COURT OF APPEAL FOR ONTARIO

CITATION: Bowman v. Ontario, 2021 ONCA 795

DATE: 20211105

DOCKET: M52851 & M52778 (C68939)

Strathy C.J.O. (Motion
    Judge)

BETWEEN

Dana Bowman, Grace Marie
    Doyle Hillion,
Susan Lindsay and Tracey Mechefske

Plaintiffs (Appellants)

and

Her Majesty the Queen in
    Right of Ontario

Defendant (Respondent)

Stephen J. Moreau and Kaley
    Duff, for the appellants

Christopher Thompson,
    Chantelle Blom, Ravi Amarnath and Adam Mortimer, for the respondent

Jennifer L. Hunter, Jennifer
    ODell and Jacqueline Palef, for the proposed intervener, Canadian Civil
    Liberties Association (M52851)

Anu Bakshi and Nabila F. Qureshi,
    for the proposed intervener, Income Security Advocacy Centre (M52778)

Heard: October 27, 2021 by video conference

ENDORSEMENT

[1]

After hearing motions for leave to intervene by the Canadian Civil
    Liberties Association (CCLA) and the Income Security Advocacy Centre (ISAC), I
    advised counsel that I would grant the motion in respect of the former and I
    reserved judgment on the latter.

[2]

In respect of the CCLA motion, which is unopposed, I am satisfied that the
    proposed intervention meets the requirements set out in
Peel (Regional
    Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd.
(1990),
    74 O.R. (2d) 164 (C.A.), and that the CCLA will make a useful contribution to
    the resolution of the appeal without causing injustice to the parties. The
    following terms will apply: (a) the CCLA may file a factum of up to 15 pages in
    length by November 30, 2021 or such other date as the parties agree upon; (b)
    the Crown may file a responding factum of up to 15 pages in length by December
    15, 2021 or such other date as the parties agree upon; (c) the CCLA may have up
    to 15 minutes for oral argument on the appeal, such time to be deducted from
    the appellants allotted time of two and one half hours; (d) the Crowns time
    for oral argument in reply shall be contained within its existing allotment of one
    and one half hours; (e) the CCLA shall take the record as it finds it and shall
    not augment the record; and (f) the CCLA shall not seek costs and will not be
    liable for costs.

[3]

Having considered the submissions of the ISAC and the additional
    authorities submitted by the parties, and with some regret, I dismiss the
    ISACs motion without costs.

[4]

The issues in this appeal, a class action on behalf of low-income
    individuals, fall in the middle of the private/public spectrum. The appeal involves
    issues of public interest which fall squarely within the ISACs wheelhouse. I do
    not have any doubt that the ISAC has the expertise and experience to make a
    useful contribution to the appeal.

[5]

The ISAC seeks to intervene with respect to the issue of whether there
    is a contract between the class members and the Province of Ontario with
    respect to the Basic Income Pilot Project (the Project). It proposes to
    address the legal principles that would guide the determination of whether a
    contract was formed.

[6]

In opposing the ISACs motion for leave to intervene, the Province
    raised the issue of the ISACs engagement with the Project at the government
    and community levels.

[7]

I do not hold to the view that an intervener must have no connection to
    the underlying dispute or that a true friend of the court must be a
    disinterested non-party: see
United Brotherhood of Carpenters and Joiners
    of America, Local 1386 v. Bransen Construction
, 2002 NBCA 27, 249 N.B.R.
    (2d) 93, at para. 15;
Gemtec Limited & Robert G. Lutes v. The Queen
,
    2006 NBQB 439, 313 N.B.R. (2d) 296, at para. 18. As McMurtry C.J.O. observed in
Childs v. Desormeaux
(2003), 67 O.R. (3d) 385, (C.A.), which has been
    a jurisprudential touchstone in intervention motions, the submission that a friend
    of the court must be neutral, abstract and objective refers to a restricted
    notion of the
amicus curiae
that has long been rejected: at para. 13.
    Indeed, it is frequently the interveners interest and experience in the
    matter that enables it to make a useful contribution to the appeal by providing
    a perspective on the issues that differs from the immediate parties: see also
Ontario
    (Natural Resources and Forestry) v. South Bruce Peninsula (Town)
, 2021
    ONCA 749, at para. 19.

[8]

I accept, therefore, that having an interest in the Project does not
    automatically disqualify the ISAC from intervening  indeed, advocacy for income
    security through basic income or other means is the ISACs raison dêtre.

