COURT OF APPEAL FOR ONTARIO

CITATION: R.G. v. K.G., 2017 ONCA 108

DATE: 20170209

DOCKET: C62369 and C62604 (M47156)

Gillese, Benotto and Roberts JJ.A.

BETWEEN

R.G.

Applicant

(Appellant)

and

K.G.

Respondent

(Respondent in Appeal)

and

O.G.

Applicant

(Respondent in Appeal)

AND IN THE MATTER OF

O.G.

Applicant

(Respondent in Appeal)

Gary Joseph and Ryan Kniznik, for the appellant

Christina Doris, for the respondent, K.G.

Jesse Mark and Emily Chan, for the respondent, O.G.

Heard: November 22, 2016

On appeal from the order of Justice M.R. Gibson of the Superior
    Court of Justice, dated July 18, 2016 and on appeal from the from the order of
    Justice F.P. Kiteley of the Superior Court of Justice, dated August 22, 2016.

Benotto J.A.:

[1]

This appeal concerns an application by a minor for a declaration that
    she has withdrawn from parental control.

[2]

The father of a now 17-year-old girl appeals a declaration that she has
    withdrawn from parental control. If his appeal is successful, he also appeals
    an order which held that, in light of the declaration, the issue of her custody
    is moot.

[3]

The parties are diametrically opposed with respect to the application
    process and the factors for the court to consider. The father submits that the
    parents must be parties to an application for a declaration, with full rights
    to object, file evidence and cross-examine. He submits that the application
    judges failure to add him as a party is a basis to overturn the declaration. The
    respondents (the child and her mother) submit that the parents are not required
    to be parties because the child has an absolute right to the declaration and
    the only function of the court on an application for a declaration is to verify
    that the child has reached the age of 16 in accordance with s. 65 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12 (
CLRA
).

[4]

I would accept neither position. I have concluded, pursuant to basic
    principles of declaratory relief, coupled with the provisions of the
CLRA
,

that the parents must be parties to the application. However, the court
    has broad discretion to direct the extent of their participation. Further, the
    factors to be considered by the court go beyond the age of the child to include
    the reasons for, and the utility, of the declaration.

[5]

Although the application judge concluded that the father did not need to
    be named as a party, the process she followed achieved the same result. I agree
    with her conclusion  and would dismiss the appeal with respect to the
    declaration.

[6]

With respect to the ongoing custody application, I agree with the
    motions judge that the matter is rendered moot by the declaration and would
    dismiss this appeal as well.

BACKGROUND

[7]

The respondent O.G.
[1]
was born in 1999. Her parents separated when she was 18 months old. Their
    initial separation agreement provided for joint custody.  Under a 2006
    amendment, they agreed to live within a certain radius of Oakville, Ontario and
    not to move their daughters residence until she was 18 years old.

[8]

In 2013, the mother, by then remarried, moved to Fort Lauderdale,
    Florida. O.G. enjoyed frequent and extended visits with her in Florida. All was
    well until Mothers Day, 2014. O.G. was planning to visit her mother for the
    weekend. The day before she was to leave, her father drove her to school. During
    the drive, they discussed her trip. Later that morning, while she was in class,
    her father sent her a text saying the weekend was cancelled. Some months later,
    he told O.G. that her visit in late summer would be the last one for nearly a
    year. Six upcoming trips were cancelled. O.G. was devastated.

[9]

O.G. went to visit her mother as planned in the summer. She decided she
    wanted to stay. The father flew to Florida to convince her to return. She
    explained to him that she wanted to stay with her mother. The father returned
    to Ontario, claimed that the mother had kidnapped O.G. and, on September 3,
    2014, obtained an order for custody authorizing police enforcement. The father returned
    to Florida with the order for enforcement. O.G.s affidavit described her
    experience:

Eventually he came back to our house in Florida with the
    police. The police escorted me out of the house, put me into a taxi, and took
    me to the airport. I tried to hide in the womens washroom at the airport so
    that my dad couldnt take me onto the plane, but he threatened to use the
    police again. Out of fear, I got on the plane. Up until this point in my life,
    I had never felt so devastated and betrayed.

[10]

Back in Toronto, the relationship between O.G. and her father
    deteriorated.  By then the mother had responded to the outstanding custody
    action. Early in 2015, the parents attended mediation and settled the action on
    the basis that the father would have custody until their daughters 18th
    birthday, and the mother would have access. The agreement was incorporated into
    a consent order of Miller J. dated March 4, 2015 (the Miller Order).

[11]

The relationship between O.G. and her father was made worse when, for
    reasons that she did not understand, he insisted on changing her school. She
    was about to enter grade 11 and did not want to leave her school, teachers or
    friends. She was given no choice. She determined to increase her course load,
    do well, and apply to university a year early. Always a top student, she
    completed her required courses and obtained a scholarship to the University of
    Miami. Her father was furious. He insisted that she return to grade 12. Matters
    between father and daughter reached a pivotal point on April 13, 2016.

[12]

The father wanted proof that O.G. had confirmed her
    attendance at high school for the following year. He had repeatedly demanded
    that his daughter provide this proof. On April 13, 2016, he yelled at O.G. that
    if she did not provide this documentation she would fucking suffer, regret
    [her] choices and be fucking miserable. At this point, she decided to leave
    and withdraw from parental control.

[13]

O.G. left her fathers home that night, on April 13, 2016,
    and stayed with a family friend. The father sent the police to get her. She
    told the officers that she had withdrawn from parental control and the police respected
    her wishes. She told her school principal that she had withdrawn from parental
    control and the principal respected her wishes.

[14]

O.G. proceeded with her plans to attend university. Her
    father, however, began court proceedings in Florida seeking to obtain an order
    requiring the University of Miami to disclose the contents of his daughters
    application file. This prompted the university to request proof that O.G. was
    an independent minor.  As a result, O.G. applied for a declaration that she had
    withdrawn from parental control.

[15]

O.G.s application for a declaration was heard by Kiteley J.
    Meanwhile, the father brought a motion seeking a declaration that the mother
    was in breach of the Miller Order. This motion was heard by Gibson J. The
    orders of Kiteley J. and of Gibson J. are the subject of this appeal. I now
    turn to discuss the context of these orders.

First attendance before Kiteley J.

[16]

On April 28, 2016  two weeks after leaving her fathers home - O.G.
    appeared before Kiteley J. requesting a declaration under s. 65 of the
CLRA
that she had withdrawn from parental control. She was represented by Jesse
    Mark, counsel for Justice for Children and Youth. Kiteley J. raised several
    concerns with Mr. Mark and invited him to provide a supplementary affidavit. He
    did so.

[17]

O.G. swore an affidavit outlining her academic achievements, her high
    school grades and her desire to attend the University of Miami. She indicated
    that her father consistently told her he will do everything he can to stop
    her attendance at the university. She explained the necessity for the
    declaration:

I have been further advised by the University of Miami that as
    a minor living in the custody of my father, my father is able to demand that
    the University of Miami withdraw my application and its corresponding
    acceptance and scholarship.

[18]

Kiteley J. was satisfied that O.G. had withdrawn from parental control
    and made the following endorsement:

[T]he evidence indicates that [O.G.] is a remarkable young
    woman. I have no hesitation in making the order. There are no respondents in
    this application because counsel takes the position that the parents are not
    entitled to notice either of the Application or of the order. I accept his
    submissions.

[19]

The formal order (the Declaration) provided as follows:

This Court Declares that
    pursuant to s. 65 of the
Childrens Law Reform Act
:

1.

[O.G., date of
    birth] has withdrawn from the parental control of her father [the appellant],
    and has withdrawn from the parental control of her mother [the respondent].

2.

O.G. is an
    independent minor with all of the statutory and common law rights and
    privileges of a minor who has withdrawn from parental control.

Fathers attendance before Fitzpatrick J.

[20]

The following day, on April 29, 2016, the father attended on an
ex
    parte
basis before Fitzpatrick J. Although the father had been represented
    in the multiple court proceedings to that point in time, he represented himself
    before Fitzpatrick J.  He sought an extension of the police enforcement clause
    of the Miller Order.  Nothing in the record indicates that Fitzpatrick J. was
    told about the Declaration made the day before.
[2]
Fitzpatrick J. granted the order. Later that same day, the police went to where
    O.G. was residing. On being informed of the Declaration, the police took no
    action.

Fathers motion before Gibson J.

