j’accorde la mise en liberté sous caution du requérant. Le requérant a démontré que l’intérêt public lié au caractère révisable l’emporte sur l’intérêt lié à la force exécutoire. Je demande aux parties de s’entendre sur les conditions appropriées. Elles devraient ressembler aux conditions en place dans la période précèdent le procès du requérant. Si les parties ne peuvent pas s’entendre, je demande qu e chacune présente une ébauche de ce qu ’elle propose. « Paul Rouleau j.c.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. COURT OF APPEAL FOR ONTARIO CITATION: R. v. R.S., 2022 ONCA 123 DATE: 20220214 DOCKET: C69889 Miller, Trotter and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and R.S. Appellant R.S., acting in person Breanna Vandebeek, appearing as duty counsel Nicole Rivers, for the respondent Heard: February 7, 2022 by videoconference On appeal from the disposition imposed on August 17, 2021 by Justice Larry B. O’Brien of the Ontario Court of Justice. REASONS FOR DECISION [1] After a trial, R.S. was found guilty of two counts of sexual assault. He was sentenced to an 18-month custody and supervision order, comprised of 12 months in open custody, followed by six months of custody and supervision. He was also made subject to a 12-month probation order. R.S. appeals this disposition. [2] R.S. was 14-15 years old at the time of the offences. Both victims were his former intimate partners. With respect to the victim, M.J., in the course of consensual vaginal intercourse, R.S. penetrated her anally without her consent. This caused her to jump out of the bed. When she returned, R.S. engaged in another brief bout of anal intercourse. M.J. was 15 years old at the time. [3] There were three incidents in relation to the other victim, E.H. On the first occasion, they were at a movie theatre. R.S. touched E.H. between her legs without her consent. He then forced her hand down his pants, onto his penis. During the second incident, after consensual kissing, R.S. forced oral sex on E.H. and then made her perform oral sex on him. R.S. then forced his penis with a condom into E.H.’s anus, causing her pain and to jump off the bed. Once she returned, he did the same thing again. On the third occasion, R.S. had forced vaginal intercourse with E.H.; he stopped when he noticed that she was bleeding. E.H. was 14 at the time. [4] R.S. advanced three grounds of appeal against his sentence. [5] First, R.S. submits that the youth court justice erred in finding that a deferred custody and supervision order was not available in the circumstances. Section 42(5) of the Youth Criminal Justice Act , S.C. 2002, c. 1 provides that a deferred custody and supervision order is available if “the young person is found guilty of an offence other than one in the commission of which a young person causes or attempts to cause serious bodily harm.” The Crown and defence counsel at trial agreed that this disposition was not available. However, it is unclear whether they agreed that a deferred custody and supervision order is never available in the context of a sexual assault, or whether they were in agreement that it was not available on the facts as found by the youth justice court judge. Duty counsel also submits that the youth justice court judge was required to explain how he reached his conclusion that serious bodily harm was caused or attempted. Moreover, she submits that, because no evidence was called on this issue, the youth justice court judge must have improperly taken judicial notice of this fact. [6] This ground of appeal can be decided on the basis that there was evidence before the trial judge that allowed him to make the finding that s. 42(5)(a) precluded the imposition of a deferred custody and supervision order. The evidence of the victims at trial and the victim impact statement written by E.H. provided ample support for the conclusion that R.S.’s actions caused the victims serious psychological harm. [7] R.S. further submits that the sentence was unduly harsh. We do not accept this submission. The youth justice court judge carefully considered all of the aggravating and mitigating factors. R.S.’s conduct was very serious, involving two victims and multiple incidents, including vaginal and anal penetration. In relation to E.H., he only stopped after noticing that she was bleeding. These offences had a profound impact on both young victims. [8] The youth justice court judge took into account the mitigating factors, including R.S.’s age and his lack of a prior youth justice court record. He characterized the pre-sentence report as “relatively positive”. Although the report underscored R.S.’s considerable rehabilitative potential, it also reflected a lack of empathy for his victims. [9] In all of the circumstances, it cannot be said that the disposition crafted by the youth justice court judge was unfit. [10] Lastly, R.S. relies on fresh evidence that details his progress while subject to the open custody and supervision order. The Crown does not oppose the admission of this evidence; however, she submits that the evidence merely confirms what was established at the disposition hearing – R.S. has excellent rehabilitative potential. It also demonstrates that R.S. is a low risk to re-offend. [11] We commend R.S. for his commitment to a good deal of the programming offered to him while subject to his current disposition. We also note his very positive scholastic achievements to date. It would appear that R.S. is on the right path and we encourage him to continue these efforts. However, this updated information does not impact the fitness of the disposition that was imposed. [12] Leave to appeal is granted, but the appeal is dismissed. “B.W. Miller J.A.” “Gary Trotter J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Gateman, 2022 ONCA 125 DATE: 20220214 DOCKET: C69772 Miller, Trotter and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and Joshua Gateman Appellant Joshua Gateman, acting in person Xenia Proestos, for the respondent Heard: February 8, 2022 by video conference On appeal from the sentence imposed by Justice George L. Orsini of the Ontario Court of Justice on July 2, 2021. REASONS FOR DECISION [1] The appellant entered pleas of guilty to the following offences: mischief under $5,000, possession of a restricted firearm and two counts of possession of methamphetamine. [2] Further to a joint submission, the trial judge imposed concurrent sentences of 15 months’ imprisonment (450 days), less credit for pre-sentence custody (PSC) in the amount of 68 days. The remaining time to be served was 382 days. [3] The appellant appeals his sentence on the basis that the sentencing judge failed to allocate proper credit for PSC. Instead of receiving credit on a 1:5:1 basis, the appellant says the ratio should have been 2:1, especially in light of the impact of COVID-19 on custodial communities. We do not accept this submission. The allocation of credit for PSC is within the discretion of sentencing judges. In this case, the amount of credit for PSC was an important component of the joint position. The sentence judge did not err in failing to give greater credit. [4] The appellant says he was forced into the joint submission by his trial counsel. However, he has not properly advanced a claim of ineffective assistance of counsel. The claim is unsubstantiated, and we do not accept it. [5] Ms. Proestos for the Crown advises us that there was an error in the sentencing judge’s imposition of a 15-month sentence for one of the counts of possession of a controlled substance. Given that the Crown elected to proceed summarily on this count, the maximum sentence that could be imposed was 12 months’ imprisonment. Consequently, on the Information #21-7402, we adjust the sentence as follows: the term that would have been imposed before credit is granted will be reduced to 365 days, from which 68 days credit PSC will be deducted. The total term of imprisonment on that count is therefore reduced to 297 days, to be served concurrently. All other aspects of the sentence remain unaltered. [6] Leave to appeal sentence is granted and the appeal is allowed in part. “B.W. Miller J.A.” “Gary Trotter J.A.” “B. Zarnett J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: 1758704 Ontario Inc. v. Priest, 2022 ONCA 126 DATE: 20220210 DOCKET: M52869 (C68390) Benotto, Miller and Trotter JJ.A. BETWEEN 1758704 Ontario Inc. and 1191305 Ontario Inc. Plaintiffs (Respondents/Appellants by way of cross-appeal) and Carl Priest Defendant (Appellant/Respondent by way of cross-appeal) AND BETWEEN Carl Priest and 1737161 Ontario Limited Plaintiffs by Counterclaim (Appellants/Respondents by way of cross-appeal) and 1758704 Ontario Inc., 1191305 Ontario Inc. and Martin Donkers Defendants by Counterclaim (Respondents/Appellants by way of cross-appeal) Maanit Zemel, for the appellants/respondents by way of cross-appeal Krista McKenzie, for the respondents/appellants by way of cross-appeal Heard: In writing REASONS FOR DECISION [1] This is a motion for a reconsideration of the determination of this appeal. [2] On August 30, 2021, this panel released its decision: i. Allowing the appellant’s appeal against the dismissal of its counterclaim; ii. Remitting the matter back to the Superior Court for an assessment of damages; iii. Dis missing the cross-appeal against the trial judge’s award of damages in the main action. [3] On September 9, 2021, the respondents wrote to the court seeking to make further submissions. The Executive Legal Officer of the court wrote to the parties and said: The panel will not be entertaining further submissions on the substantive matters and accordingly will not be addressing the other issues set out in counsels’ correspondence. [4] Five months later, in February 2022, the same respondents brought this motion seeking to re-argue the appeal. They raise issues the court already said would not be entertained. For that reason alone, the motion must fail. In any event, the respondents have not come close to the high hurdle required to cause the court to reopen the appeal: see Meridian Credit Union Ltd. v. Baig , 2016 ONCA 942, at para. 7; RINC Consulting Inc. (Roustan Capital) v. Grant Thornton LLP , 2020 ONCA 182, at para. 41. Nor did they establish an “accidental slip or omission” of the court’s order to satisfy r. 59.06: Baig , at para. 6. [5] The motion is dismissed with costs in the all-inclusive amount of $6,000. “M.L. Benotto J.A.” “B.W. Miller J.A.” “Gary Trotter J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Jack Ganz Consulting Ltd. v. Recipe Unlimited Corporation, 2022 ONCA 127 DATE: 20220210 DOCKET: C68546 Feldman, Harvison Young and Thorburn JJ.A. BETWEEN Jack Ganz Consulting Ltd. Plaintiff (Appellant) and Recipe Unlimited Corporation Defendant (Respondent) Patricia Virc and M. Michael Title, for the appellant Ken Prehogan, Hayley Peglar and Max Skrow, for the respondent Heard: in writing On appeal from the judgment of Justice Sandra Nishikawa of the Superior Court of Justice, dated May 28, 2020, with reasons reported at 2020 ONSC 3319. COSTS ENDORSEMENT [1] On December 20, 2021, this court released its decision allowing the appeal, setting aside the summary judgment below and remitting the matter for trial. The court awarded the appellant the costs of the appeal, fixed in the agreed amount of $20,000, and invited the parties to make written submissions on the costs of the summary judgment motion. We have reviewed their written submissions and bills of costs. [2] The appellant asks for its costs of the motion on a partial indemnity basis in the amount of $100,000. The appellant submits that, given the complexity of the action and its counsel’s unusually low rates relative to their years of call, it is appropriate to discount its actual costs by much less than the usual 40% discount to arrive at a partial indemnity amount. The amount requested by the appellant reflects a discount of approximately 7% from its actual costs of the motion. [3] The respondent does not dispute that the appellant is entitled to its costs of the motion but submits that the costs sought by the appellant are excessive. The respondent says that a reasonable amount would be, at the very most, $66,047.26. However, the respondent argues that this amount captures costs in respect of duplicative steps taken by the appellant, and that a fair and reasonable costs award would therefore be $45,281.10. [4] In our view, an award of costs in the amount of $80,000 inclusive of disbursements and HST is a fair and reasonable amount to fix for the costs of the summary judgment motion. We order the costs of the motion to the appellant in this amount. “K. Feldman J.A.” “A. Harvison Young J.A.” “J.A. Thorburn J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Singh v. Heft, 2022 ONCA 135 DATE: 20220211 DOCKET: M52917 (C69683) Pepall, Thorburn and Coroza JJ.A. BETWEEN Alka Singh Client/Respondent (Appellant/Moving Party) and Reesa Heft and Heft Law Solicitors/Appellants (Respondents/Responding Parties) Alka Singh, acting in person Nancy Cellucci, for the responding parties Heard: February 4, 2022 by video conference Pepall J.A.: Background [1] The respondent, Reesa Heft, is a lawyer with the respondent, Heft Law. The appellant, Alka Singh, was her client. The respondents rendered six accounts totaling $152,262.48 to Ms. Singh of which she has already paid $146,940.18. [2] Ms. Singh applied to have the respondents’ legal bills assessed pursuant to the provisions of the Solicitors Act , R.S.O. 1990, c. S.15. In May 2017, Perell J. made such an order on consent. [3] The Assessment Officer conducted the assessment and concluded that the respondents had failed to establish that their fees were fair and reasonable. The Assessment Officer reduced the fees to $80,000 plus HST and disbursements. Ms. Singh was therefore entitled to a refund of over $50,000. [4] The respondents brought a motion before a judge of the Superior Court of Justice opposing confirmation of the Assessment Officer’s Certificate of Assessment. [5] The motion judge set aside the Assessment Officer’s order and referred the fees to be assessed anew before a different assessment officer. The motion judge concluded that the Assessment Officer had exceeded her jurisdiction as under the Solicitors Act , an assessment officer may not conduct an assessment where, as here, the retainer is disputed. In addition, the motion judge concluded that the Assessment Officer had erred by failing to consider the respondents’ objections and in refusing to receive evidence proffered by the respondents in response to serious allegations of misconduct. [6] Ms. Singh sought to appeal the order of the motion judge to this court. [7] The parties then raised the issue of jurisdiction before a single judge of this court. However, a single judge does not have the power to decide whether an appeal is within the jurisdiction of this court and the issue was therefore referred to this panel to decide. [8] Before us, the respondents argue that the order under appeal is interlocutory and not final in nature and hence any appeal lies to the Divisional Court with leave. Ms. Singh submits that, to the contrary, the order under appeal is final. Analysis [9] Section 6(1)(b) of the Courts of Justice Act , R.S.O. 1990, c. C.43, provides that an appeal lies to the Court of Appeal from “a final order of a judge of the Superior Court of Justice”, while s. 19(1)(b) provides that an appeal lies to the Divisional Court from “an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court”. Long ago, in Hendrickson v. Kallio , [1932] O.R. 675 (C.A.), at p. 678, Middleton J.A. for the court explained the distinction between final and interlocutory orders: The interlocutory order from which there is no appeal is an order which does not determine the real matter in dispute between the parties – the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined. [10] Since Hendrickson , the court has, on many occasions, considered and refined the distinction between final and interlocutory orders. For example, in Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.), at p. 324, the court held that even where an order does “not finally dispose of the rights of the parties to the litigation”, it will be final for the purposes of appeal if it disposes of an issue raised by way of defence and “thereby deprive[s] the defendant of a substantive right which could be determinative of the entire action.” And in Buck Brothers Ltd. v. Frontenac Builders Ltd. (1994), 19 O.R. (3d) 97 (C.A.), the court held that an order disposing of an application is a final order if it ends the particular proceeding before the court, even if it does not finally determine another, quite possibly larger, issue between the parties which may be determined in a subsequent proceeding or process. [11] Recently, in Paulpillai Estate v. Yusuf , 2020 ONCA 655, at para. 16, Jamal J.A. (as he then was) summarized the applicable principles as follows: The main principles that determine whether an order is interlocutory or final are well known: 1. An appeal lies from the court’s order, not from the reasons given for making the order. 