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" COURT OF APPEAL FOR ONTARIO CITATION: R. v. Alvarez, 2016 ONCA 259 DATE: 20160408 DOCKET: C59746 MacPherson, MacFarland and LaForme JJ.A. BETWEEN Her Majesty the Queen Respondent and Keron Alvarez Appellant Jonathan Dawe, for the appellant Karen Papadopoulos, for the respondent Heard: April 5, 2016 On appeal from the conviction entered on November 29, 2013 by Justice Ian A. MacDonnell of the Superior Court of Justice, sitting without a jury. ENDORSEMENT [1] The trial judge convicted the appellant of 11 counts stemming from the abduction of the complainant, namely: (i) uttering a threat (x2); (ii) assault with a handgun; (iii) pointing a firearm (x2); (iv) forcible confinement; (v) attempted murder; (vi) assault; and (vii) possession of a firearm contrary to a prohibition order (x3). He was sentenced to a global term of imprisonment of 10 years less pre-trial custody. [2] After considering the complainant聮s evidence, together with all the other evidence tendered by the Crown, the trial judge found the appellant and his accomplice abducted the complainant at gunpoint as she walked home with her boyfriend. He accepted that the complainant was dragged through alleyways and held hostage in a nearby townhouse; that the appellant tried to shoot her but his gun did not go off; and that the appellant and his accomplice beat her up. [3] Further, the trial judge accepted that the appellant did all this to try and start a fight with the complainant聮s boyfriend. And in fact, the appellant did exchange gunfire with the boyfriend. [4] The central issue at trial was identity. The appellant did not testify and no defence evidence was called. [5] On the appeal of his convictions, the appellant submits the trial judge erred in two ways. First, he claims the trial judge failed to consider the possibility that because the complainant had been exposed to an image of the appellant, her identification evidence was contaminated. Second, he asserts that the trial judge convicted the appellant of attempted murder by ignoring potentially exculpatory evidence and/or exculpatory interpretations of the evidence. [6] The impact of the evidence of the complainant having viewed a You Tube video of the appellant some five months after the abduction and prior to her viewing his photo in the lineup was an issue for the trial judge to decide based on the facts. When his reasons are read as a whole, it is clear he was alive to the potential contamination from the You Tube video. It is equally clear that he relied on other independent evidence to satisfy himself that the video did not contaminate her identification evidence. [7] The appellant聮s assertion that the trial judge may not have appreciated the true nature of the problem is not supported by the record. In our view, and consistent with the trial judge聮s findings, any potential concerns raised by the video are satisfied by the amount and quality of the one on one time the complainant spent with the appellant. [8] This case was not an identification case involving a fleeting glimpse of a complete stranger. Here, the complainant had met the appellant for the first time in her building a few months prior to the abduction, when he offered to help her with her groceries. In addition, the night before her abduction, the complainant witnessed 聯a brief but heated聰 argument between her boyfriend and the appellant while in a Pizza Pizza restaurant. [9] Furthermore, during the events that gave rise to the criminal acts, the complainant had on numerous occasions observed the appellant close up and even engaged him in conversation. And, as she testified, she walked outside with the appellant and remained beside him in the alleyway before, during and after the gunfight. [10] Finally, we note that the appellant聮s trial counsel did not raise the issue in his closing submissions. This ground of appeal is dismissed. [11] We also reject the appellant聮s assertions that the trial judge misapprehended evidence or failed to provide adequate reasons for convicting him of attempting to murder the complainant. [12] First, the trial judge specifically adverted to evidence of the other witness who said he saw only one man. He found the difference between this evidence and that of the complainant as being 聯no more than what one would expect given the circumstances in which the observations of all of the witnesses, including [the complainant], were made.聰 He was wholly entitled to reach this conclusion. [13] Second, the trial judge did not convict the appellant of attempt murder based only on the complainant聮s subjective belief. Rather, he convicted him on an objective assessment of all the evidence pointing to attempted murder, which included the complainant聮s observations. He assessed her testimony on this issue together with other facts he found that surrounded her account. The trial judge concluded that the only reasonable inference is that the appellant 聯pointed the gun at her head and pulled the trigger.聰 [14] Furthermore, it is beyond dispute that the appellant聮s weapon was an operable firearm since he had fired it moments earlier at her boyfriend. Thus, it was entirely open to the trial judge to then find that when the appellant 聯pointed the gun at [the appellant聮s] head and pulled the trigger聰, he expected to shoot her. [15] We find no error in either trial judge聮s approach or his conclusions. We would once again point out that trial judges are in the best position to make the necessary findings of fact and are entitled to great deference. In doing so in this case, the trial judge did not misapprehend evidence as argued by the appellant and his reasons for his decision are more than adequate. The conviction for attempt murder was reasonable. [16] For these reasons, the appeal is dismissed. 聯J.C. MacPherson J.A.聰 聯J. MacFarland J.A.聰 "H.S. LaForme J.A." "
"2016"
"05-19-2022"
"https://www.ontariocourts.ca/coa/decisions_main"
" 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.聽 These sections of the Criminal Code provide: 486.4(1)聽聽聽聽聽聽 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)聽聽聽聽聽 any of the following offences; (i)聽聽聽聽聽聽 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)聽聽聽聽聽 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聮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)聽聽聽聽 REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)聽聽聽聽聽 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)聽聽聽聽聽 In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)聽聽聽聽聽 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)聽聽聽聽聽 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)聽聽聽聽聽 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)聽聽聽聽聽 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)聽聽聽聽聽聽 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)聽聽聽聽聽 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:聽 R. v. Chapman, 2016 ONCA 310 DATE: 20160428 DOCKET: C60515 Cronk, Tulloch and van Rensburg JJ.A. BETWEEN Her Majesty the Queen Appellant and Michael Chapman Respondent Christine Bartlett-Hughes and Hannah Freeman, for the appellant Brian H. Greenspan and Naomi M. Lutes, for the respondent Heard: January 7, 2016 On appeal from the acquittals entered by Justice A.J. Goodman of the Superior Court of Justice, sitting without a jury, dated April 30, 2015. Cronk J.A.: [1] Following a trial by judge alone, the respondent was acquitted of six sexual offences involving two underage girls: two counts of sexual assault, two counts of sexual interference, one count of invitation to sexual touching and one count of obtaining for consideration the sexual services of a person under the age of 18 years, all contrary to the Criminal Code , R.S.C. 1985, c. C-46 (the 聯 Code 聰). [2] The Crown appeals against the acquittals, except the acquittal on the procuring offence. For the reasons that follow, I would dismiss the appeal. I.聽聽聽聽聽聽聽 Background [3] The charges against the respondent arose out of incidents that occurred on December 2, 2013, when the respondent, then 40 years of age, picked up two teenage girls who were hitchhiking in Kitchener, Ontario. The girls were 14 and one-half years old (V.T.) and 15 and one-half years old (A.S.) at the time. [4] While travelling in the respondent聮s vehicle, the complainants made unsolicited, sexually suggestive comments and engaged in conversation with the respondent about sex, partying, drinking and smoking. They claimed that they had just attended a college party but had missed their ride home. They also said that they were finished high school and, according to the respondent, mentioned that they wanted to go somewhere warm and have 聯fun聰. [5] The respondent drove with the complainants to his parents聮 home in Kitchener.聽 After the consumption of alcoholic and non-alcoholic beverages, the trio ended up in a hot tub in the backyard. While in the hot tub, A.S. and the respondent engaged in fellatio and sexual intercourse. A short time later, the respondent had sexual intercourse with V.T. in one of the bedrooms at the house. [6] The respondent then drove the girls to Cambridge. At their request, he stopped to buy them cigarettes and then dropped them off at a local restaurant. He also gave them $10 to buy something to eat. [7] At trial, the actus reus of the offences charged was conceded. There was no dispute that the parties had engaged in the sexual acts alleged and that the complainants had participated willingly.聽 However, since both girls were under the age of 16 years, as a matter of law, they could not consent to the sexual acts. The primary issue at trial, therefore, was whether the respondent could avail himself of the mistake of age defence as set out in s. 150.1(4) of the Code .聽 That section reads: It is not a defence to a charge under section 151 or 152, subsection 160(3) or 173(2), or section 271, 272 or 273 that the accused believed that the complainant was 16 years of age or more at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of the complainant . [Emphasis added.] [8] In essence, s. 150.1(4) allows a defence to certain types of sexual activity with a complainant under the age of 16 years based on a mistake of fact as to the complainant聮s age where the accused has taken all reasonable steps to ascertain age. As the respondent was charged with offences under ss. 151, 152 and 271 of the Code , he could only satisfy s. 150.1(4) if, on the trial judge聮s findings, he honestly believed that the complainants were 16 years of age or more and his belief was honestly held because he had taken 聯all reasonable steps聰 to ascertain their ages. [9] The respondent testified.聽 He said that he honestly and mistakenly believed the complainants had finished high school and were each 17 or 18 years old. He maintained that, based on their appearance, actions and demeanour, and the information they provided to him, he had taken all reasonable steps to ascertain their ages. [10] The trial judge found that A.S. was not a credible witness and that her memory of certain events was unreliable. He also found that there were internal and external inconsistencies in both her evidence and that of V.T. While he did not accept the entirety of the respondent聮s testimony, he concluded that it raised a reasonable doubt as to whether the respondent had taken all reasonable steps in the circumstances to ascertain the complainants聮 ages. [11] More particularly, the trial judge held that, based on the complainants聮 demonstrated actions, demeanour, self-professed stated objectives and portrayal of themselves as older than their true ages on the night in question, along with the total 聯constellation of factors聰, the respondent was not required to make further inquiries. He therefore concluded that the Crown had failed to meet its burden to prove, to the requisite criminal standard, that the respondent did not take all reasonable steps to ascertain the complainants聮 ages. Accordingly, he acquitted the respondent of all charges. II.聽 聽聽聽聽 Issues [12] There are two issues on appeal: (1) Has the Crown raised a question of law alone, entitling it to appeal from the acquittals in question under s. 676(1)(a) of the Code ? (2) Did the trial judge err in his consideration of the mistake of age defence under s. 150.1(4) of the Cod e? III.聽 聽聽聽聽 Parties聮 Positions (1) The Crown聮s Argument [13] Under s. 676(1)(a) of the Code , the Crown聮s right of appeal from an acquittal is limited to 聯any ground of appeal that involves a question of law alone聰. [14] In R. v. J.M.H. , 2011 SCC 45, [2011] 3 S.C.R. 197, the Supreme Court of Canada identified four, non-exhaustive, categories of cases in which alleged shortcomings in a trial judge聮s assessment of the evidence constitute an error of law, thereby allowing appellate review of an acquittal.聽 Justice Cromwell, writing for the court, described these categories as follows, at paras. 25-32: 1) it is an error of law to make a finding of fact for which there is no supporting evidence. However, a conclusion that the trier of fact has a reasonable doubt is not a finding of fact for the purposes of this rule. Rather, it is a conclusion that the standard of persuasion beyond a reasonable doubt has not been met; 2) the legal effect of findings of fact or of undisputed facts may give rise to an error of law; 3) an assessment of the evidence based on a misapprehension or misdirection concerning a legal principle is an error of law; and 4) a failure to consider all the evidence in relation to the ultimate issue of guilt or innocence is also an error of law. [15] In this case, the Crown acknowledges that, generally, the trial judge correctly stated the legal test set out in s. 150.1(4) and correctly identified the key principles underlying that provision. The Crown also accepts the trial judge聮s factual findings, as it is obliged to do on an appeal from an acquittal. [16] However, the Crown submits that the trial judge erred by failing to draw the correct legal conclusion from the facts he found, thus bringing this case within the second category of cases identified in R. v. J.M.H. as affording appellate review of an acquittal. [17] The Crown contends that, on the facts as found by him, the trial judge erred in law in concluding that a reasonable person in the respondent聮s circumstances would not have made any specific inquiries or taken any active steps to ascertain the complainants聮 ages. In other words, the Crown asserts that the trial judge erred in articulating and applying the appropriate standard of reasonableness against which the respondent聮s conduct should be measured. [18] Specifically, the Crown maintains that many of the indicia of age relied on by the respondent to support his subjective belief that the complainants were over 16 years of age, which were accepted by the trial judge as obviating the need for further inquiry, were inconclusive and insufficient to lead a reasonable person to conclude that no further inquiry was required. (2) The Respondent聮s Argument [19] The respondent counters with two arguments. [20] First, he argues that the Crown has not raised a question of law alone upon which to appeal under s. 676(1)(a) of the Code . He says the trial judge聮s conclusion as to whether the Crown established that the respondent had failed to take all reasonable steps to ascertain the complainants聮 ages amounts to a determination of the ultimate issue, namely, whether the Crown met its burden to establish its case beyond a reasonable doubt. The Crown聮s appeal, which challenges this conclusion, therefore constitutes a disguised and impermissible attempt to argue that the acquittals were unreasonable. [21] In support of this argument, the respondent submits that the second category of cases identified in R. v. J.M.H. , set out above and relied on by the Crown to ground its appeal, does not licence the Crown to appeal from an acquittal based on an argument that the trial judge聮s ultimate conclusion was wrong.聽 To conclude otherwise, the respondent says, would run afoul of the principles articulated in R. v. Biniaris , 2000 SCC 15, [2000] 1 S.C.R. 381, the presumption of innocence and the Crown聮s burden of proof in a criminal case. Where, as here, a factual foundation for an acquittal exists, that acquittal is not reviewable based solely on the contention that it was incorrect or unreasonable. [22] Second, the respondent submits that, in any event, the trial judge did not err. He correctly identified the relevant legal standard under s. 150.1(4) of the Code and applied it properly to the facts as found. Further, the evidence supports his conclusion that the respondent took all reasonable steps to ascertain the complainants聮 ages in all the circumstances. IV.聽 聽聽聽 Discussion [23] In my view, it is unnecessary to address the first issue raised on appeal. Assuming, without deciding, that the Crown has raised a question of law alone, thereby entitling it to appeal from the respondent聮s acquittals, I conclude that there is no basis for appellate interference with the trial judge聮s holding that the evidence at trial raised a reasonable doubt as to whether the respondent took all reasonable steps to ascertain the complainants聮 ages. I say this for the following reasons. (1) The Trial Judge Properly Identified the Legal Principles Governing the Mistake of Age Defence [24] First, I see no error in the trial judge聮s articulation of the legal principles governing the mistake of age defence under s. 150.1(4) of the Code . [25] The Crown concedes that, generally, the trial judge correctly identified the legal test for the s. 150.1(4) defence and the applicable legal principles underlying the provision. Nevertheless, the Crown points to the following passage from the trial judge聮s reasons, at para. 44, to argue that he erred in his approach to the defence: In essence, I am required to consider whether individually or as part of a global assessment of the indicia [of the complainants聮 ages], and while importing the accused聮s subjective belief, a reasonable person would believe that the person was less than 16 years of age, without further inquiry . If that determination cannot be made on an objective basis, the question becomes what further steps a reasonable person would have had to take in the circumstances. [Emphasis added.] [26] Based on this passage, the Crown contends in its factum that, in assessing what a reasonable person would have done in the circumstances to ascertain the complainants聮 ages and whether the indicia of age in this case were sufficient on their own to obviate any need for further inquiry, the trial judge 聯may have been looking for evidence which would suggest that the [c]omplainants were under 16, rather than indicia that strongly [support] an inference that the [c]omplainants were 16 years or more聰. This allegedly 聯less than stringent聰 approach, the Crown argues, indicates that the trial judge erred: i) by failing to apply a purposive approach to the question whether further inquiry was required concerning the complainants聮 ages; and ii) by failing to properly assess whether the indicia that the complainants were 16 years or older were truly compelling. [27] I disagree. Read as a whole, the trial judge聮s reasons reveal that he appreciated the legal standard established by s. 150.1(4) and that the indicia of age said to relieve against the need for further inquiry must be both compelling in all the circumstances and directed at whether the complainants were more than 16 years of age. I see nothing in his reasons to suggest that the trial judge ignored or misconstrued these requirements in his assessment of the evidence. [28] In his reasons, the trial judge described the pertinent issues at trial as 聯whether the accused took all reasonable steps to ascertain the age of the complainants聰 and whether he could avail himself of the mistake of age defence provided under s. 150.1(4) of the Code : paras. 2 and 23. Later in his reasons, at para. 56, the trial judge provided this description of the s. 150.1(4) mistake of age defence: The Code demands that those who engage in sexual activity with young persons will make reasonable efforts to ascertain the age of prospective partners. Section 150.1(4) of the Criminal Code limits the application of the defence of honest but mistaken belief to cases in which the accused has taken all reasonable steps to ascertain the age of the complainant. This section places an evidential but not persuasive burden on the accused. It requires only that there be evidence, which, if true, would result in an acquittal. The evidence need only raise a reasonable doubt, but must be directed to 聯all聰 the reasonable steps that should have been taken. The jurisprudence provides that the requirement set out in s. 150.1(4) is an earnest inquiry or some other compelling factor which negates the need for an inquiry. Whether an accused took all reasonable steps is fact-specific and depends on the circumstances . [Emphasis added.] [29] These comments confirm that the trial judge appreciated the legal test under s. 150.1(4) and the established principles for the application of the mistake of age defence. [30] The impugned passage from the reasons relied on by the Crown consists of one sentence amidst 16 pages (and 71 paragraphs) of reasons. It precedes the trial judge聮s correct enunciation at para. 56 of his reasons, quoted above, of the nature and requirements of s. 150.1(4). Notably, at para. 56, the trial judge expressly indicated that the inquiry required under s. 150.1(4) is 聯an earnest inquiry or some other compelling factor which negates the need for an inquiry聰 and that the question whether the 聯all reasonable steps聰 standard has been met is 聯fact-specific and depends on the circumstances聰. [31] Moreover, the trial judge also explicitly recognized, at para. 63, that: 聯 [t]here must be some compelling factor that obviates the need for an enquiry by the accused聰 and 聯 the accused聮s subjective belief [as to the complainant聮s age] is relevant but not determinative of this question.聰 [32] Elsewhere in his reasons, at para. 36, the trial judge observed: In [ Osborne ] , the court held that s. 150.1(4) imposed 聯more than a casual requirement聰. The court also noted that the word 聯all聰 in respect of referencing 聯reasonable steps聰 is important. While it is only necessary for the accused to create a reasonable doubt, the evidence which he uses to establish such doubt must be directed to the word [聯all聰] as much as to any other part of the subsection. [33] Finally, throughout his reasons, the trial judge focused on whether the complainants had portrayed themselves as 聯older than 16聰. He examined the whole of the evidence bearing on this issue and, as I will detail later in these reasons, made explicit findings regarding the complainants聮 age-related appearance, statements, behaviour and conduct. These included the following findings, at para. 60: It is important to note that both [ complainants ] made unsolicited comments in the vehicle and at the residence in tandem with their purposeful portrayal of themselves as [ women ] who were older than 16 , interspersed with sexually explicit comments admittedly to entice the accused in their collective attempt to have 聯fun聰. [Emphasis added.] [34] The trial judge聮s reasons must be read as a whole, rather than in a piece-meal fashion.