[21]

The matter did not end there. The father moved for a declaration that
    the mother was in breach of the Miller Order. The mother brought a cross-motion
    to set aside the Miller Order. O.G. sought, and was granted, standing on the
    motion and cross-motion. She also sought to have the Miller Order set aside in
    light of her withdrawal from parental control.

[22]

The motions were heard by Gibson J. on May 12, 2016.  On June 2, 2016,
    he released his reasons, stating at para. 17:

I agree with [O.G.s] submission that her withdrawal from
    parental control makes the terms of the [Miller Order] now unenforceable.

[23]

Gibson J. set aside the Miller Order and the order of Fitzpatrick J. He
    also dismissed the fathers request for a declaration that the mother had
    breached the terms of the Miller Order. Even though the terms of the Declaration
    rendered the fathers request for custody academic, the father submitted that
    there should be a court record affirming his position about what happened and
    what the mother did.  Gibson J. disagreed, saying at para. 21:

[The fathers] persistence with the motion amounted to a
    self-absorbed attempt to have a judicial imprimatur validating his particular
    perspective. Not only was this unnecessary given what has now transpired, it
    was ill-considered. [The fathers] submissions are replete with exaggerated and
    pejorative language [] for example, his assertion, unsubstantiated by any
    expert or other evidence, that [O.G.] suffers from Stockholm Syndrome

[24]

The reasons of Gibson J. confirm that O.G. had voted with her feet and
    was capable of determining her own future. He ordered that no person shall have
    custody of O.G.

Second attendance before Kiteley J.

[25]

On July 28, 2016, three months after the Declaration, the father
    launched a motion before Kiteley J. seeking to set aside the Declaration and
    restore his sole custody of O.G. By then, O.G. was 17 years old. The hearing
    was held on Thursday, August 18, 2016. O.G. had moved into residence at the
    University of Miami and was scheduled to begin classes the following Monday,
    August 22, 2016.

[26]

The father submitted that the Declaration should be set aside because he
    was entitled to be a party to, or at least to have been given notice of, the
    application which led to the Declaration. He relied on s. 62(3) of the
CLRA
which provides that on an application under Part III in respect of a child,
    the parties shall include the parents. He also requested that Kiteley J. grant
    him custody so that O.G. would be returned to high school in Oakville.

[27]

O.G. submitted that she had an absolute right to withdraw from parental
    control and that her father was not entitled to be a party or to receive notice
    of her application.   The only consideration for the court, she submitted, was
    proof that she had attained the age of 16 in accordance with s. 65 of the
CLRA
.

[28]

Kiteley J. concluded that the motion before her was not a
request
by O.G. to withdraw from parental control but rather a declaration that her
    right to do so had been exercised. Since the hearing was not for custody,
    access or guardianship  the title of Part III of the
CLRA
- s. 62(3)
    did not apply and the father was not entitled to be named as a party or to
    receive notice.

[29]

Despite this conclusion, the application judge went on to review the
    extensive record containing more than a dozen affidavits in order to evaluate
    the best interests of O.G.  She concluded at paras. 35 and 36:

First, my impression of [O.G.] at the time of the hearing on
    April 28, 2016 is reinforced. She is articulate, thoughtful, and intelligent.
    Second, she has sound reasons for wanting to accelerate her university entrance
    and to attend a university in Florida. Third, at age 17, her wishes and
    preferences must be respected.

Alternatively, if I had found that the father should have been
    named as a respondent or was entitled to notice, I would dismiss the claim for
    custody.  [T]he issue of custody  has now been canvassed extensively in court
    twice: before Gibson J. and before me. The father has had the opportunity to be
    heard twice and no further opportunities are required in order to achieve
    procedural fairness.

[30]

Kiteley J. dismissed the motion to set aside the Declaration and
    dismissed the fathers request for custody.

ISSUES

[31]

The father appeals the orders of Kiteley J. and Gibson J.  He also seeks
    to admit fresh evidence with respect to both appeals. I will address the
    following issues:

1.

Is the fresh
    evidence admissible?

2.

Are the parents required to be parties to the application for a
    declaration that a child has withdrawn from parental control?

3.

What factors are considered on an application for a declaration that a
    child has withdrawn from parental control?

ANALYSIS

Issue 1:  Is the fresh
    evidence admissible?

[32]

In order to appreciate the significance of the fresh evidence
    application, a bit of background is required.

[33]

As referred to earlier, the father raised the issue of Stockholm syndrome
    before Gibson J. The motion judge characterized this as a belief by the father
    that the mother continues to illegally influence [O.G.] in disastrous ways
    such that the child is continually acceding to [the mothers] perverse will. The
    motion judge commented that these allegations were unsubstantiated by any
    expert or other evidence.

[34]

The father raised the issue again before Kiteley J. on August 18, 2016.
    He asserted that O.G. is the victim of a trauma bond imposed by the mother.
    He submitted a letter from a physician in Michigan which describes trauma
    bond and situations of Stockholm syndrome. The application judge attached no
    evidentiary value to the letter or the fathers reliance on it.

[35]

This letter, now in the form of an affidavit from Dr. Frank M. Ochberg,
    a Michigan psychiatrist, sworn November 7, 2016, is the proposed fresh
    evidence. The psychiatrist indicates that he could not previously provide sworn
    testimony due to medical issues and reiterates the contents of his previous
    letter. He has never met O.G.

[36]

The father seeks to have this evidence admitted to establish that O.G.
    is not acting of her own free will but rather has been brainwashed by her
    mother, who is essentially her captor.

[37]

The principles governing the admissibility of fresh evidence on appeal
    are outlined in
R. v. Palmer
, [1980] 1 S.C.R. 759 at p. 775.
    The
Palmer
test requires the applicant to satisfy four
    criteria: (i) the evidence could not have been adduced at trial; (ii) the evidence
    must be relevant in that it bears on a decisive or potentially decisive issue;
    (iii) the evidence must be reasonably capable of belief; and (iv) the evidence
    must be such that, if believed, it could reasonably, when taken with the other
    evidence adduced at trial, be expected to have affected the result.

[38]

These criteria are more flexible where an appeal involves the best
    interests of a child; it is important to have the most current information
    possible when determining the childs best interests [g]iven the inevitable
    fluidity in a childs development:
Childrens Aid Society of Owen
    Sound v. R.D.
(2003), 44 R.F.L. (5th) 43 (Ont. C.A.), at para. 21,
    per Abella J.A.

[39]

The proposed evidence does not meet the test set out in
Palmer
.
    It is not fresh but the reiteration of a theory already raised and rejected
    twice.   In the face of the extensive record regarding O.G., the affidavit from
    a psychiatrist who has never met her could not reasonably have affected the
    result.

[40]

In my view, the fathers continued pursuit of this issue confirms O.G.s
    position that he is obsessed with controlling her and that this has blinded him
    to the reality that it is
he
, not her mother, who is the reason that
    she withdrew from parental control. It also reinforces the strength of the
    findings in the courts below.

[41]

I would not admit the fresh evidence.

[42]

I turn to consider the legal basis for the withdrawal from parental
    control.

A childs right to withdraw from parental control

[43]

It has always been a rule of common law that a parents right to custody
    will not be enforced against a childs will once the child has reached the age
    of discretion:
Rex v. Greenhill
(1836), 4 A. & E. 624 (K.B.);
Reg.
    v. Howes
(1860), 3 E. & E. 332 (Q.B.). Historically, this meant that
    the child had the right to withdraw from parental control and the court would
    not force the child to return to a custodial parent, but would allow the child
    to live where he or she chose. The age at which a child has the right to
    withdraw from parental control is codified in s. 65 of the
CLRA
:

Where child is sixteen or more
    years old

Nothing in this Part abrogates
    the right of a child of sixteen or more years of age to withdraw from parental
    control.

[44]

Once a child declares an intention to withdraw from parental control,
    her independence may  as it was here  be recognized by the police and the
    schools. There is no formal court process for a child to withdraw. This was
    recognized by the application judge at para. 13 when she said of O.G:

She did not require a court order or a declaration permitting
    or enabling her to withdraw from parental control. She did not require a court
    order to protect her privacy at her school in Oakville because, after informing
    the principal in writing by letter dated April 22, 2016, the principal respected
    her instructions and did not provide information to her father. She did not
    require a court order to prevent the police from apprehending her and taking
    her back to her fathers home because she informed the police that she had
    withdrawn from her fathers control and the police respected her right to do
    so.