2. An interlocutory order “does not determine the real matter in dispute between the parties – the very subject matter of the litigation – or any substantive right[.] Even though the order determines the question raised by the motion, it is interlocutory if these substantive matters remain undecided”. 3. In determining whether an order is final or interlocutory, “one must examine the terms of the order, the motion judge’s reasons for the order, the nature of the proceedings giving rise to the order, and other contextual factors that may inform the nature of the order”. 4. The question of access to appellate review “must be decided on the basis of the legal nature of the order and not on a case by case basis depending on the application of the order to the facts of a particular case”. In other words, the characterization of the order depends upon its legal nature, not its practical effect. [Citations omitted.] [12] The decision of this court in Karbaliotis v. Anaheim Unit Investors (1996), 89 O.A.C. 58 (C.A.) exemplifies these principles. There, a judge set aside an assessment officer’s certificate of assessment and directed a trial of an issue. On appeal to this court, the appeal was quashed on the basis that it was interlocutory in that it did not finally dispose of the rights of the parties. [13] Similarly, in Zaldin & Zaldin v. Carpenter , 1994 CarswellOnt 4517 (Div. Ct.), citing this court’s decision in Buck Brothers Ltd. , the Divisional Court held that an order setting aside a certificate of assessment and remitting the matter for a new hearing was interlocutory. In contrast, in Somerleigh v. Brayshaw (1993), 15 C.P.C. (3d) 160 (Ont. Div. Ct.), the Divisional Court held that an order that set aside an assessment officer’s report but settled the account was a final order. The motion judge had finally determined the substantive issue between the parties. [14] As in Kabaliotis and Zaldin , in the case before us, the motion judge set aside the certificate of assessment and directed that a new assessment be conducted before a different assessment officer. The motion judge did not finally dispose of the matter. The subject matter of the litigation between the parties and their substantive rights remain to be determined. As a result, the order Ms. Singh seeks to appeal is interlocutory. [15] Ms. Singh relies on this court’s decision in Lala v. Basman Smith LLP , 2017 ONCA 614, where this court considered an appeal of an order setting aside an assessment officer’s certificate of assessment and referring the matter to a new assessment officer. The fact that this court may have heard an appeal from such an order does not establish the court’s jurisdiction. Where a party seeks to rely on case law in which the issue of jurisdiction was not raised or decided, the case law is not conclusive. For example, in CIBC Mortgages Inc. (FirstLine Mortgages) v. Computershare Trust Co. of Canada , 2015 ONCA 846, 342 O.A.C. 49, at para. 12, the court held that appeal decisions where the issue of jurisdiction was not raised or decided do not establish the jurisdiction of the court in a subsequent appeal. In Lala , although appellant’s counsel cited the basis for jurisdiction in the notice of appeal and factum, there is no suggestion that the court’s jurisdiction was contested by the respondent, nor did the court address or even mention the issue of jurisdiction. As such, Lala and cases like it are not determinative of jurisdiction. [16] In the alternative, Ms. Singh submits that both the motion judge’s conclusion that the Assessment Officer exceeded her jurisdiction by interpreting the scope of the retainer and her decision relating to the admissibility of certain evidence were final decisions. As such, she argues that this court has jurisdiction over any attendant interlocutory component of the order. [17] I do not agree with Ms. Singh’s submission. As mentioned, an appeal lies from the order, not from the reasons for decision. The order made by the motion judge is not similar to the orders relied upon by Ms. Singh: Ball ; Stoiantsis v. Spirou , 2008 ONCA 553, 91 O.R. (3d) 184; Hopkins v. Kay , 2014 ONCA 514; and Abbott v. Collins (2002), 62 O.R. (3d) 99 (C.A.). In all of these cases, the court considered the order to be final because it disposed of a substantive right of the defendant by precluding it from raising an issue that could be determinative of the appeal. This is not the case here. [18] Similarly, the evidentiary decision was interlocutory in nature as it did not determine the matter in dispute nor any substantive right: see e.g., Bonello v. Gore’s Landing Marina (1986) Limited , 2017 ONCA 632, 39 C.C.L.T. (4th) 175, at para. 14. Disposition [19] In conclusion, the order of the motion judge is interlocutory in nature and the appeal is to the Divisional Court with leave. Accordingly, I would order that the appeal to this court be quashed and that the appellant pay the respondents $1,500 in costs inclusive of disbursements and applicable tax. Counsel for the respondents advised at the hearing of this motion that the respondents will consent to an extension of time for Ms. Singh to seek leave to appeal to the Divisional Court. Released: February 11, 2022 “S.E.P.” “S.E. Pepall J.A.” “I agree. Thorburn J.A.” “I agree. S. Coroza J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Desjardins General Insurance Group v. Campbell, 2022 ONCA 128 DATE: 20220215 DOCKET: C68843 Benotto, Brown and Harvison Young JJ.A. BETWEEN Desjardins General Insurance Group, and The Personal Insurance Company, and State Farm Insurance Applicants (Appellants) and Ruth and Leonard Campbell , and Grace (Grazyna) and Thomas Blazejewski Respondents ( Respondent ) Pasquale Santini, for the appellants Joseph Obagi and Sarah Russell, for the respondent Ruth Campbell Heard: September 10, 2021, by video conference On appeal from the order of Justice Marc Smith of the Superior Court of Justice, dated October 30, 2020. Harvison Young J.A.: A. Overview [1] This appeal arises out of a number of applications and motions involving three separate insurance claims for damages to homes caused by a tornado that hit the city of Ottawa on September 21, 2018. The respondent Ruth Campbell’s home was one of them. The appellant Desjardins General Insurance Group [“Desjardins”] was the home’s insurer. [2] Following a disagreement between the parties over the value of the loss, the respondent triggered the appraisal mechanism under s. 128 of the Insurance Act , R.S.O. 1990, c. I.8. She appointed as appraiser her lawyer Mr. Joseph Obagi. Desjardins appointed an employee, who was the adjuster assigned to the respondent’s file. The appraisers agreed on the choice of an umpire. [3] After Mr. Obagi advised that he might be bringing a bad faith claim on the respondent’s behalf arising from the adjustment of her file, the umpire expressed concern about Mr. Obagi’s dual role as both an appraiser and a lawyer in the incipient action. He also expressed concern with the independence of Desjardins’ appraiser. He advised the parties that the appraisal “must be seen to function as an independent panel under the Insurance Act where there is no actual or perceived conflict of interest.” He was not prepared to proceed without directions from the Superior Court of Justice. [4] While Desjardins satisfied the umpire’s concern by eventually appointing an appraiser who was not an employee, the respondent maintained her choice of Mr. Obagi. Desjardins brought an application for judicial direction, asking the court, among other things, to remove Mr. Obagi as the respondent’s appraiser. The application judge held that while the umpire is required to be impartial, that is not true of the appraisers selected by the parties. The appellants Desjardins General Insurance Group, The Personal Insurance Company, and State Farm Insurance appeal from that decision. [5] The only issue on appeal is whether the application judge erred in not removing Mr. Obagi as the respondent’s appraiser for lack of independence. [6] I would dismiss this appeal. While the application judge erred in characterizing the appraisal process as an administrative tribunal, he was correct in finding that there was no basis for requiring the removal of Desjardins’ choice of appraiser who is also her lawyer. B. Background [7] On September 21, 2018, a tornado damaged the respondent’s home, which was deemed a total loss. Steven Keane, a Desjardins employee, was the adjuster assigned to her file. Between January and March 2019, Desjardins presented estimates to the respondent. In March 2019, the respondent’s family (“the Campbell family”) contracted with Omega Homes to rebuild their home. In April, Ms. Campbell requested an appraisal and, in May, she submitted an interim proof of loss. Desjardins appointed Mr. Keane (the adjuster) as appraiser and Ms. Campbell appointed Mr. Obagi. The appraisers agreed to appoint William Neville as umpire. [8] On May 23, 2019, the appraisers and the umpire held their first case conference. At that point, Mr. Obagi advised that he might be asserting a bad faith claim on behalf of Ms. Campbell arising from the adjustment of her file. [9] On May 27, 2019, Mr. Obagi’s law firm was retained to represent the Campbell family and two other families in an action for punitive damages against the appellants, Mr. Keane and others. This concerned Mr. Neville, who, in an email on the same day, wrote the following: “Based on the previous experience that I shared with you both, I am certain you will appreciate that I would be less inclined to proceed with the appraisal if there was going to be a lawsuit with “bad faith” elements imbued within it about to be launched as between the insured and insurer”. [10] On June 14, 2019, Mr. Neville unilaterally suspended the appraisal pending direction from the Superior Court of Justice on whether “(a) Mr. Obagi can reasonably function as an appraiser on behalf of Ruth Campbell while continuing to act as her counsel in the lawsuit (my view is that he cannot); and if not, who his replacement should be; (b) Mr. Keane can reasonably function as an appraiser on behalf of his nominating insurer while remaining a party in the lawsuit (my view is that he cannot); and if not, who his replacement should be”. [11] On July 8, 2019, Mr. Neville advised the appraisers that he was not prepared to proceed with the appraisal if the Campbell Family maintained their wish to have Mr. Obagi (or a member of his firm) act as an appraiser and similarly, where Desjardins sought to have an employee serve as an appraiser. He stated: “Surely the Tribunal must be seen to function as an independent panel under the Insurance Act where there is no actual or perceived conflict of interest”. [12] Desjardins responded to the umpire’s concerns. It removed Mr. Keane as the appraiser and appointed Michael Martin, another employee of Desjardins who had not been involved in the dispute or in adjusting the loss. This change did not alleviate the umpire’s concerns because Desjardins was a party in the claim. Desjardins therefore appointed a non-employee, John Valeriote of Crawford & Company. The Campbell Family did not wish to change Mr. Obagi as their appraiser. [13] Desjardins then brought an application to, among other things, remove Mr. Obagi as an appraiser, arguing that the appraisal process is an administrative tribunal and the two appraisers and the umpire must all be impartial. Desjardins contended that although the Ontario legislature had not specifically stated in the Insurance Act that an appraiser should be impartial and/or disinterested, the statute implied that they should be. [14] The application judge found that the appraisal process under the Insurance Act is an administrative tribunal, created to establish the value of the loss. He noted that s. 128(2) of the Act, which provides that both parties shall appoint an appraiser, contains no restrictions imposed upon the parties regarding who can act as an appraiser. He took heed of the common practice in the insurance sector, whereby the insurers appoint an employee (property adjuster) to act as their appraiser while the insureds appoint a lawyer, a public adjuster, or even themselves to act as appraiser. The Statutory Framework [15] It will be useful for the purposes of the following discussion to set out the relevant sections of the Insurance Act , namely ss. 128 and 148: Contracts providing for appraisals 128 (1) This section applies to a contract containing a condition, statutory or otherwise, providing for an appraisal to determine specified matters in the event of a disagreement between the insured and the insurer. Appraisers, appointment (2) The insured and the insurer shall each appoint an appraiser, and the two appraisers so appointed shall appoint an umpire. Appraisers, duties (3) The appraisers shall determine the matters in disagreement and, if they fail to agree, they shall submit their differences to the umpire, and the finding in writing of any two determines the matters. Costs (4) Each party to the appraisal shall pay the appraiser appointed by the party and shall bear equally the expense of the appraisal and the umpire. Appointment by judge (5) Where, (a)  a party fails to appoint an appraiser within seven clear days after being served with written notice to do so; (b)  the appraisers fail to agree upon an umpire within fifteen days after their appointment; or (c)  an appraiser or umpire refuses to act or is incapable of acting or dies, a judge of the Superior Court of Justice may appoint an appraiser or umpire, as the case may be, upon the application of the insured or of the insurer. […] Statutory conditions 148 (1) The conditions set forth in this section shall be deemed to be part of every contract in force in Ontario and shall be printed in English or French in every policy with the heading “Statutory Conditions” or “Conditions légales”, as may be appropriate, and no variation or omission of or addition to any statutory condition is binding on the insured. […] Appraisal 11. In the event of disagreement as to the value of the property insured, the property saved or the amount of the loss, those questions shall be determined by appraisal as provided under the Insurance Act before there can be any recovery under this contract whether the right to recover on the contract is disputed or not, and independently of all other questions. There shall be no right to an appraisal until a specific demand therefor is made in writing and until after proof of loss has been delivered. The Decision Below [16] The application judge described the appraisal process as an informal valuation, not an arbitration, run entirely by the umpire as they see fit. To that end, he noted: · There is no requirement for a hearing, nor is there a prohibition that one take place; · If oral evidence is presented, contractors and/or insureds can be called to testify, and cross-examinations can occur; · Experts can be asked to attend a hearing and provide their opinion; · The hearing can last a few hours, one day or span over many days; and · The valuation can also be entirely based upon written documentation. [17] The application judge found that the umpire is the sole decision maker. While s. 128(3) of the Act sets out the duty of the appraisers to determine the matters in disagreement, it is silent regarding the umpire’s role and responsibilities. The umpire, after hearing and considering all the evidence (oral and/or documentary), as presented by the appraisers, decides between two competing valuations (insurer or insured), and the umpire’s selection determines the value of the loss. It is the umpire’s choice and nothing else that creates the majority decision that determines the value of the loss. The umpire, he stated, must always be independent and impartial, and in the event that they find it appropriate to hold a hearing, it must be conducted in a manner that ensures procedural fairness. [18] The application judge described the appraisers’ role as one of presenting evidence that supports their assessments of the loss. The appraisers do not give evidence but merely plead the case on behalf of the clients and present the evidence in a manner meant to persuade the umpire that their valuation of the loss is reasonable and appropriate in the circumstances. He summarized these points as follows: In sum, the choice of the appraiser belongs to the party.  It is expected that the chosen appraiser will vigorously advocate the client’s position, with the goal of convincing the other appraiser, or more importantly, the umpire as the sole decision maker of the appraisal process.  