聽 In my opinion, viewed in their entirety, they belie the Crown聮s contention that the trial judge erred in his approach to the s. 150.1(4) defence or that he failed to apply the requisite degree of scrutiny to the indicia of the complainants聮 ages relied on by the respondent. [35] Accordingly, I am not persuaded that the trial judge erred in the manner urged by the Crown. I would reject this ground of appeal. (2) The Trial Judge Properly Applied the Section 150.1(4) Standard [36] Where a mistake of age defence is raised under s. 150.1(4), the accused must point to some evidence that he or she honestly believed the complainant was 16 years or more and that he or she took all reasonable steps to ascertain the complainant聮s age. If the accused meets this evidentiary burden, the Crown is required to prove beyond a reasonable doubt that the accused did not have the requisite belief or that he or she failed to take all reasonable steps to ascertain the complainant聮s age: R. v. L.T.P. (1997), 113 C.C.C. (3d) 42 (B.C.C.A.), at paras. 16-19; R. v. Osborne (1992), 102 Nfld. & P.E.I.R. 194 (Nfld. C.A.), at paras. 47-49 and 61. [37] In this case, it appears that there was no dispute at trial that the respondent subjectively believed that the complainants were over 16 years of age. The contentious issue was whether he took all reasonable steps to ascertain their true ages. [38] The trial judge concluded that the evidence at trial raised a reasonable doubt on this core issue and that the Crown failed to meet its burden to prove that the respondent did not take all reasonable steps in the circumstances to ascertain the complainants聮 ages. The Crown attacks these conclusions on the basis that the indicia of age relied on by the respondent, and accepted by the trial judge, were inconclusive and uncompelling. The Crown argues that the factual circumstances of this case are insufficient to raise a reasonable doubt as to whether the respondent took all reasonable steps to ascertain the complainants聮 ages, as required by s. 150.1(4), and that a reasonable person in the respondent聮s circumstances would have made further inquiries. [39] Again, I disagree.聽 In my opinion, it was open to the trial judge on the record before him to conclude that a reasonable person in the respondent聮s circumstances would not have made any positive inquiries to ascertain the complainants聮 ages, based on the compelling indicia of age present in this case. [40] Section 150.1(4) mandates an inquiry akin to a due diligence inquiry. The analysis involves comparing the steps, if any, taken by an accused to determine the complainant聮s age with the steps that a reasonable person would have taken in those circumstances: R. v. Saliba , 2013 ONCA 661, 304 C.C.C. (3d) 133, at para. 28; R. v. Dragos , 2012 ONCA 538, 111 O.R. (3d) 481, at paras. 29-33. [41] In R. v. L.T.P. , the British Columbia Court of Appeal considered those steps that might be reasonable for an accused to take in order to ascertain a complainant聮s age. The court stated, at para. 20: In considering whether the Crown has proven beyond a reasonable doubt that the accused has not taken all reasonable steps to ascertain the complainant聮s age, the Court must ask what steps would have been reasonable for the accused to take in the circumstances. As suggested in R. v. Hayes, supra, sometimes a visual observation alone may suffice.聽 Whether further steps would be reasonable would depend upon the apparent indicia of the complainant聮s age, and the accused聮s knowledge of same, including: the accused聮s knowledge of the complainant聮s physical appearance and behaviour; the ages and appearance of others in whose company the complainant is found; the activities engaged in either by the complainant individually, or as part of a group; and the times, places, and other circumstances in which the complainant and her conduct are observed by the accused . Evidence as to the accused聮s subjective state of mind is relevant but not conclusive because, as pointed out in R. v. Hayes at p. 11, 聯[a]n accused may believe that he or she has taken all reasonable steps only to find that the trial judge or jury may find differently聰. [Emphasis added.] [42] This court has also addressed the issue of what constitutes 聯all reasonable steps聰 for the purpose of s. 150.1(4). In R. v. Duran , 2013 ONCA 343, 306 O.A.C. 301, at para. 54, Laskin J.A. endorsed the above-quoted comments in R. v. L.T.P. He also noted, at para. 52, that 聯[t]here is no automatic checklist of considerations applicable to every case聰, that what constitutes 聯all reasonable steps聰 depends on the context and the circumstances, and that, 聯in some cases, an accused聮s visual observation of the complainant may be enough to constitute reasonable steps.聰 [43] In Duran , the court was concerned with the adequacy of the trial judge聮s jury instructions on what was required to make out the statutory defence under s.聽150.1(4). In that context, Laskin J.A. stated, at para. 53: In this case, the trial judge should have instructed the jury to determine whether what the appellant knew and observed about the complainant were all the steps a reasonable person needed to take or whether a reasonable person ought to have made further inquiries. In making that determination, the jury should have been told to take account of the following considerations and the evidence on them: the accused聮s observation of the complainant; the complainant聮s appearance and behaviour; the information the complainant told the appellant about herself, including any information about her age; and the age differential between the appellant and the complainant . [Emphasis added.] [44] These instructions, Laskin J.A. emphasized, would focus the jury聮s deliberations 聯on the question whether the steps the [accused] had already taken 聳 what he had observed and what he knew 聳 were sufficient without further inquiry聰: at para. 55. [45] In this case, the trial judge expressly considered what the respondent had observed and what he knew about the complainants on the night in question. In accordance with this court聮s directions in Duran , he reviewed the evidence of the respondent聮s observations of the complainants, the complainants聮 appearance and behaviour and the information the complainants provided to the respondent about themselves and their ages. In so doing, he made the following pertinent findings of fact: (1) both complainants made unsolicited, sexually-explicit comments in the respondent聮s vehicle and at his parents聮 home, in tandem with their purposeful portrayal of themselves as women who were older than 16 (at para. 60); (2) by the complainants聮 own admissions, their sexually explicit comments were made to entice the respondent, in the complainants聮 self-described attempt to have 聯fun聰 (at para. 60); (3) V.T. admitted that she had no difficulty acting older than her true age, based on her routine, unchallenged purchase of cigarettes and liquor, her size and her appearance (at para. 47); (4) V.T. acknowledged that, on the night in question, she had actively portrayed herself as older by her physical appearance and demeanour, and by dressing and using makeup to achieve this purpose (at paras. 47 and 49); (5) V.T. admitted that, while in the respondent聮s car, the complainants told him they had just been at a college party and missed their ride. She also confirmed that both she and A.S. had made sexually suggestive comments to the respondent, while travelling in his vehicle (at para. 47); (6) V.T. admitted on cross-examination that she had never informed the respondent about her age, despite her earlier assertion, during her examination-in-chief, that she had done so. This non-disclosure was 聯consistent with her stated demeanour聰 on the night in question (at paras. 46 and 61); (7) similarly, A.S. 聯purposefully聰 never provided her age to the respondent. Further, she 聯acted in a similar manner聰 to that of V.T. (at para. 61); (8) both complainants admitted that they looked and acted older than their actual ages and left the impression that they were older than they in fact were. According to A.S., they were able to do so 聯without any effort聰 (at paras. 64 and 65); (9) for both girls, it was 聯some badge of honour聰 to be portrayed as so mature (at para. 64); and (10) V.T.聮s 聯self-admitted聰 and A.S.聮s 聯tacit presentation and demeanour聰 of 聯wanting to and acting much older than their true ages 聟 was consistent with the [respondent聮s] passive observations聰 of the complainants (at para. 65). [46] The trial judge was also mindful of the significance of the age difference between the respondent (40 years old) and the complainants (14 and one-half years old (V.T.) and 15 and one-half years old (A.S.)). Citing R. v. R.A.K. (1996), 106 C.C.C. (3d) 93 (N.B.C.A.), he stated, at para. 37 of his reasons: The facts in each situation dictate as to what constitutes reasonable steps in the circumstances. The court [in R. v. R.A.K. ] also opined at page 96 that the age differential between the accused and the complainant would be relevant in determining whether the steps taken are reasonable as: 聯almost without exception, the greater the disparity in ages, the more inquiry will be required.聰 Indeed, in this case there is a significant disparity in the ages of the participants. [47] The trial judge returned to this factor later in his reasons. He noted the respondent聮s admission that he had not expressly asked the complainants about their respective ages and said, at para. 55: The accused testified that he was married at the time with young children. I am not here to judge his morality. However, the accused聮s age and the discrepancy here is not lost on me . [Emphasis added.] [48] However, given his factual findings about the respondent聮s observations and the information available to him, the trial judge held that no further inquiries were required to satisfy the 聯all reasonable steps聰 standard.聽 He stated with reference to the complainants聮 evidence, at para. 59: The evidence that I accept from the complainants on the issue of all reasonable steps to ascertain their age is that, in the later evening hours, they were boldly hitchhiking, subsequently they requested and were in fact, dropped off close to midnight in another part of the City, they claimed they had just come from a college party and had missed their ride; they openly discussed explicit sexual behaviour with the other sex and with their own gender in the accused聮s vehicle and without any prompting from him; they discussed having just finished high school and were desirous of consuming alcohol and smoking cigarettes. [49] The trial judge set out his ultimate conclusion, at para. 66 of his reasons, in these terms: It is the second branch of R. v. W.(D.) that is at play here. I find that the accused聮s evidence raises a reasonable doubt. In my opinion, the complainants聮 demonstrated actions, demeanour and self-professed stated objectives and portraying themselves older than their true ages, along with the constellation of factors did not require further enquiries from the accused. [50] On the evidentiary record in this case, I see no reversible error in this conclusion. Section 150.1(4) of the Code does not require that an accused make every possible inquiry to ascertain a complainant聮s age in order to successfully mount a mistake of age defence. Nor do the established authorities suggest that an accused must always expressly question a complainant about his or her age, or otherwise seek and obtain conclusive proof of age, in order to avail himself or herself of the s. 150.1(4) defence. Rather, the section requires that all reasonable steps be taken to ascertain a complainant聮s age. As the trial judge recognized, what is 聯reasonable聰 will vary, depending on the context and all the circumstances. [51] In this case, based on the facts as he found them and for cogent reasons that he explained, the trial judge concluded that the evidence at trial raised a reasonable doubt on the central issue whether the respondent took all reasonable steps to ascertain the complainants' ages. In reaching this conclusion, the trial judge recognized that the respondent聮s and the complainants聮 credibility and the question whether the complainants had represented themselves to the respondent as over 16 years of age were critical issues. In evaluating these issues, he took express account of the governing principles regarding the mistake of age defence under s. 150.1(4) of the Code , including those set out in R. v. L.T.P. [52] The trial judge also fully canvassed the available indicia of the complainants聮 ages, as established in the evidence. On his findings, the complainants essentially admitted at trial that they had engaged in a deliberate, premeditated, and successful attempt to present themselves as older than 16. Further, their appearance, actions and words, and the information they conveyed to the respondent about themselves and their ages were specifically designed to achieve this end. The respondent聮s counsel put it succinctly in their factum: The information which was provided to the respondent included that the complainants had finished high school, that they had just left a college party, that they enjoyed smoking, drinking, and partying, that they were sexually open and experienced, and that they intended to have a sexual encounter that night. Their appearance, including their make-up, dress and comportment, was consistent with the information provided. When they returned to the respondent聮s parent聮s home, the complainants were sexually forward and acted in a way that was consistent with the age[s] they portrayed. [53] Of course, this does not mean that a complainant聮s conduct and appearance will always obviate the need for further inquiry about the complainant聮s age.聽 A reasonable person would appreciate that underage children may apply make-up and dress and act so as to appear older.聽 However, in this case, it is my view that the combined effect of the evidence of the information provided to the respondent and the observations made by him justified the trial judge聮s conclusion that the need to inquire further about the complainants聮 ages was obviated. [54] Accordingly, in the somewhat unusual circumstances of this case, it was open to the trial judge to conclude, on the compelling factors that he identified, that a reasonable person would have been satisfied that the complainants were over the age of 16, just as the complainants intended, without the need for further inquiry. V.聽 聽聽聽聽 Disposition [55] For the reasons given, I would dismiss the appeal. Released: 聯MT聰聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 聯E.A. Cronk J.A.聰 聯APR 28 2016聰聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 聯I agree M. Tulloch J.A.聰 聯I agree K. van Rensburg J.A.聰 "
"2016"
"05-19-2022"
"https://www.ontariocourts.ca/coa/decisions_main"
" COURT OF APPEAL FOR ONTARIO CITATION: R. v. Coderre, 2016 ONCA 276 DATE: 20160419 DOCKET: C55920 MacPherson, MacFarland and LaForme JJ.A. BETWEEN Her Majesty the Queen Respondent and Terrance Coderre Appellant Eva Tache-Green, for the appellant Michael Fawcett, for the respondent Heard: April 7, 2016 On appeal from the convictions entered on January 26, 2012 by Justice Robert B. Reid of the Superior Court, sitting without a jury. H.S. LaForme J.A.: INTRODUCTION [1] The appellant appeals from convictions related to the unlawful cultivation of marijuana and the possession of firearms. He argues that the evidence seized by the police while executing a search warrant at his home should have been excluded under s. 24(2) of the Charter . For the reasons that follow, I disagree and would dismiss the appeal. (1) The first search [2] The police started an investigation into the appellant聮s suspected drug dealing activities after receiving inculpatory information from reliable informants and anonymous tipsters. On March 2, 2009, they obtained a general search warrant pursuant to s. 487.01 of the Criminal Code , R.S.C. 1985, c. C-46. The warrant included a statutorily-mandated requirement to inform the appellant of the existence and execution of the warrant within 180 days after the warrant聮s execution. [3] The warrant was executed on March 18, 2009. The police did not find any drugs but they did find evidence consistent with a drug operation. The notice period expired on September 14, 2009. The police did not provide the required notice before the expiry of the notice period. They did not apply to extend the notice period either. (2) The second search [4] The investigation was put on pause after the first search, but resumed on October 1, 2009. The police applied for a second warrant under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (聯 CDSA 聰). The CDSA warrant was obtained using an Information to Obtain (聯ITO聰) which included information obtained during the first search. The second warrant was executed on October 8, 2009. The appellant was informed of the first warrant and search at this time. During the second search, the police seized drugs and weapons. THE CHARTER APPLICATION [5] The appellant brought an application to exclude all of the evidence seized by the police during the second search. The application was dismissed and, as a result, the appellant did not contest a finding of guilt. [6] The trial judge correctly recognized that he needed to address two separate issues: first, whether the evidence at issue was acquired 聯in a manner that infringed聰 a Charter -protected right; and, second, whether the admission of the evidence would bring the administration of justice into disrepute. [7] The appellant conceded that the first search warrant was properly obtained and properly executed. Thus, the trial judge focused on whether the failure to provide notice within the mandated notice period engaged the appellant聮s Charter rights. He concluded that: failing to give notice does not engage a Charter right, coming as it does after the valid issuing and proper execution of the warrant. This is especially so when no evidence to be used against the applicant was located in the search. [8] The trial judge also noted that the only evidence obtained during the first search used in the ITO was corroboration about the location of security cameras. That information, he said, was not necessary to obtain the second warrant and could easily be excised. [9] The evidence seized during the second search, the trial judge concluded, was not obtained in a manner that engaged s. 24(2). The trial judge聮s conclusion rested on the fact that there was no temporal nexus between that failure to provide notice and the evidence obtained from the second search. That is the second search was 聯too remote from the alleged breach聰. Accordingly, he held that the evidence seized by the police was not obtained in a manner that violated the Charter . [10] The trial judge went on to consider the evaluative component of the s. 24(2) analysis. He concluded that even if the evidence was obtained in a manner that infringed the Charter , he would not exclude it under s. 24(2). The trial judge laid out and then considered the three factors from R. v. Grant , 2009 SCC 32,聽 [2009] 2 S.C.R. 353, as follows : (i) Seriousness of the Charter-infringing conduct: There was no bad faith on the part of the police officers and they fully disclosed the failure to provide notice when obtaining the second warrant. (ii) The impact of the breach on the accused: The impact on the appellant聮s Charter -protected right was minimal because if the police had requested an extension they would have obtained it and they ended up telling the appellant about the search 23 days after the notice period expired. (iii) Society聮s interest in adjudication on the merits: Given the importance of the evidence seized to the Crown聮s case, society聮s interest in adjudicating the charges on their merits favoured inclusion. ISSUES [11] The appellant argues that the trial judge erred in three ways: (i) in failing to find that non-compliance with the notice requirement infringed s. 8; (ii) by concluding that the connection between breach of the notice requirement and obtaining the evidence at issue was too remote; and (iii) in concluding that the conduct of the police did not amount to bad faith. ANALYSIS (1) Did the trial judge err in concluding that the failure to provide notice did not infringe the appellant聮s s.8 rights? [12] The Crown concedes that the failure to provide notice infringed s. 8 of the Charter . I agree. [13] In R. v. Tse , 2012 SCC 16, [2012] 1 S.C.R. 531, the court held that 聯 [a] requirement of after-the-fact notice casts a constitutionally important light back on the statutorily authorised intrusion聰 and that s. 8 protects an 聯ability to identify and challenge such invasions, and to seek a meaningful remedy.聰 The failure to abide by a statutorily-mandated requirement to provide notice fails to give effect to those protections and, therefore, infringes the Charter . (2) Did the trial judge err in concluding that the evidence was not obtained in a manner that infringed the Charter ? [14] In order to engage s. 24(2), a defendant needs to show that the impugned evidence was obtained 聯in a manner that infringed聰 a Charter -protected right. That requirement will be satisfied where, on a review of the entire course of events, a court is satisfied that the breach and the obtaining of the evidence was part of the same transaction or course of conduct. Courts will take a generous approach when evaluating this threshold issue. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal, or a combination of the three.聽The connection must be more than tenuous: R. v. Plaha (2004), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 45. [15] With respect, the trial judge erred in concluding that the evidence seized during the second search was not obtained in a manner that infringed s. 8. In his analysis, the trial judge focused primarily on the temporal connection between the breach and the seizing of the evidence. On that basis, he concluded that the connection was too remote. [16] While the connection between the failure to provide notice and the seizure of the evidence at issue is arguably weak, it is not tenuous. In my view, the two clearly occurred as a part of the same police investigation. In his reasons the trial judge notes that, after the first search, the police paused their investigation and that 聯[on] October 1, 2009, the investigation was continued under the direction of a different police officer聰 (emphasis added). And he further noted that: Based on the evidence, it is reasonable to assume that since the investigation had not been concluded, but rather temporarily deferred , there was no desire on the part of the police to give notice to the police within the 180 day time frame, since to do so would jeopardize the ongoing investigation . [Emphasis added.] [17] It was obvious to the trial judge that, although different police officers picked up the investigation later on, this was one continuous investigation and not two separate ones. This certainly suggests that what occurred in this case was part of the same transaction or course of conduct. [18] Moreover, I would highlight the fact that the police chose not to inform the appellant of the f irst s earch because they concluded that doing so would undermine their investigation . That deliberate choice, in my opinion, connects the breach at issue to the second search warrant and the evidence obtained through its execution. Therefore, the evidence at issue was obtained in a manner that infringed a Charter -protected right. (3) Did the trial judge err in not excluding the evidence under s. 24(2) of the Charter ? [19] In my view, in spite of the errors noted, the trial judge聮s decision to not exclude the evidence should be upheld. I reach this conclusion for several reasons . [20] First, the trial judge聮s conclusion that the police did not engage in bad faith is reasonable and supported by the evidence. Here, at the first stage of the Grant analysis, the court 聯must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter 聰: R. v. Dhillon , 2010 ONCA 582, 260 C.C.C. (3d) 53, at para. 46. [21] Contrary to the appellant聮s assertions, the police negligence in this case is not the kind of systemic negligence or failure described in Grant at paras. 73-74 . The appellant聮s arguments suggesting that the police officer asking for the second warrant misled the issuing justice are not convincing. In fact, as noted by the trial judge, the police disclosed their failure to provide notice in the ITO for the second warrant. I agree with the trial judge聮s conclusion that the police聮s conduct was at worst negligent and did not demonstrate a deliberate disregard for the appellant聮s rights. [22] Second, the appellant has not seriously attacked the trial judge聮s findings on the other two Grant factors. While the second search targeted the appellant聮s home, which attracts significant Charter protection, it seems clear that the police would have obtained an extension of the notice period if they had applied for it. In that case, the police would have complied with the Charter and the appellant would still have been subject to the second search. And, at the end of the day, the police did inform the appellant of the first search and he had an opportunity to challenge its legality. Therefore, the impact on the appellant聮s Charter -protected interest was attenuated. [23] Finally, there is no reason to question the trial judge聮s conclusion that society聮s interest in adjudicating the case on its merits favours including the evidence. As such, all three Grant factors favour including the evidence. DISPOSITION [24] For these reasons, I would dismiss the appeal. Released: 聯JCM聰聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 聯H.S. LaForme J.A.聰 聯APR 19 2016聰聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 聯I agree J.C. MacPherson J.A.聰 聯I agree J. MacFarland J.A.聰 "