[45]

Unlike jurisdictions such as Quebec which have procedures for
    emancipation, Ontario law does not have a formal process for withdrawing from
    parental control. The child simply has to take control of the incidents of
    custody which include decision making regarding residence and education. No
    court process is required.

[46]

However, there is a distinction between the fact of withdrawing from
    parental control and an application to court for a declaration that a child has
    withdrawn from parental control. The former is a right that is exercised
    unilaterally.  The latter engages the courts jurisdiction with respect to
    declaratory relief.

Nature of declaratory relief

[47]

A declaratory judgment is a formal statement by a court pronouncing
    upon the existence or non-existence of a legal state of affairs: Zamir &
    Woolf,
The Declaratory Judgment
, 3rd ed. (London: Sweet & Maxwell,
    2002) at para. 1.02. Courts have jurisdiction to grant declaratory relief under
    their inherent jurisdiction and pursuant to s. 97 of the
Courts of Justice
Act,
    R.S.O. 1990, c. C.43. The nature of the relief was articulated in detail by the
    Supreme Court of Canada in
R. v. Solosky
, [1980] 1 S.C.R. 821. There,
    Dickson J. said at pp. 830-832:

Declaratory relief is a remedy neither constrained by form nor
    bounded by substantive content, which avails persons sharing a legal
    relationship, in respect of which a real issue concerning the relative
    interests of each has been raised and falls to be determined.

The principles which guide the court in exercising jurisdiction
    to grant declarations have been stated time and again. In the early case of
Russian
    Commercial and Industrial Bank v. British Bank for Foreign

Trade Ltd
,

[[1921], 2 A.C. 438]

in which parties to a contract sought
    assistance in construing it, the Court affirmed that declarations can be
    granted where real, rather than fictitious or academic, issues are raised. Lord
    Dunedin set out this test (at p. 448):

The question must be a real and not a
    theoretical question, the person raising it must have a real interest to raise
    it; he must be able to secure a proper contradictor, that is to say, someone
    presently existing who has a true interest to oppose the declaration sought.

In
Pyx Granite Co. Ltd. v. Ministry of Housing and Local
    Government
, [[1958] 1 Q.B. 554], (revd [1960] A.C. 260, on other
    grounds), Lord Denning described the declaration in these general terms (p.
    571):

.. if a substantial question exists
    which one person has a real interest to raise, and the other to oppose, then
    the court has a discretion to resolve it by a declaration, which it will
    exercise if there is good reason for so doing.

As Hudson suggests in his article, "Declaratory Judgments
    in Theoretical Cases: The Reality of the Dispute" (1977), 3 Dal.L.J. 706:

The declaratory action is
    discretionary and the two factors which will influence the court in the
    exercise of its discretion are the utility of the remedy, if granted, and
    whether, if it is granted, it will settle the questions at issue between the
    parties.

[48]

These principles inform both issues in this appeal with respect to the
    declaration: who the parties should be and what factors the court should
    consider.

Issue 2:  Are the parents
    required to be parties to the application for a declaration that a child has
    withdrawn from parental control?

[49]

O.G. submits that the parents are not to be parties to the application. She
    submits that she has an absolute right to withdraw from parental control. She
    does not need their consent to do so. Therefore, she submits there is no
    position the parents could take which would affect the result. This submission
    ignores the distinction between withdrawing from parental control and seeking a
    declaration from the court.

[50]

The father relies on s. 62(3) of the
CLRA
to support his
    position that the parents must be parties to the application. As it stood at
    the time, this section provided:

Parties

(3)
The parties to an application
    under this Part in respect of a child shall include,

(a) the mother and the father of the child[.]
[3]

[51]

Part III of the
CLRA
is entitled Custody, Access and
    Guardianship.  Sections 62 and 65 are located in Part III of the
CLRA
under a subheading named Procedure. The application judge determined that,
    since the application for a declaration was not for custody, access or
    guardianship, s. 62(3) did not apply.  With respect, I come to a different
    conclusion for two reasons.

[52]

First, as explained in
Solosky
,

declaratory relief
    involves persons sharing a legal relationship in respect of which the
    relative interests of each are to be determined. Here, the relationship
    shared is that of parent and child. The relevant interests are the independence
    of the child and the custodial interests of the parent. The parent may have an
    interest to oppose the declaration. As noted in
Solosky,
(relying on
Russian
    Commercial
,) the person requesting the relief must secure a proper
    contradictor, that is, someone [] who has a true interest to oppose the
    declaration sought.

[53]

Second, s. 62(3) of the
CLRA
provides that the parents must be
    before the court in an application in respect of a child. Although the heading
    under Part III states Custody, Access and Guardianship, the provisions of s.
    62(3) state that, in an application under Part III in respect of a child, the
    parents are to be parties. It is not limited to custody, access and
    guardianship issues.

[54]

Although I have concluded that the parents are to be parties to the
    application for a declaration, the court retains discretion to direct their
    involvement and participation in the application. The father suggests that he
    should have all the usual rights including introducing and cross-examining on
    affidavits. This, however, is not automatic. The judge hearing the application
    will determine, based on the unique facts before her, what degree of
    participation is appropriate. Courts maintain an inherent jurisdiction to
    control their process:
R.(C.) v. Childrens Aid Society of Hamilton
(2004), 70 O.R. (3d) 618 (S.C.);
Re Stelco Inc.
(2005), 75 O.R. (3d) 5
    (C.A.), at para. 35.

[55]

Also, r. 1(7.2) of the
Family Law Rules
, O. Reg. 114/99 gives
    the court the authority to make orders for directions and conditions respecting
    procedural matters as the court considers just. Each case must turn on its own
    facts and is subject to the discretion of the application judge.

[56]

Here, the application judge did not accept the fathers submission that
    he should be a party. However, to the extent that this was an error, it was
    cured by her conduct of the hearing. The father was permitted to file material
    and make submissions. The application judge fully and thoroughly canvassed all of
    the evidence before her and made findings based on that evidence.

Issue
    3:  What factors are considered on an application for a declaration that a
    child has withdrawn from parental control?

[57]

O.G. submits that, because she has the unfettered right to withdraw from
    parental control, she has an unfettered right to the declaratory relief that
    she sought. She submits that the court should consider nothing but that she is
    over the age of 16. She says that there is no consideration of the mental
    capacity or circumstances of the child. There are no-pre-conditions,
    qualifiers, or exceptions to this right.  Indeed, the
only
consideration is the age of the
    child.

[58]

I do not agree with this broad proposition. As already articulated, when
    declaratory relief is sought, the court should inquire into the reasons why the
    declaration is sought, the utility of the remedy and whether, if it is granted,
    it will resolve the issue between the parties. The reasons of the application
    judge are clear that the Declaration was necessary to allow O.G. to attend
    university and resolve the dispute with her father. It is also significant that
    the application judge considered the extensive record and grounded her
    conclusions based on the best interests of O.G.

[59]

This court recently addressed a request for declaratory relief by a
    child who wished to withdraw from parental control. In
N.L. v. R.R.M
,
    2016 ONCA 915, the judge of first instance made no order as to custody. This
    court dismissed the childs request for declaratory relief concluding that
    there was no practical utility to such an order.

[60]

Weiler J.A. said this at paras. 49-51:

[The child] agrees with the motion judges order insofar as it
    does not grant any person custody of or access to him. Nonetheless, he seeks,
    A declaration that [he] has withdrawn from parental control and has all of the
    statutory and common law rights of an independent minor.

In support of his submission [the child] relies, in part, on
    the decision of Kiteley J. in [
O.G.
]
, Re
, 2016 ONSC 5292,
    granting similar declaratory relief. That decision is under appeal to this
    court and the reasons are yet to be released.