[9]

My overriding concern, however, is that the ISAC is much more than
    interested in the subject of this appeal. It has been
directly
    involved
in the underlying process, including, in its own words,
    participating in government consultations to develop the Basic Income Pilot Project
    that is the subject of this Appeal and developing public legal education
    presentations and materials on basic income for the purpose of the Project. The
    ISACs work included making recommendations to senior government officials
    concerning communications with the participants in the program (that is, the
    members of the proposed class). The ISAC also provided advice, directly or
    indirectly, to those who participated in the Project.

[10]

One
    of the fundamental issues before the court in the underlying appeal will be
    whether a contractual relationship existed between the Province and the members
    of the class and, if so, the terms of that contract. The resolution of those
    questions will require an examination of the factual matrix  a matrix that the
    ISAC was a part of and helped shape. The involvement of the ISAC in that
    factual matrix could well become a matter of evidence, should the matter
    proceed to trial.

[11]

Put
    another way, and more colloquially, the ISAC has skin in the game. At a
    minimum, it has a reputational issue at stake on the appeal, because of its
    direct involvement in the Project. In my view, the ISAC is simply too close to
    the underlying factual issues and too closely associated with the potential
    class members to permit it to take on the role of intervener. As well, it would
    be unfair to require the respondent to respond to an additional voice which is
    so closely allied with the appellants.

[12]

I
    am satisfied, moreover, that any perspective that the ISAC might be able to
    provide on the appeal will be reflected in the submissions of counsel for the
    appellants.

[13]

For
    these reasons, the ISACs motion is dismissed, without costs.

G.R. Strathy C.J.O.


COURT OF APPEAL FOR ONTARIO

CITATION: Giancola v. Dobrydnev, 2021 ONCA 793

DATE: 20211108

DOCKET: C68792

MacPherson, Simmons and Nordheimer JJ.A.

BETWEEN

Antonio Giancola and
    Angelina Giancola

Plaintiffs (Respondents)

and

A
lexandre Dobrydnev

Defendant (Appellant)

Arkadi Bouchelev, for the appellant

Christopher Belsito, for the respondents

Heard: November 3, 2021 by video conference

On appeal from the judgment of Justice
    Mark L. Edwards of the Superior Court of Justice dated October 5, 2020, with
    reasons reported at 2020 ONSC 6007.

REASONS FOR DECISION

[1]

Mr. Dobrydnev appeals from the summary judgment granted by the motion
    judge in which he ordered the appellant to pay to the respondents the sum of
    $306,130.54. He subsequently ordered that the appellant pay costs in the amount
    of $40,000. At the conclusion of the hearing, we dismissed the appeal with
    reasons to follow. We now provide our reasons.

[2]

The issues between the parties arose out of a failed residential real estate
    transaction. The appellant had agreed to purchase a house from the respondents.
    The day before the closing, the appellant raised an issue about a possible
    problem in the basement of the home. He asked for a reduction in the purchase
    price and a postponement of the closing date.

[3]

While the respondents were open to a postponement of the closing date,
    they were not prepared to reduce the purchase price. The appellant then advised
    that he would not close the transaction.

[4]

The appellant says that a few days before the closing date, he visited
    the property and noticed a problem in the basement. He says that he had not
    noticed the problem earlier because the area had been covered with a carpet.
    The appellant was very concerned about what he saw because it suggested that
    there had been a problem with the foundation of the home. He says that in
    response to questions he asked, the respondents told him that there had been a
    major flood some years earlier, that the foundation walls had cracked, and that
    repairs had been made. The appellant says that the respondents refused to
    provide any documentation regarding the repairs or tell him who had done the
    work. He does say, however, that the respondents admitted that the work had
    been done without getting a building permit.

[5]

The appellant filed two expert reports on the motion. The thrust of the
    expert reports was that the repairs were significant and ought to have been
    disclosed.

[6]

The respondents deny the appellants allegations. They say that the
    problem in the basement was obvious to anyone who viewed the property. They say
    that the appellant did not raise any issue with them when he visited the
    property. The respondents produced photographs taken by their real estate agent
    that showed the problem area in the basement.

[7]

The motion judge reviewed the evidence. He was satisfied that,
    notwithstanding the conflict in the evidence, he was in a position to resolve
    the issue without the need for further evidence or for the matter to go to
    trial. He noted the corroboration for the respondents position provided by the
    photographs from their real estate agent. He also noted that the respondents
    real estate agent had confirmed that the subject area in the basement was not
    hidden from any potential purchaser.