Selecting an advocate as an appraiser does not eliminate the integrity of the appraisal process. Rather, it ensures that the party’s respective positions are properly advanced before the umpire, in the best interest of the client. [19] After the application judge’s decision, the parties agreed to proceed with the appraisal with the same parties, notwithstanding the pending appeal. As at the time of the appeal hearing, both appraisers had submitted their appraisal brief and put forward their numbers. C. Issues on Appeal [20] The central issue on the appeal is whether the application judge erred in rejecting the appellants’ submission that the Insurance Act implicitly imposes a duty of independence and impartiality on appraisers. In the course of the oral hearing, the correctness of the application judge’s decision in characterizing the appraisal scheme under the Insurance Act as an administrative tribunal was also questioned. D. Submission of the Parties [21] The appellants argue that the application judge erred in finding that an appraiser is an advocate and not a decision maker because this offends the principle of impartiality and breaches procedural fairness. In doing so, they argue, he also erred in relying on the witnesses’ understanding of the role rather than the wording of s. 128(3) of the Insurance Act and the jurisprudence. Moreover, they submit, the application judge also erred by misinterpreting and misapplying the legislative amendment of Statutory Condition 11 under s. 148, which removed the word “disinterested,” and failed to give effect to the requirement that a decision maker in the context of an administrative tribunal be independent from the parties before them. [22] The respondent argues that the Insurance Act expressly permits the parties to an appraisal to appoint an appraiser of their choice and that choice need not be “neutral”, “non-partisan” or “independent” of the parties. She further notes that the suggestion that an appraiser appointed by the parties must be “neutral” runs contrary to the legislative scheme created by the Insurance Act and to the practice in the industry where insurers regularly appoint their own employees or adjusters as appraisers and parties often appoint their lawyer. [23] There is no dispute between the parties that this appeal depends on  statutory interpretation, which is a pure question of law. The standard of review is therefore one of correctness: Housen v. Nikolaisen , 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. E. Discussion (1) The application judge correctly interpreted the relevant provisions of the Insurance Act. [24] In modern statutory interpretation, “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re) , [1998] 1 S.C.R. 27, at para. 21. As Professor Ruth Sullivan notes in her text on statutory interpretation, “[t]he ordinary meaning of a word or a group of words is not their dictionary meaning but the meaning that would be understood by a competent language user upon reading the words in their immediate context”: Ruth Sullivan, Statutory Interpretation , 3rd ed. (Toronto: Irwin Law, 2016), at p. 61. [25] The appellants submit that because s. 128 of the Insurance Act removes the quantification of the loss from the courts and gives it to the appraisal process, all participants in the appraisal process who have the power to quantify the loss must also act judicially. Put another way, the argument is that it is not only the umpire who must act judicially but also the two appraisers. For that reason, the appraisers must be impartial as well as the umpire. [26] This submission is flawed for a number of reasons. [27] First, it is well established that the purpose of the appraisal scheme under the Insurance Act is to provide an easy, expeditious, and cost-effective means for the settlement of claims for indemnity under insurance policies: Madhani v. Wawanesa Mutual Insurance Company , 2018 ONSC 4282 (Div. Ct.), at para. 46; Northbridge General Insurance Corp. v. Ashcroft Homes-Capital Hall Inc ., 2021 ONSC 1684, at para. 23. The narrow function of the appraisal process is to provide the parties to the dispute with a valuation of the loss, and not the determination of legal rights: Madhani , at para. 40. [28] The appraisal process is not exhaustive of all potential disputes between the parties. For example, there may be a dispute about the scope of coverage such as whether landscaping restoration is covered. While such a loss might be valued as part of the appraisal process, that process cannot address other issues. [29] Second, as Perell J. noted in Northbridge , at para. 29, the process is designed to be collaborative and not adjudicative: The appraisal process is designed to be collaborative and not adjudicative, and the process, which does not require a hearing with evidence, contemplates that the appraisers and the umpire will arrive at a binding decision based on their own knowledge and expertise. The umpire is the ultimate impartial decision-maker that makes a binding determination that removes the quantification of the loss from the court. As for procedure, the umpire may permit viva voce testimony under oath and may receive affidavit evidence but he or she is not required to do so. [Footnotes omitted.] This point also relates to the question of whether the application judge correctly described the process as an adjudicative tribunal which will be addressed further below. [30] Third, as the application judge noted, the legislature removed the qualification “competent and disinterested” from the word “appraiser” through An Act to Amend the Insurance Act , S.O. 1966, c. 71, s. 8. The appellants, in effect, ask this court to read this qualification back into the statute. [31] The court must give effect to what the legislature intended. The best source of the legislature’s intention is the legislation itself. As the application judge noted, ss. 128(2) and (3) of the Act have never stipulated that appraisers must be “competent and disinterested.” While a previous version of Statutory Condition 11 at s. 148 of the Act stipulated that both appraisers and umpires had to be “competent and disinterested,” this condition was removed by the 1966 amendment. Although no explanation was given for this change, it must be presumed that the legislature was not simply careless with the language and did not intentionally make the statute vague: see Sullivan, at p. 41; D. R. Fraser Co. v. Minister of National Revenue , [1948] 4 D.L.R. 776 (P.C.), at p. 781. The legislature must have intended to remove the qualification “competent and disinterested” for appraisers. Were it found otherwise, insureds would not be able to self-represent and provide a valuation of their own loss. [32] The appellants argue that the reason s. 128 of the Insurance Act does not explicitly state that an appraiser must be independent is because the ordinary meaning of the terms “appraisal” and “appraiser” imply a degree of independence. In support of this argument the appellants submit the Black’s Law Dictionary definition of the term “appraisal” as meaning “[a] valuation or estimation of value of property by disinterested persons of suitable qualifications” and of the term “appraiser” as meaning “[a]n impartial person who estimates the value of something, such as real estate, jewelry, or rare books. – Also termed valuer.” It must be noted that these definitions have been lifted out of different editions of the dictionary: Joseph R. Nolan et al., Black’s Law Dictionary , 6th ed. (St. Paul, Minn.: West Publishing, 1990), sub verbo “appraisal”; Bryan A. Garner et al. 8th ed. (St. Paul, Minn.: Thomson/West, 2004), sub verbo “appraiser”. In any event, Black’s Law Dictionary definitions are not helpful as they cannot take into account the context and purpose of the appraisal process under the Insurance Act . [33] The cases relied on by the appellants for the proposition that appraisers must be disinterested do not assist them. [34] In both Ice Pork Genetics Inc. v Lombard Canada Ltd. et al , 2010 MBQB 77, and Florida Insurance Guaranty Association, etc. v. Branco (2014), 148 So. 3d 488 (Fla. 5th Dist. Ct. App.), the court was interpreting legislation or an insurance policy which specified that appraisers must be disinterested. There is no such provision in the Ontario Insurance Act . [35] In Congregation of Knox's Church (Trustees) v. Hudson's Bay Co ., [1993] O.J. No. 764 (Ont. C. J. (Gen. Div.)), the court was concerned with the narrow issue of whether valuators appointed pursuant to a private act of the Ontario legislature to determine rental lands leased to Hudson’s Bay Company had to be independent. As such, the case is not helpful in the insurance context. [36] While appraisers need not be disinterested, I would disagree with the application judge that they are therefore advocates. The purpose of the appraisal scheme under the Insurance Act is to provide an easy, expeditious, and cost-effective means for the settlement of claims for indemnity under insurance policies: Madhani , at para. 46; Northbridge , at para. 23. It is designed to be collaborative and not adjudicative: Northbridge , at para. 29. To fulfil the purposes of the appraisal scheme outlined above and to facilitate a collaborative process, an appraiser must attempt, in good faith, to reach a compromise with their fellow appraiser. That does not preclude the appointment of one party’s lawyer as their appraiser as well, but the appraisal process presupposes that each appraiser work collaboratively. While this involves advocacy in the sense that each side may be expected to advocate their valuation to the other, their overall role within the appraisal process is more collaborative and less adversarial. The umpire will ultimately choose one side or the other. That places a premium on each side to be reasonable and also to reach agreement with the other side if possible. [37] If the appraisers are nevertheless unable to agree and therefore appoint an umpire to resolve their disagreement, then the umpire becomes the tie breaker. At that point, the umpire becomes the ultimate decision maker, who must necessarily be impartial and make a binding determination: Northbridge , at para. 29. While the appraisal process is not subject to the SPPA, it is subject to judicial review for denial of procedural fairness at common law from the moment of the umpire’s involvement: Madhani , at paras. 37-38. It is the umpire who bears the responsibility for ensuring that the process is fair. [38] The content of procedural fairness in the appraisal process is modest and flexible, and will depend upon the exigencies of the particular case, having regard to, for example, the amount of money involved in the dispute: Northbridge , at paras. 34, 71 and 73. There is no requirement that reasons for decision be provided: Madhani , at para. 41. The more complex cases may require a more structured and formal appraisal process: Northbridge , at para. 73. To that end, the umpire enjoys considerable discretion. Courts afford the umpire’s choice of procedure considerable deference and will be reluctant to interfere unless there is proof of fraud, collusion, bias, or partiality on the part of the umpire, or the umpire or the appraisers exceed their jurisdiction under the Act: Northbridge , at para. 34, Shinkaruk Enterprises Ltd. and Mr. Klean Enterprises Ltd. v. Commonwealth Insurance Company et al. , 71 D.L.R. (4th) 681 (Sask. C.A.), at p. 688. [39] This lack of a rigid structure is deliberate, intended to provide the insureds and the insurers with an expeditious and easy means for the settlement of claims for indemnity under insurance policies: Northbridge , at para. 68. It is in the best interests of appraisers to be objective in the appraisal process and not harm their position by losing credibility in the eyes of the umpire. In other words, the appraisal process itself provides sufficient constraint on the conduct of appraisers. [40] On appeal, the appellants argued that the real issue in this case was Mr. Obagi’s dual role as appraiser and counsel in the insured’s bad faith action against the insurer. They submit that this creates a conflict of interest and Mr. Obagi, in his role as appraiser, has the ability to influence and impact the decision in such a way that it could impact upon the bad faith claim. [41] This submission was not put to the application judge. The issue was rather framed as whether a lawyer, whose duties are to the client, can act as a disinterested appraiser. The application judge reviewed the Act’s provisions, surveyed the Hansard records, looked at the usual practice in the field, and concluded that an appraiser need not be disinterested. [42] In any event, the bad faith claim and the appraisal are different issues. The bad faith claim involves the conduct of the insurer prior to the reconstruction of the homes at issue, which have now been reconstructed and the sole issue for appraisal is their replacement cost. Should these issues become intertwined at a later point, for example if there arose a possibility that Mr. Obagi may be called as a witness, the conflict of interest that arose may be cured by Mr. Obagi’s removal as counsel of record in accordance with s. 5.2 of the Rules of Professional Conduct . [43] In short, the flaw in the appellants’ argument that appraisers must be independent is that it collapses the roles of the umpire and the appraisers. The integrity of the process depends on the impartiality of the umpire. The structure of the process, according to which the umpire ultimately chooses one appraisal over the other, encourages compromise and collaboration between the parties. (2) The appraisal process is not a tribunal. [44] I conclude that the application judge erred in finding that the appraisal process was an administrative tribunal. This issue was raised by the panel in the course of the oral hearing. [45] Before the application judge, the respondent argued that the appraisal process is not an administrative tribunal. The application judge rejected this submission and determined that “[o]nce the appraisers and umpire have been appointed, an administrative tribunal has been created for the limited purposes of establishing the value of the loss. It removes the quantification of the loss from the Court.” However, he did not provide any reasons in support of this determination. [46] With respect, the application judge erred in classifying the appraisal process as a tribunal. Tribunals are quasi-judicial decision-making bodies tasked with determining issues on the facts and law in each case that comes before them: Prince Edward County Field Naturalists v. Ontario (Environment and Climate Change) (2016), 2 C.E.L.R. (4th) 140 (Ont. Environmental Review Trib.) , at para. 42, per Gibbs and Wright (Vice Chairs). [47] There is no indication in the Act that the appraisal mechanism is an administrative tribunal. The appraisal process under the Act is not adjudicative or quasi-judicial in nature but is rather based on discussion and on the sharing of expertise in valuation: Birmingham Business Centre Inc. v. Intact Insurance Company , 2018 ONSC 6174 (Div. Ct.), at para. 5; Madhani , at para. 42. It is not an arbitration: Madhani , at para. 40. Appraisal does not require a hearing, consideration of evidence, or reasons: Madhani , at paras. 