Insofar as declaratory relief is concerned, I note that the
    jurisprudence is to the effect that the Superior Courts jurisdiction to grant
    declaratory relief is not to be exercised in a vacuum; a court must have a
    reason to exercise its discretion to grant declaratory relief; where
    legislation exists dealing with the subject matter, the court should consider
    whether a legislative gap exists that would give rise to a jurisprudential
    reason for exercising the courts discretion to grant declaratory relief. See,
    for example,
Danso-Coffey v. Ontario
, 2010 ONCA 171, 99 O.R. (3d) 401,
    at paras. 30-32; Donald J. M. Brown, Q.C. & the Honourable John M. Evans,
Judicial
    Review of Administrative Action in Canada
, loose-leaf (2016-Rel. 3),
    (Toronto: Thomson Reuters Canada Ltd., 2013), at p. 1-77. A declaration can
    only be granted if it will have practical utility in settling a live
    controversy between the parties: see
Daniels v. Canada
, 2016 SCC 12,
    395 D.L.R. (4th) 381, at para. 11,
Khadr v. Canada (Prime Minister)
, 2010
    SCC 3, [2010] 1 S.C.R. 44, at para. 46; Brown and Evans, at p. 1-73. None of
    this jurisprudence was the subject of submissions before us.

[61]

Unlike the child in
N.L.,
O.G. was the subject of a custody
    order and was embroiled in a live controversy about her attendance at
    university. There was a practical utility achieved by the Declaration.

[62]

To summarize, when asked to make the Declaration, the application judge fully
    considered O.G.s best interests and satisfied herself that the Declaration was
    necessary and appropriate in all the circumstances. There was no procedural
    unfairness and her findings were supported by the evidence. The declaratory
    relief was not exercised in a vacuum. There was a clear reason for it.

[63]

I see no reason for appellate intervention with respect to the Declaration.

Order of Gibson J.

[64]

The fathers appeal of the order of Gibson J. is premised on overturning
    the order of Kiteley J. Since I would uphold her order, it is not necessary to
    consider the submissions in relation to Gibson J.s order.

[65]

I do comment, however, that the conclusions of Gibson J. reinforce those
    of Kiteley J. who concluded that O.G.s best interests were indeed served by
    the Declaration confirming that she had withdrawn from parental control.

Initialization

[66]

The parties joined in a request that this court anonymize its reasons. The
    issue was raised before Kiteley J., who did not have proper submissions and
    made no decision. She noted, however, that the identity of the parties was
    already in the public domain. During oral submissions before this court, the
    parties stated their position to be that the Declaration would not be
    anonymized but the reasons of this court would be. We have been advised by
    counsel that the reporting service LexisNexis Quicklaw has been notified, takes
    no position and will abide by any order made by the court. I would therefore
    grant the motion to anonymize the reasons of this court.

CONCLUSION

[67]

This appeal demonstrates the importance of the emerging movement to
    incorporate the voice of the child in all matters concerning minors. The degree
    to which the court will follow the wishes of the child will depend upon the age
    and level of maturity of the child and will be subject to the judges
    discretion as she seeks to determine the childs best interests. When, as here,
    the child is months away from her eighteenth birthday, a continuation of
    litigation involving her indicates more about the parents needs than the
    childs.

DISPOSITION

[68]

I would dismiss the appeal from the orders of Kiteley J. dated
    August 22, 2016 and Gibson J. dated August 22, 2016, with costs payable to the
    respondent O.G. in the amount of $11,000 and the respondent mother in the
    amount of $10,000. These amounts are inclusive of disbursements and HST.

Released: EEG  FEB 9 2017

M.L. Benotto J.A.

I agree. E.E.
    Gillese J.A.

I agree. L.B.
    Roberts J.A.

[1]
I have initialized the name of the young person in response to the request of
    all parties. Brief reasons for doing so appear at the conclusion of these
    reasons.

[2]
It is unclear when the father received actual notice of the declaration by
    Kiteley J. Formal notice appears to have been given on May 2, 2016.

[3]
Note:  as of January 1, 2017, clause (a) refers to the childs parents rather
    than the mother and father of the child: 2016, c. 23, s. 14. Nothing in this
    appeal turns on the amendment.


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. Al-Shimmary, 2017 ONCA 122

DATE: 20170213

DOCKET: C62335

Hoy A.C.J.O., Doherty and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

Diaa Al-Shimmary

Respondent

David Finley, for the appellant

Brian Eberdt, for the respondent

Heard and released orally: February 7, 2017

On appeal from the sentence imposed on June 1, 2016 by
    Justice Malcolm McLeod of the Ontario Court of Justice.

ENDORSEMENT

[1]

The respondent, then a 25-year old man, raped an 11-year old girl.

[2]

He befriended the victim at a local park. After their initial meeting,
    they began to communicate on a regular basis via text messages and telephone. The
    victim sent personal pictures of herself to the respondent, including a nude
    picture. They arranged to meet at the same park where they first met. The
    respondent invited her to a friends nearby house. When they arrived at the
    house, they proceeded to a separate room, where the respondent removed the
    victims shirt and began to kiss her. She asked him to stop. He asked her to
    take her pants off, which she did because she was scared. He removed his own
    clothing and lay on top of her and continued to kiss her and also squeezed her
    breasts. He sat on her chest area and inserted his penis into her mouth. She
    tried to push him off. He removed her underwear. She told him to stop, but he
    got back on top of her and penetrated her vagina with his penis. She felt pain
    and began to cry. The respondent hit her face and told her to be quiet. Eventually,
    the respondent got up and the victim left the house and returned to her mother,
    who phoned the police.

[3]

The respondent was arrested shortly thereafter and, in due course,
    pleaded guilty to sexual interference under s. 151 of the
Criminal Code
,
    R.S.C. 1985, c. C-46. He was sentenced to 30 months imprisonment, less 15
    months credit for presentence custody.

[4]

The Crown seeks leave to appeal sentence. It argues that the sentencing
    judge failed to give proper effect to the principle of deterrence, failed to
    consider evidence that the respondent had sought out a young girl, and failed
    to consider evidence that the offence had a significant impact on the victim,
    and that these errors had an impact on the sentence.

[5]

We agree.

[6]

In cases of sexual crimes involving children, the principles of
    denunciation and deterrence must take precedence over other sentencing
    objectives, such as rehabilitation:
Criminal Code
, s. 718.01;
R. v.
    Barr
, 2016 ONCA 724, at para. 16. The sentencing judge concluded that [w]e
    do not deter other offenders by punishing the one at hand and that the most
    effective way to punish and denounce sexual offenders is by setting the stage
    for offenders to admit real responsibility, which has the additional benefit of
    creating a better opportunity for reform and rehabilitation. It was not open
    to the sentencing judge to decline to give effect to the principle of
    deterrence and focus on the objective of rehabilitation because he does not
    think that deterrent sentences are effective.

[7]

Moreover, the agreed statement of facts states that the respondent had introduced
    himself to the victim in a public park. The sentencing judges conclusion that
    there is no evidence that the respondent sought out a young girl is a clear
    error.

[8]

Finally, s. 718.2(a)(iii.1) of the
Criminal Code
explicitly
    provides that a court that imposes a sentence shall take into consideration the
    following principle:

(a) A sentence should be increased or
    reduced to account for any relevant aggravating or mitigating circumstances
    relating to the offence or the offender, and, without limiting the generality
    of the foregoing,

(iii.1) evidence that the offence had a significant impact
    on the victim, considering their age and other personal circumstances,
    including their health and financial situation,

shall be deemed to be aggravating circumstances;

[9]

There was evidence that the offence had a significant impact on the
    victim. She was hospitalized, twice, for weeks at a time, for suicidal ideation
    and self-harm. She was required to take various drugs to protect herself from
    pregnancy and disease.

[10]

The sentencing judge considered the impact of the offence on the victim
    only in his discussion of the mitigating effect of the respondents guilty
    plea. He stated the following:

The principal mitigating factor is the plea of guilt, the
    admission of responsibility that obviated the need for a trial. The admission
    of responsibility that minimized the extent of the further trauma that would be
    suffered by the victim, because there will be further trauma. All we can do is
    minimize.

[11]

In his analysis of the aggravating factors, the sentencing judge did not
    refer to the evidence of the significant impact of the offence on the victim. The
    sentencing judge failed to consider this separate and distinct statutorily
    prescribed aggravating circumstance.

[12]

In our view, these errors resulted in the imposition of a sentence that
    was too low. The only mitigating factor in this case is the respondents guilty
    plea. [The following factors require a lengthier sentence:

a)

The age of the victim and the fact that the respondent sought her out;

b)

The planning evident on the date of the offence  arranging to meet the
    victim at the original park, leading her to a friends house nearby, and then
    isolating her further in a separate room;

c)

The fact that the respondent ignored and overcame the victims
    resistance;

d)

The fact that the respondent struck the victim to silence her when she
    cried out in pain from being penetrated; and

e)

The significant impact of the offence on the victim.