"2016"
"05-19-2022"
"https://www.ontariocourts.ca/coa/decisions_main"
" 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.聽486(1), (1.1), (2), or (3) of the Criminal Code shall continue.聽 These sections of the Criminal Code provide: 486(1)聽聽聽聽聽聽聽聽聽 Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or own his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security. (1.1) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or the justice who will preside at the proceedings or, if that judge or justice has not yet been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place. (2)聽聽聽聽 In determining whether the order is in the interest of the proper administration of judge, the judge or justice shall consider (a) society聮s interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; (b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings; (c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made; (d) whether the witness needs the order for their security or to protect them from intimidation or retaliation; (e) the protection of justice system participants who are involved in the proceedings; (f) whether effective alternatives to the making of the proposed order are available in the circumstances; (g) the salutary and deleterious effects of the proposed order; and (h) any other factor that the judge or justice considers relevant. (3)聽聽聽聽 If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order. (4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section. R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1 st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4 th Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21. COURT OF APPEAL FOR ONTARIO CITATION: R. v. D.B.M., 2016 ONCA 264 DATE: 20160411 DOCKET: C57953 MacPherson, MacFarland and LaForme JJ.A. BETWEEN Her Majesty the Queen Respondent and D.B.M. Appellant D. Edwin Boeve, for the appellant Sarah Shaikh, for the respondent Heard:聽 April 7, 2016 On appeal from the conviction entered on September 10, 2013 by Justice M. Block of the Ontario Court of Justice. ENDORSEMENT [1] The only issue facing the trial judge was whether there was any 聯air of reality聰 to the appellant聮s assertion of the defence of duress to the charge of possession of about 7 lbs of marijuana for the purpose of trafficking. [2] The evidence disclosed that the appellant was indebted to a 聯Mr. X聰 for about $40,000 that he had borrowed from Mr. X. [3] Through a series of unfortunate circumstances, including the loss of his job, the appellant was unable to pay the debt. Mr. X as it turned out, was an unsavoury character who threatened the appellant and his family when the appellant was unable to pay. [4] Mr. X proposed that the appellant could 聯work off聰 the debt by making deliveries and pick-ups of drugs. The appellant, whose credit was 聯maxed out聰 and had no other source of ready income, agreed to the proposal. He was caught on his 9th or 10th pick-up/delivery with seven lbs of marijuana in his vehicle. [5] The trial judge reviewed the law of duress as it had been recently stated by the Supreme Court in R. v. Ryan ; he itemized the six necessary elements for the defence to succeed. He found that the appellant was unable to satisfy the requirement that he had no safe avenue of escape. First, it was not clear to him on the evidence that the 聽appellant lacked the resources to pay the debt, and second, he could have gone to the police. [6] The facts here are not unlike those in R. v. Keller , 1998 A.J. No 1257, a decision of the Alberta Court of Appeal. Mr. Keller was arrested at the Calgary Airport where he聮d picked up a package containing 240 hits of LSD. He was searched and 50 additional hits were found in his wallet. He admitted to picking up at least 10 similar packages in the four months preceding his arrest. He said he was compelled to do so under a threat of death or serious bodily harm made by a man he knew as 聯Shawn聰, a known drug dealer. Keller was indebted to Shawn as the result of inadvertently destroying a quantity of Shawn聮s drugs. Sometime later, Shawn appeared and demanded either payment or that Keller work off the debt. Keller couldn聮t pay. He said he did not go to the police because he was afraid of Shawn and didn聮t think the police could protect him. He felt he would be unsafe moving to B.C. where his mother, with whom he enjoyed a good relationship, lived; he told no one about the threats or his activities because he was embarrassed. He claimed his involvement was solely to pay off his debt to Shawn. Keller, like the appellant here, said he felt he had no choice but to comply with Shawn聮s demands. As the court noted: ... while the common law defence of duress was potentially available to Keller it was, like any other defence, not actually available unless it had 聭an air of聽聽聽聽 reality聮. [7] And at para 24: ... the existence of a safe avenue of escape is to be determined on an objective standard and is adjusted for subjective circumstances. The belief of the accused that he had no reasonable alternative is not sufficient to give an air of reality to the defence simply because the belief is asserted. The question is whether a reasonable person, with similar history, personal circumstances, 聽聽聽聽abilities, capacities and human frailties as the accused, would, in the particular circumstances, reasonably believe there was no safe avenue of escape and that he had no choice but to yield to coercion. [8] Contrary to the appellant聮s assertion, the trial judge here did not reverse the onus of proof. There was an evidentiary burden on the appellant to lead sufficient evidence to establish an air of reality to the defence of duress 聳 once satisfied, it remained for the Crown to establish guilt beyond a reasonable doubt. [9] Whether there was a safe avenue of escape is a question of fact. Here the trial judge concluded on the evidence before him that he was not satisfied that the appellant had no safe avenue of escape, he could have gone to the police or paid off the debt by liquidating his RRSPs as he eventually did after he was charged with this offence. In other words, there was no air of reality to his claim of duress. [10] We see no error in the trial judge聮s findings.聽 The appeal is dismissed. 聯J. C. MacPherson J.A.聰 聯J. MacFarland J.A.聰 聯H.S. LaForme J.A.聰 "
"2016"
"05-19-2022"
"https://www.ontariocourts.ca/coa/decisions_main"
" COURT OF APPEAL FOR ONTARIO CITATION: R. v. Harflett, 2016 ONCA 248 DATE: 20160406 DOCKET: C59518 Watt, Lauwers and Pardu JJ.A. BETWEEN Her Majesty the Queen Respondent and Alexander Harflett Appellant Malcolm McRae and Erec Rolfe, for the appellant Rick Visca, for the respondent Heard: March 1, 2016 On appeal from the conviction entered on March 24, 2014 by Justice Catherine Kehoe of the Ontario Court of Justice. Lauwers J.A.: [1] Constable Robert Sinclair was a member of the East Region Highway Enforcement Team, responsible for monitoring traffic on Highway 401. He was accompanied by Tyler Brown, then an employee of the Canadian Border Services Agency. They were parked at an On Route service centre. Constable Sinclair noticed the appellant聮s car had Qu茅bec plates, and wanted to show Mr.聽Brown how to run a computer search on Qu茅bec plates. He discovered that the appellant聮s Ontario driver聮s licence was suspended for unpaid fines. The officer testifie d that by the time he discovered this, the appellant was back on the highway. He pursued the appellant and pulled him over about six kilometres down the road. [2] The appellant produced a valid Qu茅bec driver聮s licence. The officer arrested him for driving with the licence of another jurisdiction while his Ontario licence was suspended, and charged him under s. 36 of the Highway Traffic Act , R.S.O. 1990, c. H. 8 (聯 HTA 聰). The officer conducted a pat-down search of the appellant, and read him his rights. He found the appellant to be cooperative throughout. [3] The appellant could not drive his car since his licence was suspended. The officer called a tow truck because the car had to be removed from the highway for safety reasons. His plan was to have the car towed to a nearby hotel, with the appellant riding with the tow truck operator. The appellant would then be in a position to pay the fines the next day, have his licence restored, and continue on his way. [4] As was his invariable practice, Constable Sinclair performed an inventory search of the appellant聮s vehicle. He testified that when he opened the trunk, he smelled the odour of raw marijuana, and discovered a large quantity of the drug. He immediately arrested the appellant for possession of marijuana for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19. As the officer was reading the appellant his rights a second time, the tow truck arrived. The car was towed to the police detachment and a full search was performed. [5] At trial, the appellant brought a Charter application claiming that his s. 8 Charter rights had been breached by the initial inventory search of his vehicle before it was to be towed to a hotel, because the officer had no authority to conduct such a search. The trial judge found that the inventory search was reasonable and that, even if the appellant聮s s. 8 rights had been breached, s.聽24(2) of the Charter favoured the admission of the evidence. The trial judge convicted the appellant and sentenced him to 12 months聮 imprisonment, plus 12 months聮 probation. [6] This appeal raises two issues: (i) did the trial judge err in not finding that the inventory search of the appellant聮s vehicle breached his rights under s. 8 of the Charter ; and (ii) if so, did the trial judge err in finding the evidence to be admissible under s. 24(2) of the Charter ? [7] For the reasons set out below, I would allow the appeal and exclude the evidence under s. 24(2) of the Charter . Issue 1: Did the Vehicle Search Breach the Appellant聮s s. 8 Charter Rights? [8] Section 8 of the Charter provides that 聯everyone has the right to be secure against unreasonable search or seizure.聰 [9] The trial judge found that the initial inventory search of the vehicle was 聯reasonable聰, at para. 153. The totality of her reasoning on whether the officer breached the appellant聮s s. 8 Charter right is found at para. 154 of her reasons: Constable Sinclair had to remove the vehicle from Highway 401, the accused could not drive it and there was no one else to drive the vehicle. It was therefore the responsibility of Constable Sinclair. It was reasonable to assess any pre-existing damage to the vehicle, to verify any valuables in the vehicle and whether there were any weapons or other dangerous items in the vehicle. Constable Sinclair was going to release the accused and the vehicle to a hotel and therefore, had to verify that there was nothing dangerous in the vehicle and, prior to the tow to the hotel, the state of the vehicle and valuables. [10] The trial judge accurately recorded the police officer聮s testimony about why he did the inventory search. The Governing Principles [11] As Binnie J. observed, roadside stops 聯sometimes develop in unpredictable ways聰: R. v. Nolet , 2010 SCC 24, [2010] 1 S.C.R. 851 , at para. 4. In such situations the court聮s task is to 聯proceed step-by-step through the interactions of the police and the appellants from the initial stop onwards to determine whether, as the situation developed, the police stayed within their authority, having regard to the information lawfully obtained at each stage of their inquiry.聰 [12] In this case, the officer聮s search of the appellant聮s vehicle was warrantless, and was therefore presumptively unreasonable. To justify a warrantless search, the Crown must establish, on the balance of probabilities, that (i) the search was authorized by law; (ii) the law is reasonable; and (iii) the search was carried out in a reasonable manner: see R. v. Collins , [1987] 1 S.C.R. 265, at p. 278, [1987] S.C.J. No. 15, at para. 23. The focus in this appeal is on the first and second branches of the Collins test since the appellant concedes the third branch. [13] Under the first branch of the Collins test, 聯the state authority conducting the search must be able to point to a specific statute or common law rule that authorizes the search. If they cannot do so, the search cannot be said to be authorized by law聰: R. v. Caslake , [1998] 1 S.C.R. 51, at para. 12. [14] Under the second branch of the Collins test, 聯the search must be carried out in accordance with the procedural and substantive requirements the law provides聰: Caslake , at para 12. The second branch is not reached unless the first is met. The Principles Applied [15] The appellant argues that the police officer聮s search of the appellant聮s car fails the first branch of the Collins test because the police officer had neither the statutory nor the common law authority to conduct an inventory search of the appellant聮s vehicle. [16] I agree. [17] Following the Supreme Court聮s guidance in Nolet , a step-by-step analysis of the roadside stop shows that the officer had no authority to conduct the inventory search. [18] I begin with the police officer聮s reasons for pulling over the appellant and detaining him. A roadside stop of a vehicle for a provincial regulatory offence under statutes like the HTA (e.g. speeding) is a detention: see R. v. Hufsky , [1988] 1 S.C.R. 621; R. v. Mellenthin , [1992] 3 S.C.R. 615; and R. v. Harrison , 2009 SCC 34, [2009] 2 S.C.R. 494. [19] I am satisfied that the appellant聮s initial detention was lawful. Although the appellant argues that the police officer acted in bad faith and 聯held off聰 at the On聽Route before pulling him over on Highway 401, the trial judge rejected this argument. For the reasons outlined below, I also reject this argument. The officer was acting pursuant to his statutory authority under the HTA when he detained the appellant to investigate a possible contravention of that statute. [20] However, the power to detain an individual under the HTA does not inevitably include the power to detain or impound a vehicle, nor does it include the power to conduct an inventory search in every situation. The officer must be able to point to a specific duty or authority to justify his search of the appellant聮s vehicle. [21] The inventory search cannot be justified on the basis of officer safety or any suspicion that the appellant was involved in criminal conduct. The officer testified that after arresting the appellant for the first time for driving while his licence was suspended, he did not impound or seize the appellant聮s car, because he was only conducting a traffic investigation, not a criminal investigation. He agreed the appellant was polite, cooperative and non-confrontational throughout. The officer testified that there was, 聯nothing to hint of criminality, zero. He [the appellant] had no prior criminal record. He was not listed on any of the police records as being involved in any type of criminal activity, he was just simply a suspended driver.聰 The officer agreed that he had no reason to believe that the vehicle contained any weapons or other dangerous items. [22] The officer explained that he searches 聯every vehicle聰 for which he calls a tow truck. His view was that he was 聯totally responsible聰 for the car. The search was to protect himself, the appellant, and the tow truck operator. The officer checked first for exterior damage to the car. He explained that in the interior search he looked for weapons, other dangerous items, and valuable s . He was concerned about weapons that the appellant might use to harm the tow truck operator and wished to protect the operator against any allegation that he had stolen valuable items from the car. [23] Neither the police officer nor the trial judge was able to identify any statutory provision that authorized police to impound the vehicle or to search the car. The Crown indicated in oral argument that he could not identify any statutory authority in the HTA that justified either step. However, in the absence of statutory authority, the common law can provide authority to impound a motor vehicle: R. v. Waugh , 2 01 0 ON C A 10 0, at paras. 25-26. In Waugh , the question was whether the police had the common law power to impound an uninsured vehicle where they suspected that the motorist would continue to drive it. Blair聽J.A. observed, at para. 30: 聯[t]he ability to impound the vehicle and have it towed away, in the circumstances, is a reasonable exercise of the police common law duty to prevent crime聟, to protect the life and property of the public, and to control traffic on the public roads.聰 [24] The ancillary power doctrine this court relied on in Waugh does not apply on the facts of this appeal to authorize the inventory search because the officer did not in fact impound the vehicle. [25] There was nothing in the interactions that developed between the officer and the appellant, assessed step-by-step as required by Nolet , that might have triggered the need to do the inventory search. I note that Constable Sinclair had no public safety concerns, since he was going to release the car to the appellant. 聽In Waugh , Blair J.A. accepted, at para. 32, that 聯courts should be cautious in extending police power by resort to their common law ancillary powers, particularly in circumstances where the legislature has put in place an elaborate and comprehensive regulatory regime with carefully balanced powers and sanctions.聰 This observation manifestly applies to this case. [26] The determination of the reasonableness of the search is contextual, as Nole t and Mellenthin state. In this instance it was quite reasonable for the officer to look at the exterior of the car and to note any damage before asking the tow operator to take it to the hotel. The officer had taken at least that degree of control over the car. [27] But the other reasons given by the officer for the inventory search do not hold up to scrutiny and pass constitutional muster. The owner was not going to be separated from the car, but was to ride with the tow operator to the hotel. There was accordingly no reason for the tow operator to access the interior of the car and the police officer had no cause to be concerned for the operator聮s safety. [28] I reject the Crown聮s invitation to apply R. v. Nicolosi , [1998] O.J. No. 2554, 40 O.R. (3d) 417 (C.A.), at para. 36, where Doherty J.A. noted that: W i th c u st od y c o m e s res pon sibil i t y . O n ce t h e po l i ce a s s u m e c o n trol an d po ss e ssi o n o f t h e v eh ic l e , t he y ha d a du ty to t a ke st e p s to s a f e g ua rd t h e v eh ic l e an d its c on t en ts. T h is d u ty is mad e cle a r bo th b y t h e re q u i r emen t [in s. 221 of the HTA ] t h a t t h e p o l i ce t a k e " c u s t od y " o f t h e v eh ic l e a n d t h e re q u i r emen t t h a t t he y st o re it in " a s u it a b le p l a c e" . It is i m p o rta n t t ha t t ho s e c ha r g e d w ith a st a t u t o ry聽 res pon sibil i ty t a ke re a s o n ab le s t ep s to f u l f il t h a t re s pon s i b i l it y . It is e q ua l l y i mpo r t an t t h a t t h e y b e in a po sition t o d e mon s trate t ha t t he y ha v e f u l f i l led t ha t res p on sibil i t y . By do c u m en ti n g t h e c on t e n ts o f t h e v eh ic l e t h a t h a d a n y appa re n t v a lu e , t h e po l i ce s e r v e t h e in te rests o f an y pe rs o n w h o ha s a n in te re s t in t h e p r o pe rty an d w h o lo o ks to t h e po l i c e to s a f e g ua r d t ha t p ro pe rty w h i le it is in po l i ce c u s t od y . It is q u ite w ro n g to s u g g e st t h a t t h e on ly in te re s t is t h e po l i ce i n t e rest i n a v o idi n g c i v il lia b i l i ty . [29] In my view, the logic of Nicolosi does not apply in this case. The officer had no statutory obligation to take custody of the car and store it in a suitable place, nor was that power necessarily incidental to the officer聮s common law powers in this instance, where the necessary degree of the officer聮s control was more limited than in Nicolosi . Here the officer did not impound the vehicle or exercise the degree of control of the vehicle that would have made an inventory search necessary. The police decision to call a tow truck to remove a vehicle does not justify an inventory search in every case: R. v. Martin , 2012 ONSC 2298, at para.