40-41. Appraisers and the umpire do not determine legal questions: Madhani , at para. 30. [48] Moreover, while the process contemplates a valuation process that is comprised of the appraisers and the umpire, the ultimate decision maker if the parties are unable to agree is the umpire and not the appraisers. The fact that the umpire chooses one party’s appraisal over another does not change this. Seen in the context of the process as a whole and its purpose, this reflects the premium put on collaboration and efficient process because, as discussed earlier, the process creates incentive for the parties to present reasonable valuations to the umpire to maximize the prospect that theirs will be chosen. F. Costs [49] I would dismiss the appeal with costs in the amount of $8,750, including disbursements, plus HST to be paid by the appellants to the respondent. Released: February 15, 2022 “M.L.B.” “A. Harvison Young J.A.” “I agree M.L. Benotto J.A.” “I agree David Brown J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Baig, 2022 ONCA 129 DATE: 20220211 DOCKET: M51749 Tulloch J.A. (Motion Judge) BETWEEN Her Majesty the Queen Responding Party and Nicholas Baig Moving Party Nicholas Baig, acting in person Michael Crystal, appearing as duty counsel Nicole Rivers, for the responding party Heard: November 1, 2021 by video conference REASONS FOR DECISION [1] This is a motion for an extension of time for an appeal against conviction. Nicholas Baig pleaded guilty to second-degree murder for the murder of his wife who was, at the time, nine months pregnant with the couple’s unborn child. [2] In his motion for an extension of time, Mr. Baig states that he had previously understood that he could not appeal a conviction since he pleaded guilty and that he only recently became aware that it was possible to strike a guilty plea. He now seeks an extension of time to file a conviction appeal, as there was evidence from his case that was not presented during his court proceedings and on which basis he would not have pleaded guilty. [3] At the conclusion of oral arguments, I dismissed the motion with reasons to follow. These are my reasons. Background Facts [4] The case was originally set for trial but eventually proceeded by way of a guilty plea to the charge of second-degree murder. The underlying facts which gave rise to the charge were set out in an agreed statement of facts which was read out by the Crown prosecutor. The underlying facts are set out below. [5] Mr. Baig and his wife, Arianna Goberdhan were married on November 6, 2016. During the marriage, their relationship was very volatile, resulting in Ms. Goberdhan moving back to live with her parents in January 2017. At some point between November 2016 and March 2017, Mr. Baig and his wife engaged in a series of hostile text message exchanges during which Mr. Baig called Ms. Goberdhan a “skank”, “bitch”, “whore” and “slut”. During the text message exchange, Mr. Baig also said to his wife: I really don’t want to be married to you. I don’t want nothing to do with you or this baby anymore. I hope to God you stop breathing while you drive. And you’re a lying whore and I hope you die delivering. [6] Sometime on April 1 or 2, 2017, Mr. Baig and Ms. Goberdhan engaged in a very heated argument, resulting in Mr. Baig breaking into Ms. Goberdhan parents’ home. In the process, Mr. Baig broke the door that led from the garage into the residence and attempted to gain entry to the home. [7] On April 7, 2017, Ms. Goberdhan told family and friends that she was going to pick Mr. Baig up at work and give him a drive to his home. She indicated that she was going to take her father’s car so that she would have an excuse to leave that residence. In fact, Mr. Baig’s brother drove him home and they arrived home at around 5:50 p.m. [8] Ms. Goberdhan attended at Mr. Baig’s home around 6:30 p.m. that night. At approximately 9:43 p.m., Durham Regional Police received a 911 call from Ms. Goberdhan’s cell phone. Ms. Goberdhan did not speak directly to the 911 operator, but the operator could hear her saying something to the following effect: “you have to let me go. You can’t keep me here. I have to go home.” The call then ended abruptly. [9] Uniformed police officers attended the residence. Mr. Baig’s brother also arrived at the residence and provided them with access to the home. Ms. Goberdhan was found upstairs. Emergency Medical Services (EMS) personnel arrived at the residence and attended to Ms. Goberdhan. They noted she had what appeared to be multiple stab wounds to her head, face, neck, and body. The EMS personnel were unable to locate any vital signs and placed a call to a doctor who pronounced Ms. Goberdhan deceased. Her body was removed from the house later that night. [10] Ms. Goberdhan had no defensive injuries. She was stabbed seven times in the neck and head area. She was stabbed seven times in the torso, and she was stabbed three times in the arm. According to the pathology report, her unborn baby was fully developed and healthy and did not have any external injuries to the body. [11] Mr. Baig was charged with first-degree murder. After a very extensive period of pre-trial hearings, Mr. Baig entered a guilty plea to the charge of second-degree murder. Throughout the court process, Mr. Baig was represented by experienced senior counsel who specializes in criminal law. [12] Prior to the plea, counsel for Mr. Baig indicated to the court that he had taken time to explain to Mr. Baig his rights and obligations pertaining to a guilty plea, in accordance with s. 606(1.1) of the Criminal Code , R.S.C. 1985, c. C-46. The lawyer further indicated that Mr. Baig’s plea was voluntary and without threats or duress. [13] The guilty plea was entered on January 19, 2019, based on an agreed statement of facts. Mr. Baig accepted the facts as read into evidence that he murdered his wife. He accepted that he understood and appreciated that he had a right to a trial, that he had a right to testify, that he had a right to face his accusers, and that he had a right to require the Crown to prove the case against him beyond a reasonable doubt. Mr. Baig expressly waived his right to a trial. After the agreed statement of facts was read into evidence, Mr. Baig agreed to the facts as read, and the court accepted the guilty plea. Issues [14] Mr. Baig now seeks to appeal his conviction and sentence on the basis that he was confused and unaware of what he was doing. Specifically, he submits: 1. Due to his lack of knowledge of the legal system, he was under the impression that since he pleaded guilty, he could not appeal his conviction. 2. It was only recently brought to his attention that there are grounds on which to strike a guilty plea. 3. He only recently began reviewing all the documents in his possession and came across information, including “additional official evidence” that was never presented in his initial court proceedings and that leads him to believe his guilty plea was uninformed. 4. It has been extremely stressful for him in custody due to the COVID-19 pandemic and the disruptions that it has created within the institution. Analysis [15] Mr. Baig brings this motion pursuant to s. 678(2) of the Criminal Code , seeking to extend the time within which to file a notice of appeal to his conviction for second-degree murder. [16] In deciding whether to grant a motion for an extension of time to file a notice of appeal, I am guided by the following guiding factors set out in Enbridge Gas Distribution Inc. v. Froese , 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15 and R. v. J.C.M . (2002), 162 C.C.C. (3rd) 233 (Ont. C.A.), at para. 20: 1. Whether the applicant has shown a bona fide intention to appeal within the appeal period; 2. Whether the applicant has accounted for or explained the delay; and 3. Whether there is merit to the proposed appeal. [17] The overriding principle is the justice of the case, and whether the applicant has demonstrated that justice requires that the extension of time be granted: Enbridge Gas , at para. 15; J.C.M ., at para. 21. [18] I am not satisfied that Mr. Baig has shown that he had a bona fide intention to appeal within the specified appeal period, which would have been 30 days after the completion of his guilty plea and sentence. Mr. Baig entered his guilty plea on January 19, 2019. Now, more than two and a half years later, he brings this motion for an extension of time. In addition, he was charged for the offence in April 2017, over four years ago. [19] Mr. Baig has not provided any reasonable basis or adequate explanation as to why he delayed initiating his appeal. His only explanation is that he did not know that he could appeal a guilty plea until “very recently”. However, he has not established that he brought this motion within a reasonable time of becoming aware that he could appeal a guilty plea. [20] In my view, there is also no merit to Mr. Baig’s claim that he entered an uninformed guilty plea and was ignorant of the legal system. There is no issue that a guilty plea must be voluntary, unequivocal, and informed: R. v. Davis , 2020 ONCA 326, at para. 10. A plea is an informed one if the accused is aware of the effects and consequences of the plea. On the record before me, I am not satisfied that Mr. Baig was not properly informed before entering his guilty plea, or that his decision to plead guilty was not voluntary and unequivocal. Throughout the proceedings, Mr. Baig was represented by experienced senior counsel, who conducted a very extensive pre-trial of the case. Mr. Baig’s counsel also represented to the court, on the record, that he had very extensive consultations with Mr. Baig in preparation for trial and his subsequent decision to enter a guilty plea. [21] While there are cases in which our court and other appellate courts have granted an extension of time to allow an appellant to file an appeal seeking to set aside a guilty plea notwithstanding very lengthy unexplained delays, these tend to be cases in which there are unexpected consequences of the conviction, and there is good reason to doubt the validity of the conviction: J.C.M ., at para. 24; see also R. v. Brooks , 2020 ONCA 605. For example, this may be the case where there are immigration consequences for non-citizens who receive incarceration periods of six months or more after entering a guilty plea. In these cases, the appellant was either uninformed or misinformed as to collateral immigration consequences of the guilty plea or sentence. [22] Mr. Baig’s situation, however, does not fall in this category of cases. This is a case in which there was strong evidence of animus against the deceased by the applicant. The relationship was volatile. There was evidence of previous violence used against the deceased and her family on the part of Mr. Baig, just days before her murder. Mr. Baig’s actions leading up to Ms. Goberdhan’s death were violent, and intimidating. At trial, there was no issue that it was Mr. Baig who stabbed and caused the death of both Ms. Goberdhan and their unborn child. [23] The trial judge was very thorough in her allocution and in satisfying herself that the appellant was pleading guilty voluntarily, and that he fully understood the consequences of such a guilty plea. The following meticulous exchange at the time of the plea highlights the transparency of the process: [DEFENCE COUNSEL]: He pleads not guilty to the charge as read, but guilty to the lesser and included offence of second-degree murder. CLERK REGISTRAR: Harken to your plea as the court hath recorded it. You pled not guilty to Count 1 as charged but guilty to the included offence of second-degree murder. THE COURT: Mr. Baig. NICHOLAS BAIG: Yes. THE COURT: I want to have a conversation with you. You can have a seat. NICHOLAS BAIG: Yeah. THE COURT: I’d like you to confirm what your counsel just indicated to the court, and that is that you are entering a plea of guilty to second-degree murder. Is that right? NICHOLAS BAIG: Yes, ma’am. THE COURT: Do you understand that you have the right to plead not guilty and have a trial? NICHOLAS BAIG: Yes. THE COURT: Do you understand that by pleading guilty you are giving up your right to a trial? NICHOLAS BAIG: Yes. I do. THE COURT: Are you making this guilty plea voluntarily? NICHOLAS BAIG: Yes. THE COURT: Because it’s what you want to do? NICHOLAS BAIG: Yes. THE COURT: It is your choice? NICHOLAS BAIG: Yes. THE COURT: Do you understand that by pleading guilty you are admitting the essential elements of the offence, specifically, that you killed the victim? NICHOLAS BAIG: Yes. THE COURT: That you intended to kill her or to cause her bodily harm that you knew was likely to cause death and was reckless as to whether death ensued or not? NICHOLAS BAIG: Yes. THE COURT: Do you understand that by pleading guilty you are admitting your guilt and that you will be sentenced? NICHOLAS BAIG: Yes. THE COURT: And do you understand that the ultimate decision as to what your period of parole ineligibility will be is up to me? NICHOLAS BAIG: Yes. THE COURT: Do you understand that the mandatory sentence for the offence to which you’ve pleaded guilty is life imprisonment and the only issue to be determined by the court is when you will be eligible to apply for parole? NICHOLAS BAIG: Yes. THE COURT: I know that there’s no agreement between the Crown and your counsel but you understand that whatever their position is, I have an unfettered discretion bound only by the maximum and minimum in the Criminal Code to impose the period of parole ineligibility that I determine to be appropriate? NICHOLAS BAIG: Yes. THE COURT: Okay. In all of those circumstances I'm satisfied that the plea is voluntary as required to be a valid guilty plea and I accept your plea of guilty, Mr. Baig [DEFENCE COUNSEL]: Yes. Thank you, Your Honour. And, I just wanted to indicate that I have reviewed everything that is going to be presented for the facts of the case with Mr. Baig and I’ve indicated, and we’ve had lengthy discussions, I'm certainly content that everything that is going to be presented is admissible [DEFENCE COUNSEL]: And just to confirm again, Your Honour, Mr. Baig has reviewed all of this [exhibits admitted] and was certainly content that it be deemed admissible on the sentencing hearing. [24] It is clear from the above excerpt that the trial judge was very thorough, and that Mr. Baig and his trial counsel were both very responsive to the trial judge’s inquiry. [25] I adopt the words of Carthy J.A. in R. v. Closs (1998), 105 O.A.C. 392 (C.A.), at para. 8: It is my view that such orders should be made only in exceptional circumstances where there is a real concern that an injustice may have occurred. There are many negative consequences of having a criminal conviction and it cannot be expected that these will all be explained to an accused prior to a plea; nor should the convicted person expect the judicial system to provide a fresh start when a surprising consequence of the conviction is encountered. We must have finality except where the demands of justice dictate otherwise. [26] Recently, the majority of the Supreme Court in R. v. Wong , 2018 SCC 25, [2018] 1 S.C.R. 696 reiterated this principle, at para. 65: The onus is on a person who appeals a conviction on the ground of an invalid plea to show that the plea was in fact invalid: T. (R.) , at p. 519. The integrity of the plea bargaining process and the certainty and order which are essential to the criminal process depend on the finality of guilty pleas. The benefits associated with guilty pleas will be lost and the very functioning of the criminal justice system will be threatened if such pleas are set aside lightly. Accordingly, there is a considerable public interest in preserving the finality of guilty pleas, and the burden of showing that a guilty plea was invalid falls to the accused. [27] Having reviewed the record in this case, I am not satisfied that Mr. Baig has established that he formed a bona fide intention in the required period, that there is a reasonable explanation for the delay, or that there is any merit to the proposed appeal. Furthermore, there is no real concern that an injustice may have occurred. In contrast, granting the requested motion after this significant length of time could cause real prejudice to the deceased’s family, who will be forced to re-live the ordeal of her death and the death of her unborn child all over again, and be denied closure to this very tragic and sad chapter of their lives. [28] Accordingly, the motion is denied. “M. Tulloch J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: Bakhsh v. Merdad, 2022 ONCA 130 DATE: 20220215 DOCKET: C69201 van Rensburg and Roberts JJ.A. and Tzimas J. ( ad hoc ) BETWEEN Rana Abdulrahman Bakhsh Plaintiff (Respondent) and Khalid Bin Abdul-Aziz Abbas Merdad Defendant (Appellant) Steven Benmor and Misha Leslie, for the appellant W. Douglas R. Beamish, for the respondent Heard: November 26, 2021 On appeal from the order of Justice Shaun O’Brien of the Superior Court of Justice dated February 19, 2021. REASONS FOR DECISION [1] This appeal involves a dispute over a condominium property located in Ontario (“the condominium property”). The parties are former spouses who were married and resided, and whose marriage was annulled, in Saudi Arabia. The central issue is whether the claim by the respondent, Ms. Bakhsh, in relation to the condominium property, is an equalization claim under the Family Law Act , R.S.O. 1990, c. F.3 (“ FLA ”), as the appellant, Mr. Merdad, argues, or a resulting or constructive trust claim as Ms. Bakhsh pleaded. [2] In Ms. Bakhsh’s statement of claim, she has claimed, among other things, a declaration of her 100% beneficial interest in the condominium property whose legal title is in Mr. Merdad’s name. In response, Mr. Merdad brought a motion under rr. 21.01(1)(a) and (3) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, to dismiss the action on the bases that the court has no jurisdiction over the subject matter of the action, or that it is res judicata or statute-barred. [3] Mr. Merdad argued that Ms. Bakhsh’s Ontario claim is an equalization claim. As such, it was precluded because: Ontario has no jurisdiction over this matter that is governed by Saudi Arabian law and should have been heard there; the parties’ property issues had already been decided in their annulment