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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 complainants 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 complainants 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 appellants 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 judges 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 a brief but heated 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 appellants trial counsel did not raise the issue in his
closing submissions. This ground of appeal is dismissed.
[11]
We
also reject the appellants 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 no more than what one would expect given the
circumstances in which the observations of all of the witnesses, including [the
complainant], were made. 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 complainants subjective belief. Rather, he convicted him on an objective
assessment of all the evidence pointing to attempted murder, which included the
complainants 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 pointed the
gun at her head and pulled the trigger.
[14]
Furthermore,
it is beyond dispute that the appellants 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 pointed the gun at [the
appellants] head and pulled the trigger, he expected to shoot her.
[15]
We
find no error in either trial judges 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.
J.C.
MacPherson J.A.
J.
MacFarland J.A.
"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. These sections of the
Criminal
Code
provide:
486.4(1) Subject to subsection (2),
the presiding judge or justice may make an order directing that any information
that could identify the victim or a witness shall not be published in any
document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151,
152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as
it read at any time before the day on which this subparagraph comes into force,
if the conduct alleged involves a violation of the complainants sexual
integrity and that conduct would be an offence referred to in subparagraph (i)
if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s.
22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt
with in the same proceeding, at least one of which is an offence referred to in
paragraph (a).
(2) In proceedings in respect of the
offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
shall
(a) at the first reasonable
opportunity, inform any witness under the age of eighteen years and the victim
of the right to make an application for the order; and
(b) on application made by the
victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in
proceedings in respect of an offence other than an offence referred to in
subsection (1), if the victim is under the age of 18 years, the presiding judge
or justice may make an order directing that any information that could identify
the victim shall not be published in any document or broadcast or transmitted
in any way.
(2.2) In proceedings in respect of an
offence other than an offence referred to in subsection (1), if the victim is
under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the
victim of their right to make an application for the order; and
(b) on application of the victim or the
prosecutor, make the order.
(3) In proceedings in respect of an
offence under section 163.1, a judge or justice shall make an order directing
that any information that could identify a witness who is under the age of
eighteen years, or any person who is the subject of a representation, written
material or a recording that constitutes child pornography within the meaning
of that section, shall not be published in any document or broadcast or
transmitted in any way.
(4) An order made under this section
does not apply in respect of the disclosure of information in the course of the
administration of justice when it is not the purpose of the disclosure to make
the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
13, s. 18..
486.6(1) Every person who fails to
comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
(2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order
referred to in subsection (1) applies to prohibit, in relation to proceedings
taken against any person who fails to comply with the order, the publication in
any document or the broadcasting or transmission in any way of information that
could identify a victim, witness or justice system participant whose identity
is protected by the order. 2005, c. 32, s. 15.
COURT OF APPEAL FOR ONTARIO
CITATION: R. v. 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
Code
).
[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. 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 respondents 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 fun.
[5]
The respondent drove with the complainants to his parents home in
Kitchener. 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. 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
. 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 complainants 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 judges findings, he honestly believed that the complainants were 16
years of age or more and his belief was honestly held because he had taken all
reasonable steps to ascertain their ages.
[9]
The respondent testified. 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 respondents 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 ages.
[11]
More particularly, the trial judge held that, based on the complainants
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 constellation of factors, 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 ages. Accordingly,
he acquitted the respondent of all charges.
II. 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. Parties Positions
(1)
The Crowns Argument
[13]
Under s. 676(1)(a) of the
Code
, the Crowns right of appeal
from an acquittal is limited to any ground of appeal that involves a question
of law alone.
[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 judges assessment of the evidence constitute
an error of law, thereby allowing appellate review of an acquittal. 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
judges 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 respondents
circumstances would not have made any specific inquiries or taken any active
steps to ascertain the complainants ages. In other words, the Crown asserts
that the trial judge erred in articulating and applying the appropriate
standard of reasonableness against which the respondents 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 Respondents 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
judges conclusion as to whether the Crown established that the respondent had failed
to take all reasonable steps to ascertain the complainants 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 Crowns 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 judges ultimate
conclusion was wrong. 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 Crowns 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
ages in all the circumstances.