聽36. [30] In sum, I am satisfied that the officer聮s common law authority was limited by the real exigencies of the situation: see Mellenthin . His duty obliged him to get the car off the highway for safety reasons. There was no reasonable basis for the officer to go on to undertake an inventory search of the car. Accordingly, the officer聮s decision to inventory search the car was unreasonable and breached the appellant聮s s. 8 Charter right against an unreasonable search. [31] I now turn to consider whether the evidence generated by the search should have been excluded by the trial judge in view of the breach. Issue 2: Did the Trial Judge Properly Apply s. 24(2) of the Charter ? [32] Section 24(2) of the Charter provides: (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. The Governing Principles [33] The framework for the application of s. 24(2) of the Charter is set out in R.聽v. Grant , 2009 SCC 32, [2009] 2 S.C.R. 353 , at para 71. The court must consider three lines of inquiry: (i) the seriousness of the Charter -infringing state conduct; (ii) the impact on the Charter -protected interests of the accused; and (iii) society聮s interest in adjudication on the merits. The Principles Applied [34] The totality of the trial judge聮s reasoning on the Grant analysis is found at para. 156: [G]iven that the vehicle was not, but for the marijuana found in the inventory search, going to be impounded, I find that Constable Sinclair acted in good faith and, as in Nolet , it was a technical breach with minimal impact on the Charter -protected interests of the accused as there is a lower expectation of privacy on the public roadway. The marijuana is real evidence and its admission would not bring the administration of justice into disrepute. [35] The appellant concedes that the third line of inquiry 聳 society聮s interest in adjudication on the merits 聳 favours inclusion of the evidence because the marijuana is real and reliable evidence of drug trafficking. But the appellant argues that the first two lines of inquiry favour exclusion. The First Grant Line of Inquiry [36] In Grant , the Supreme Court noted, at para. 72, that the function of the first line of inquiry into the "seriousness of the Charter -infringing state conduct" is: to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. [37] The focus is on the nature and degree of police misconduct. The Court stated at para. 72: [T]he more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the Courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. Bad Faith [38] At trial, the appellant challenged Constable Sinclair聮s testimony that he had already driven away by the time the officer discovered the expired licence. The appellant argued that the officer had intentionally held off from speaking to him at the gas pumps about his suspended licence because he wanted to pull the car over on the highway in order to arrest him and search his vehicle. The appellant submitted the trial judge erred in failing to rule on, or to provide sufficient reasons about, the argument that the police had used this stratagem. [39] I would reject this argument. In concluding that the police officer was acting in good faith throughout, the trial judge showed that she had accepted his evidence about the timing of the licence plate search and the appellant聮s apprehension, and rejected the appellant聮s credibility challenge to that evidence. The appellant has not demonstrated that the trial judge committed a palpable and overriding error in doing so. A Pattern of Abuse [40] The appellant argues that Constable Sinclair exhibits a pattern of abusing his search authority as a police officer, and that this militates in favour of exclusion of the evidence: see R. v. Little , [2009] O.J. No. 3385, at para. 17. The appellant points to two other reported cases where Constable Sinclair was found to have abused his search powers leading to the exclusion of evidence. [41] In R. v. Rodrigue , 2012 ONSC 1739, [2012] O.J. No. 1538, Constable Sinclair intercepted another Quebec licensed vehicle, pulled it over, searched it and found drugs. The trial judge found that the officer had no reasonable grounds to pull over the motorist and that the subsequent search was abusive. The trial judge cited Harrison and excluded the marijuana on the basis of the officer聮s deliberate and flagrant violation of Mr. Rodrigue's rights. [42] In R. v. Nguyen , [2011] O.J. No. 6252 (S.C.), Constable Sinclair was in a Highway 401 On Route and saw the accused behaving "suspiciously". He pulled over the vehicle and noticed an air freshener and cigarettes. Constable Sinclair asked for permission to search the vehicle. He got the accused, a Vietnamese immigrant who did not speak English well, to sign a waiver. He then found over $100,000 in cash and charged the accused with possession of proceeds of crime. The judge found the waiver was not informed due to the significant language barrier. The Crown conceded s. 24(2) exclusion. [43] As noted, Constable Sinclair testified that he always searches cars that he stops. He was an instructor in 聯pipeline techniques聰 and taught police officers and others the skills to 聯recognize indicia of the criminal element in traffic enforcement聰 during 聯traffic stops聰. He testified that Highway 401 was a popular route for drug and weapons traffickers and that he was always alive to possible criminal activity when conducing traffic stops. He testified that, as a member of the East Region Highway Enforcement Team, he had been involved in over 100 investigations involving large quantities of marijuana. In his testimony Constable Sinclair agreed that he is 聯really good at finding ways to search motor vehicles聰, adding, however, that he does so 聯lawfully聰. [44] I do not doubt that Constable Sinclair believes that he is doing the right thing, and to that extent shows good faith. But, to borrow the words of MacPherson J.A. in R. v. MacDonald , 2012 ONCA 495, [2012] O.J. No. 3210, at para. 35, Constable Sinclair聮s invariable practice of searching every car fits the description of an impermissible 聯fishing expedition conducted at a random highway stop". As an instructor of other police officers, he ought to be fully conversant with his legal authority, but the evidence shows either that he was not or that he was prepared to search regardless. His attitude was exemplified by his testimony: he resisted the notion that what he did was a 聯search聰: 聯I do an inventory sir, not a search聰. This was plainly a search. [45] In my view, the first line of inquiry under Grant therefore militates in favour of the exclusion of the evidence obtained in violation of the appellant聮s s. 8 rights. I am satisfied that the state conduct in this case falls on the serious end of the spectrum of misconduct described by Doherty J.A. in R. v. Kitaitchik , [2002] O.J. No. 2476 ,166 C.C.C. (3d) 14 (C.A.), at para. 41. The Second Grant Line of Inquiry [46] The second Grant line of inquiry "calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed (para 76)." The relevant right here is to be free from unreasonable search under s. 8 of the Charter . In that context, "[a]n unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not": see Grant , at para. 78. [47] The case law has consistently held that drivers have a reduced expectation of privacy in their vehicles: see Caslake , at para. 15; Nicolosi , at para. 9. However, a reduced expectation of privacy does not mean that an unjustified search is permissible. As stated by McLachlin C.J. in Harrison , 聯[a] person in the appellant's position has every expectation of being left alone - subject, as already noted, to valid highway traffic stops聰: Harrison , at paras. 31-32. [48] As Iacobucci J. noted in R. v. Mann , 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 56, the impact of even a minimally intrusive search 聯must be weighed against the absence of any reasonable basis for justification聰. There was no justification for Constable Sinclair聮s inventory search. I am satisfied the second Grant factor also militates in favour of the exclusion of the evidence in this case. The Third Grant Line of Inquiry [49] The third line of inquiry in the Grant analysis involves a consideration and weighing of society's interest in the determination of the charges on their merits. The court must consider whether "the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion": Grant , at para. 79. [50] The exclusion of the hard evidence found in the car would gut the prosecution. That evidence is conceded by the appellant to be highly reliable. At para. 83 of Grant , the Court noted that "the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution." [51] However, I am mindful of the caution referred to by the Supreme Court, at para. 40 of Harrison , in endorsing the words of Cronk J.A.: Allowing the seriousness of the offence and the reliability of the evidence to overwhelm the s. 24(2) analysis "would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of the criminal law 'the ends justify the means.'聰 [52] In Harrison , the Supreme Court acquitted the appellant, where an illegal roadside search found 35 kg of cocaine, a far more dangerous drug. The court did so, as it noted at para. 37, on the basis that the trial judge had placed undue emphasis on the third line of inquiry, and had turned the analysis into a contest between the degree of the police misconduct and the seriousness of the offence, or, as McLachlin C.J. noted at para 41, 聯between the misdeeds of the police and those of the accused聰. [53] As Cory J. observed in Mellenthin , at para. 27: The unreasonable search carried out in this case is the very kind which the Court wished to make clear is unacceptable. A check stop does not and cannot constitute a general search warrant for searching every vehicle, driver and passenger that is pulled over. Unless there are reasonable and probable grounds for conducting the search, or drugs, alcohol or weapons are in plain view in the interior of the vehicle, the evidence flowing from such a search should not be admitted. [54] In my view, the third Grant factor cannot be used to systematically require the admission of reliable evidence obtained in plain disregard of an accused聮s Charter rights. This is a case in which s. 24(2) of the Charter must be applied so as to ensure that the administration of justice is not undermined by the admission of evidence obtained in violation of an accused聮s Charter rights. [55] I am mindful of the Supreme Court聮s caution in Grant that where the trial judge has considered the three lines of inquiry, appellate courts should defer to the trial judge聮s ultimate decision. Deference is not warranted in this case because the trial judge聮s reasoning on the application of s. 24(2) of the Charter was sparse, deficient and erroneous in material ways. [56] The trial judge erred in concluding that the evidence should not be excluded. Her classification of the s. 8 breach as 聯technical,聰 as described in Nolet , was incorrect. In Nolet , the breach was considered 聯technical聰 because the fruits of the illegal search would have been discovered if the police had continued their prior lawful search: Nolet , at para. 54. Here, Constable Sinclair had no authority to conduct any type of search of the interior of the vehicle. The trial judge further erred by holding that the impact of this breach was 聯minimal聰 simply because the appellant had a lower expectation of privacy in his vehicle on a public roadway. The impact of an unjustified search is magnified where there is a total absence of justification for it. Disposition [57] Taking together the three Grant lines of inquiry, I conclude that the evidence should be excluded. The state misconduct was serious and the impact on the appellant聮s Charter rights was significant. As McLachlin C.J. observed in Harrison , at para. 42, 聯 the price paid by society for an acquittal in these circumstances is outweighed by the importance of maintaining Charter standards聰. [58] I would allow the appeal, exclude the evidence obtained in violation of the appellant聮s Charter rights. Because the evidence in question was essential to the Crown's case, rather than order a new trial, I would enter an acquittal, as the Supreme Court did in Harrison . Released: April 6, 2016 聯DW聰 聯P. Lauwers J.A.聰 聯I agree David Watt J.A.聰 聯I agree G. Pardu J.A.聰 "
"2016"
"05-19-2022"
"https://www.ontariocourts.ca/coa/decisions_main"
" COURT OF APPEAL FOR ONTARIO CITATION: R. v. Kooner, 2016 ONCA 254 DATE: 20160406 DOCKET: C59225 MacPherson, MacFarland and LaForme JJ.A. BETWEEN Her Majesty the Queen Respondent and Gurfarthe Kooner Appellant Alexander Ostroff, for the appellant Eric Siebenmorgen, for the respondent Heard: April 6, 2015 On appeal from the conviction entered on December 5, 2013 by Justice Joseph W. Quinn of the Superior Court of Justice, sitting without a jury. APPEAL BOOK ENDORSEMENT [1] The appellant did not surrender into custody as required by the judicial release order. The appeal is dismissed as abandoned. "
"2016"
"05-19-2022"
"https://www.ontariocourts.ca/coa/decisions_main"
" COURT OF APPEAL FOR ONTARIO CITATION: R. v. Pham, 2016 ONCA 258 DATE: 20160407 DOCKET: C59824 Watt, Epstein and Tulloch JJ.A BETWEEN Her Majesty the Queen Respondent and Thi Nga Pham Appellant Venus Sayed, for the appellant Stephen Dawson, for the respondent Heard: March 24, 2016 On appeal from the conviction entered on August 12, 2014 and the sentence imposed on December 17, 2014 by Justice C.D. Anderson of the Ontario Court of Justice. ENDORSEMENT [1] The appellant appeals her conviction of possession of 48 pounds of marijuana for the purpose of trafficking and seeks leave to appeal her sentence of imprisonment for a term of six months imposed as a result of that conviction. [2] The appellant was the driver of a sport utility vehicle that was pulled over by a police officer on Highway 401 in Eastern Ontario. In a cardboard box in the cargo area of the vehicle, police located several bags of packaged marijuana. [3] The genesis of the traffic stop was a report from another police officer about unsafe driving and observations by the arresting officer who followed the vehicle for several kilometers. The officer who stopped the vehicle approached it. He made several observations as he waited for the occupants, in particular the appellant, to produce information he requested of them. Both occupants seemed nervous. The appellant kept looking back towards two large black suitcases in the rear of the vehicle. There were several cellphones on the console. The officer detected a strong smell of raw marijuana from the vehicle. As he walked by the vehicle to return to his cruiser, the officer noticed a cardboard box with Ziploc bags protruding from it containing material of the shape and size of marijuana. He made this observation through heavily tinted windows. [4] On his return to his cruiser, the officer conducted a CPIC check on his computer. He returned to the vehicle driven by the appellant and arrested the appellant and her passenger on a charge of possession of marijuana for the purpose of trafficking. [5] The appellant advances three grounds of appeal against conviction. She says that the trial judge erred: i. in failing to find that the police lacked reasonable grounds to detain the appellant and thereby lacked the authority to search the vehicle incident to her arrest; ii. in failing to exclude the marijuana as evidence obtained by Charter infringement under s.24(2) of the Charter ; and iii. in misapprehending the evidence of the arresting officer and thereby rendering an unreasonable verdict based on his evidence. [6] We would not give effect to any of these grounds of appeal. [7] We are satisfied, as the appellant acknowledges, that the initial traffic stop was fully justified under s. 216(1) of the Highway Traffic Act . The same may be said of the request for documents identifying the occupants and the authority of the driver to operate the vehicle with appropriate insurance coverage. Any additional purpose the officer had was neither improper nor did it entail an infringement on the liberty or security of the occupants beyond what is contemplated by the purpose animating s.216(1) of the Highway Traffic Act . See, Brown v. Regional Municipality of Durham Police Service Board , (1998) 116 O.A.C. 126, at para. 31. [8] We are equally satisfied that the trial judge made no error in concluding that the investigating officer had reasonable and probable grounds to arrest the appellant for possession of marijuana. [9] When the officer reached the vehicle, he detected a strong odour of raw marijuana. New air fresheners hung from the rear-view mirror. Several cellphones were in the vehicle. Both occupants were nervous. The appellant repeatedly looked back at the large bags in the rear seat or cargo area. The officer noticed a large box with bags containing a substance that resembled marijuana in size and shape protruding from it. The cumulative effect of these observations amounted to reasonable and probable grounds to arrest the appellant. It followed that the search of the vehicle incident to the lawful arrest and carried out in a reasonable manner was constitutionally valid. [10] The trial judge found a breach of s.10(b) when the arresting officer did not inform the appellant of her s.10(b) rights immediately upon arrest. The informational component of the right was delayed three to four minutes. The trial judge rejected the appellant聮s claim that she did not speak to a lawyer, rather only to an interpreter, after the investigating officer called the toll-free number for duty counsel advice and, in accordance with his usual practice, requested a response from a Vietnamese-speaking lawyer. We see no basis upon which to interfere with this finding or the trial judge聮s decision to admit the real evidence found in the vehicle. [11] The appellant also seeks leave to appeal the sentence of imprisonment for a term of six months imposed upon her. She says the trial judge erred in failing to impose a conditional sentence of imprisonment. The sentence imposed at trial, she contends, is demonstrably unfit for a 52 year-old first offender, the sole support of her daughter, a university student. A conditional sentence order would permit her to continue operating her business, to maintain her home, and would also achieve the predominant sentencing objectives. [12] We would not interfere with the sentence imposed at trial. We measure the sentence imposed for its adherence to the cardinal principle of sentencing 聳proportionality 聳 regardless of whether trial judge erred in principle when crafting it. We see no error in principle in the judge聮s approach or any misapprehension of relevant evidence, let alone any error that had an impact on the sentence ultimately imposed. [13] The offence involved a significant quantity of marijuana. The crime was motivated entirely by financial gain. The offender who committed it, by her own admission, gave perjured testimony on the voir dire , if not on the trial proper in a desperate effort to escape conviction. [14] The appeal from conviction is dismissed. Leave to appeal sentence is granted, but the appeal from sentence is dismissed. 聯David Watt J.A.聰 聯Gloria Epstein J.A.聰 聰M. Tulloch J.A.聰 "
"2016"
"05-19-2022"
"https://www.ontariocourts.ca/coa/decisions_main"
" COURT OF APPEAL FOR ONTARIO CITATION: R. v. Woolridge, 2016 ONCA 302 DATE: 20160425 DOCKET: C60585 Doherty, Watt and Miller JJ.A. BETWEEN Her Majesty the Queen Respondent and Calvin Woolridge Appellant Joseph Di Luca and Michael Wendl, for the appellant Davin M. Garg, for the respondent Heard and released orally: April 12, 2016 On appeal from the sentence imposed on December 23, 2014 by Justice Richard E. Jennis of the Ontario Court of Justice. ENDORSEMENT [1] The appellant appeals a net or effective sentence of 3 years, 7 months imposed after he pleaded guilty to a single count of robbery. [2] The sentencing judge considered that a sentence of 4 years, 10 months was fit for the robbery conviction, but reduced it to 3 years, 7 months because of the time the appellant had spent in pre-disposition custody which the sentencing judge credited at the rate of 1.25:1. [3] At the same time, the sentencing judge imposed sentences of one month on each of two counts of theft under $5,000, upon which the Crown proceeded by indictment. The sentences were made consecutive to each other, and to the sentence imposed on the robbery conviction. Neither the quantum of those sentences, nor the order that they be served consecutively to each other and to the robbery sentence, is in issue on appeal. [4] Before the sentencing judge, Crown counsel sought a penitentiary sentence of 4 to 8 years, less credit for pre-disposition custody. Defence counsel sought a sentence that would permit service of it in a reformatory so that the appellant could receive the benefit of substance abuse programs said to be more effective there than in the penitentiary. [5] The appellant advances two grounds of appeal. He says that the sentencing judge erred in failing to award him credit on a 1.5:1 basis for the time he spent in pre-disposition custody. Second, he contends that the sentencing judge erred in the quantum of sentence he imposed by placing undue weight on the appellant聮s criminal record. [6] The respondent acknowledges that the sentencing judge erred in failing to award credit for pre-disposition custody at the rate of 1.5:1, but submits that the sentence imposed is otherwise free of error. In fairness to the sentencing judge, he based his conclusion on this issue on a decision of this court that was overtaken by subsequent authority not available to the sentencing judge at the time he imposed sentence. [7] Apart from awarding enhanced credit for pre-disposition custody, we would dismiss the appeal. [8] In light of R. v. Lacasse , 2015 SCC 64, [2015] 3 S.C.R. 1089, we are permitted to intervene with a sentence imposed at first instance only where the sentencing judge has erred in principle; failed to consider a relevant factor; or erred in his or her consideration of an aggravating or mitigating factor; and that such an error had an impact on the sentence imposed. [9] The assignment of weight to aggravating and mitigating factors in determining a fit sentence is quintessentially a matter for the sentencing judge. Here, the sentencing judge was dealing with a mature recidivist with nearly seven dozen convictions on a record that spanned almost a quarter-century. The offence committed was a brazen and planned robbery accompanied by the use of an imitation weapon. Deterrence and denunciation dominated the sentencing calculus. The sentencing judge considered rehabilitation but accorded it, as he was entitled to do, a place of lesser influence. [10] Apart from adjusting the pre-disposition custody credit, we see no reason to interfere with this sentence. [11] We reduce the remanet of this sentence by 94 days to reflect the credit of 1.5:1, rather than 1.25:1. This leaves a net sentence on the robbery conviction of 3 years, 5 months and 15 days. Otherwise the appeal, from sentence is dismissed. 聯Doherty J.A.聰 聯David Watt J.A.聰 聯B.W. Miller J.A.聰 "
"2016"
"05-19-2022"
"https://www.ontariocourts.ca/coa/decisions_main"