proceedings in Saudi Arabia, making this claim res judicata ; and, in any event, Ms. Bakhsh’s equalization claim is statute-barred as it was not commenced within the applicable two-year limitation period under s. 7(3)(a) of the FLA . Mr. Merdad asked in the alternative that the proceedings be transferred to the family law list. The motion judge refused Mr. Merdad’s motion to dismiss Ms. Bakhsh’s action, transferred it to the family law list, and granted Ms. Bakhsh $10,000 as her costs of the motion. [4] Mr. Merdad repeats the same arguments on appeal about the characterization of Ms. Bakhsh’s claim as a statute-barred equalization claim, which the motion judge rejected. We see no error that warrants appellate intervention. The court has jurisdiction and the claim is not res judicata [5] First, does the Ontario court lack jurisdiction over the subject matter of Ms. Bakhsh’s claim because the claim should have been brought in the parties’ annulment proceedings or other civil proceedings in Saudi Arabia, and is it also res judicata ? The answer is no. [6] Ms. Bakhsh could not have brought her claim in Saudi Arabia. It is not disputed that, as the motion judge found, in accordance with s. 15 of the FLA , the law of Saudi Arabia, as the parties’ last common habitual residence, applies to Ms. Bakhsh’s claim in respect of the Ontario property. Based on the expert evidence called by the parties, the motion judge determined, correctly, in our view, that the question of the parties’ interests in property located outside Saudi Arabia had not been decided and could not have been decided in their annulment proceedings or in the separate civil proceedings concerning a property in Saudi Arabia. [7] The parties’ annulment proceedings only dissolved the marriage and did not resolve any other legal issues. As the parties’ experts agreed, and the motion judge accepted, Saudi Arabian law does not provide for equalization claims. The family courts in Saudi Arabia resolve issues related to the status of marriages, such as divorces and annulments, but do not have jurisdiction over property and financial disputes. The motion judge accepted Ms. Bakhsh’s expert’s evidence that property and financial disputes are within the jurisdiction of the Saudi Arabian civil courts. [8] In fact, and in confirmation of Ms. Bakhsh’s expert’s opinion accepted by the motion judge, the parties have been engaged in separate civil proceedings, apart from their annulment proceedings, in the civil court in Saudi Arabia. Ms. Bakhsh commenced a lawsuit in the civil court to determine the parties’ respective interests in property located in Jeddah, Saudi Arabia, that was acquired during their marriage. Further, the motion judge accepted Ms. Bakhsh’s expert’s unchallenged evidence that the civil courts of Saudi Arabia decline jurisdiction to deal with claims involving ownership of property and land outside of Saudi Arabia. [9] It is therefore clear that Ms. Bakhsh could not bring her claim for the condominium property in Saudi Arabia. Saudi Arabia does not have jurisdiction over the claim and the claim is therefore not res judicata . Moreover, Ontario clearly has jurisdiction to adjudicate the claim of Ms. Bakhsh, who resides in Ontario, concerning property located in Ontario, legal title to which is in Mr. Merdad’s name. [10] The motion judge’s determination that the Ontario court does not lack jurisdiction and that Ms. Bakhsh’s claim was not res judicata was amply supported by the record and contains no error. The claim is not an equalization claim nor is it statute-barred [11] Next, is Ms. Bakhsh’s equitable trust claim in fact an equalization claim under the FLA and is it therefore barred by the two-year limitation period set out in s. 7(3)(a) of the FLA ? [12] Absent any evidence as to the law of limitation of actions in Saudi Arabia, it appears to be common ground that Ontario law would apply. If Ms. Bakhsh’s claim is not an equalization claim, the ten-year limitation period under s. 4 of the Real Property Limitations Act , R.S.O. 1990, c. L.15, would apply and the respondent’s action would not be statute-barred. This court’s decision in McConnell v. Huxtable , 2014 ONCA 86, 118 O.R. (3d) 561, supports the application of the ten-year limitation period under the Real Property Limitations Act to family law constructive trust claims. [13] It is clear in our view that Ms. Bakhsh’s claim is not a thinly veiled attempt to dress up an equalization claim as an equitable trust claim. Rather, Ms. Bakhsh seeks to impose a resulting or constructive trust over the condominium property that she financially maintained and in respect of which she seeks a declaration of sole beneficial ownership. Indeed, Mr. Merdad does not suggest that the claim represents an abuse of process but rather that any claim involving the former spouses’ property acquired during the marriage is necessarily an equalization claim under the FLA and is now statute-barred under s. 7(3)(a). According to Mr. Merdad, the FLA and its rules provide a complete code for equalization of property claims between spouses and former spouse. [14] We disagree with Mr. Merdad’s submission that all property claims between spouses or former spouses must necessarily be equalization claims. And it does not follow that the expiration of time to bring an equalization claim entails the expiration of a constructive or remedial trust claim. Equalization claims and equitable trust claims remain distinct. [15] The FLA equalization provisions do not deal with property, per se , but, rather, with the equitable calculation, division, and distribution of the value of net family property. Here, Ms. Bakhsh brings forward an equitable trust claim and not a claim for equalization of the value of the parties’ net family property. A claim of ownership is distinct from a claim for a share in property value; an equitable trust claim addresses the former and the equalization regime of the FLA covers only the latter: McNamee v. McNamee , 2011 ONCA 533, 106 O.R. (3d) 401, at para. 59. [16] The equalization provisions of the FLA also do not preclude an equitable trust claim respecting property. Section 10(1) of the FLA expressly permits a court application for a determination between spouses or former spouses “as to the ownership or right to possession of particular property, other than a question arising out of an equalization of net family properties” and the court may “declare the ownership or right to possession”, as the respondent has claimed, among other remedies. Importantly, the two-year limitation period in s. 7(3)(a) of the FLA applies only to an application based on subsections 5(1) or (2) and not to the determination of a question of ownership between spouses set out in s. 10(1) of that Act. [17] The appellant’s reliance on the Supreme Court of Canada’s decision in Rawluk v. Rawluk , [1990] 1 S.C.R. 70, is, respectfully, misplaced. Rather, it supports Ms. Bakhsh’s position. [18] At issue in Rawluk was whether the doctrine of constructive trust could be applied to determine the ownership of assets of married spouses under the provisions of the FLA or whether the remedy was abolished and superseded by the equalization of matrimonial property and other provisions under the FLA . Mrs. Rawluk claimed a one-half interest in the matrimonial property by way of a remedial constructive trust. [19] The Supreme Court in Rawluk confirmed that the FLA incorporated the constructive trust remedy that could be used in the matrimonial property context to allocate proprietary interests and that the FLA did not constitute an exclusive code for determining the ownership of matrimonial property: at pp. 89-91, 93 and 97. While the doctrine of constructive trust can be used to settle questions of ownership for the purpose of determining the net family property of each spouse, this function is “totally distinct from the process of determining how the value of matrimonial property should be distributed under the equalization process”: at p. 93. [20] As a result, we reject the appellant’s submission that Ms. Bakhsh’s claim is an equalization claim that is statute-barred. The motion judge was correct to conclude that the two-year limitation period under the FLA , which applies to equalization claims, does not apply to Ms. Bakhsh’s claim. There is no error with the motion judge’s costs order [21] Finally, Mr. Merdad takes issue with the motion judge’s $10,000 costs order in favour of Ms. Bakhsh. He argues that because he was successful in having the proceedings transferred to the family law list, the costs award was punitive. [22] There is no basis to interfere with the motion judge’s discretionary costs decision. The parties had agreed that the successful party on the motion would be entitled to costs in the amount of $10,000. It was entirely within the motion judge’s reasonable exercise of her discretion to determine that Ms. Bakhsh was the successful party, especially since she prevailed on the principal disputed issues on the motion. Disposition [23] The appeal and motion for leave to appeal costs are therefore dismissed. [24] The respondent is entitled to partial indemnity costs from the appellant in the agreed upon amount of $7,915.01, inclusive of disbursements and applicable taxes. “K. van Rensburg J.A.” “L.B. Roberts J.A.” “E. Ria Tzimas, J. (ad hoc)”

COURT OF APPEAL FOR ONTARIO CITATION: Collingwood Aviation Partners Ltd. v. Winterland Airfield Holdings Ltd., 2022 ONCA 131 DATE: 20220215 DOCKET: C69470, C69471 Huscroft, Sossin and Favreau JJ.A. BETWEEN Collingwood Aviation Partners Ltd. Applicant (Respondent in Appeal) and Winterland Airfield Holdings Ltd. Respondent (Appellant) AND BETWEEN Winterland Airfield Holdings Ltd. Applicant (Appellant) and Collingwood Aviation Partners Ltd. Respondent (Respondent in Appeal) David W. Levangie and Teodora Prpa, for the appellant Nancy Roberts and Mark Sheeley, for the respondent Heard: February 2, 2022 by video conference On appeal from the judgment of Justice Edward M. Morgan of the Superior Court, dated April 26, 2021, with reasons reported at 2021 ONSC 3023. REASONS FOR DECISION [1] The appellant, Winterland Airfield Holdings Ltd. (“Winterland”), owns and operates an airport in Collingwood, Ontario. [2] The respondent, Collingwood Aviation Partners Ltd. (“CAPL”), owns the adjoining property and operates air services and a flight school. CAPL uses the runways on Winterland’s airport lands for its air services and the flight school. [3] Winterland appeals the application judge’s judgment in which he granted declarations that CAPL is entitled to unimpeded access to the airport lands and that Winterland is not entitled to charge user fees to CAPL for access to those lands. [4] For the reasons that follow, the appeal is dismissed. Background [5] Before 1968, the Town of Collingwood did not have an airport. The original owners of CAPL set up a company to build a runway on land owned by the Town that was designated for an airport. In exchange, the Town gave CAPL’s predecessor a plot of land abutting the airport lands. As part of the arrangement between the parties, CAPL’s predecessor also agreed to provide air services, including the operation of a flight school, on those lands. [6] As described by the application judge, “[o]ver the decades, the relationship between the two owners embodied this symbiotic existence. Three consecutive owners of what is now the CAPL property provided the requisite air services, operated the flight school, and enjoyed unimpeded access to the airport’s land.” [7] In 2014, after CAPL bought the flight school lands, it asked that the arrangement with the Town be reduced to writing. The parties entered an Operating Agreement on June 16, 2014. The Operating Agreement set out CAPL’s right to access the airport lands as follows: The Owner [CAPL] and its tenants/licensees shall have full access to the Collingwood Region Airport’s runway systems and other facilities and services necessary for flight operation across the Airport Lands…on a 24 hour per day/365 days per year basis, subject to applicable government regulations, as long as an airport continues to be operated on the Airport Lands... [8] In 2019, Winterland bought the airport from the Town. As part of this transaction, the Town assigned the Operating Agreement to Winterland. [9] In December 2019, Winterland erected a wire fence that surrounded CAPL’s property on three sides. The fence only left a 90-foot wide opening along the eastern boundary between the properties, thereby reducing CAPL’s previous 240-foot access to the runways on the airport lands. The fence on the northern boundary of CAPL’s property impeded access to a field area that CAPL’s tenants used to turn airplanes around. The fence on the southern boundary blocked CAPL’s access to a drainage ditch, which caused problems with snow removal and flooding. The fence also blocked footpath access between the two properties. [10] CAPL removed the wire fence from its eastern boundary a week after it was erected, but Winterland replaced the fence with a concrete barrier. The concrete barrier was removed in January 2020, pending the outcome of this litigation. [11] CAPL brought an application to the Superior Court, seeking declaratory relief in relation to its right of access to the airport property. Winterland brought a cross-application in which it sought declaratory relief in relation to its rights to control access between the two properties. As part of the cross-application, Winterland also sought a declaration that CAPL was underinsured. [12] The application judge granted CAPL’s application and dismissed Winterland’s cross-application. In doing so, he found that CAPL has a right of “unimpeded access” to the airport lands along CAPL’s eastern boundary, based on the Operating Agreement and a right of easement. He also found that Winterland was not entitled to charge any user fees for CAPL’s access to the airport lands. Finally, he found that Winterland did not meet its burden of proving that CAPL was underinsured. Based on these findings, the application judge made the following declarations: a. a Declaration that the CAPL property has the benefit of full access to the airport property along the 240-foot boundary between the CAPL property and the airport property, being the eastern boundary to the CAPL property; b. a Declaration that under the Operating Agreement and as a common law easement, the CAPL property has a right, subject to applicable government regulation, to unimpeded access to the airport property along the 240-foot eastern boundary of the CAPL property; c. a Declaration that CAPL has no obligation to pay an access fee for the purpose of accessing the airport property; d. an Order than any fence erected by Winterland to the north of the CAPL property is to be at least 30 feet north of the boundary line between the two properties; e. a Declaration that CAPL has a right of access to the drainage infrastructure along its southern property line for the purposes of snow removal and for ensuring proper drainage on its property. [13] By separate endorsement dated October 18, 2021, the application judge granted $311,228.77 in costs to CAPL. [14] Winterland challenges all aspects of the application judge’s decision. [15] Many of Winterland’s arguments invite this court to make different findings of fact and reweigh the evidence. However, it is not the role of the court to consider the issues decided by the application judge afresh. The court will only interfere with the application judge’s decision if he made errors of law or palpable and overriding errors of fact or mixed fact and law. [16] As set out below, we are satisfied that the application judge made no reversible errors. Access Rights in the Operating Agreement [17] Winterland argues that the application judge erred in interpreting the reference to “full access” in the Operating Agreement to mean “unimpeded access”. The application judge found that “full access” meant “unimpeded access” based on the surrounding circumstances which, in this case, included evidence that the Town of Collingwood and CAPL intended the Operating Agreement to capture the access CAPL had enjoyed to the airport lands prior to the signature of the agreement. The application judge found that CAPL’s historical access to the airport lands was unimpeded. This is a finding of mixed fact and law which is entitled to deference and that is well supported by the record. [18] Winterland argues that this interpretation of “full access” is unreasonable because it ignores the safety requirements of an airport. We disagree. The application judge was not satisfied that Winterland presented sufficient evidence of safety concerns to justify the proposed fencing. As part of Winterland’s evidence of safety concerns, it included a photograph of a child in the vicinity of the runway. While the