IV. 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 respondents acquittals, I conclude
that there is no basis for appellate interference with the trial judges holding
that the evidence at trial raised a reasonable doubt as to whether the
respondent took all reasonable steps to ascertain the complainants 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 judges 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 judges 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 ages], and while importing the accuseds 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 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 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. This allegedly less than stringent
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 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 judges 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 whether the accused took all reasonable steps to ascertain the age of the
complainants 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 all 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 judges 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 an
earnest inquiry or some other compelling factor which negates the need for an
inquiry and that the question whether the all reasonable steps standard has
been met is fact-specific and depends on the circumstances.
[31]
Moreover, the trial judge also explicitly recognized, at para. 63, that:
[t]here must be some compelling
factor that obviates the need for an enquiry by the accused and
the
accuseds subjective belief [as to the complainants age] is relevant but not
determinative of this question.
[32]
Elsewhere in his reasons, at para. 36, the trial judge observed:
In
[
Osborne
]
, the court held that s. 150.1(4)
imposed more than a casual requirement. The court also noted that the word
all in respect of referencing reasonable steps 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 [all] 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 older than 16. 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 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 fun.
[Emphasis added.]
[34]
The trial judges reasons must be read as a whole, rather than in a piece-meal
fashion. In my opinion, viewed in their entirety, they belie the Crowns
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 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 complainants 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 complainants 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 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
ages, as required by s. 150.1(4), and that a reasonable person in the
respondents circumstances would have made further inquiries.
[39]
Again, I disagree. In my opinion, it was open to the trial judge on the
record before him to conclude that a reasonable person in the respondents
circumstances would not have made any positive inquiries to ascertain the
complainants 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 complainants 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 complainants 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
complainants 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. Whether further steps
would be reasonable would depend upon the apparent indicia of the complainants
age, and the accuseds knowledge of same, including: the accuseds knowledge of
the complainants 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 accuseds
subjective state of mind is relevant but not conclusive because, as pointed out
in
R. v. Hayes
at p. 11, [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. [Emphasis added.]
[42]
This court has also addressed the issue of what constitutes all
reasonable steps 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 [t]here is
no automatic checklist of considerations applicable to every case, that what
constitutes all reasonable steps depends on the context and the
circumstances, and that, in some cases, an accuseds visual observation of the
complainant may be enough to constitute reasonable steps.
[43]
In
Duran
, the court was concerned with the adequacy of the
trial judges jury instructions on what was required to make out the statutory defence
under s. 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 accuseds observation of the complainant; the
complainants 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 jurys
deliberations on the question whether the steps the [accused] had already
taken what he had observed and what he knew were sufficient without further
inquiry: 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 courts directions in
Duran
, he reviewed the
evidence of the respondents observations of the complainants, the
complainants 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 respondents
vehicle and at his parents home, in tandem with their purposeful portrayal of
themselves as women who were older than 16 (at para. 60);
(2)
by
the complainants own admissions, their sexually explicit comments were made to
entice the respondent, in the complainants self-described attempt to have
fun (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 respondents 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 consistent with her stated demeanour
on the night in question (at paras. 46 and 61);
(7)
similarly,
A.S. purposefully never provided her age to the respondent. Further, she
acted in a similar manner 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 without any effort (at paras. 64 and 65);
(9)
for
both girls, it was some badge of honour to be portrayed as so mature (at
para. 64); and
(10)
V.T.s self-admitted
and A.S.s tacit presentation and demeanour of wanting to and acting much
older than their true ages
was consistent with the [respondents] passive
observations 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: almost without exception, the greater the disparity in ages,
the more inquiry will be required. 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 respondents 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
accuseds age and the discrepancy here is not lost on me
. [Emphasis
added.]
[48]
However, given his factual findings about the respondents observations
and the information available to him, the trial judge held that no further inquiries
were required to satisfy the all reasonable steps standard. He stated with
reference to the complainants 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 accuseds 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 accuseds evidence raises a reasonable doubt. In my
opinion, the complainants 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 complainants 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 complainants age. As the trial judge recognized, what is
reasonable 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 respondents and the
complainants 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 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
respondents 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 respondents parents 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 complainants conduct and
appearance will always obviate the need for further inquiry about the
complainants age. A reasonable person would appreciate that underage children
may apply make-up and dress and act so as to appear older. 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
judges conclusion that the need to inquire further about the complainants
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. Disposition
[55]
For the reasons given, I would dismiss the appeal.