" COURT OF APPEAL FOR ONTARIO CITATION: Quenneville (Re) 2016 ONCA 295 DATE: 20160422 DOCKET: C60753 Strathy C.J.O., Gillese and Pardu JJ.A. IN THE MATTER OF: Denis Quenneville AN APPEAL UNDER PART XX.1 OF THE CODE Sukhpreet Sangha, for the appellant John Patton, for the Attorney General of Ontario Janice Blackburn, for the person in charge of Waypoint Centre for Mental Health Care Heard: April 21, 2016 On appeal against the disposition of the Ontario Review Board dated May 28, 2015. ENDORSEMENT [1] The appellant argues that the decision of the Ontario Review Board that he continue to be detained at the Waypoint Centre for Mental Health Care was unreasonable. He submits that the opinion of his treating physician that he had made progress in the recent year, and that he would benefit from a less secure environment should have been accepted by the Board. He would like to be transferred to either the Brockville Mental Health Centre or the Royal Ottawa Mental Health Centre, so that he can be closer to his family, and so that he can enjoy some easing of the restrictions associated with Waypoint. The appellant had spent time at the Brockville facility in the past. [2] Dr. Ahmed, member of the Royal Ottawa Mental Health Centre, opposed the transfer. He reviewed the hospital report filed in this matter and took the position that the appellant聮s risk 聯continues to be at a level higher than can be safely managed聰 at those facilities. He did not consider that the appellant had made any significant progress and was concerned that as a result of a program of major renovation, there was a reduction of beds available for admission. [3] There was no dispute that the appellant remained a significant threat, and no dispute that continued hospitalization was required. [4] The Board noted in its reasons, 聯While the Board commends Mr.聽Quenneville for his progress during the review period, we find that a transfer to a less secure institution is premature given Mr. Quenneville聮s ongoing threatening and sexually inappropriate behaviour as documented in the Hospital Report聰. That report discloses that the appellant continued to make threats to kill, torture, rape and injure other persons. His last violent outburst occurred in June 2014 when he threw a 70 pound chair in his room which broke off a door handle. [5] The reasons of the Board are adequate, clearly explaining why it came to the conclusions it did. [6] The appellant was making some progress at Waypoint with the benefit of Dialectical Behavioural Therapy. There was some question whether the same kind of treatment would be available to him at the other institutions. [7] The Board聮s decision is owed deference. As recently observed by this court in Hart (Re) , 2016 ONCA 277: The standard of review of a disposition or placement decision of the Board is set out in s. 672.78(1) of the Criminal Code , and its application was explained in R. v Owen , 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 31-37. This court can only set aside an order of the Board where it is of the opinion that: 1. the decision is unreasonable or cannot be supported by the evidence; or 2. the decision is based on a wrong decision on a question of law; or 3. there was a miscarriage of justice. [8] The conclusion that it was premature to transfer the appellant to a less secure setting was reasonable and supported by the evidence. It was open to the Board to accept the evidence favouring continued detention at Waypoint rather than the evidence of the treating physician advocating a transfer. There is no basis for this court to intervene. The appeal is dismissed. 聯G.R. Strathy C.J.O.聰 聯E.E. Gillese J.A.聰 聯G. Pardu J.A.聰 "
"2016"
"05-19-2022"
"https://www.ontariocourts.ca/coa/decisions_main"
" COURT OF APPEAL FOR ONTARIO CITATION: Sankar v. Bell Mobility Inc., 2016 ONCA 242 DATE: 20160404 DOCKET: C60176 Strathy C.J.O., LaForme and Huscroft JJ.A. BETWEEN Celia Sankar Plaintiff (Appellant) and Bell Mobility Inc. Defendant (Respondent) Louis Sokolov, Jean-Marc Leclerc and Christine Davies, for the appellant Steve Tenai and Guy White, for the respondent Heard: November 23, 2015 On appeal from the judgment of Justice Edward P. Belobaba of the Superior Court of Justice, dated February 12, 2015, reported at 2015 ONSC 632. Strathy C.J.O.: [1] This appeal is about prepaid wireless phone card accounts. It concerns the fate of the balance remaining in a Bell Mobility Inc. (Bell) subscriber聮s account when she fails to 聯top up聰 the account before the end of its 聯active period聰. [2] Bell聮s prepaid 聯top-ups聰 allow customers to add credit to their accounts and extend their active periods that give them access to Bell聮s wireless network. Bell聮s practice, during the period at issue, was to claim unused funds the day after the end of the active period. For example, if the active period ended on June 30, Bell聮s practice was to claim the unused funds on July 1, if the account had not been topped-up in order to extend the active period. [3] The appellant聮s certified class action alleges that Bell collected those funds improperly. She claims the contract provided that Bell had to wait until the second day after the end of the active period, not the first day. Alternatively, she alleges, Bell claimed funds improperly because Ontario legislation forbids the imposition of expiry dates on prepaid phone cards. [4] The motion judge ruled that Bell did not breach its contract and that the gift card regulations found in O. Reg. 17/05, as amended (the Gift Card Regulation ) [1] , under the Consumer Protection Act , 2002 , S.O. 2002, c. 30 Sched. A, do not apply to prepaid phone cards. He therefore granted summary judgment answering the common issues in Bell聮s favour and dismissed the class action. [5] The appellant challenges the motion judge聮s conclusions on both issues. She asserts that the motion judge failed to consider the prepaid wireless contract as a whole, having regard to the expiry dates assigned by Bell and communicated to subscribers. She also submits that the motion judge erred in finding that the Gift Card Regulation is inapplicable to Bell聮s phone cards. [6] For the reasons that follow, I would dismiss the appeal. A. Breach of contract claim [7] Bell markets prepaid cell phone services under three brand names: Bell Mobility, Solo Mobile, and Virgin Mobile. As the motion judge noted, and here I borrow liberally from his reasons, Bell offered different active periods and pricing for its three brands. The active periods ranged from 30 to 365 days and the cost of credits that could be purchased ranged from $15 to $200, depending on the length of the active period. Generally, the longer the active period the more the card cost and the greater the credits that could be applied against particular Bell services during the active period. Thus, customers could choose a plan to suit their budgets and anticipated usage. [8] All plans had an active period. At the end of the active period access to Bell聮s services terminated unless the plan was renewed. If not, the prepaid credits expired and were forfeited to Bell. If the customer 聯topped up聰 the prepaid account balance before expiry, the unused balance was added to the new top-up and became subject to the new active period. [9] There were different ways to top up the account. Customers could pre-authorize the automatic top-up of their accounts through their credit or debit cards when the balance fell below a certain floor or was about to expire. Or, they could 聯manually聰 top up with a credit card through the brand聮s web site or by purchasing a phone card from a retainer. Virgin Mobile customers could also 聯manually聰 top up with a debit card. When customers topped up their accounts, they received a PIN (personal identification number) receipt, containing a unique code. When the customer wished to activate the top up, she could enter the code on the brand聮s website or by text or other communication to Bell, thereby adding the top up value to the balance in the prepaid account. [10] The focus of this action is the manual form of top up through the purchase of prepaid cards and PIN receipts. [11] The relevant portion of the Bell Mobility and Solo Mobile terms of service were as follows: Value deposited into your prepaid account is available as prepaid credits for your Service and such credits are non-refundable, non-transferable, and will expire after a specified time period. [12] The Virgin Mobile terms of service stated the following: All Top Ups ... have specified active periods and an expiry date. The active period starts on the date you place the Top Up on your account. Any Top Up balance on your account after the expiry date is forfeited and non-refundable. If you Top Up your account before your existing credit expires or is used up, then your existing credit is added to the new Top Up value and the active period of the earlier Top Up is extended so that the later expiry date of the two Top Ups is valid for the entire amount. [13] The motion judge relied on certain additional materials in his interpretation of the agreements. [14] First, as I have noted, the prepaid cards sold by retailers for these brands provided for different pricing and active periods. The cards used different terminology to describe the active period. Bell Mobility and Solo Mobile cards stated, for example, 聯$15 valid for 30 days.聰 Virgin Mobile cards said, for example, 聯Funds expire, $15 聳 30 days after activation.聰 [15] Second, the PIN receipt customers received on payment for the card or top-up, stipulated, for example, 聯$15 valid 30 days聰 (Bell Mobility), 聯$20 Good for 45 days聰 (Solo Mobile), and 聯Funds expire, $15 - 30 days after activation聰 (Virgin Mobile). [16] The breach of contract claim boiled down to whether the prepaid card expired at the end of the last day of the active period, or the day after. If the card did not expire until the day after the end of the active period, then Bell had breached its contract by treating the purchaser as having forfeited the unused balance on that day. In my view, the motion judge correctly held that the card expired at the end of the last day of the active period, not on the day after. Bell was therefore entitled to collect the unused balance after the last day of the active period. [17] The motion judge found that, at the time of contracting, Bell intended, and subscribers understood, that the agreement would expire at the end of the relevant active period. They understood that any unused funds would be claimed by Bell after that time, unless the account was 聯topped up聰 before expiry. The information on the prepaid cards and the PIN receipts was consistent with the language of the subscriber agreements, with brand brochures and pamphlets available at retailers and with the information on Bell聮s websites. [18] While this matter was under reserve, this court released its decision in MacDonald v. Chicago Title Insurance Company of Canada , 2015 ONCA 842. The court held that the standard of review applicable to a standard form insurance policy was correctness. The appellant sought leave to make further submissions on the application of the decision and the court granted leave to both parties to do so. [19] Based on Chicago Title , the appellant submits that the standard of review is correctness, because Bell聮s contracts are standard form contracts of adhesion. She submits that the factual matrix should have played no role in the interpretation of the contact. The motion judge should not have relied on extrinsic materials, such as PIN receipts, phone cards, brochures and websites to interpret the contract. Instead, the appellant says, the motion judge should have considered subsequent communications from Bell to its customers, in which Bell set out the expiry dates of their cards. [20] Bell, on the other hand, submits that the contract terms were contained not only in the agreements made when customers initially signed up for wireless service, but also in pricing and other contractual information, including expiry dates, set out in the prepaid cards and PIN receipts, which customers obtained when they bought top-ups. Bell says that the motion judge properly considered these documents, and others, in interpreting the contract. It also says that the motion judge rightly ignored communications made by Bell after customers had made their pre-payments. [21] Bell says that because the motion judge was entitled to rely on the factual matrix in this way, the standard of review should be one of palpable and overriding error. [22] In my view, in addition to the initial agreements, the motion judge was entitled to rely on other documents that formed part of the contractual relationship between the parties 聳 the PIN receipts and phone cards referred to earlier. These, taken together with the agreements made when they subscribed to the service, formed the contract between every customer and Bell. It was appropriate to answer the common issue based on these documents and indeed the answer would have been incomplete had they not been considered. [23] There is a difference between considering the factual matrix and considering the documents that make up the contract itself. It is not uncommon in modern contracts, including contracts made partly on 聯paper聰 and partly on the internet, for the contract terms to be found in several 聯documents聰. And it is well-settled that where parties enter into interrelated agreements, the court is required to look to all those agreements to determine their construction. [24] Thus in 3869130 Canada Inc. v. I.C.B. Distribution Inc ., 2008 ONCA 396, this court stated that a court may have regard to the language of other contracts made at the same time. It quoted with approval from John D. McCamus, The Law of Contracts (Toronto: Irwin Law Inc., 2005), at p. 715: Many transactions, especially large commercial transactions such as the purchase and sale of a large and complex business, may involve the execution of several agreements. In such contexts, it is an interesting question, then, whether in the interpretation of one of the agreements, regard may be had to the others. The basic principle is that such regard may be had only where the agreements essentially form components of one larger transaction. Where each agreement is entered into on the faith of the others being executed and where it is intended that each agreement form part of a larger composite whole, assistance in the interpretation of any particular agreement may be drawn from the related agreements. [Emphasis added. Citation omitted.] [25] In this case, the agreements were not contemporaneous, but they were interrelated. The initial agreement contemplated that customers would top up their accounts through Bell聮s websites, through the purchase of phone cards and through the purchase of PIN receipts. These were not simply part of the factual matrix 聳 they contained contractual terms themselves. The motion judge properly had regard to these documents in order to determine the contract terms. Because these terms were common to all class members (albeit in slightly different language depending on the manner of top-up), it was appropriate to address the issue as a common issue. [26] In my view, based on Sattva and Chicago Title , a correctness standard applies to the interpretation of the Bell contracts, which included standard terms of service and standard form phone cards and PIN receipts. The factual matrix applicable to the dealings between individual customers and Bell plays no role in the interpretation of the contracts. Indeed, if that did play any role, the interpretation of the contract would not be a suitable common issue, because the answer could vary depending on the underlying facts. [27] The appellant says that the motion judge should have considered the text messages and other communications made by Bell to its customers prior to the expiry of their top-ups to notify them that their funds were about to expire. But these communications took place after the contract had been made. As the motion judge properly found, at para 28: If any class member misunderstood the follow-up "expiration date" messages as meaning that unused funds would expire on Day 31 and would be seized on Day 32, and she relied on said messages to her detriment (by not topping up in time and forfeiting the unused balance) and the defendant did not grant a courtesy extension, then her remedy, as already noted, was two-fold: either a claim in breach of contract arguing promissory estoppel or a claim in misrepresentation. But both of these remedies would require proof of individual reliance and neither would be amenable to a class proceeding. That is why, as I have already noted, neither promissory estoppel nor misrepresentation was alleged by the plaintiff or pursued herein. [28] These communications were not part of the factual matrix surrounding the formation of the contract. At their highest, they were post-contractual representations. [29] In my view, the motion judge聮s interpretation of the contract was correct. It was based on Bell聮s Terms and Conditions of Service and other documents available at the time of contracting and the ordinary, grammatical and common sense meaning of the contract language. [30] The plain meaning of the language on the prepaid cards and the PIN receipts, when read in context of the agreements made by customers when they initially subscribed for the service, was, as the motion judge found, that the subscriber聮s ability to use the prepaid funds expired at the end of the relevant active period. [31] Indeed, the appellant聮s complaint to the CRTC confirmed that she understood from the contract documents that her account would expire at the end of the relevant period if it was not topped-up. [32] As the motion judge noted, the appellant聮s real complaint, and the real complaint in this class action, is that Bell聮s subsequent communications to its customers 聳 made after they had purchased their top-ups and as the top-up was about to expire 聳 were misleading. That is because they may have created the impression that subscribers had an additional day after the end of the active period to 聯top up聰 before their funds expired. I agree with the motion judge that this was essentially a claim for misrepresentation or promissory estoppel, neither of which was before him, because neither was held to be amenable to resolution as a common issue in the class proceeding. [33] I would therefore dismiss the first ground of appeal. B. Gift Card Regulation [34] The parties made no submissions in either this court or in the court below concerning the legislative jurisdiction of the Province of Ontario over prepaid phone cards. The appellant submits that if Ontario has such jurisdiction, an issue that was left for another day if necessary, the cards cannot have expiry dates. She submits the motion judge erred in his interpretation and application of ss. 23 and 25.1-5 of the Gift Card Regulation . [35] The Gift Card Regulation is made under the Consumer Protection Act. Part IV of that statute deals with specific consumer agreements, including 聯future performance agreements.聰 A future performance agreement is defined in s. 1 as a 聯consumer agreement in respect of which delivery, performance or payment in full is not made when the parties enter the agreement聰. That is, as the name suggests, an agreement that is to be wholly or partly performed in the future. Sections 21 to 26 of the statute set out certain consumer rights in relation to future performance agreements, none of which is applicable here. [36] The Gift Card Regulation states the requirements for future performance agreements generally and for 聯gift card agreements聰 in particular. The regulation defines both 聯gift card聰 and 聯gift card agreement聰 as follows: 23. In the Act and this Part, 聯gift card聰 means a voucher in any form, including an electronic credit or written certificate, that is issued by a supplier under a gift card agreement and that the holder is entitled to apply towards purchasing goods or services covered by the voucher; (聯carte cadeau聰) 聯gift card agreement聰 means a future performance agreement under which the supplier issues a gift card to the consumer and in respect of which the consumer makes payment in full when entering into the agreement; (聯convention de carte cadeau聰) [37] As the motion judge noted, there is a degree of circularity to these definitions, in that each term is defined partly by reference to itself. [38] The regulation prohibits an expiry date on the future performance of a gift card agreement: 25.3(1) No supplier shall enter into a gift card agreement that has an expiry date on the future performance of the agreement. 25.3(2) A gift card agreement with an expiry date on its future performance shall be effective as if it had no expiry date if the agreement is otherwise valid. [39] Based on the ordinary meaning of the terms 聯gift card聰 and 聯gift card agreement,聰 the motion judge interpreted those terms as requiring an actual gifting of the card or voucher to a third party. In reaching this conclusion, he held that 聯[t]here is nothing in the language of the Gift Card Regulation that explicitly limits or confines its application to gift cards as commonly understood.聰 He noted, however, that in introducing the regulation, the Minister of Government Services observed that gifts cards 聯are purchased in good faith by the people of Ontario for their family and friends.聰 [40] He concluded that prepaid phone cards are generally not subject to the Gift Card Regulation , because they are purchased for personal use and not as gifts. In his view, only if a prepaid phone card was 聯 purchased as a gift for a third party, [would it] qualify as a 聭gift card聮聰. [41] He held that even phone cards and PIN receipts purchased as gifts for third parties would not contravene the regulation, because they did not have expiry dates. He stated, at para. 44: They could be redeemed, i.e. activated, at any time without limitation. 聟 And the fact that the wireless services provided thereafter were time limited, i.e. after this particular gift card was redeemed (by activation), is not a breach of any provision in the Gift Card Regulation . [42] The motion judge held, in the alternative, that even if pre-paid phone cards were 聯gift cards聰, they were nonetheless exempted under s. 25.1(b) of the Gift Card Regulation , which exempts any 聯gift card that covers only one specific good or service聰 from the no expiry date provision, among others. The gift cards here, he said, covered only one specific service: access to Bell聮s network. [43] The appellant argues that there is nothing in the legislation to show that it was limited to future performance agreements purchased as gifts. She also says the Bell cards are not for one specific service, but rather for a variety of services, including voice, data, voicemail, call display, long distance, roaming, text, picture, downloads, streaming, browser usage and internet access. These services are priced at specific rates, which are then deducted from the consumer聮s account based on usage of each service. [44] The respondent agrees with the motion judge and argues that access to the network is a single service; all the other services are incidental. [45] I do not find it necessary to address the issue of whether the Gift Card Regulation applies only to gift cards purchased as gifts. Nor is it necessary to consider whether the case falls within the single service exception, although there is a strong argument that the consumer is purchasing a single service 聳 access to Bell聮s network for a defined period of time. [46] Rather, I rest my conclusion on the interpretation of the Gift Card Regulation , to which the motion judge alluded in his analysis. The regulation prohibits an expiry date on the 聯 future performance of the agreement 聰. It provides that a future performance agreement with an expiry date is to be effective 聯as if it had no expiry date聰. Its purpose is to prevent the expiry of the agreement before the seller of the card has delivered the goods or performed the services promised under the agreement. It does not prohibit an agreement being time-limited 聳 for example, use of a gym for 30 days after activation of the membership, or use of wireless services for 30, 60, 90 or 365 days after activation. [47] The question, therefore, is 聯what does performance of the wireless agreement entail?