application judge may have made a factual error in describing the timing of the photo, this error on its own was not palpable and overriding. It relates to one isolated incident and does not detract from the application judge’s overall assessment of the paucity of evidence presented by Winterland regarding safety concerns that would justify the fencing. In fact, the application judge found that the fencing posed concerns for the safe operation of the flight school. These were findings of fact available on the record. [19] Winterland also argues that the application judge failed to consider s. 301.08 of the Canadian Aviation Regulations , SOR/96-433, which prohibits activities such as walking, standing, driving a vehicle or parking a vehicle or aircraft in the area of an aerodrome without permission of the operator. While the application judge did not address this argument in his decision, there is no requirement that a court consider all arguments made by a party. In any event, this provision does not run contrary to the application judge’s finding that the Operating Agreement gives CAPL unimpeded access to the airport lands. Rather, as pointed out by CAPL, the Operating Agreement gives CAPL the necessary permission to access the airport lands. [20] Ultimately, the Operating Agreement and the declarations granted by the application judge require CAPL to comply with all government laws and regulations. If CAPL does not comply with a particular law or regulation, Winterland can pursue available remedies to enforce compliance. The declarations made by the application judge do not preclude Winterland from doing so. [21] Accordingly, we see no error in the application judge’s interpretation of the access clause in the Operating Agreement. Easement by implication [22] We see no errors in the application judge’s finding that CAPL has a right to unimpeded access to the airport property on the basis of a common law easement by implication. [23] Winterland does not dispute that the application judge properly articulated the test for an easement by implication but argues that the application judge erred in his application of the test. [24] The application judge relied on the following test for an easement by implication set out in Anne Warner La Forest, Anger & Honsberger , Law of Real Property , loose-leaf, 3rd ed. (Toronto: Thompson Reuters, 2021), at para. 17.12: In order for a quasi-easement which was exercised during unity of ownership to become an easement by implication of law, the right claimed must meet certain criteria: a) it must be necessary to the reasonable enjoyment of the part granted; b) it must have been used by the owner of the entirety for the benefit of the part granted up to and at the time of the grant; and c) it must have been apparent at the time the land for which the easement is claimed was acquired. For an easement to be apparent, its previous use must be indicated by some visible, audible or other apparent evidence on either the quasi-dominant or the quasi-servient tenement which could be seen, heard or smelled by a reasonable inspection. [25] The application judge made findings of fact about the agreement between the Town and CAPL’s predecessor at the time the lands were severed. Based on those findings, the application judge was satisfied that the rights of access “were apparent at the time the agreement was concluded”. For example, the application judge found that it would be “impossible” for CAPL’s predecessor to operate a flight school without “broad runway access on CAPL’s eastern boundary, as well as a buffer zone access on CAPL’s northern side and footpath access for pilots and students”. [26] Winterland argues that the application judge erred in finding that unimpeded access is “necessary” to CAPL’s reasonable enjoyment of its lands. The application judge made no such error. He considered that “necessity” forms part of the test for an easement by implication and he found that “being ringfenced and losing its historic access to the airport lands would be substantially more harmful to it than a mere inconvenience”. The application judge went on to review the evidence of how CAPL had to conduct its business while the fencing was up and the overall impact of the fencing on the three relevant sides of the property. He ultimately concluded that the fencing and restrictions are “not just inconvenient, they are a serious interference with CAPL’s use of its property and, in addition, impose unnecessary hazards for the operation of the aircraft by CAPL and its tenants”. These were findings of fact supported by the record. [27] Winterland also argues that the application judge erred in failing to address and find that a 1992 agreement extinguished any easement right that may have previously existed. Again, the court is not required to address all arguments made by the parties. In this case, as pointed out by CAPL, the 1992 agreement did not address access rights and, therefore, there is no basis for a finding that it extinguished the easement the application judge found exists in this case. [28] Finally, Winterland argues that the application judge erred by failing to consider that, even if an easement exists, it does not preclude Winterland from exercising some control over access to its property through the use of fences. In making this argument, Winterland relies on the decision in Gardiner v. Robinson , 2006 BCSC 1014, where the Supreme Court of British Columbia held that broad rights of access to footpaths did not prevent a property owner from erecting a fence and gates. However, in Gardiner , the Court emphasized, at para. 27, that the landowner’s ability to erect fencing and gates depends on whether they “interfered in a substantial and unreasonable way with the petitioners’ right of access”. As reviewed above, this is precisely the analysis the application judge conducted in this case. He concluded that the proposed fencing would constitute a substantial interference with CAPL’s enjoyment of its property. [29] Ultimately, the application judge committed no errors in his application of the common law test for an easement by implication. User fees [30] We see no error in the application judge’s finding that Winterland cannot charge user fees to CAPL for access to the airport lands. [31] The Operating Agreement contains the following provision dealing with access fees: This Agreement does not preclude the Owner [CAPL] or tenants of the [CAPL] Property to be exempt from any applicable user fee as determined by the Town from time to time. [32] The application judge held that this provision does not allow Winterland to charge access fees to CAPL, reasoning that “Winterland cannot charge for a right of access which CAPL already owns”. The application judge held that the provision in the Operating Agreement dealing with fees confirms that “CAPL will not be exempt from user fees levied on users of the Airport generally, with the exception, of course, of those fees that touch on access to the airport lands, which are specifically given to CAPL as of right”. [33] Winterland argues that this finding is contrary to the plain wording of the relevant provision and that it is commercially unreasonable. [34] When interpreting the Operating Agreement, the application judge was required to consider the wording of the relevant provision and the factual matrix. In this case, given his finding that the Operating Agreement and implied easement give CAPL unimpeded access to the airport lands, we see no error in the application judge’s finding that Winterland has no right to charge fees for this access. [35] Winterland’s inability to charge access fees does not make the agreement commercially unreasonable. Winterland is entitled to charge other fees and, as pointed out by CAPL, the Town and now Winterland have derived other benefits from the arrangement between the parties, including CAPL’s obligation to buy fuel exclusively at the airport. Insurance coverage [36] We see no error in the application judge’s finding that Winterland did not prove that CAPL is underinsured. [37] The Operating Agreement requires CAPL to “at its own expense, procure and maintain in force adequate insurance for the CAPL Property and its uses that is acceptable to Winterland, acting reasonably, naming Winterland as additional insured”. When Winterland raised the issue of insurance, CAPL increased its coverage from $1,000,000 to $5,000,000 and produced a Certificate of Insurance. [38] The application judge rejected Winterland’s argument that CAPL was underinsured on the basis that there was no objective evidence to support this position. [39] Winterland argues that the application judge improperly shifted the burden of proof on this issue. We see no merit to this argument. Winterland sought a declaration regarding the issue of insurance on the cross-application. It provided no evidence—notably presenting no expert evidence—that CAPL’s insurance coverage was inadequate. In the circumstances, the application judge made no error in dismissing this aspect of Winterland’s cross-application. Dismissal of cross-application [40] Winterland argues that the application judge erred in dismissing the cross-application without giving it any proper consideration. Specifically, it argues that it had put forward a proposal for a rolling fence between the properties that could be opened as needed. [41] We see no merit to this argument. While the application judge’s conclusions on the cross-application are contained in a conclusory one paragraph section of his decision, it is evident from his decision as a whole that he considered the applicant’s cross-application. [42] For the most part, the cross-application was a mirror to CAPL’s application, and sought declarations related to the parties’ respective rights in relation to the boundaries between both properties. The application judge’s declarations address those issues. [43] In addition, it was Winterland that raised the issue of insurance coverage in its cross-application, an issue that the application judge addressed and dismissed. [44] Finally, while in its argument before this court, Winterland placed significant emphasis on the issue of a rolling fence, it is evident that this issue was not significant to the arguments before the application judge and does not detract from his finding that CAPL is entitled to unimpeded access to the airport lands. Motion for leave to appeal costs order [45] Following the commencement of the appeal, the appellant served a supplementary notice of appeal, seeking leave to appeal the application judge’s costs order. [46] Other than this supplementary notice, the materials filed by the appellant did not include a costs order or the application judge’s costs endorsement. The appellant’s factum did not address the issue of costs and the appellant’s counsel did not make any arguments on the issue during oral arguments. [47] In the circumstances, we see no basis for granting the motion for leave to appeal the application judge’s costs order. Conclusion [48] For these reasons, we dismiss the appeal and the motion for leave to appeal costs. [49] The respondent is entitled to costs of the appeal which we fix at $60,000, all inclusive. “Grant Huscroft J.A.” “L. Sossin J.A.” “L. Favreau J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Savory, 2022 ONCA 132 DATE: 20220211 DOCKET: C66294 Fairburn A.C.J.O., Doherty and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Craig Savory Appellant Mark Halfyard, for the appellant Marie Comiskey, for the respondent Heard: February 10, 2022 by video conference On appeal from the conviction entered by Justice Jane Ferguson of the Superior Court of Justice, sitting with a jury, on September 26, 2018. REASONS FOR DECISION [1] The appellant stands convicted of possession of cocaine for the purpose of trafficking. [2] Almost 2.5 kilograms of cocaine were found in a hidden compartment located in the backside upholstery of the front passenger seat in the appellant’s SUV. The sole issue at trial was possession, specifically whether the appellant knew that the cocaine was in his vehicle. The sole issue on appeal is whether the jury’s verdict is an unreasonable one. [3] The appellant argues that there was little evidence to support the conviction in this case. As he points out, despite being under on-and-off surveillance for over a year, he was never seen accessing the secret compartment. Nor did his minimalist lifestyle lend support to the theory that he was a drug trafficker, operating in high amounts of cocaine. [4] The appellant pointed to his brother as the likely culprit. The appellant’s brother, a previously convicted drug dealer and someone who was also found to possess drug paraphernalia around the same time as the appellant’s arrest, had gifted him the vehicle. The appellant testified that his brother continued to access the SUV with the appellant’s permission, right up to the day prior to the search. [5] Against that factual backdrop, the appellant hypothesizes that the jury may have come to their erroneous conclusion on what is described as a weak yet legally correct instruction on circumstantial evidence. If a more robust instruction had been given, one that exceeded the specimen jury instructions, then the jury may not have been so quick to fill in the evidentiary blanks with guilty inferences. [6] The appellant emphasizes that his view of the case was shared by the trial judge. At sentencing, the trial judge expressed the view that “she may not agree” with the verdict, that she “would have done something different”, and that she was “sympathetic” to the appellant. While the appellant acknowledges that the trial judge’s view of the case is not determinative of this appeal, he argues that the fact that she expressed such strong sentiments about the jury’s verdict goes some distance to raising concerns over whether the verdict was in fact unreasonable. [7] In the end, the appellant argues that the conviction in this case represents a perverse verdict, one that no properly instructed jury acting reasonably could have rendered. [8] We do not accept this submission. While it is correct that the trial judge expressed the view that she may well have arrived at a different verdict, the voicing of that thought did not render the verdict unreasonable. The appellant exercised his right to a jury trial. Having done so, the jury became the fact finder in this case, and “[a]ny judicial system must tolerate reasonable differences of opinion on factual issues”: R. v. Biniaris , 2000 SCC 15 , at para. 24. This may well be one of those cases. [9] Our task is not to displace the jury’s verdict because the trial judge may have come to a different conclusion. Rather, our task is to consider whether, based upon the totality of the evidence, the admittedly properly instructed jury could have arrived at the verdict. [10] The evidence in this case included the following: - The SUV was registered to and legally owned by the appellant for almost two year prior to the search; - He was seen driving that vehicle on multiple occasions in that time frame; - During the last 14 months prior to the search, the appellant was the sole person seen by surveillance officers driving that vehicle, meaning that his brother was never seen driving it; - The appellant had children whose car seats – which he had installed – were in the backseat of the vehicle, from which the secret compartment was visible; - Indeed, one of the car seats was so close to the secret compartment that an officer testified that a child’s feet could touch it; - The appellant was seen by surveillance putting his children into the backseat of the car; and - The police discovered the secret compartment because it “looked weird”, describing it as a large upholstered panel affixed to the back of the seat with a gap as wide as about two centimeters, which allowed an officer to put his fingers behind the panel and pull it back, revealing plastic bags containing all of the cocaine. [11] That evidence, combined with the sheer value of 2.48 kilograms of cocaine, a quantity of cocaine that was unlikely to have been left by anyone in the appellant’s unwitting control, made for a factual case upon which a properly instructed jury could reasonably arrive at a conclusion of guilt. [12] The appeal is dismissed. “Fairburn A.C.J.O.” “Doherty J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Nicholls, 2022 ONCA 133 DATE: 20220216 DOCKET: C69491 Fairburn A.C.J.O., Doherty and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and Jesse Nicholls Appellant Carter Martell, for the appellant Michael Dineen, for the respondent Heard: February 8, 2022 by video conference On appeal from the conviction entered and sentence imposed on December 10, 2020 by Justice M.A. Garson of the Superior Court of Justice. REASONS FOR DECISION [1] The Stratford police were conducting a drug investigation. Based primarily on information provided by two confidential informants (“C.I.”) and surveillance on the evening of the arrest, the police arrested the appellant, believing he was in possession of narcotics. When the police searched the appellant incident to his arrest, they did not find any drugs, but they did find a partially loaded, concealed firearm in his computer bag. The appellant was charged with several firearm offences. He was ultimately convicted and, after credit for pretrial custody and other considerations, he received a net sentence of 3½ years. He appeals conviction and seeks leave to appeal sentence. [2] At trial, the appellant conceded he was in possession of the firearm. However, he argued the police did not have reasonable and probable grounds to arrest him, rendering his arrest arbitrary and contrary to s. 9 of the Charter . The appellant further argued that as his arrest was unlawful, the search was also unlawful and a breach of s. 8 of the Charter . The appellant argued the weapon should be excluded from evidence under s. 24(2) of the Charter leading to acquittals on the charges. [3] The trial judge held that the police did not have reasonable and probable grounds to arrest the appellant. Both the arrest and the subsequent search of the appellant were unconstitutional. The trial judge held, however, that the appellant had failed to establish that the admission of the seized handgun into evidence could bring the administration of justice into disrepute. The trial judge declined to exclude the gun from evidence. Convictions followed. Was the Arrest Unlawful? [4] The trial judge accepted that the arresting officer believed he had reasonable and probable grounds to arrest the appellant on drug charges. The trial judge went on, however, to hold, at paras. 