[13]

The Crown submits that a sentence of four years, less credit for the
    respondents pre-trial custody, is a fit sentence.  While we would have been
    inclined to impose a longer sentence, in light of the Crowns submission, we
    will not impose a sentence longer than four years.

[14]

The respondent is entitled to 15 months credit for presentence
    custody.  Consequently, to achieve an effective sentence of four years, we
    impose a sentence of 33 months.

Alexandra
    Hoy A.C.J.O.

Doherty J.A.

B.W. Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Allen, 2017 ONCA 170

DATE: 20170228

DOCKET: C61178 & C61762

Cronk, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Gregory Allen

Appellant

Michael Dineen, for the appellant

Michael Fawcett, for the respondent

Heard: February 21, 2017

On appeal from the conviction entered on June 4, 2015 and
    the sentence imposed on September 25, 2015 by Justice Glenn A. Hainey of the Superior
    Court of Justice, sitting without a jury.

ENDORSEMENT

[1]

The appellant was convicted of possession of a loaded prohibited
    firearm, possession of cocaine for the purpose of trafficking, and dangerous
    driving following a high risk, vehicular police take-down triggered by a confidential
    informants tip. He received a global sentence of five years imprisonment,
    less credit for 820 days pre-sentence custody. He appeals both his conviction
    and, if leave is granted, his sentence.

[2]

On the conviction appeal, the appellant is represented by counsel. With
    respect to sentence, Mr. Dineen, who represents the appellant on the conviction
    appeal, made submissions on behalf of the appellant but did so in his capacity
    as duty counsel. The appellant was content that Mr. Dineen do so and that, in
    the circumstances, the matter proceed in his absence.

[3]

At the conclusion of the hearing, the conviction appeal was dismissed,
    leave was granted to appeal sentence and the sentence appeal was allowed. The
    sentence was varied to make the six-month sentence imposed for the dangerous
    driving conviction run concurrently with the sentence imposed for the firearm conviction
    (three years imprisonment), rather than consecutively. Reasons were to follow.
    These are those reasons.

A.

The conviction appeal

[4]

The central issue at trial was whether the police had violated the
    appellants rights under ss. 7 to 10 of the
Canadian Charter of Rights and
    Freedoms
. The trial judge found that they had. The trial judge then had to
    go on and decide whether the evidence seized at the time of arrest should be
    excluded under s. 24(2) of the
Charter
. He determined that it should
    not and admitted the handgun and the drugs seized from the appellants vehicle
    incident to arrest. He concluded that to admit the evidence would not bring the
    administration of justice into disrepute.

[5]

The only issue on the conviction appeal is the trial judges s. 24(2)
Charter
analysis. The appellant argues that, in carrying out this analysis, the
    trial judge erred in at least two respects.

[6]

First, the appellant maintains that the trial judge overemphasized the
    seriousness of the offences by placing particular significance on the public
    interest in the prosecution of firearm charges. This, the appellant submits,
    disregards the Supreme Court of Canadas holding in
R. v. Grant
, 2009 SCC 32, [2009] 2 S.C.R. 353,
that
    the seriousness of the offence, including the fact a firearm was seized, can cut
    both ways and should add little to the balancing exercise. In the appellants
    view,
Grant
and the case law since
Grant
have held that
    there is not a different test for admission where the impugned evidence is a
    firearm:
R. v. Dunkley
, 2016 ONCA 597, 131 O.R. (3d) 721, at para. 53.

[7]

We do not give effect to this ground of appeal.

[8]

In our view, the trial judge committed no error in his consideration of
    the
Grant
factors and, absent error, his weighing of those factors is
    entitled to deference in this court. The trial judge found that the first
Grant
factor, the seriousness of the police conduct, was neutral given that the
    police acted in good faith, with an honest but mistaken belief as to the
    lawfulness of the arrest, and there was no intentional violation of the
    appellants
Charter
rights. These findings are well supported in the
    record.

[9]

Although the second
Grant
factor, the impact of the breaches on
    the
Charter
rights of the appellant, favoured the exclusion of the
    evidence, we agree with the trial judges conclusion that the third factor, the
    societal interest in adjudicating the case on the merits, tipped the balance in
    favour of admission. The trial judge did not, as the appellant suggests, give
    undue weight to this factor and the fact that a firearm was involved.

[10]

The second suggested error is that the trial judge viewed the fact that
    the police had obtained two warrants to search a different vehicle associated
    with the appellant as being indicative of good faith. In the appellants
    submission, the judicial authorizations that had been obtained are irrelevant
    because they pertain to a vehicle having a different license plate than the one
    stopped by the police.

[11]

We disagree. The trial judges factual assessment of the officers conduct
    and his conclusion that they acted in good faith is entitled to deference.

[12]

The trial judge accepted the officers testimony that they considered
    the informants tip to the effect that the appellant was in possession of a
    firearm to be reliable. The fact that the informant provided a different license
    plate number for the vehicle (although the description of the car was generally
    accurate) does not render the tip as to the appellant being in the possession
    of a firearm valueless. The two judicial officers who reviewed the informants
    tip concluded, as did the arresting officers, that the tip provided reasonable
    and probable grounds to believe that the appellant was in possession of a
    firearm and that it would be found in the vehicle he was driving. That
    information proved to be correct.

[13]

As a result, we dismiss the conviction appeal.

B.

The sentence appeal

[14]

Before committing the offences, the appellant was seriously injured by a
    stray bullet originating from a confrontation that occurred near his place of
    work and in which he had no involvement. As a result of this injury, the
    appellant lost his business and now suffers from serious physical limitations
    that make his imprisonment particularly difficult.

[15]

The appellant is confined to a wheelchair. For the 12 months before
    trial, he had to be housed in segregation because of the absence of facilities
    at the institution to accommodate his condition. In addition, he has not
    received the physiotherapy he requires to prevent the atrophy of his leg
    muscles and has had to supplement his diet with food items from the canteen. This
    is because he suffered a ruptured stomach in the shooting and cannot digest
    many processed foods.

[16]

The trial judge mentioned the fact that the appellant had suffered the
    injury and was currently in a wheelchair. In fashioning the appropriate
    sentence, however, the trial judge does not appear to have considered the
    appellants condition and specifically, the adverse impact that the injuries
    suffered as a result of the unfortunate shooting will have on his incarceration.
    It was apparent on the record that, due to the exceptional difficulties encountered
    in managing the appellants condition, incarceration has a disproportionate
    impact on him:
R. v. T.L.B.
, 2007 ABCA 61, 409 A.R. 40, at para. 34;
R.
    v. C.D.
, 2012 ONCA 696. In our view, this impact ought to have been taken
    into account.

C.

conclusion

[17]

It is for these reasons that we dismissed the appellants conviction
    appeal, granted leave to appeal sentence and varied the sentence by making the six-month
    sentence imposed for dangerous driving concurrent, rather than consecutive, to
    the sentence imposed for the firearm offence.

E.A.
    Cronk J.A.

Paul
    Rouleau J.A.

B.W.
    Miller J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Burger, 2017 ONCA 101

DATE: 20170208

DOCKET: C61281

LaForme, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ruth Burger

Appellant

Jill R. Presser and Andrew Menchynski, for the appellant

James V. Palangio, for the respondent

Heard: November 22, 2016

On appeal from the conviction entered on June 19, 2015 by
    Justice Jonathon C. George of the Ontario Court of Justice, with reasons
    reported at 2015 ONCJ 349.

Rouleau J.A.:

A.

Overview

[1]

The appellant appeals from her conviction on two counts of dangerous
    driving causing death and two counts of dangerous driving causing bodily harm.

[2]

While attempting to back out of her parking spot outside of a Costco department
    store, the appellant drove her car into the store's front entrance, killing two
    individuals and injuring two others. The appellant asserted that she was unable
    to stop her car's trajectory because her foot became stuck under the brake pedal,
    causing her to depress the gas pedal and to be unable to stop accelerating in
    reverse.

[3]

The appellant maintains that it was a tragic accident but did not
    constitute a criminal offence. She argues that the trial judge rendered an
    unreasonable verdict, misunderstood and misapplied the legal standard for
    dangerous driving, misapprehended evidence regarding her driving and the
    corrective actions she took and, finally, engaged in impermissible speculation.

[4]

For the reasons that follow, I would dismiss the appeal.