聰 Does it mean that Bell performs its agreement by giving the customer access to its wireless network for 30, 60, 90 or 365 days, or does it mean that Bell must provide wireless service until the customer uses up all the prepaid credits in his or her account? [48] The plain meaning of the contracts is that customers were buying a defined period of wireless service. Significantly, the motion judge found, at para. 12, that 聯[a]t no time during the class period did class members receive anything less than the full period of wireless service for which they had contracted to receive.聰 [49] But, although the performance of the contract entailed a defined period, the purchaser or donee of a Bell card or PIN receipt could decide when she wanted to activate the service in order to begin that period. The service could be activated at any time in the future. Bell was required to perform the agreement once the consumer decided to activate the service. The agreement was fully performed by Bell when it gave the customer access to its wireless services for the agreed-on period. [50] The fact that the service purchased was for a defined period, calculated on the dollar value of credits the consumer added to the account, was not a breach of the regulation. To hold otherwise would mean that Bell was required to keep the wireless service and number available to the customer indefinitely, a patently unreasonable outcome. As the motion judge noted, at para. 44 of his reasons, 聯section 25.3(1) [of the Gift Card Regulation ] prohibits an expiry date on the gift card itself and not on the goods or services purchased with that gift card.聰 [51] It is noteworthy, although not in any way determinative, that in establishing the Wireless Code , the Canadian Radio-television and Telecommunications Commission (CRTC) specifically addressed this issue, after hearing submissions from consumer groups and wireless providers: Telecom Regulatory Policy CRTC 2013-271 . The Wireless Code , effective December 2, 2013, established a mandatory code of conduct for all providers of retail mobile wireless voice and data services. The CRTC noted that prepaid cards are subject to an expiry date ranging from 15 days to one year after activation, depending on the value of the card, and to continue service and/or carry over credits beyond the expiry date consumers can 聯top up聰 their accounts via the service provider聮s website and/or by purchasing additional prepaid cards. [52] The CRTC received complaints similar to those made by the representative plaintiff in this proceeding. Indeed, she herself made a complaint to the CRTC. She and other consumers were frustrated that their account balances expired if they did not 聯top up聰 and that they lost the balance in the account if they missed the end of their active period, by even one day. They asked the CRTC to require wireless service providers to carry over prepaid account balances indefinitely or to prohibit the expiry of prepaid cards. [53] To address these concerns, the CRTC required wireless service providers to hold prepaid card customers聮 accounts open for seven days following expiry of an activation period to give consumers additional time to 聯top up聰 their accounts. This, it said, would not impose significant burdens on service providers, would enhance the clarity of prepaid billing services and policies, would balance consumer interests with 聯current market realities聰 and would increase flexibility for frequent users of prepaid services. [54] The commission concluded, however, that it would not be appropriate to require service providers to permit consumers to carry over their prepaid unused minutes indefinitely. It noted that prepaid card services provide access to the network for a specific period of time. It stated, at para. 349 of its decision: The Commission considers that the evidence on the record of the proceeding does not support consumers聮 request for [wireless service providers] to carry over their prepaid unused minutes indefinitely. In this regard, the Commission notes that wireless services, including prepaid card services, provide access to the network for a specific period of time with specific usage limitations that are distinct for each aspect of the service. The Commission considers that imposing a requirement that services be provided beyond the limitations set out in the service agreement would not be appropriate. [55] As the motion judge noted, in November 2013 Bell amended its top-up agreements to reflect the seven-day grace period conferred by the CRTC聮s decision. [56] It is true that this conclusion means that consumers, such as the appellant, may find themselves in a situation where their phone cards expire before they have had a chance to use all their prepaid credits. They may also find themselves on a merry-go-round they cannot get off, because they must constantly top up an account with a credit balance, because they have not used up all their credits from the previous active period. Depending on one聮s perspective, that may be unfair or it may be part of the price paid for the flexibility of a prepaid phone card. The CRTC does not address this issue. If the Province of Ontario has jurisdiction over phone cards 聳 an open question 聳 it may choose to do so. [57] In my view, the motion judge was correct to grant summary judgment in favour of the respondent on the common issue relating to the Gift Card Regulation. C. Disposition [58] For these reasons, the appeal is dismissed. [59] The parties agreed that costs should be awarded to the successful party in the amount of $20,000 all-inclusive, subject to the right of the Class Proceedings Fund to make submissions. A copy of these reasons shall be provided to the Fund by class counsel. Subject to any submissions by the Fund within 30 days, the respondent shall have its costs in the agreed amount. 聯G.R. Strathy C.J.O.聰 聯I agree H.S. LaForme J.A.聰 聯I agree Grant Huscroft J.A.聰 Released: April 4, 2016 [1] I will refer to this regulation as the Gift Card Regulation although it covers more than this subject. The same term was used in the certified common issue. "
"2016"
"05-19-2022"
"https://www.ontariocourts.ca/coa/decisions_main"
" COURT OF APPEAL FOR ONTARIO CITATION: Spar Roofing & Metal Supplies Limited v. Glynn, 2016 ONCA 296 DATE: 20160425 DOCKET: C60682 Weiler, Hourigan and Huscroft JJ.A. BETWEEN Spar Roofing & Metal Supplies Limited, Craig Glynn and Wendy Glynn Plaintiffs (Appellants) and Grant Richard Glynn Defendant (Respondent) Lorne S. Silver, for the appellants C. David Freedman and Suzana Popovic-Montag, for the respondent Heard: March 29, 2016 On appeal from the judgment of Justice Kevin W. Whitaker of the Superior Court of Justice, dated June 11, 2015. Weiler J.A.: A. Overview [1] This is a family dispute in which the appellants, Craig and Wendy Glynn, seek to set aside a transfer of real property (the Property) to their brother, the respondent Grant Glynn. The transfer resulted in Grant becoming a joint tenant with his parents, Edward and Wanda Glynn, and was a gift from them. [2] Craig and Wendy allege that Edward, with the concurrence of Wanda, promised the Property to them. They allege that Edward promised them the Property would form part of the corporate assets of Spar Roofing & Metal Supplies Limited, a company founded by Edward and now operated by Craig and Wendy in which they own all of the common shares. The Property serves as the main roadway access and exit to Spar Roofing聮s business and is used as a warehouse. It is located in Toronto and is worth in excess of two million dollars. [3] The motion judge characterized the appellants聮 pleading as seeking to enforce Edward聮s promise to gift the Property to Craig and Wendy in the future and struck the appellants聮 claim as disclosing no reasonable cause of action. He further held that the appellants lacked standing to 聯bring a claim to divest the defendant of his interests in the property.聰 [4] A preliminary issue on this appeal is whether the motion judge聮s reasons are so deficient, due to contradictory and conclusory statements, that they are incapable of appellate review. If the reasons are sufficient, the issues are whether the motion judge erred in striking the appellants聮 claim without leave to amend and whether the appellants ought to be granted leave to amend their pleading. [5] For the reasons that follow I would hold that the motion judge聮s reasons are sufficient because they explain the basis for his conclusion. While he did not err in characterizing the claim as being about a promise to make a gift of land, I would hold that he erred in dismissing the claim without granting the appellants leave to amend their pleading. Accordingly, I would grant the appellants leave to amend. B. The Facts Alleged [6] The facts as pleaded are summarized below. [7] On or about August 1994, Edward, as landlord, and Spar Roofing, as tenant, entered into a 30-year lease of the Property at the same fixed-rate rent for the entire lease period. The lease was signed by Craig on behalf of Spar Roofing and registered on title. Edward assured Craig and Wendy that the lease was a means of 聭guaranteeing聮 that the Property would form part of the company assets. Grant understood that the Property would be included in the company assets. [8] On December 19, 2003, Edward and Wanda entered into a letter agreement with Craig and Wendy to govern share ownership in Spar Roofing. The agreement provided that all of the common shares were owned by Craig and Wendy and that upon the deaths of Edward and Wanda, the Class A and Class B shares would also be assigned to Craig and Wendy with the result that they would become the sole shareholders of the company. [9] Edward promised Craig and Wendy on many occasions that his estate would be split between his personal assets and the assets related to the company. Upon his death the company assets would vest with Craig and Wendy or the company. Edward also represented and assured Craig and Wendy that Wanda was in agreement with this arrangement. [10] Edward聮s mental health began to deteriorate in the early 2000s, when he started suffering from dementia/Alzheimer聮s and Parkinson聮s disease. He was permanently hospitalized for dementia on or about February 22, 2011. Wanda was also hospitalized for various physical and mental health issues around the same time. [11] Both parents became mentally incompetent and were unable to manage their personal and financial affairs. [1] On or about February 2011, Grant assumed control over his parents聮 affairs and refused to discuss them with Craig or Wendy. The statement of defence pleads that when Edward and Wanda made their 2009 wills leaving the Property to Grant, they also made powers of attorney for property and personal care, appointing the other as attorney with Grant as the substitute or alternate attorney. [12] In May 2012, Grant arranged for a transfer agreement whereby the Property was transferred to him as a joint tenant with Edward and Wanda. He arranged for a solicitor to sign the agreement on behalf of his parents and register it. The statement of defence pleads that Edward and Wanda personally signed a direction and authorization for the lawyer to proceed with the transfer. [13] The Property transfer shows the Property being given to Grant as a gift. [14] Craig and Wendy did not learn about the transfer until August 2012, when they discovered Grant聮s name on a tax bill for the Property. [15] Craig and Wendy alleged in the statement of claim that in arranging for the transfer of the Property to him as a joint tenant, Grant exercised undue influence over Edward and Wanda when they were suffering from mental illness and that they did not receive independent legal advice prior to entering into the transfer. They further alleged that Grant was in a fiduciary relationship with Edward and Wanda, and that he received a benefit from the transfer to the detriment of Edward, Wanda, Craig and Wendy. Alternatively, or in addition, Craig and Wendy alleged that the transfer was void because Edward and Wanda lacked mental capacity to enter into the transfer. [16] Craig and Wendy also alleged that Grant was aware that 聯it was always Edward聮s intention to gift the Company Assets (including the Property) to Craig and Wendy or the Company upon his death聰 and that Grant聮s conduct deprived them of an asset to which they are lawfully entitled. [17] Since Edward聮s death on February 1, 2014, Grant has rejected every request to inform Craig and Wendy of his alleged status as executor of Edward聮s estate and attorney over Wanda聮s property and care. C. The Motion Judge聮s Reasons [18] The core of the motion judge聮s decision is found at paras. 7, 9, 10 and 11 of his reasons: [7]聽聽聽聽聽 The plaintiffs plead that the property was the subject of oral promises made by Edward to Craig and Wendy, and that the property would be transferred to them as part of his estate plan. This statement of claim does not plead consideration being provided to Edward and/or Wanda, nor terms by which it could be said that title to the property was to be transferred [to] Spar. The plaintiffs agree that Grant was added to title as a joint tenant by Edward and Wanda on the transfer date. [9]聽聽聽聽聽 A gift is not a fulfillment of an obligation. A donor may simply never make the gift if he or she does not wish to do so even if a promise was made. The plaintiffs do not plead any agreement existing between the defendant and them. The plaintiffs cannot sue for a third party and lack standing to set aside the gift to Grant. [10]聽聽聽 It is undisputed that the joint tenants prior to the transfer were Edward and Wanda. The plaintiffs have no financial interest or legal entitlement to the property. [11]聽聽聽 The oral promise to gift is not enforceable as a matter of law. The plaintiffs have no standing to bring a claim to divest the defendant of his interests in the property. The plaintiffs聮 claims cannot be the basis for the relief which the [plaintiffs] seeks. [19] The motion judge observed, at para. 13 of his reasons, that it was premature for Grant to rely on the Statute of Frauds , R.S.O. 1990, c.聽S.19, as a basis for striking out the appellants聮 claim, as this was a defence that they need not anticipate. The motion judge further noted that whether there was sufficient evidence of past conduct as part performance (that the appellants wished to put forward by way of reply) to bring the matter within an exception to the Statute of Frauds was a matter to be determined at trial and not at the pleading stage. In so observing, the motion judge relied on Collins v. Cortez , 2014 ONCA 685, 39 C.C.L.I. (5th) 1, at para. 10, and Mountain v. Mountain Estate , 2012 ONCA 806, 112 O.R. (3d) 721. The motion judge also noted that the presumption of Wanda聮s capacity is a matter of defence and that the appellants should not plead the manner by which they have proof of her incapacity. [20] At para. 15 of his reasons, however, the motion judge stated: On these facts, it cannot be said that it is plain and obvious that the statement of claim discloses no reasonable cause of action. In the alternative and in the event that the statement of claim may be deficient, the appropriate remedy is the extension of time within which to deliver a reply. [21] At para. 16 of his reasons, the motion judge simply stated that Grant聮s motion to strike was allowed. D. Discussion and Analysis (1) Are the motion judge聮s reasons sufficient to permit appellate review? [22] A judge聮s reasons must be read as a whole. An appellate court cannot intervene simply because it believes the judge did a poor job of expressing himself. A failure to give adequate reasons is not a free standing basis for appeal: F.H. v. McDougall , 2008 SCC 53, [2008] 3 S.C.R. 41, at para.聽99. The duty to give reasons should be given a functional and purposeful interpretation. If the reasons explain the basis for the decision reached and why the judge arrived at his or her conclusions, they will be sufficient: D.M. Drugs (Harris Guardian Drugs) v. Barry Edward Bywater (Parkview Hotel) , 2013 ONCA 356, 307 O.A.C. 71, at paras. 36-37. [23] The appellants submit that the reasons of the motion judge are contradictory, confusing and conclusory, fail to provide an explanation for the ultimate disposition and fail to provide reasons for denying the appellants聮 request to file a reply to the effect that the requirements of the Statute of Frauds have been met. [24] I read the reasons of the motion judge as in effect saying the following: 路 The claim alleges an oral promise by Edward and Wanda to transfer the Property to Spar Roofing and thus to Craig and Wendy, who would ultimately be the sole shareholders of Spar Roofing. No consideration is pleaded for this promise. A promise to make a gift without more is unenforceable at law. [While the pleading alleges that Grant was aware of the promise made by Edward and Wanda to the plaintiffs] it does not allege any agreement with Grant. 路 Although Grant relied on the Statute of Frauds as a basis for striking the statement of claim, this was a defence that the appellants need not have anticipated and could have been dealt with by way of reply. The sufficiency of past conduct as performance is a matter for trial. Compliance with the Statute of Frauds was not a basis on which to dismiss the claim at the pleading stage. It was thus unnecessary to grant the plaintiffs request for an adjournment to file a reply. 路 It could not be said that the statement of claim disclosed no reasonable cause of action [given the allegations of mental incapacity on the part of Edward and Wanda to make the transfer and the allegations of undue influence and breach of fiduciary duty against Grant]. The appropriate remedy for a deficiency in pleading was an extension of time. 路 [Edward聮s estate trustee and Wanda do not attack the transfer.] The plaintiffs cannot sue Grant for the benefit of/on behalf of a third party. The plaintiffs have no financial interest or legal entitlement to the Property. Thus, the plaintiffs lack standing to attack the transfer of the Property to Grant. 路 Grant聮s motion to strike should be allowed. [25] While the reasons are not easy to understand, reading them as a whole and giving them a functional and purposeful interpretation, they explain the basis for the motion judge聮s decision to strike the pleading, why he refused to grant an adjournment to file a reply and how he arrived at his conclusion. [26] This ground of appeal is dismissed. (2) Did the motion judge err in characterizing the claim as a being about a promise to gift the Property? [27] The appellants聮 primary position is that the motion judge erred in characterizing Edward聮s promise as a gift. They submit that the motion judge聮s characterization of the pleading as being about a gift is a false premise upon which he based his decision. They submit that what was pleaded was an agreement to convey property and the motion judge therefore erred. They submit that the long-term lease with no provision for rent increase is part performance of the agreement, and that the omission to specifically plead part performance of the agreement or to plead consideration could have been corrected by an amendment to the pleading. [28] The appellants further argue that, pursuant to the agreement to convey the Property, they had an equitable interest in the Property and standing to challenge the transfer to Grant. The motion judge聮s conclusion, at para. 10 of his reasons, that, 聯The plaintiffs have no financial interest or legal entitlement to the property聰 is based therefore on the incorrect conclusion that what was pled was a gift, and if there was an agreement to transfer the Property, the motion judge聮s holding that the pleading seeks to enforce a promise to make a gift is not available. The appellants submit that the pleading alleges an agreement that Grant took steps to frustrate through the exercise of undue influence over his parents, or in breach of his fiduciary duty when he was controlling his parents聮 affairs, and that the court should give effect to the pleading that Wanda lacks capacity. [29] The appellants聮 forceful argument ignores, however, para. 25 of the pleading which states: 聯As Grant was aware, it was always Edward聮s intention to gift the Company Assets (including the Property) to Craig and Wendy or the Company upon his death聰 (emphasis added). [30] The pleading as a whole is consistent with the characterization of the arrangement as a promised gift rather than as an agreement to convey. The letter agreement pleaded in para. 10 does not deal with the Property; it deals only with share ownership in Spar Roofing. Paragraph 11 pleads that Edward promised Craig and Wendy that his estate would be split between his personal assets and the assets related to the company with the company assets vesting in Craig and Wendy or the company and that Wanda agreed with this arrangement. Paragraph 13 pleads that the Property would form part of the company assets. Paragraph 14 pleads the existence of the lease agreement. While it is submitted that pleading the lease agreement is pleading part performance of a contract, the pleading is equally consistent with the favorable terms of the lease agreement being a gift. [31] The pleading does not allege an agreement to convey the Property in exchange for services performed or money spent; it does not allege any acts done in reliance on a promise to convey. Overall, the pleading does not allege that Edward and Wanda breached any alleged agreement and Wanda has not been sued. Inasmuch as no agreement is pleaded, the pleading does not specifically allege that Grant induced the breach of this agreement. [32] The relief sought in the statement of claim is simply that the transfer be set aside and an injunction issued against Grant as well as permission to file a statement of pending litigation. A declaration of entitlement to the Property is not sought as part of the relief requested by the appellants. [33] The motion judge was of the opinion that the issue of the Statute of Frauds was a matter to be dealt with at trial. At the same time, he dismissed the claim. It does not appear that he considered whether an adjournment to permit a reply might affect his decision on the claim聮s viability. What exactly was argued in support of the request for an adjournment to file a reply is unclear. [34] The motion judge did not err in his characterization of the appellants聮 claim as a promise to make a gift. On the basis of the material before him, it appeared to be obvious that the appellants lacked standing to have Grant account for the transfer of an interest in the Property to him. (3) Did the motion judge err in not granting leave to amend? [35] Rule 26.01 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, provides that 聯at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.