49-50: [49] However, objectively viewed, I am not satisfied that these grounds were reasonable. The information from the C.I.s was neither overly credible nor compelling and was subject to limited corroboration. The limited surveillance of and confirmed association between the applicant and the third party did not sufficiently elaborate the grounds held by the police to believe the applicant possessed C.D.S.A. substances that evening. More specifically, the circumstances known to the police at the time, coupled with the inferences they were entitled to draw based on their training and experience, were not enough to allow DC Serf to form the necessary grounds to arrest the applicant for possession of C.D.S.A. substances. I wish to be clear. The police had some grounds to believe a criminal offence had taken place, but those grounds fell just short of the necessary standard when viewed objectively. [5] The appellant submits the trial judge correctly held the arrest and search were unlawful, but wrongly failed to exclude the evidence. The Crown argues that the admissibility of the evidence should never have been in play, as the arrest and therefore the search were lawful. [6] In support of the claim that the trial judge properly held the arrest was unlawful, the appellant submits the grounds relied on by the police came down almost entirely to the unsupported word of unproven and uncorroborated C.I.s, combined with what was, in reality, innocuous evidence of association between the appellant and a person the C.I.s described as a drug dealer. The appellant maintains that, at best, this evidence supported a suspicion that the appellant was involved in drug trafficking. Suspicion is not enough to justify an arrest. The appellant goes on to argue, correctly, that in the absence of a lawful arrest, the search which produced the gun was unreasonable. [7] The Crown contends the trial judge was wrong in holding that the totality of the circumstances known to the police did not provide reasonable and probable grounds. The Crown argues there was firsthand information from a C.I. that the appellant supplied drugs to the party with whom he was associating immediately before his arrest. The police also had firsthand information from a different C.I. that the party with whom the appellant was associating before his arrest was a drug dealer. The Crown contends that the movements of the appellant and the others in the several hours that they were under surveillance before the arrest added some additional support for the belief that the appellant was involved in drug dealing. The Crown contends that, on a proper application of the law governing arrest to the evidence, the police had reasonable and probable grounds to believe the appellant had in the past committed, or was in the course of committing, drug-related crimes. [8] We see no basis upon which to set aside the trial judge’s finding that the police did not have reasonable and probable grounds to arrest the appellant. The trial judge applied the correct legal principles. He made no material error in his review of the relevant evidence and no error in his fact-finding. His conclusion was not unreasonable. This court must defer to that finding. Should the Evidence Have Been Excluded? [9] The trial judge followed the well-established three-part analysis first articulated in R. v. Grant , 2009, SCC 32. In the course of considering the seriousness of the state misconduct, the trial judge observed: The seriousness of police conduct in these circumstances clearly falls at the lower end of the scale with minimal impact on the rights of the applicant. [10] In the above passage, the trial judge improperly mixed together the first and second factors to be considered in the Grant analysis. The first factor, the seriousness of the police conduct, is not concerned with the impact of the Charter breach on the rights of the accused. That impact is considered in the second Grant factor. The trial judge’s reference to the “minimal impact” on the accused’s rights is misplaced in his consideration of the first Grant factor. [11] In any event, the impact on the appellant’s Charter rights was far from minimal. The trial judge recognized that when he turned to the second factor in his analysis. When considering the impact of the Charter breaches on the appellant’s rights, the trial judge said: This was [a] serious breach that undermined the applicant’s right to privacy, liberty and security of the person. I note the arrest and search took place when he was riding his bicycle on the road. [12] Considering the reasons as a whole, the trial judge properly addressed the factors relevant to the s. 24(2) analysis. He placed police misconduct at the less serious end of the police misconduct spectrum, while acknowledging the serious impact of the breaches on the appellant’s rights. The trial judge misspoke in his initial reference to the “minimal impact on the rights of the applicant”, but clarified any confusion when he was addressing the relevance of the impact of the breach on the appellant’s rights. Read as a whole, the reasons made it clear that the trial judge regarded the impact of the breach on the appellant’s rights as serious. [13] The trial judge’s assessment of the blameworthiness of the police conduct reflected his finding that, while the police did not have reasonable and probable grounds, the evidence relied on by them came close to meeting that standard. The appellant argues that this was an unreasonable finding by the trial judge. The appellant contends the information available to the police came nowhere close to reasonable and probable grounds and, that in acting on that evidence to arrest the appellant, the police misconduct was minimally negligent and cannot be said to reflect any good faith on their part. The appellant places the police misconduct significantly further toward the serious end of the police misconduct spectrum. [14] I see no error in the trial judge’s s. 24(2) analysis. This was, in some respects, a difficult record in the sense that there were gaps in the narrative and uncertainties as to exactly what some of the evidence meant. We think it was open to the trial judge to characterize the evidence as he did and to conclude the grounds were close to meeting the reasonable and probable grounds standard. Deference is owed to that finding: R. v. Buchanan , 2020 ONCA 245. Having regard to the facts as found by the trial judge, this case was not unlike many cases heard on a daily basis in the trial courts. The state misconduct provided some, but not strong, support for excluding the evidence. The impact of the breach on the appellant’s rights favoured exclusion. The third factor, society’s interest in an adjudication on the merits, provided significant support for admitting the evidence, especially in light of the reliability of the evidence and its importance to the prosecution of a serious criminal charge. On this not uncommon constellation of the relevant s. 24(2) factors, trial judges are charged with the responsibility of balancing those factors in each case and determining whether the admission of the evidence would bring the administration of justice into dispute. When all proper factors have been considered, appellate courts must show deference to the balance struck by the trial judge: Grant , at para. 86. [15] The conviction appeals are dismissed. The Sentence Appeal [16] The sentence appeal raises a single question. The appellant argues that the sentence of 6 months imposed on the concealed weapon charge should have been made concurrent rather than consecutive to the other sentences. There is no doubt the trial judge could have exercised his discretion and made the sentence concurrent. He did not explain why he chose to make the sentence consecutive. [17] The ultimate question on sentence, however, is the fitness of the total sentence imposed. Bearing in mind the seriousness of the offence, and the appellant’s horrendous criminal record, we see no error in the total sentence imposed. We would grant leave to appeal sentence, but would dismiss the sentence appeal. “Fairburn A.C.J.O.” “Doherty J.A.” “David M. Paciocco J.A.”

WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1)       Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a)     any of the following offences; (i)      an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2)     In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3)     In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4)     An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18. 486.6(1)       Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2)      For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. E.A.P., 2022 ONCA 134 DATE: 20220214 DOCKET: C68636 Fairburn A.C.J.O., Doherty and Paciocco JJ.A. BETWEEN Her Majesty the Queen Respondent and E.A.P. Appellant Colleen McKeown, for the appellant Nicole Rivers, for the respondent Heard: February 8, 2022 by video conference On appeal from the conviction entered by Justice G.P. Renwick of the Ontario Court of Justice on December 19, 2019. REASONS FOR DECISION [1] The appellant was convicted of sexually assaulting X.F. The trial was short. There were three witnesses. There was one main issue in dispute. X.F. said she did not consent to sexual intercourse with the appellant. He testified she did. [2] The appellant appeals conviction only. [3] X.F. and the appellant had met at a car rally. X.F. modelled at those rallies. She placed an ad on Instagram, looking for a location for a photoshoot. The appellant offered his house. X.F. agreed to meet him at the house. The appellant picked her up and they drove to a local Walmart to buy some drinks. From there, they proceeded to the home. [4] The appellant and X.F. both testified they had sexual intercourse at the appellant’s home. According to him, it was consensual and was the culmination of a series of consensual sexual contacts that began when he and X.F. were walking around Walmart. According to the appellant, he had his arm around X.F.’s waist and, on one occasion, touched her buttocks. X.F. acknowledged that this occurred. Although it made her feel somewhat uncomfortable, she did not say anything or move away from the appellant. [5] X.F. testified the appellant made sexual advances after they arrived at his house. At one point, she told him she was fine with kisses, but nothing else was going to happen. The appellant persisted in his advances. After about 40 minutes, X.F., who was becoming upset, told the appellant she had no interest in having sex with anyone and nothing was going to happen. [6] According to the appellant, he told X.F. that he wanted to make love with her and she said, “that’s fine” but that she would not see him again. [7] X.F. testified that she eventually made her way out of the bedroom to the bathroom. The appellant followed. He picked X.F. up and placed her on the countertop. A couple of minutes later, he carried her to the bed. The appellant did not ask permission to do any of these things. X.F. did not tell him he could not do any of these things. [8] X.F. testified, that when the appellant put her on the bed, she told him her pants were not coming off. She also told him that if he attempted to have sex with her, she would never speak to him again. She told the appellant she did not want to “have sex or bang”. She was crying. [9] The appellant proceeded to insert his penis into X.F.’s vagina. A short time later, he stopped and said he was sorry. [10] According to the appellant, X.F. never said she did not want to have sex. To the contrary, when he told her he wanted to make love to her, she nodded and said, “that’s fine”. She was not crying and she did not raise any objection to his actions. She told him everything was “okay” while they were having sex. He stopped when it seemed to him that they were not connecting emotionally. [11] Immediately after the sexual intercourse, X.F. asked the appellant to take her home. She testified the appellant admitted he should not have had sex with her. Later that night, the appellant and X.F. exchanged text messages. He apologized, indicating that when he held her, “it just felt right”. X.F. told him he had to get better control of himself. [12] The day after the alleged rape, X.F. spoke with her foster mother and told her she had been raped. Her foster mother took her to the hospital. X.F. was seen by Social Services and the police took a statement later that day. According to X.F.’s foster mother, X.F. was very upset when she spoke to her foster mother. In fact, her foster mother testified she had never seen X.F. so upset. [13] The trial judge reviewed the evidence of the complainant and the appellant at some length. The central findings by the trial judge are set out below (at para. 39): In the end, on the critical parts of his testimony, I do not accept as true what the defendant said about X.F.’s purported consent to have intercourse that night. Instead, I find as a fact that X.F. specifically told the defendant that her pants were to stay on and she did not want to “bang” or “have sex”. Despite her clear words, the defendant chose to disregard her wishes and took advantage of her physically because she was smaller, younger, and did not protest when he pursued his desires: (para. 31). There was no “vibe” that X.F. exuded to permit the defendant to engage in intercourse with her. I accept the defendant’s evidence that his statement “I want to make love” was said. X.F. did not deny this. However, she never agreed to this, she never said it was “fine” for him to act on his wishes and she did not give consent, nor say or do anything from which consent could reasonably be inferred. To the contrary, I find the complainant was clear that she was not interested in having sexual intercourse with the defendant and he simply chose to disregard her stated intentions. grounds of appeal Ground #1: The alleged “undue reliance” on X.F.’s demeanour when assessing her credibility [14] Trial judges’ reasons must be examined as a whole, having regard to the live issues at trial, the evidentiary record and the arguments. They must also be examined, bearing in mind the trial judge’s assumed knowledge of the operative legal principles and the trial judge’s understanding of the fact-finding role. [15] Where error is alleged, it is incumbent on the appellant to demonstrate that error, not merely a possible error, or an ambiguous turn of phrase capable of being read on appeal as a misapprehension of the law or a misunderstanding of the evidence: R. v. G.F. , 2021 SCC 20, at paras. 68-72. [16] When, as in this case, the challenge on appeal is to the trial judge’s credibility findings, appellate courts have repeatedly acknowledged the advantaged position of trial judges and approached arguments about credibility errors with strong deference to the trial judge’s findings: G.F. , at paras. 