B.

Facts

[5]

At approximately noon, on July 25, 2014, the appellant exited a Costco
    store in London, Ontario and entered her car, which was parked in the store's
    busy parking lot. Weather conditions were clear and her vehicle was in good
    working order.

[6]

The appellant had parked her car in a position that required her to back
    out. The distance from her parking space to the front entrance of the Costco
    store was approximately 59 metres.

[7]

After backing out of her parking space, the appellant did not stop and
    the car accelerated in reverse until it crashed into the Costco store's front
    entrance. Tragically, two individuals were killed and two others were injured.

[8]

A witness, who saw the appellant backing out of her parking spot,
    testified that the car reversed "unusually fast" from the parking spot.

[9]

In her testimony at trial, the appellant confirmed that she followed her
    ordinary practice, which was not to hold the brake while reversing but rather
    to push the gas pedal lightly. She testified that when she tried to move her
    foot from the gas pedal to the brake pedal, she realized that she could not
    move it because it was stuck under the brake pedal.

[10]

In the car that she was driving, the top of the brake pedal and the top
    of the adjacent gas pedal were flush one to the other. The appellant could not
    explain how, if she had merely touched the gas pedal lightly, her foot could have
    become trapped under the brake pedal.

[11]

During a period of at least five seconds, the appellant's car
    accelerated towards the Costco store. She testified that during this time, she tried
    to wiggle her foot out from under the brake pedal but was unsuccessful. Other than
    steering, she did not attempt any other measures to avoid the accident. She did
    not press the brake pedal with her other foot, put the gear shift into neutral
    or park, honk the horn or turn off the ignition.

[12]

The defence tendered a report prepared by a retired police officer who
    performed a simulation, which purported to show that the appellant's account of
    her foot becoming wedged under the brake pedal was plausible.

[13]

The London Police Service, who investigated the accident, obtained
    "crash data retrieval" ("CDR") information from the appellant's vehicle, which contained
    information as to the vehicle's speed and engagement of the accelerator for the
    five seconds preceding the crash. The CDR data revealed that during the five
    seconds preceding the crash, the gas pedal was depressed as follows:

- 100% - 5 seconds prior to accident

- 71% - 4 seconds prior to accident

- 84% - 3 seconds prior to accident

- 97% - 2 seconds prior to accident

- 100% - 1 second prior to accident

The speed of the vehicle was as follows:

- 7mph or 11 km/hr - 5 seconds prior to accident

- 14 mph or 22 km/hr - 4 seconds prior to accident

- 22 mph or 35 km/hr - 3 seconds prior to accident

- 27 mph or 43 km/hr - 2 seconds prior to accident

- 29 mph or 46 km/hr - 1 second prior to accident

[14]

The CDR information also indicates that the brake pedal was not
    depressed even slightly at any point over the eight seconds preceding the crash.
    (The CDR data available for brake pressure is eight seconds rather than the
    five for the other measures).

[15]

The Crown argued at trial that the appellant's explanation that her foot
    was caught under the brake pedal made no sense and ought to be rejected
    outright. In the Crown's submission, the appellant created a very dangerous
    situation by reversing at high speed and, having created this dangerous situation,
    took no steps to correct it. The Crown's police expert testified that the
    average driver requires 2.5 seconds to react once she perceives a danger and
    that in this case the appellant had a minimum of five seconds and did nothing.

C.

The Trial Decision

[16]

In his reasons, the trial judge acknowledged that a critical factual
    issue for his determination was whether the appellant's assertion that her foot
    was caught under the brake pedal, preventing her from engaging the brake, was
    true or, at the least, raised a reasonable doubt as to her guilt. He held that,
    if he were to accept the appellant's story or if it raised a reasonable doubt,
    he would have to acquit her of all charges.

[17]

The trial judge, however, concluded that the appellant's story was
    incapable of belief. He observed that, as noted above, the tops of the brake
    and gas pedals were flush with each other and that the distance from the bottom
    of the brake pedal to the floor was 11.4 centimetres. The appellant testified
    that, while driving in reverse, she twisted her body to the right to look over
    her shoulder. The judge noted that this would place the toe of her right foot
    away from the brake pedal rather than underneath it.

[18]

Given this scenario, the trial judge rejected the appellant's account. He
    simply could not accept that the appellant had carefully reversed out of her
    parking spot and, her foot having somehow become wedged under the brake pedal,
    could not be removed. This was a common sense inference he drew from all of the
    evidence at trial, including the appellant's testimony.

[19]

The trial judge also rejected the appellant's evidence that she had
    taken corrective actions once she realised that her foot was caught. Her
    evidence that she was consciously and deliberately trying to keep the car
    straight was, he concluded, inconsistent with her other testimony including
    that she did not know how the crash occurred and that she had lost control with
    no ability to consider available corrective actions.

[20]

Having rejected the appellant's account and having concluded that it did
    not raise a reasonable doubt, the trial judge found that the Crown had
    established the
actus reus
of dangerous driving.

[21]

After noting that different fault standards apply for civil negligence,
    criminal negligence and dangerous driving, the trial judge made several
    findings relevant to assessing fault. It was established that there were no
    contributing physical or mental ailments on the part of the appellant and no
    vehicle deficiencies or adverse weather conditions. The trial judge found the
    appellant was familiar with the Costco store's parking lot, having been there
    many times. He further found that her car's gear shift could not have been
    moved to the reverse position unless the appellant had previously depressed the
    brake. As a result, the appellant's foot must have initially been on top of the
    brake before she commenced backing out of the parking spot.

[22]

The trial judge then determined that a deliberate act by the appellant
    created the dangerous situation. He found that, for an unknown reason, the
    appellant at least once, either intentionally or while intending to slam on the
    brake because she was going too fast, had applied significant pressure to the
    gas pedal to the point that it was fully compressed all the way to the floor.
    In the trial judge's view, this was the only possible way for her foot to have
    slid under the brake pedal, assuming that is what happened.

[23]

Having found that the appellant created a dangerous situation, the trial
    judge not only rejected the appellant's evidence that her foot was stuck, but
    found that, even if her foot had been stuck, several corrective actions were
    available to her and could have been taken during the five seconds or more during
    which the car accelerated towards the Costco store. The appellant could have
    applied the brake with her left foot, moved the gearshift from reverse to
    neutral or park, driven the car into a barrier or structure to avoid entering
    the Costco store, honked the horn, or turned off the ignition. None of these
    corrective actions were taken.

[24]

In his legal analysis, at para. 49, the trial judge relied on
R. v.
    Creighton
, [1993] 3 S.C.R. 3 for the principle that, for crimes of
    negligence, the court is to apply the standard of "the reasonable person in all
    of the circumstances of the case". At para. 51, he relied on
R. v. J.F.
,
    2008 SCC 60, [2008] 3 S.C.R. 215, for the principle that dangerous driving requires
    proof of a "marked departure" from the standard of care.

[25]

Here, the appellant created a dangerous situation and was aware of the
    need to stop her car, yet took no corrective measures for at least the five
    seconds preceding the crash. Based on these findings of fact, the trial judge determined
    that the appellant's conduct went beyond mere carelessness and that, in the
    result, the appellant was guilty of dangerous driving. The trial judge emphasized
    that the harm the appellant caused, though terrible, could have been much worse
    had her car penetrated further into the building.

D.

Issues

[26]

The appellant raises several issues as follows:

1.

Did the trial judge misunderstand and misapply the legal standard for
    dangerous driving;

2.

Did the trial judge misapprehend the evidence regarding the appellant's
    driving behaviour and corrective actions she claims to have taken;

3.

Did the trial judge engage in impermissible speculation when he rejected
    the appellant's testimony as to the cause of the accident; and

4.

Did the trial judge render an unreasonable verdict?

[27]

In oral submissions, the appellant addressed all of the grounds of
    appeal in conjunction. In her view, the record supports only, at its highest, a
    finding of a momentary lapse in judgment or motor coordination and not a marked
    departure from the standard of care.

E.

Discussion

(1)

The law

[28]

Before dealing with the issues raised on appeal, I will briefly review
    the relevant jurisprudence relating to the offence of dangerous driving.