Released:
MT E.A.
Cronk J.A.
APR 28 2016 I agree
M. Tulloch J.A.
I
agree K. van Rensburg J.A.
| 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 appellants 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 warrants 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 (
CDSA
). The
CDSA
warrant was obtained using an Information to Obtain (ITO) 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 in a manner that infringed 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 appellants
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 judges
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 too remote from the alleged breach. 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, [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 appellants
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)
Societys
interest in adjudication on the merits:
Given the importance of the
evidence seized to the Crowns case, societys 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 appellants 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
[a] requirement of after-the-fact notice casts
a constitutionally important light back on the statutorily authorised
intrusion and that s. 8 protects an ability to identify and challenge such
invasions, and to seek a meaningful remedy. 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 in a manner that infringed 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. 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 [on] October 1, 2009, the
investigation was
continued
under the direction of a different police officer (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
judges decision to not exclude the evidence should be upheld. I reach this
conclusion for several reasons
.
[20]
First,
the trial judges 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 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
:
R. v. Dhillon
, 2010 ONCA 582, 260 C.C.C. (3d) 53, at para. 46.
[21]
Contrary to the appellants assertions, the police
negligence in this case is not the kind of systemic negligence or failure
described in
Grant
at paras. 73-74
. The appellants 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 judges conclusion
that the polices conduct was at worst negligent and did not demonstrate a
deliberate disregard for the appellants rights.
[22]
Second,
the appellant has not seriously attacked the trial judges findings on the
other two
Grant
factors. While the second search targeted the
appellants 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 appellants
Charter
-protected
interest was attenuated.
[23]
Finally, there is no reason to question the trial
judges conclusion that societys 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:
JCM H.S.
LaForme J.A.
APR 19 2016 I agree J.C.
MacPherson J.A.
I
agree J. MacFarland 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(1), (1.1), (2), or (3) of the
Criminal Code
shall
continue. These sections of the
Criminal Code
provide:
486(1) 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) In determining whether the order is in the
interest of the proper administration of judge, the judge or justice shall
consider
(a) societys 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) 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: 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 air of
reality to the appellants 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 Mr. X 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 work off the debt by making
deliveries and pick-ups of drugs. The appellant, whose credit was maxed out
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 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 hed 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 Shawn, a known drug dealer. Keller was
indebted to Shawn as the result of inadvertently destroying a quantity of
Shawns drugs. Sometime later, Shawn appeared and demanded either payment or
that Keller work off the debt. Keller couldnt pay. He said he did not go to
the police because he was afraid of Shawn and didnt 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 Shawns 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 an air of reality.
[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, 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 appellants 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 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 judges findings. The appeal is dismissed.
J.
C. MacPherson J.A.
J.
MacFarland J.A.
H.S.
LaForme J.A.
| 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
appellants car had Québec plates, and wanted to show Mr. Brown how to run
a computer search on Québec plates. He discovered that the appellants Ontario
drivers 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 Québec drivers 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 (
HTA
). 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 appellants 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 appellants s. 8
rights had been breached, s. 24(2) of the
Charter
favoured the admission
of the evidence. The trial judge convicted the appellant and sentenced him to
12 months imprisonment, plus 12 months probation.
[6]
This appeal raises two issues: (i) did the trial judge err in not finding
that the inventory search of the appellants 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 Appellants s. 8
Charter
Rights?
[8]
Section 8 of the
Charter
provides that everyone has the right
to be secure against unreasonable search or seizure.
[9]
The trial judge found that the initial inventory search of the vehicle
was reasonable, at para. 153. The totality of her reasoning on whether the
officer breached the appellants 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 officers testimony about why he did
the inventory search.
The Governing Principles
[11]
As
Binnie J. observed, roadside stops sometimes develop in unpredictable ways:
R.
v. Nolet
, 2010 SCC 24,
[2010] 1 S.C.R. 851
, at
para. 4. In such situations the courts task is to 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.
[12]
In
this case, the officers search of the appellants 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, 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:
R. v. Caslake
, [1998] 1 S.C.R. 51, at para. 12.