81-82. As observed in G.F. , credibility assessments are not to be overturned simply because a surgical parsing by the appellate court of the trial judge’s reasons reveals “an imperfect or summary expression on the part of the trial judge”: G.F. , at para. 76. [17] The trial judge made several references to elements of the complainant’s demeanour in his assessment of her credibility. Read as a whole, however, we cannot say those references demonstrate that the trial judge’s reliance on demeanour was “undue”. The trial judge addressed several other factors that were also relevant to credibility. He noted: · X.F.’s evidence of the overall narrative was largely unchallenged; · her evidence was internally consistent; · she gave her evidence in a balanced way, acknowledging parts of the narrative which potentially assisted the appellant; · she had a very good recollection of collateral detail; and · her foster mother’s evidence that X.F. was very upset the following morning was confirmatory of her version of events. [18] Counsel for the appellant submits that the finding that X.F.’s evidence was “balanced” was no more than a finding that she did not exaggerate her evidence, or make allegations that were worse than the ones she did make. We read the finding that the evidence was “balanced” as a finding that X.F. told her story frankly and in a manner which did not suggest she was shaping her evidence to put herself in the best light, or the appellant in the worst light. X.F. acknowledged facts that were not helpful to her, and offered some support for the appellant’s position. A finding properly rooted in the evidence that there are strong indicia of candour and forthrightness in a witness’s testimony, are positive features of that witness’s evidence, capable of supporting a finding that the witness’s evidence is credible. [19] We accept that the mere absence of deliberate exaggeration by a witness does not make the witness more credible. In our view, however, the trial judge’s description of X.F. as giving “balanced” evidence went well beyond a mere finding that she did not deliberately exaggerate her evidence. [20] Counsel’s argument that the trial judge failed to deal with inconsistencies between the complainant’s evidence and her statement to the police is not borne out by the record. There was one inconsistency identified by counsel. X.F. used different language in her statement and in her testimony when describing her reaction to the appellant’s advances at Walmart. To the extent that the two versions are inconsistent, the failure by the trial judge to expressly deal with this one inconsistency in no way undermines the overall force of the reasons. This kind of microscopic review of a trial judge’s credibility assessments is exactly what the Supreme Court has cautioned against in several cases, including G.F. [21] Demeanour certainly factored into the trial judge’s assessment of credibility. No one suggests that it should not have. The appellant has not satisfied us that the trial judge’s consideration of demeanour was “undue”. Ground #2: Did the trial judge take an overly narrow view of how consent can be communicated? [22] The trial judge clearly and unequivocally accepted the evidence of X.F. that she told the appellant more than once that she did not want to have sex with him and was not consenting to sexual intercourse. The trial judge equally clearly and unequivocally rejected the appellant’s evidence that X.F. had communicated her consent to have sex with him by telling him “that’s fine” when he asked if he could make love to her. Therefore, the verdict in no way turned on how consent could or could not be communicated. On the findings, there was no consent to sexual intercourse of any kind communicated by X.F. [23] The appellant nonetheless argues that, in rejecting the appellant’s testimony, the trial judge erred by relying upon an overly narrow view of how consent can be communicated. Specifically, based on the appellant’s acknowledgements that he had repeatedly touched the complainant in sexually suggestive ways throughout the evening without asking permission, the trial judge said, “one of the main problems I have with the defendant’s testimony is that the defendant made assumptions about the level of physical contact X.F. wanted with him and mistook her silence or acquiescence as consent”. It is clear from the decision, as a whole, that the trial judge reasoned that the appellant’s testimony about the communication that occurred relating specifically to sexual intercourse was implausible, given his pattern of behaviour relating to consent throughout the evening. We see no error in this reasoning. It does not reveal an overly narrow view of how consent can be communicated but instead, constitutes a pattern of conduct that the trial judge was entitled to rely upon. Ground #3: Did the trial judge reverse the burden of proof on the question of mistaken belief in consent? [24] The trial judge began his reasons with a full and accurate description of the Crown’s burden of proof. Near the end of his reasons, after finding that X.F. did not consent, the trial judge said: I have considered whether on all of the evidence it is established that the defendant could have reasonably held an honest but mistaken belief in consent. In light of the factual findings I have come to, this defence also fails. [25] The appellant submits that the above-quoted passage wrongly puts the onus on the appellant to “establish” a reasonable but mistaken belief in consent. There is some merit to the appellant’s submission, if the above-quoted passage is considered in isolation from the trial judge’s earlier, more detailed description of the burden of proof. [26] In any event, on the trial judge’s findings of fact, all of which stand given our rejection of the first ground of appeal, there was no air of reality to a claim of an honest and reasonably held belief in consent. On the trial judge’s findings, there was sexual intercourse in the face of repeated refusals by X.F. to consent to sexual intercourse. conclusion [27] As indicated at the end of argument, the appeal is dismissed. “Fairburn A.C.J.O.” “Doherty J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: S.I. Systems Partnership v. Geng, 2022 ONCA 138 DATE: 20220211 DOCKET: C69018 Simmons, Pardu and Brown JJ.A. BETWEEN S.I. Systems Partnership Plaintiff (Appellant) and Li Geng, Xin Xu a.k.a. Jimmy Xu, Quarksys Consulting Inc. and X & C Hi-Tech Inc. Defendants (Respondents) Jennifer Dolman and Isabelle Crew, for the appellant Melynda Layton and Kenneth Krupat, for the respondents Heard: February 11, 2022 by video conference On appeal from the judgment of Justice Calum U.C. MacLeod of the Superior Court of Justice, dated December 23, 2020. APPEAL BOOK ENDORSEMENT [1] The trial judge dismissed the appellant's claim for breach of restrictive covenants in its contracts with the respondent independent contractors. In his reasons, the trial judge found the covenants had not been brought to the attention of Mr. Geng and Quarksys Consulting Inc.; that they were, in any event, unenforceable; and further, that the appellant had not proven its damages. The appellant has not appealed the finding concerning damages. In the circumstances, we see no basis on which to set aside the trial judge's order dismissing the action. The appeal is therefore dismissed. [2] Costs of the appeal are to the respondents, fixed in the amount of $30,000 on a partial indemnity scale inclusive of disbursements and applicable taxes.

COURT OF APPEAL FOR ONTARIO CITATION: Flight (Re), 2022 ONCA 139 DATE: 20220211 DOCKET: M53087 (C69594) Simmons J.A. (Motions Judge) In the Matter of the Bankruptcy of Brian Wayne Flight, of the City of London, in the Province of Ontario Nicholas Kluge and C. Haddon Murray [1] , for the moving parties/appellants, Adamson & Associates Inc. and John Adamson Tara Vasdani, for the responding party/respondent, Brian Wayne Flight Jacob Pollice, for the intervener Superintendent of Bankruptcy [2] Heard: January 20, 2022 by video conference COSTS ENDORSEMENT [1] The moving parties and the responding party shall bear their own costs of the motion for leave to amend the notice of appeal to add a request, in the alternative, for leave to appeal under s. 193(e) of the BIA. [2] The moving parties' lengthy delay in applying for leave to amend and the absence of any reasonable explanation for their delay may have supported a modest costs award in favour of the responding party for opposing the in-writing motion. However, because I found it necessary to require the parties' attendance to address concerns about the material filed on the motion and, ultimately, to strike portions of both parties' material, I conclude that the parties should bear their own costs. “Janet Simmons J.A.” [1] Mr. Murray prepared the in-writing submissions on behalf of the moving parties/appellants for the in-writing motion. Due to a conflict, Mr. Kluge appeared for the purposes of oral submissions on the motion and filed submissions on costs. [2] Mr. Pollice appeared on the motion but made no written or oral submissions on behalf of the intervener.

COURT OF APPEAL FOR ONTARIO CITATION: Williams (Re), 2022 ONCA 141 DATE: 20220214 DOCKET: C69374 Fairburn A.C.J.O., Doherty and Paciocco JJ.A. IN THE MATTER OF:  KYLE WILLIAMS AN APPEAL UNDER PART XX.1 OF THE CRIMINAL CODE Paul Socka, for the appellant Samuel G. Walker, for the respondent, Her Majesty the Queen Julie Zamprogna, for the Southwest Centre for Forensic Mental Health Care Heard and released orally: February 11, 2022 by video conference On appeal against the disposition of the Ontario Review Board, dated March 15, 2021. REASONS FOR DECISION [1] This is an appeal from a detention order imposed by the Ontario Review Board (“ORB”) on March 15, 2021. [2] On September 19, 2018, the appellant was found not criminally responsible on account of mental disorder. He has been under the jurisdiction of the ORB since that time. [3] The index offences involved an attempt to pull a young child from her grandmother’s vehicle. When the grandmother intervened, the appellant bit her. As a result of his psychiatric condition, the appellant thought that the young child was frightened and in need of help. [4] The appellant is diagnosed with bipolar disorder with psychotic features, attention deficit hyperactivity disorder and substance abuse disorder, the most problematic substance being crystal methamphetamine. [5] In the year leading up to the most recent hearing, the appellant experienced relapses into substance use. A little over a month before the hearing, there was a restriction of liberty hearing at which all parties jointly submitted that the restriction of liberty, involving hospital detention, was necessary and appropriate in the circumstances. [6] The appellant’s psychiatrist testified before the Board. She provided information about the appellant’s grandiose delusions, a condition that led to the index offences and a condition that is aggravated by drug use. With increased substance use, the appellant could misinterpret his environment and respond in a way that puts people at risk. The impact of drug use, creating the serious risk to safety, could take root quickly. [7] The appellant contends that the Board erred in failing to meaningfully consider a conditional discharge. The appellant says that there was an air of reality to a conditional discharge and, therefore, the Board was obliged to consider whether his risk could be managed by that form of disposition. In our view, the Board’s reasons clearly explain why the necessary and appropriate disposition is a detention order and, by implication, not a conditional discharge. [8] Although the issue of significant threat was conceded at the hearing, the Board still addressed the issue. The Board relied upon the treating psychiatrist’s evidence to find that, among other things, the appellant has little insight into his mental illness with ongoing symptoms and is only compliant with antipsychotic medication because of the structure and support available under a detention order. Further, based upon his history and current views regarding his recommended medication regime, rejecting that it is necessary, there is a serious risk that he would be non-medication compliant absent proper supervision by the hospital. Without his medication he would decompensate and his behaviour could become violent. [9] As the appellant conceded the issue of significant risk, the only issue for the Board’s determination was the necessary and appropriate disposition. The Board’s reasons clearly reveal why a conditional discharge was not available. The record before the Board, as accepted in its reasons, establish its conclusion that the appellant’s lack of insight into his illness and lack of acceptance of the need for treatment, means that his risk to the public cannot be managed outside of a detention order. Accordingly, the Board cannot be criticized for not inquiring into matters that would only be relevant if a conditional discharge had an air of reality. [10] The appeal is dismissed. “Fairburn A.C.J.O.” “Doherty J.A.” “David M. Paciocco J.A.”

COURT OF APPEAL FOR ONTARIO CITATION: R. v. Olivetti, 2022 ONCA 142 DATE: 20220217 DOCKET: C69371 Miller, Trotter and Zarnett JJ.A. BETWEEN Her Majesty the Queen Respondent and George Olivetti Appellant George Olivetti, acting in person Samuel G. Walker, for the respondent Heard: February 9, 2022 by video conference On appeal from the sentence imposed by Justice Alison J. Wheeler of the Ontario Court of Justice on January 28, 2021. REASONS FOR DECISION [1] The appellant entered pleas of guilty to one count of possessing child pornography ( Criminal Code , s. 163.1(4)), and one count of accessing child pornography (s.163.1(4.1)). [2] On July 1, 2020, the National Child Exploitation Coordination Centre detected an attempt by the appellant to download an image of a prepubescent female from the internet. The Kingston Police were alerted. When they entered the appellant’s home with a search warrant, he was sitting in front of his computer. The computer was seized. The hard drive was found to contain 11,000 images and 88 videos that were characterized as child pornography (primarily depictions of prepubescent girls). [3] The Crown and the defence presented a joint submission of four years’ imprisonment and other ancillary orders. After deducting credit for pre-sentence custody, it was proposed that the appellant would serve a further 1,220 days in custody. [4] At the time of sentencing, the appellant was 77 years old. Before retiring, he was employed in the financial services industry. The appellant has an extended family of adult children, as well as grandchildren and great grandchildren. He attends church. At the time of sentencing, he expressed remorse for his actions, commenting, “This is the most heinous activity.” [5] The appellant has a prior criminal record. In 2007, he was sentenced to a 10 ½ year penitentiary term for numerous historical sexual offences against children. No further information about these offences was provided to the sentencing judge, nor were we apprised of any details. [6] The sentencing judge acceded to the joint submission. She observed that the appellant had amassed a “very large collection of child pornography.” She noted the further aggravating factor of his prior criminal record. However, these factors were somewhat mitigated by the appellant’s guilty plea, his demonstrated insight into the harmfulness of his offending, and his stated commitment to change. [7] The appellant submits that the sentence imposed was too harsh in all of the circumstances. He also relies on fresh evidence which provides updated personal information. This includes the support of some of his family members. One of his sons (and his son’s wife) have offered to have the appellant live with them once he is released. [8] The appellant also relies on medical records that outline ongoing health issues, including a cerebral cyst and a kidney cyst. From the limited information provided to us, it would appear that both cysts are benign and the appellant is receiving appropriate treatment. [9] We do not accept the submission that the sentence was unfit when it was imposed. It was imposed further to a joint submission. Before accepting it, the sentencing judge assured herself that the proposed sentence was within the appropriate range. We agree with her assessment. [10] Nor are we persuaded that the updated information about the appellant’s personal circumstances could justify a reduction of what we consider to be an otherwise fit sentence. The appellant has been eligible for day parole since September of 2021 and will be eligible for full parole in March of 2022. Issues concerning the appellant’s health and well-being are best dealt with by the Parole Board of Canada. [11] Leave to appeal sentence is granted, but the appeal is dismissed. “B.W. Miller J.A.” “Gary Trotter J.A.” “B. Zarnett J.A.”