[29]

The essential elements of the offence of dangerous driving were outlined
    by the Supreme Court of Canada in
R. v. Roy
, 2012 SCC 26, [2012] 2 S.C.R.
    60. In that decision, Cromwell J., writing for a unanimous court, explained:

the question is whether the manner of driving which is a marked
    departure from the norm viewed in all of the circumstances, supports the
    inference that the driving was the result of a marked departure from the
    standard of care that a reasonable person in the same circumstances would have
    exhibited (para. 41).

[30]

A momentary lapse of attention, without more, does not constitute a
    marked departure from the standard of care of a reasonably prudent driver and
    will not, therefore, constitute dangerous operation of a motor vehicle within
    the meaning of s. 249 of the
Criminal Code
, R.S.C. 1985, c. C-46: see
    also
R. v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49, at paras. 70-72.

[31]

Under s. 249(1) of the
Criminal Code
, the
actus reus
of the offence is driving in a manner that, viewed objectively, is "dangerous
    to the public, having regard to all the circumstances, including the nature,
    condition and use of the place at which the motor vehicle is being operated and
    the amount of traffic that at the time is or might reasonably be expected to be
    at that place": see
Beatty
, at para. 43. In
Beatty
, the Supreme
    Court also explained that, in assessing the
mens rea
element of the
    offence, the trier of fact must be satisfied beyond a reasonable doubt "on the
    basis of all the evidence, including evidence about the accused's actual state
    of mind, if any, that the conduct amounted to a marked departure from the
    standard of care that a reasonable person would observe in the accused's
    circumstances" (para. 43). Further, where the accused offers an explanation,
    the judge must also be satisfied "that a reasonable person in similar
    circumstances ought to have been aware of the risk and of the danger involved
    in the conduct".

[32]

In
Roy
, at para. 35, the court cautioned that "the trier of
    fact must not simply leap from the consequences of the driving to a conclusion
    about dangerousness. There must be a meaningful inquiry into the manner of
    driving." While a departure from the standard of care will justify civil
    liability, a
marked
departure is necessary to justify criminal
    punishment. The assessment is one of degree and the lack of care found by the
    trial judge must be serious enough to merit punishment: see
Roy
at
    para. 28 and
Beatty
, at para. 48.

[33]

When considering the
mens rea
element, the court applies a
    modified objective standard. That is, the court examines all of the
    circumstances and asks whether a reasonable person placed in the same
    circumstances would have foreseen the risk and taken steps to avoid it. The
    court then considers whether the accused's failure to do so constitutes a
    marked departure from the standard of care expected of a reasonable person in
    all of the circumstances such that an inference of fault from the manner of
    driving is appropriate:
Roy
, at paras. 38-40.

(2)

Did the trial judge misunderstand or misapply the legal standard for
    dangerous driving?

[34]

The appellant argues that the trial judge misunderstood the
mens rea
required for dangerous driving and mistakenly focused only on the objective
    dangerousness of the appellant's driving. In her view, the trial judge erred in
    not conducting a contextual foreseeability analysis to assess the degree to
    which, in all the circumstances, the appellant's failure to foresee and avoid a
    risk deviated from the requisite standard of care. The evidence led at trial
    was that the average person would take approximately 2.5 seconds to perceive a
    danger and to react. In the appellant's submissions, her failure to stop the
    vehicle for a period of five seconds because her foot was caught under the
    brake pedal can only be characterized as a momentary lapse in judgment or motor
    coordination and does not constitute the "marked departure" required to
    establish the offence of dangerous driving.

[35]

I disagree. First, the trial judge did not accept the appellant's
    explanation that her foot was caught under the brake pedal and could not be
    extracted. More importantly, the trial judge was alert to the need for a marked
    departure from the standard of care and referenced all of the relevant case
    law. He found that the appellant's failure to react to the risk with evasive or
    corrective action, in the five seconds or more during which she could have
    reacted, rose to the level of a marked departure. As explained in
Roy
,
    what constitutes a "marked departure" is a matter of degree. The trial judge's
    conclusion in this regard was reasonable and I see no basis on which to
    interfere.

(3)

Did the trial judge misapprehend the evidence regarding the appellant's
    driving behaviour and the corrective actions she claims to have taken?

[36]

The appellant argues that the trial judge misapprehended at least two
    pieces of material evidence. First, he mistakenly found that the appellant had
    made an initial decision to press the gas pedal too hard. This was inconsistent
    with the evidence at trial suggesting that, initially, the appellant's reversal
    was normal and appropriate. The second misapprehension relates to the trial
    judge's conclusion that the appellant did not consider or attempt any evasive
    or corrective action. This, the appellant argues, is contrary to the evidence
    that the appellant was steering while reversing at a high rate of speed.

[37]

I would not give effect to these submissions. As for the first alleged
    misapprehension, the trial judge found that at some point before the five
    seconds leading to the accident the accelerator was fully depressed, either
    consciously for some unknown reason or as a result of the appellant's negligently
    believing it was the brake. The evidence suggesting that, initially, the
    appellant may have been reversing slowly from her parking spot does not
    undermine the judge's finding. First, the same eyewitness who observed her
    initially reversing slowly also testified that the car was soon reversing
    unusually quickly away from the parking spot. The fact that the initial
    movement of the car was slow does not mean that the appellant could not have, thereafter,
    further depressed the accelerator. In fact, the CDR data confirms that the gas
    pedal was fully depressed at least five seconds before the collision.

[38]

As for the second alleged misapprehension, the trial judge acknowledged
    the appellant's evidence that she was steering and deliberately attempting to
    keep the vehicle straight while reversing at a high rate of speed. He gave
    little weight to that evidence, in light of her other evidence that she did not
    know how the crash occurred and that she had lost control with no ability to
    consider avoidance options. This was an assessment open to the trial judge. In
    any event, the appellant's "steering" of a vehicle into the front entrance of a
    busy Costco store does not undermine the trial judge's factual finding that the
    appellant took none of the several possible evasive or corrective actions
    available to her that would have avoided the incident.

(4)

Did the trial judge engage in impermissible speculation?

[39]

The appellant argues that the trial judge's explanation for rejecting
    the appellant's evidence that her foot became trapped under the brake pedal and
    could not be extracted constitutes impermissible speculation. In the
    appellant's view, her explanation for getting her foot caught under the brake
    pedal and for her inability to remove it was both logical and consistent with
    the expert evidence she presented at trial. In addition, it was corroborated by
    the CDR data which shows the gas pedal having been depressed to varying levels
    in the five seconds immediately before the accident.

[40]

I would not give effect to this ground of appeal. The trial judge's
    finding that the appellant's foot could not have become caught in the pedal
    array in the manner described by the appellant was reached by applying common
    sense and considering all of the relevant evidence led at trial. That evidence included
    the fact that, when the gas pedal is fully depressed, there is plenty of room
    beneath the brake pedal that would have allowed the appellant to easily remove
    her foot had it somehow slipped under the brake pedal. To this evidence is
    added the appellant's evidence that she was turned to her right and looking
    over her shoulder while reversing. As the trial judge found, this suggests that
    the toe of her foot would be angled toward the vehicle's central console and not
    toward the brake pedal. Finally, the expert evidence led at trial, including
    the reconstructive video tendered in defence, showed that a foot would be
    easily removed from under the brake pedal within about one second by simply
    tapping the gas pedal slightly, which would create ample room to remove the
    foot.

[41]

In any event, the trial judge was fully cognizant of the difference
    between speculation and reasonable inferences. The inference drawn by the trial
    judge was available to him on the evidence and does not constitute reversible
    error.

(5)

Was the verdict unreasonable?

[42]

Under this ground of appeal, the appellant, in effect, argues that this
    court should accept her version of the events. As set out above, her evidence
    was that her foot became caught under the brake pedal and that she was not able
    to remove it despite trying to do so. In her view, an inability to dislodge her
    foot for at least five seconds is not unreasonable.

[43]

The trial judge rejected the appellant's evidence as to how and whether her
    foot became caught and her being unable to dislodge it. In my view, he gave sufficient
    reasons for his rejection.

[44]

Further, based on all the evidence he did accept, the trial judge found
    that the appellant created a dangerous situation and took no appropriate
    evasive or corrective action for at least five seconds. This, in his view,
    constituted more than a "momentary lapse" and rose to the level of a marked
    departure from the requisite standard of care.

[45]

In reaching this conclusion, the trial judge referenced all of the
    leading cases on the elements of the offence of dangerous driving and clearly
    articulated the fault element required. I see no basis on which to interfere.

F.