[14]
Under
the second branch of the
Collins
test, the search must be carried out
in accordance with the procedural and substantive requirements the law
provides:
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 officers search of the appellants 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 appellants vehicle.
[16]
I
agree.
[17]
Following
the Supreme Courts 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 officers 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 appellants initial detention was lawful. Although the
appellant argues that the police officer acted in bad faith and held off at
the On 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 appellants 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 appellants
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,
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. 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 every vehicle for which he calls a tow
truck. His view was that he was totally responsible 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 J.A. observed, at para. 30: [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
, to protect the life and
property of the public, and to control traffic on the public roads.
[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. In
Waugh
, Blair J.A. accepted, at para. 32, that 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. 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 operators safety.
[28]
I
reject the Crowns 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 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 officers
common law powers in this instance, where the necessary degree of the officers
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. 36.
[30]
In
sum, I am satisfied that the officers 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 officers decision to inventory search the car was unreasonable and
breached the appellants 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. 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) societys interest in adjudication on the
merits.
The Principles Applied
[34]
The
totality of the trial judges 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 societys interest in
adjudication on the merits 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
Sinclairs
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 appellants
apprehension, and rejected the appellants 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 officers 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
pipeline
techniques
and
taught police
officers and others the skills
to
recognize
indicia
of
the
criminal
element
in
traffic enforcement
during
traffic stops.
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 really good at finding ways to
search motor vehicles, adding, however, that he does so lawfully.
[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 Sinclairs invariable practice of searching every car fits the
description of an impermissible 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
search: I do an inventory sir, not a search. 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 appellants 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
, [a]
person in the
appellant's position has every expectation of being left alone - subject, as
already noted, to valid highway traffic stops:
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 must be weighed
against the absence of
any
reasonable basis for
justification. There was no justification for Constable Sinclairs 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.'
[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, between the misdeeds of the
police and those of the accused.
[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
accuseds
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 accuseds
Charter
rights.
[55]
I
am mindful of the Supreme Courts caution in
Grant
that where the
trial judge has considered the three lines of inquiry, appellate courts should
defer to the trial judges ultimate decision. Deference is not warranted in
this case because the trial judges 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 technical, as described in
Nolet
,
was incorrect. In
Nolet
, the breach was considered technical 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 minimal 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 appellants
Charter
rights was significant. As
McLachlin C.J. observed in
Harrison
, at para. 42,
the price paid by society for an acquittal in these circumstances
is outweighed by the importance of maintaining
Charter
standards.
[58]
I would allow the appeal, exclude the evidence obtained in
violation of the appellants
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 DW
P.
Lauwers J.A.
I
agree David Watt J.A.
I
agree G. Pardu J.A.
| 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 appellants 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 judges 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 proportionality
regardless of whether trial judge erred in principle when crafting it. We see
no error in principle in the judges 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.
David Watt J.A.
Gloria Epstein J.A.
M. Tulloch J.A.
| 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 appellants 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.
Doherty J.A.
David Watt J.A.
B.W. Miller J.A.
| 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 appellants risk continues to be at a level higher than can
be safely managed 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, While the Board commends Mr. Quenneville
for his progress during the review period, we find that a transfer to a less
secure institution is premature given Mr. Quennevilles ongoing threatening and
sexually inappropriate behaviour as documented in the Hospital Report. 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 Boards 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.
G.R. Strathy C.J.O.
E.E.
Gillese J.A.
G. Pardu J.A.
| 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) subscribers
account when she fails to top up the account before the end of its active
period.
[2]
Bells prepaid top-ups allow customers to add credit to their accounts
and extend their active periods that give them access to Bells wireless
network. Bells 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, Bells 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 appellants 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 Bells favour and dismissed the class
action.
[5]
The appellant challenges the motion judges 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 Bells 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 Bells services terminated unless the plan was renewed. If not, the prepaid
credits expired and were forfeited to Bell. If the customer topped up 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
manually top up with a credit card through the brands web site or by
purchasing a phone card from a retainer. Virgin Mobile customers could also
manually 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 brands 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, $15 valid for 30 days. Virgin Mobile cards said, for example, Funds
expire, $15 30 days after activation.