[8]

The motion judge rejected the appellants evidence in part because the
    appellant waited until the day before the closing to raise this issue. The
    motion judge observed that the appellant, on his own evidence, had learned
    about the problem six days earlier. The motion judge also found that between
    those two dates, the appellant had received a mortgage commitment that left him
    over $200,000 short of the amount he needed to complete the purchase.

[9]

The motion judge also rejected the appellants expert evidence. He
    pointed out that neither expert had actually seen the property but rather had
    relied almost exclusively on what the appellant had told them in forming their
    opinions.

[10]

The appellant raises a number of errors said to have been made by the
    motion judge. We agree with only one. The motion judge erred in relying on the
    hearsay evidence of a home inspection that was undertaken by the subsequent
    purchaser of the home. However, this error was not material to the motion
    judges conclusion and does not detract from the other aspects of his analysis,
    including his point that the appellant could have made his offer to purchase
    conditional on a home inspection but chose not to do so.

[11]

Finally, the motion judge concluded that any issue with respect to the
    basement of the property was readily apparent to any potential purchaser.
    Therefore, the principle of
caveat emptor
applied.

[12]

The appellant has failed to demonstrate any error that goes to the core
    of the analysis undertaken, and conclusion reached, by the motion judge. The
    motion judge provided detailed reasons in which he reviewed the evidence and
    explained his approach to it. The findings that the motion judge made were
    available to him on the evidence. There is no basis for us to interfere with
    his decision.

[13]

It is for these reasons that the appeal was dismissed. The respondents
    are entitled to their costs of the appeal which are fixed in the agreed amount
    of $8,380, inclusive of disbursements and HST.

J.C. MacPherson J.A.

Janet Simmons J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Maloney v. Goodman, 2021 ONCA 792

DATE: 20211108

DOCKET: C68760

MacPherson, Simmons and Nordheimer JJ.A.

BETWEEN

Joseph
    Maloney and Heather Maloney

Applicants
    (Respondents)

and

Rick Goodman personally,
    and in his capacity as executor
    of the Estate of Leo Goodman, deceased

Respondents
    (Appellants)

Darryl Singer and Nadia Condotta, for the appellants

Todd Storms and Kerri Malcolm, for the respondents

Heard: November 2, 2021 by video conference

On appeal from the
    order of Justice Graeme Mew of the Superior Court of Justice, dated October 1,
    2020 with reasons reported at 2020 ONSC 5948.

REASONS FOR DECISION

[1]

The issues on appeal arise out of
    the respondents application to discharge several mortgages registered against
    two farm properties they own. The mortgages were originally held by Leo Goodman
    as mortgagee. Leo Goodman (Mr. Goodman Sr.) assigned the mortgages to his
    son, Rick Goodman (the appellant)
[1]
,
    in 2010. Mr. Goodman Sr. died in 2017 at the age of 102.

[2]

Because of poor record keeping and
    the confusing state of the record, the application judge was unable to resolve
    the question of whether the mortgages had been fully paid. However, he made
    four findings in an effort to assist the parties in resolving that question.
    The appellant appeals the application judges second and fourth findings. We
    dismissed the appeal at the conclusion of the appeal hearing for reasons to
    follow. These are our reasons.

Background

[3]

The respondents originally owned
    three properties that were subject to mortgages in favour of Mr. Goodman Sr.:
    the two farm properties referred to above and a property referred to as the
    Donald Street property. The mortgages fell into arrears. In 2008, Mr. Goodman
    Sr. sold the Donald Street property under power of sale.

[4]

In an effort to resolve matters,
    the respondents applied for a mediation under the
Farm Debt
    Mediation Act
, S.C. 1997, c. 21. The
    September 15, 2008 mediation resulted in an arrangement under s. 19 of that Act
    (the "FDMA Agreement"). Under the FDMA Agreement the parties agreed
    on the amounts owing under each of the mortgages, including the Donald Street
    property mortgage, as of various dates in 2006. However, the agreed upon amounts
    were subject to verification of certain figures. Further, the parties agreed
    that additional adjustments could be made.

[5]

Commencing in January 2009 and
    continuing until about April 2019, the respondents made monthly payments of
    $2,703.05 to the appellant or his father on account of their indebtedness.

The Application Judges Second Finding  the $60,000
    Promissory Note

[6]

The application judges second
    finding relates to a $60,000 promissory note (the Promissory Note) signed by
    the respondents on March 28, 2008 in favour of Mr. Goodman Sr. The Promissory Note
    stipulated that it was due and payable on March 1, 2010.