Conclusion

[46]

For these reasons, I would dismiss the appeal.

Released: "P.R." February 8, 2017

"Paul Rouleau J.A."

"I agree H.S. LaForme
    J.A."

"I agree David Brown
    J.A."


COURT OF APPEAL FOR ONTARIO

CITATION:  R. v. Cameron, 2017 ONCA 150

DATE: 20170222

DOCKET: C56978

Doherty, Laskin and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

John Craig Cameron

Appellant

Lawrence Greenspon and Eric Granger, for the appellant

Joan Barrett, for the respondent

Heard:  February 13, 2017

On appeal from the conviction entered by a jury presided
    over by Justice Julianne A. Parfett of the Superior Court of Justice, dated
    April 3, 2013.

By the Court:

[1]

The appellant was charged with the first degree murder of his
    daughter-in-law.  At trial, he advanced an NCR claim, alleging that he was in a
    dissociative state, resulting in non-insane automatism when he shot and killed
    the victim.  Alternatively, the appellant argued that because of his mental
    disorder, he did not have the
mens rea
required for either first or
    second degree murder.

[2]

The appellant testified and the defence called a psychiatrist in support
    of the non-insane automatism defence.  The jury convicted of first degree
    murder.

[3]

The only ground of appeal arises out of Crown counsels closing address
    to the jury.  At trial, the defence argued that 10 submissions made by the
    Crown in his closing address were improper and required a firm corrective
    instruction by the trial judge.  The defence argued that in each of the 10
    instances the Crown had violated the principle identified in
Browne v. Dunn
(1894), H.L. 67 (C.A.) by failing to confront defence witnesses, specifically the
    appellant and the defence psychiatrist, with inferences and arguments the Crown
    ultimately urged upon the jury.  The defence argued that the failure to give the
    witnesses an opportunity to address these issues, combined with the Crown
    addressing the jury last, severely prejudiced the defence.

[4]

The trial judge ruled that the principle in
Browne v. Dunn
had
    been violated in one instance by the Crown.  She also found that the Crown had
    materially misstated the defence psychiatrists evidence on two occasions.  She
    rejected the other seven arguments made by the defence.

[5]

On appeal, counsel argues that the corrective instructions given by the
    trial judge were inadequate and that the trial judge erred in failing to find
    that the other seven submissions by the Crown breached the principle in
Browne
    v. Dunn
.  Counsel submits that the
    combination of the inadequacy of the corrective
instruction, and
    the failure to correct the other improper submissions made by the Crown,
    rendered the trial unfair and resulted in a miscarriage of justice.

The Corrective Instructions

[6]

The trial judge gave a thorough and clear charge to the jury.  Apart
    from her instructions with respect to Crown counsels comments, no objection is
    taken on appeal to any part of the charge.

[7]

The trial judge chose to address the improper aspects of the Crowns address
    in a separate part of her charge near the end of her instructions.  She
    specifically identified the two factual errors made by the Crown in his
    submissions and juxtaposed those errors with an accurate statement of the evidence.
    The trial judge had already thoroughly reviewed the evidence and related it to
    the positions of the parties.  The trial judge had also reminded the jury that
    it was their recollection of the evidence that counted.  We are satisfied that the
    corrective instructions avoided any realistic risk that the jury would be
    misled by Crown counsels erroneous statements about the evidence in his
    closing address.

[8]

The trial judge expressly identified the
Browne v. Dunn
error
    made by the Crown.  She pointed out to the jury that while the Crown had argued
    that an intoxicated person was more likely to enter into a state of automatism
    than a sober one, the Crown had not put that proposition to the defence
    expert.  The trial judge told the jury that the Crown should have put that
    claim to the defence expert.  She went on to tell the jury:

You cannot speculate on what [the defence expert] might have
    said if he had been asked about this by the Crown.  You may however take into
    account that [the defence expert] was not cross-examined on this point in your
    determination whether to accept his evidence

[9]

This corrective instruction closely followed the instruction suggested
    by defence counsel at trial, and mirrors the instruction suggested in cases
    from this court, e.g. see
R. v. McNeil
, [2000] O.J. No. 1357, at para.
    49.

[10]

We
    are satisfied that the trial judges instruction effectively negated the risk
    of any unfairness to the appellant flowing from the Crowns failure to put the
    question to the defence expert.

The Other Alleged Improprieties in the Crowns Closing

[11]

On
    appeal, counsel renewed the argument that the Crown had breached the principle
    in
Browne v. Dunn
on seven other
    occasions in his closing address to the jury
.  Although counsel
    maintained that all seven arguments breached that principle, he focussed on
    three of those arguments in his oral submissions.

[12]

We
    agree with the trial judge that the Crowns submissions were not improper and
    did not contravene the principle in
Browne v. Dunn
.  We will address
    only the arguments that were the subject of oral submissions in this court.

[13]

Two
    of the allegedly improper submissions made by the Crown in his closing address can
    be considered together.  In those submissions, the Crown attacked the defence
    experts opinion that the appellant was in a dissociative state at the time he killed
    his daughter-in-law.  The expert had testified that the dissociative state was
    triggered by a uniquely stressful time in the appellants life.  The expert
    pointed to the breakup of his sons marriage as creating that uniquely
    stressful time.

[14]

In
    his submission, Crown counsel argued that on the evidence, there were other
    equally stressful times in the appellants life, for example, when his wife had
    a cancer scare, and that none of those incidents had triggered a dissociative
    state.  The Crown argued that the evidence that the appellant had been through
    other experiences which were equally stressful and had not precipitated a
    dissociative state, undermined the validity of the defence experts opinion
    that the breakup of his sons marriage had caused the appellant to go into a
    dissociative state.

[15]

We
    agree with the trial judge that this submission did not attack the credibility
    of the defence expert, or raise an issue that could possibly have caught the
    defence by surprise.  This was a submission that the defence experts
    explanation for the appellants state of mind when he killed his
    daughter-in-law was inconsistent with the rest of the evidence, and
    specifically the evidence that the appellant had never reacted in a similar way
    when under extreme stress on other occasions.

[16]

Defence
    counsel in his closing had anticipated the Crowns argument and urged the jury
    to find that the defence expert had explained that the appellant was under more
    stress at the time he killed his daughter-in-law than he had been on any
    previous occasion.  It was, of course, for the jury to decide the merits of
    that submission.

[17]

The
    third submission by the Crown addressed by counsel for the appellant in his
    oral argument attacked the credibility of the appellant.  In that submission, the
    Crown asked the jury to note the difference in the language used by the
    appellant to describe the shooting in his statement to the police as compared
    to his statements to the defence psychiatrist and in his testimony.  The Crown observed
    that in his statement to the police, which the Crown argued was the truth, the
    appellant spoke in an active voice.  For example, he told the police, I shot
    Michelle.  In contrast, argued the Crown, the appellant, in his statements to
    the psychiatrist and in his testimony, used a passive voice.  For example, the
    appellant said, the gun came up and went off twice.  The Crown argued that
    the appellants use of the passive voice was an attempt by him to portray his
    actions as beyond his control and therefore consistent with the dissociative
    state described by the defence expert.

[18]

The
    Crown cross-examined the appellant on his use of passive language, suggesting
    to him that when he said the gun came up he in fact meant that he had brought
    the gun up.  The appellant clearly grasped the distinction, insisting I dont
    remember making a deliberate choice to do it right then.

[19]

The
    defence expert also referred to the appellants use of passive language in his description
    of the killing to the psychiatrist.  The expert drew a distinction between the
    appellant describing the gun as coming up and shooting and a person saying I
    took the gun and I shot at her.  According to the expert, the passive
    description was more consistent with the shooter having been in a dissociative
    state.

[20]

The
    defence expert drew support for his position from the passive language used by
    the appellant when he described the shooting to the expert.  It was open to the
    Crown in argument to urge the jury to look at the language used by the
    appellant in his statements to the police, which the Crown argued were accurate
    and made before the automatism defence appeared on the scene.  The argument by
    the Crown was firmly rooted in the evidence and, in particular, evidence
    proffered by the defence expert.  Nothing in
Browne v. Dunn
compelled
    the Crown to put this argument to the appellant in a question form, before
    putting it to the jury.

Conclusion

[21]

The
    appeal fails and the conviction is affirmed.

Released:  DD FEB 22 2017

Doherty J.A.

J.I. Laskin J.A.

Roberts J.A.