[15]
Second,
the PIN receipt customers received on payment for the card or top-up,
stipulated, for example, $15 valid 30 days (Bell Mobility), $20 Good for 45
days (Solo Mobile), and Funds expire, $15 - 30 days after activation (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 topped up 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 Bells 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 Bells 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 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 paper and partly on the internet,
for the contract terms to be found in several documents. 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 Bells websites, through the purchase of phone cards and through the
purchase of PIN receipts. These were not simply part of the factual matrix 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 judges interpretation of the contract was correct. It was
based on Bells 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 subscribers ability
to use the prepaid funds expired at the end of the relevant active period.
[31]
Indeed,
the appellants 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 appellants real complaint, and the real complaint
in this class action, is that Bells
subsequent
communications to its customers made after they had purchased their top-ups
and as the top-up was about to expire 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 top up 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 future
performance agreements. A future performance agreement is defined in s. 1 as a
consumer agreement in respect of which delivery, performance or payment in
full is not made when the parties enter the agreement. 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 gift card agreements in particular. The regulation
defines both gift card and gift card agreement as follows:
23.
In the Act and this Part,
gift card 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; (carte cadeau)
gift card agreement 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;
(convention de carte cadeau)
[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 gift card and gift card agreement, 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 [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. He
noted, however, that in introducing the regulation, the Minister of Government
Services observed that gifts cards are purchased in good faith by the people
of Ontario for their family and friends.
[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
purchased
as a gift for a third party, [would it] qualify as a gift card.
[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.
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
gift cards, they were nonetheless exempted under s. 25.1(b) of the
Gift
Card Regulation
, which exempts any gift card that covers only one specific
good or service from the no expiry date provision, among others. The gift
cards here, he said, covered only one specific service: access to Bells
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 consumers 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 access to Bells 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
future performance of the agreement
. It provides
that a future performance agreement with an expiry date is to be effective as
if it had no expiry date. 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 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 what does performance of the wireless agreement
entail? 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 [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.
[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,
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.
[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 top up their accounts via the service providers 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 top up 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 accounts open for seven days following expiry of an
activation period to give consumers additional time to top up 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 current market realities 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 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 CRTCs 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 ones 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 an open question 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.
G.R. Strathy C.J.O.
I agree H.S. LaForme
J.A.
I agree Grant Huscroft
J.A.
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 Roofings 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 pleading as seeking to
enforce Edwards promise to gift the Property to Craig and Wendy in the future
and struck the appellants claim as disclosing no reasonable cause of action.
He further held that the appellants lacked standing to bring a claim to divest
the defendant of his interests in the property.
[4]
A preliminary issue on this appeal is whether the motion judges 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 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 judges 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 guaranteeing 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]
Edwards mental health began to deteriorate in the early 2000s, when he
started suffering from dementia/Alzheimers and Parkinsons 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 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 Grants 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 it was always
Edwards intention to gift the Company Assets (including the Property) to Craig
and Wendy or the Company upon his death and that Grants conduct deprived them
of an asset to which they are lawfully entitled.
[17]
Since Edwards death on February 1, 2014, Grant has rejected every
request to inform Craig and Wendy of his alleged status as executor of Edwards
estate and attorney over Wandas property and care.
C.
The Motion Judges Reasons
[18]
The core of the motion judges decision is found at paras. 7, 9, 10 and
11 of his reasons:
[7] 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] 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] 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] 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 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. S.19, as a basis for striking out the appellants 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 Wandas
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 Grants
motion to strike was allowed.
D.
Discussion and Analysis
(1)
Are the motion judges reasons sufficient to permit appellate review?
[22]
A judges 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. 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
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:
·
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.
·
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.
·
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.
·
[Edwards
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.
·
Grants
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 judges 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 primary position is that the motion judge erred in
characterizing Edwards promise as a gift. They submit that the motion judges
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 judges conclusion, at para. 10 of
his reasons, that, The plaintiffs have no financial interest or legal
entitlement to the property 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 judges 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 affairs, and that the court should give effect to the
pleading that Wanda lacks capacity.
[29]
The appellants forceful argument ignores, however, para. 25 of the
pleading which states: As Grant was aware, it was always Edwards intention to
gift
the Company Assets (including the Property)
to Craig and Wendy or the Company upon his death (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 claims
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
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 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. The words at any
stage 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. 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 partys 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. 549 (Ont. H.C.), affd (1896), 17
P.R. 73 (Ont. C.A.), affd (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. 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 Wandas
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 Edwards 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 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 respondents 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 Grants fiduciary duty to Edward and Wanda.