聰 The words 聯at any stage聰 include the appeal: see e.g. Conway v. Law Society of Upper Canada , 2016 ONCA 72. [36] The rule is designed to carry out the underlying principles reflected in the Courts of Justice Act , R.S.O. 1990, c. C.43, of encouraging public access to the courts (s. 71) and affirming the role of the Superior Court as a court of equity (s.聽96) where actions are decided on their merits. Another purpose is to bring all parties to disputes relating to one subject matter before the court at the same time so that disputes might be determined without the delay, inconvenience and expense of separate actions. The object of the rule requiring the court to grant leave to amend is not that the party聮s case should be so framed as to succeed but that it be framed so that it can be adjudicated by the court, whether for or against the party. [37] As far back as 1883, Lord Brett M.R. laid down this rule regarding the amendment of pleadings in Clarapede v. Commercial Union Assn. (1883), 32 W.R. 262; it was restated by Lord Esher M.R. in Steward v. North Metropolitan Tramways Co. (1886), 16 Q.B.D. 556, 55 L.J.Q.B. 157 (C.A.), as follows: The rule of conduct of the Court in such a case is that, however negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed, if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs: but, if the amendment will put them into such a position that they must be injured, it ought not to be made. This rule was adopted in Ontario in Williams v. Leonard (1895), 16 P.R. 544, at p.聽549 (Ont. H.C.), aff聮d (1896), 17 P.R. 73 (Ont. C.A.), aff聮d (1896), 26 S.C.R. 406. This court has recently affirmed the principle that amendments should be allowed absent non-compensable prejudice and noted additional factors to guide the application of r. 26.01: see Marks v. Ottawa , 2011 ONCA 248, 280 O.A.C. 251, at para. 19; 1317424 Ontario Inc. v. Chrysler Canada Inc. , 2015 ONCA 104, 330 O.A.C. 195, at para. 7. [38] Although the appellants did not make a specific request to amend the claim, their request for an adjournment of the motion to file a reply was in effect a request to amend. As indicated, the motion judge was of the opinion that an adjournment to file a reply respecting the Statute of Frauds was unnecessary. However, when he dismissed the entire claim, r.聽26.01 required the motion judge to consider whether leave to amend should be granted and, if he determined that it should not, to provide reasons responsive to the grounds for refusing leave identified in the jurisprudence, unless his reasons for not granting leave were obvious or could be inferred. [39] No draft amended statement of claim has been proffered on appeal in support of the request for leave to amend. Based on the oral argument on appeal, the proposed amendment would allege an agreement wherein Edward, with Wanda聮s concurrence, promised to convey the Property to Craig and Wendy or to Spar in exchange for the performance of services and money expended on the Property. The agreement was to be fulfilled upon Edward聮s death or at the latest when Wanda died. The theory of the case would be that Edward and Wanda were not able to convey an interest in the Property to Grant as a joint tenant because at the time of the transfer the appellants already had an equitable interest in the Property. In addition to requesting that the transfer be set aside, the prayer for relief would need to be amended to request a declaration that the appellants held an equitable interest in the Property at the time of the transfer to Grant. The pleading would also allege that Grant prevented the agreement from being fulfilled by having an interest in the Property transferred to himself as joint tenant. [40] The proposed amendment seeks to plead an additional legal theory which flows partly from the facts already pleaded and partly from additional facts that the appellants wish to plead. The purpose of the amended claim would be to obviate the question of standing at the pleading stage and to avoid a later argument that the legal theories and consequences flowing from the facts as proven were not pleaded. [41] The respondent submits that an oral promise to gift land is simply unenforceable as a matter of established law and, as a result, the motion judge did not err in striking the claim. He further submits that, as pleaded, the motion judge did not err in holding that the appellants lack standing to bring their action. I acknowledge the strength of these submissions but they do not answer the question of whether leave to amend should now be granted. [42] On the issue of whether leave to amend should be granted, the respondent renews his argument that the appellants聮 proposed amendment is unenforceable because they cannot bring themselves within the exception to the Statute of Frauds . The respondent further submits that the appellants have misapprehended the equitable doctrine of part performance of an agreement in relation to land that would otherwise be unenforceable because it is not in writing. He submits that the appellants must plead acts done in reliance of such magnitude that it would be inequitable and unconscionable to deny them relief. He points out that the law requires that the acts put forward as part performance refer to the alleged contract dealing with the land, and refers to Steinberg v. King , 2011 ONSC 3042, and Cowderoy v. Sorkos Estate , 2012 ONSC 1921, 23 R.P.R. (5th) 36, in support of this argument. [43] The respondent聮s submission is in effect a submission that the court should consider the merits of the factual and legal basis for the proposed amendment at the pleading stage and not at a later stage of the proceedings. That is not the law under r. 26.01. As stated in Todd Archibald, Gordon Killeen & James C. Morton, Ontario Superior Court Practice, 2016 Edition (Markham, ON: LexisNexis Canada, 2015), at p. 1151: The amended pleading must be legally tenable. It is not necessary to tender evidence to support the claims nor is it necessary for the court to consider whether the amending party is able to prove its amended claim. The court must assume that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true, and the only question is whether they disclose a cause of action. Amendments are to be granted unless the claim is clearly impossible of success. Put another way, an amendment is to be granted unless it would have been struck out under r. 21.01(1)(b) if it had been pleaded originally: 1317424 Ontario Inc. , at para. 7. A motion to strike out a pleading on the ground it discloses no reasonable cause of action or defence must not, however, be conflated with a motion for summary judgment under r. 20.04: see Andersen Consulting v. Canada (Attorney General) (2001), 150 O.A.C. 177 (C.A.), at paras. 34-37; Griffiths v. Canaccord Capital Corp. (2005), 204 O.A.C. 224 (Div. Ct.), at para. 10. [44] The proposed amendment to the pleading discloses a cause of action. That question is whether an alleged oral agreement made between the appellants and Edward and Wanda should be enforced against Grant notwithstanding the requirements of the Statute of Frauds and notwithstanding the lack of privity of contract between the appellants and him. While difficult to prove, it cannot be said that the proposed amendment is incapable of proof. [45] In my view, given that the respondent does not allege prejudice that cannot be compensated for in costs, the appellants must be given leave to amend their pleading. (4) Do the plaintiffs have standing to question the transfer of the Property to Grant on the basis of alleged undue influence and breach of fiduciary duty? [46] An alternative ground of appeal is whether, apart from any alleged agreement to convey, the appellants have standing to seek to set aside the transfer to Grant. The pleading alleges that Grant took advantage of Edward and Wanda when they were suffering from mental illness. The appellants further plead, in para. 23 of their claim, that they are entitled to have the transfer set aside because of undue influence by Grant on Edward and Wanda; that Grant was in a fiduciary relationship with Edward and Wanda as the manager of their financial affairs; and, that Grant received a benefit from the Property transfer that was to the detriment of Edward, Wanda, Craig and Wendy and in breach of Grant聮s fiduciary duty to Edward and Wanda. [47] In addition, the appellants plead that Grant assumed control over his parents聮 affairs and that since Edward聮s passing on February 1, 2014, Grant has rejected every request to inform his siblings respecting his alleged status as executor of Edward聮s estate and attorney over Wanda聮s property and care. Thus, the pleading alleges that in respect of Edward, the attorney (while Edward was alive) and estate trustee (now that Edward is deceased) are one and the same person, namely Grant. I read the claim as requiring Grant to account for his actions respecting the Property and to justify his actions as being beneficial to the donees of the power of attorney, failing which, the transfer should be set aside. The appellants also allege that Edward and Wanda lacked the mental capacity to manage their affairs at the time they gave a direction to the lawyer who carried out the transfer. [48] The motion judge recognized this pleading constituted a valid cause of action, but because he was of the view that the appellants lacked any financial or other interest in the Property, he held they had no standing to challenge the transfer to Grant as a joint tenant. The appellants submit that on the basis of the allegations made in their claim they do have standing to impugn Grant聮s actions. They ask: 聯If the Appellants do not have standing in that regard, who does?聰 They do not, however, answer the question. [49] As I would grant the appellants leave to amend their pleading so that the action can proceed based on the alleged existence of an oral agreement concerning the Property, it is unnecessary to decide this issue. I would, however, make the following observations. [50] At common law, a general power of attorney terminated upon the grantor聮s subsequent mental incapacity or death, and only the grantor or the grantor聮s estate had standing to call the donee to account for his actions as attorney: see Axler v. Axler (1993), 50 E.T.R. 93 (Ont. Gen. Div.), at p. 99, per Borins J.; Leung Estate v. Leung (2001), 38 E.T.R. (2d) 226 (Ont. S.C.), at p. 229. [51] The common law relating to powers of attorney has, however, been supplanted in Ontario by statute. Powers of attorney are now governed by the Powers of Attorney Act , R.S.O. 1990, c. P.20, and the Substitute Decisions Act, 1992 , S.O. 1992, c. 30. The SDA is a comprehensive statute which governs, among other things, all aspects of continuing powers of attorney for property and powers of attorney for personal care. Section 42(1) of the SDA provides: 聯The court may, on application, order that all or a specified part of the accounts of an attorney or guardian of property be passed.聰 The persons who may bring an application for a passing of accounts are listed in s. 42(3) and (4), and include: 聯Any other person, with leave of the court.聰 [52] A line of jurisprudence in Ontario interpreting the SDA has held that, following the grantor聮s death and where the attorney and estate trustee are one and the same person, there can be no true accounting as between the attorney and estate trustee. As a result, courts have permitted beneficiaries and others in this circumstance to seek leave, as 聯any other person聰 under s. 42(4), to apply to the court for a passing of the attorney聮s accounts for the period the attorney acted prior to the grantor聮s death: see De Zorzi Estate v. Read (2008), 38 E.T.R. (3d) 318 (Ont. S.C.), at paras. 11-13; McAllister Estate v. Hudgin (2008), 42 E.T.R. (3d) 313 (Ont. S.C.), at para. 9; Carfagnini v. Carfagnini Estate , 2014 ONSC 3575, at paras. 17-18; Testa v. Testa , 2015 ONSC 2381, 10 E.T.R. (4th) 192, at para. 39; La Croix v. Kalman , 2015 ONSC 19, at para. 40. [53] The SDA and related jurisprudence were not before the court and therefore we did not hear argument on it. I raise it only to indicate that the law in this area is evolving and to point out that the SDA provides a mechanism for a third party to compel an attorney to account. My comments should not be taken as suggesting that any application by the appellants under the SDA would ultimately be successful. E. Disposition and Costs [54] I would allow the appeal and grant leave to amend the claim, and would permit the appellant to serve and file within 60 days of the date of the release of these reasons an amended statement of claim that pleads the existence of an oral agreement concerning the Property with proper particulars. I would permit the respondent to serve and file an amended statement of defence to that claim in accordance with the timelines set out in r. 18.01. [55] I would set aside the costs awarded at first instance to the respondent on the motion and instead would order that there be no costs of the motion. The appellants are entitled to their costs of the appeal which, as agreed, are fixed at $15,000 inclusive of all applicable taxes and disbursements. Released: 聯KMW聰 April 25, 2016 聯Karen M. Weiler J.A.聰 聯I agree C.W. Hourigan J.A.聰 聯I agree Grant Huscroft J.A.聰 [1] Prior to the hearing of the motion, a lawyer representing Wanda sent a letter stating that her client had no desire to take part in the proceedings. "
"2016"
"05-19-2022"
"https://www.ontariocourts.ca/coa/decisions_main"
" COURT OF APPEAL FOR ONTARIO CITATION: Toronto Muslim Cemetery Corporation v. Muslim Green Cemeteries Corporation, 2016 ONCA 272 DATE: 20160418 DOCKET: C61080 Weiler, Cronk and Benotto JJ.A. BETWEEN Toronto Muslim Cemetery Corporation Appellant (Respondent in application) and Muslim Green Cemeteries Corporation Respondent Sergiy Timokhov, for the appellant John J. Longo and Patrick Copeland, for the respondent Heard: April 11, 2016 On appeal from the judgment of Justice Thomas R. Lederer of the Superior Court of Justice, dated August 20, 2015. By the Court: I. 聽聽聽聽聽聽 Introduction [1] The appellant, Toronto Muslim Cemetery Corporation (聯TMCC聰), appeals from the summary judgment granted by the application judge: i) declaring that the document signed by the parties on May 13, 2014 (the 聯May Agreement聰) is 聯the 聭formal agreement聮 referred to in the Memorandum of Understanding聰 signed by the parties聮 representatives on April 13, 2014 and that it is 聯a contract that binds the parties聰; and ii) directing that the May Agreement be rectified by the removal therefrom of clause 7(7), which read: 聯within 4 weeks, a formal agreement shall be made between the parties聰 (the 聯Formal Agreement Clause聰). [2] At the conclusion of oral argument on behalf of TMCC, the court dismissed the appeal for reasons to follow.聽 These are those reasons. II.聽 聽聽聽聽 Issues [3] Although the appellant advanced numerous grounds of appeal in its factum, at the appeal hearing those grounds were narrowed to three: (1) Did the application judge err by granting rectification of the May Agreement based on mutual mistake regarding the inclusion of the Formal Agreement Clause? (2) Did the application judge err by holding that the May Agreement constitutes a final and binding contract between the parties? (3) Did the respondent, Muslim Green Cemeteries Corporation (聯MGCC聰) breach the May Agreement? III.聽 聽聽聽 Discussion [4] The focus of TMCC聮s oral submissions was the claim that the application judge erred by applying the wrong test for rectification of the May Agreement, namely, rectification based on mutual, rather than unilateral, mistake. [5] With respect, this puts the cart before the horse.聽 No issue of rectification arises, on any basis, unless it is first determined that the application judge聮s central finding 聳 that the May Agreement constitutes a binding contract 聳 is sustainable. [6] We have no difficulty in concluding that this core finding is amply supported by the evidentiary record.聽 As the application judge put it, at para. 23: In summary, the payment and acceptance of the deposit, the due diligence along with the identification and retaining of consultants, the advertising by the applicant in company with the request for its membership list and the making of the planning application paid for by the applicant and signed on behalf of the respondent establish that the parties were acting under, and in compliance with, the agreement signed on May 13, 2014.聽 They both acted as if it was the formal and final agreement between them .聽 [Emphasis added.] [7] On the evidence before the application judge, these conclusions are unassailable.聽 The conduct of the parties, both at the time of formation of the May Agreement and in its immediate aftermath, was consistent with the intended finality and binding nature of the May Agreement. [8] The appellant contends that the application judge erred in concluding that the May Agreement was final and binding because the parties聮 communications and dealings prior to its execution established that the involvement of lawyers to negotiate and prepare a formal agreement was a condition precedent to any final and binding contract. [9] We disagree. [10] The application judge considered and rejected this argument.聽 While an early draft memorandum of understanding between the parties contemplated solicitor involvement in concluding a formal agreement, no such requirement anywhere appears in the May Agreement.聽 As the application judge said, at para. 26: The difficulty is that, while the parties upon the signing of the agreement acted in response to their obligations under it, there is nothing they did that would serve to confirm the understanding that there was no agreement and would not be until lawyers became involved.聽 To my mind, the removal of the reference to lawyers in the April 13, 2014 version and continued in the May [Agreement] suggests that changes had been made and that lawyers were no longer needed to finalize the agreement. [11] The application judge reviewed in detail four categories of evidence relied on by TMCC as supporting its claim that the parties intended that lawyers would prepare a formal agreement evidencing their bargain and that no binding agreement would exist until this had occurred.聽 The application judge concluded that none of this evidence established this claim.聽 For example, he held: (1) There is nothing in what was said that demonstrates any agreement that lawyers were required, as part of the arrangement between the parties, to approve or review the agreement before it would become binding on them (at para. 33); (2) Either party could review the agreement with lawyers, but it was their individual decision whether or not to do so.聽 There was no legal obligation that this had to be done before the contract could be considered final (at para. 38); and (3) Actions do speak louder than words. The statements relied on by [TMCC], particularly when used out of context and without concern for the circumstances in which they were made, cannot set aside the actions of the parties taken in response to the execution of the [May Agreement] (at para. 45). [12] We agree with the application judge聮s conclusion on this issue and with his reasoning in support of it.聽 At the end of the day, he held that the language of the May Agreement and the parties聮 own conduct at the time of and following the time of its execution belied the assertion that, by May 2014, solicitor involvement remained a condition precedent to the creation of a binding agreement between the parties.聽 This holding is firmly anchored in the evidence.聽 We see no basis for appellate interference with it. [13] We come then, to TMCC聮s argument that the application judge erred by applying the wrong test for rectification.聽 This argument arises from the inclusion of the Formal Agreement Clause in the May Agreement.聽 On its face, this provision is inconsistent with the notion that the parties intended the May Agreement to constitute a final and binding contract. [14] However, the application judge reviewed the various draft memoranda of understanding between the parties and the documents entered into by them prior to execution of the May Agreement.聽 He found, on the whole of the evidence, that the Formal Agreement Clause had been carried forward into the May Agreement from an earlier document by mutual mistake.聽 This finding was open to the application judge.聽 It accords with the development over time of the documents evidencing the parties聮 evolving agreement.聽 It also accords with the other terms of the May Agreement, as acted on by the parties. [15] In these circumstances, the authorities relating to unilateral mistake relied on by TMCC are irrelevant.聽 On the application judge聮s findings, the relevant test for rectification was that applicable to mutual mistake.聽 We see no error in his rectification order.聽 This ground of appeal therefore fails. [16] The final ground advanced by TMCC concerns MGCC聮s alleged breach of the May Agreement.聽 As TMCC concedes, this argument formed no part of its case or argument before the application judge.聽 Instead, TMCC raises it for the first time on appeal.聽 As a result, the evidentiary record on this issue is incomplete, at best.聽 Further, this court does not have the benefit of any findings by the application judge on the issue, and MGCC has had no opportunity to respond to the breach claim or to lead evidence to address it. [17] In these circumstances, it is not open to TMCC to advance this argument on appeal.聽 We note, in any event, that it is wholly inconsistent with TMCC聮s primary assertion that the May Agreement is neither final nor binding. IV.聽 聽聽 Disposition [18] The application judge reviewed the contested issues in this case and the entirety of the relevant evidence in detail.聽 He provided clear and cogent reasons for his finding that the May Agreement constitutes a binding contract between the parties.聽 That finding is sustainable on this record.聽 TMCC, therefore, must live by the bargain it made. [19] Accordingly, the appeal is dismissed.聽 MGCC is entitled to its costs of the appeal, fixed in the total amount of $20,000, inclusive of disbursements and all applicable taxes. Released: 聯APR 18 2016聰聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 聯E.A. Cronk J.A.聰 聯KMW聰聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽 聯K.M. Weiler J.A.聰 聯M.L. Benotto J.A.聰 "
"2016"
"05-19-2022"
"https://www.ontariocourts.ca/coa/decisions_main"