[7]

The appellant's position on the
    application was that the Promissory Note was paid with the proceeds of sale of the
    Donald Street property and that $60,000 should therefore be added to the total
    owing on all the mortgages as set out in the FDMA Agreement.

[8]

The application judge rejected the
    appellants position. Among other things, he noted that, assuming the Promissory
    Note was a genuine obligation, applying proceeds from the sale of the Donald
    Street property to pay it in priority to obligations secured against the
    property would have violated s. 27 of the
Mortgages Act
, R.S.O. 1990, c. M.40. In any event, if the Promissory
    Note reflected a genuine obligation, an action on a promissory note that was payable
    on March 1, 2010 would be statute barred.

[9]

The formal order arising from the
    application stipulates that the Promissory Note is not enforceable, due to its
    being statute barred.

[10]

On appeal, the appellant states
    that he and his father reasonably believed the Promissory Note was paid off
    with the proceeds of the Donald Street property. He submits that the application
    judge erred in holding that an action on the Promissory Note is statute barred
    because the fact that the Promissory Note could not properly be repaid from the
    Donald Street power of sale proceeds was only discovered when the application
    judge made his finding. Accordingly, the limitation period should run from the
    date of the application judges reasons, being the date on which the appellant
    discovered the Promissory Note was in fact unpaid.

[11]

We reject the appellant's
    submissions. As a starting point, the application judge made it clear in his
    reasons that he was not convinced that the Promissory Note was a genuine
    obligation. Further, it is unclear how any amount that may ever have been owing
    on the Promissory Note could be added to the balance owing on the mortgages on
    the farm properties for which the respondents seek a discharge. Most
    importantly however, the Promissory Note stipulated it was due and payable on
    March 1, 2010. The two-year limitation period for suing on the Promissory Note
    runs from its maturity date, March 1, 2010. The appellant is not entitled to
    rely on his own, or his fathers, purported mistake in applying the proceeds of
    sale of the Donald Street property to resurrect a claim that became statute
    barred in 2012.

The Application Judges Fourth Finding  the December 31, 2008
    Account for Legal Fees

[12]

The application judges fourth
    finding was that an account from Leo Goodman's lawyer dated December 31, 2008
    for legal fees relating to mortgage enforcement proceedings should not be added
    to the amount owing on the mortgages for which the respondents seek a discharge.

[13]

The appellant submits that the application
    judge erred in holding that the respondents were entitled to infer that any
    claim for reimbursement of legal expenses was extinguished by the [September
    2008] FDMA Agreement. The account was dated December 31, 2008, which was after
    the FDMA Agreement was made and states, in part, [t]his is the amount that
    should be added to Maloneys mortgage. Further, the appellant notes that the
    parties agreed that additional adjustments were to be made to the FDMA
    Agreement figures, that the FDMA Agreement was silent on the subject of legal
    fees and that the mortgages all provided for enforcement fees to be added to
    the balance owing.

[14]

We do not accept the appellants
    submissions. Mr. Goodman's lawyer confirmed that the December 31, 2008 account
    related to work done prior to the mediation. The application judge found that
    the first communication to the respondents about this claim was a letter dated May
    28, 2015, which the appellant sent on behalf of his father. In our view, the
    application judges finding was open to him on the record and was reasonable.
    The fact that the formal account pre-dated the mediation does not mean the fees
    were not taken into consideration at the mediation in calculating the balance
    owing on the various mortgages. Had legal fees not been taken into account on
    the mediation, the respondents were entitled to receive notice of the claim
    much sooner than six-and-a-half years after the fact.

Costs of the Appeal and Further Relief

[15]

Costs of the appeal are to the
    respondents on a partial indemnity scale fixed in the amount of $10,000
    inclusive of disbursements and applicable taxes.

[16]

As noted by the application judge,
    if necessary, the parties are at liberty to request a case conference in the
    court below if further directions or orders are required to finally resolve the
    application.

J.C. MacPherson J.A.

Janet Simmons J.A.

I.V.B. Nordheimer
    J.A.

[1]
As the assignments of mortgage were never registered, the parties agreed in the
    court below that the estate is not a necessary party to this proceeding. Mr.
    Goodman Jr. is not, in any event, the estate trustee of Mr. Goodman Sr.s
    estate.