[47]
In addition, the appellants plead that Grant assumed control over his
parents affairs and that since Edwards passing on February 1, 2014, Grant has
rejected every request to inform his siblings respecting his alleged status as
executor of Edwards estate and attorney over Wandas 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
Grants actions. They ask: If the Appellants do not have standing in that
regard, who does? 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 grantors
subsequent mental incapacity or death, and only the grantor or the grantors
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: The court may, on application, order that all or a specified part of
the accounts of an attorney or guardian of property be passed. The persons who
may bring an application for a passing of accounts are listed in s. 42(3) and
(4), and include: Any other person, with leave of the court.
[52]
A line of jurisprudence in Ontario interpreting the
SDA
has
held that, following the grantors 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 any other
person under s. 42(4), to apply to the court for a passing of the attorneys
accounts for the period the attorney acted prior to the grantors 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: KMW April 25, 2016
Karen M. Weiler
J.A.
I agree C.W.
Hourigan J.A.
I agree Grant
Huscroft J.A.
[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. Introduction
[1]
The appellant, Toronto Muslim Cemetery Corporation (TMCC), appeals
from the summary judgment granted by the application judge: i) declaring that
the document signed by the parties on May 13, 2014 (the May Agreement) is
the formal agreement referred to in the Memorandum of Understanding signed
by the parties representatives on April 13, 2014 and that it is a contract
that binds the parties; and ii) directing that the May Agreement be rectified
by the removal therefrom of clause 7(7), which read: within 4 weeks, a formal
agreement shall be made between the parties (the Formal Agreement Clause).
[2]
At the conclusion of oral argument on behalf of TMCC, the court
dismissed the appeal for reasons to follow. These are those reasons.
II. 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 (MGCC) breach the May Agreement?
III. Discussion
[4]
The focus of TMCCs 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. No issue of
rectification arises, on any basis, unless it is first determined that the
application judges central finding that the May Agreement constitutes a
binding contract is sustainable.
[6]
We have no difficulty in concluding that this core finding is amply
supported by the evidentiary record. 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. They both
acted as if it was the formal and final agreement between them
. [Emphasis
added.]
[7]
On the evidence before the application judge, these conclusions are
unassailable. 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
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. 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. 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. 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. The application judge concluded
that none of this evidence established this claim. 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. 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 judges conclusion on this issue and with his
reasoning in support of it. At the end of the day, he held that the language
of the May Agreement and the parties 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. This holding is firmly anchored in the
evidence. We see no basis for appellate interference with it.
[13]
We
come then, to TMCCs argument that the application judge erred by applying the
wrong test for rectification. This argument arises from the inclusion of the
Formal Agreement Clause in the May Agreement. 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. 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. This finding was open to the application
judge. It accords with the development over time of the documents evidencing
the parties evolving agreement. 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. On the application judges findings, the relevant test
for rectification was that applicable to mutual mistake. We see no error in
his rectification order. This ground of appeal therefore fails.
[16]
The
final ground advanced by TMCC concerns MGCCs alleged breach of the May Agreement.
As TMCC concedes, this argument formed no part of its case or argument before
the application judge. Instead, TMCC raises it for the first time on appeal.
As a result, the evidentiary record on this issue is incomplete, at best.
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. We note, in any event, that it is wholly inconsistent with TMCCs
primary assertion that the May Agreement is neither final nor binding.
IV. Disposition
[18]
The application judge reviewed the contested issues in this case and the
entirety of the relevant evidence in detail. He provided clear and cogent
reasons for his finding that the May Agreement constitutes a binding contract
between the parties. That finding is sustainable on this record. TMCC,
therefore, must live by the bargain it made.
[19]
Accordingly,
the appeal is dismissed. 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:
APR 18 2016 E.A.
Cronk J.A.
KMW K.M.
Weiler J.A.
M.L.
Benotto J.A.
| 2016 | 05-19-2022 | https://www.ontariocourts.ca/coa/decisions_main |
End of preview.
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
@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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