Dataset Card for "LexFiles"

Dataset Summary

The LeXFiles is a new diverse English multinational legal corpus that we created including 11 distinct sub-corpora that cover legislation and case law from 6 primarily English-speaking legal systems (EU, CoE, Canada, US, UK, India). The corpus contains approx. 19 billion tokens. In comparison, the "Pile of Law" corpus released by Hendersons et al. (2022) comprises 32 billion in total, where the majority (26/30) of sub-corpora come from the United States of America (USA), hence the corpus as a whole is biased towards the US legal system in general, and the federal or state jurisdiction in particular, to a significant extent.

Dataset Specifications

Corpus Corpus alias Documents Tokens Pct. Sampl. (a=0.5) Sampl. (a=0.2)
EU Legislation eu-legislation 93.7K 233.7M 1.2% 5.0% 8.0%
EU Court Decisions eu-court-cases 29.8K 178.5M 0.9% 4.3% 7.6%
ECtHR Decisions ecthr-cases 12.5K 78.5M 0.4% 2.9% 6.5%
UK Legislation uk-legislation 52.5K 143.6M 0.7% 3.9% 7.3%
UK Court Decisions uk-court-cases 47K 368.4M 1.9% 6.2% 8.8%
Indian Court Decisions indian-court-cases 34.8K 111.6M 0.6% 3.4% 6.9%
Canadian Legislation canadian-legislation 6K 33.5M 0.2% 1.9% 5.5%
Canadian Court Decisions canadian-court-cases 11.3K 33.1M 0.2% 1.8% 5.4%
U.S. Court Decisions [1] us-court-cases 4.6M 11.4B 59.2% 34.7% 17.5%
U.S. Legislation us-legislation 518 1.4B 7.4% 12.3% 11.5%
U.S. Contracts us-contracts 622K 5.3B 27.3% 23.6% 15.0%
Total lexlms/lex_files 5.8M 18.8B 100% 100% 100%

[1] We consider only U.S. Court Decisions from 1965 onwards (cf. post Civil Rights Act), as a hard threshold for cases relying on severely out-dated and in many cases harmful law standards. The rest of the corpora include more recent documents.

[2] Sampling (Sampl.) ratios are computed following the exponential sampling introduced by Lample et al. (2019).

Additional corpora not considered for pre-training, since they do not represent factual legal knowledge.

Corpus Corpus alias Documents Tokens
Legal web pages from C4 legal-c4 284K 340M

Usage

Load a specific sub-corpus, given the corpus alias, as presented above.

from datasets import load_dataset

dataset = load_dataset('lexlms/lex_files', name='us-court-cases')

Citation

Ilias Chalkidis*, Nicolas Garneau*, Catalina E.C. Goanta, Daniel Martin Katz, and Anders S酶gaard. LeXFiles and LegalLAMA: Facilitating English Multinational Legal Language Model Development. 2022. In the Proceedings of the 61th Annual Meeting of the Association for Computational Linguistics. Toronto, Canada.

@inproceedings{chalkidis-etal-2023-lexfiles,
    title = "{L}e{XF}iles and {L}egal{LAMA}: Facilitating {E}nglish Multinational Legal Language Model Development",
    author = "Chalkidis, Ilias  and
      Garneau, Nicolas  and
      Goanta, Catalina  and
      Katz, Daniel  and
      S{\o}gaard, Anders",
    booktitle = "Proceedings of the 61st Annual Meeting of the Association for Computational Linguistics (Volume 1: Long Papers)",
    month = jul,
    year = "2023",
    address = "Toronto, Canada",
    publisher = "Association for Computational Linguistics",
    url = "https://aclanthology.org/2023.acl-long.865",
    pages = "15513--15535",
}
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