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. Harvey,
    2021 ONCA 801

DATE: 20211108

DOCKET: C69724

Tulloch, Hourigan and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jesse David Harvey

Appellant

Jesse David Harvey, acting in person

Michael Crystal, appearing as duty counsel

Philippe Cowle, for the respondent

Heard and released orally: November 4, 2021 by
    video conference

On appeal from the conviction entered on May 27, 2021 and
    the sentence imposed on July 13, 2021 by Justice Graeme Mew of the Superior
    Court of Justice.

REASONS FOR DECISION

[1]

The appellant was convicted of numerous breaches of probation orders
    contrary to s. 733.1 of the
Criminal Code
, R.S.C. 1985, c. C-46, and
    of assault contrary to s. 266 of the
Criminal Code
. He received a
    global sentence of 3 years incarceration. The appellant abandons his
    conviction appeal but is pursuing his sentence appeal.

[2]

His primary submission is that the sentencing judge erred because he
    referred to the Crown submission that the Crown had considered commencing a
    dangerous offender application.

[3]

As this court stated in
R. v. Soriano
, 2020 ONCA 276, an
    appellate court will not vary a sentence unless it is demonstrably unfit or the
    sentencing judge made an error that affected the sentence imposed. A sentence
    that is demonstrably unfit is clearly excessive or clearly unreasonable:
Soriano
,
    at para. 7. We echo the courts comments in
Soriano.
In this case, given
    the appellants incorrigible behaviour, we cannot say that the sentence was
    clearly excessive.

[4]

There was a mention of a possible dangerous offender application in the
    reasons for sentence. However, that statement must be put in context. The
    sentencing judge made a brief reference to the submission, while identifying
    what we believe to be the key issue before him, being the appellants repeated
    failure to abide by court orders in a situation rife with domestic violence.

[5]

We reject the submission that the sentencing judge turned the case into an
    informal dangerous offender application.

[6]

The sentence was fit, and we see no error in the sentencing judges
    analysis. In the result, leave to appeal sentence is granted, but the appeal is
    dismissed.

M. Tulloch J.A.

C.W. Hourigan J.A.

Sossin J.A.


WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)      any of the following offences;

(i)       an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the 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. J.J., 2021 ONCA 788

DATE: 20211108

DOCKET: C64152

Paciocco, Nordheimer and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

J.J.

Appellant

Michael W. Lacy and Bryan Badali, for the appellant

Philippe G. Cowle, for the respondent

Heard: October 14, 2021 by video conference

On
    appeal from the conviction entered on February 22, 2017, with reasons reported
    at 2017 ONSC 445, by Justice Rick Leroy of the Superior Court of Justice,
    sitting without a jury.

Thorburn J.A.:

INTRODUCTION

[1]

The appellant was convicted following trial by judge alone of sexual
    assault and break and enter for the purpose of committing sexual assault. He
    was sentenced to three years in prison. He appeals his convictions and seeks an
    acquittal or a new trial pursuant to s. 686(5) of the
Criminal Code,
R.S.C.
    1985, c. C-46.

BACKGROUND

Interaction with the Complainant During the Party

[2]

The appellant attended a party for A.L., at the invitation of their
    mutual friend B.H. The party was at A.L.s residence, which he shared with the
    complainant.

[3]

The complainant testified that she and the appellant did not know each
    other and did not interact during the party. She testified that at the party,
    the appellant was wearing a black and white striped shirt.

[4]

She said she had consumed twelve bottles of beer and went to sleep while
    the appellant was still at the party. She got into bed with her clothing on.
    Her bedroom door was unlocked.

Appellants Entry into the Complainants Bedroom

[5]

A.L. testified that at the end of the party, he saw the appellant enter
    the complainants bedroom and shut the door. After 30 seconds, A.L. entered the
    bedroom and saw the appellant on top of the bed covers trying to spoon
    against the complainant who was under the bed covers. A.L. heard the complainant
    say, Help me and he pushed the appellant out of the room.

[6]

A.L. testified that the appellant told him he had ruined the appellants
    chance of having sex with the complainant.

Evidence Regarding the Incident in Question

[7]

The complainant testified that later that evening, she awoke to discover
    an intruder performing oral sex on her and then penetrating her, at which point
    she yelled. The intruder got off her, put on his trousers and left the
    residence. The complainant returned to sleep.

[8]

A.L. testified that he heard the complainant cry, Get the fuck out of
    my room, between 5:00 and 6:00 a.m., the morning after the party.

[9]

When the complainant awoke around 11:00 a.m., she noted that her
    clothing had been removed except for her tank top. She put on a pair of her
    pyjama bottoms that were lying on the floor.

[10]

The complainant testified that the pyjama bottoms on the floor had been
    left there from maybe the day before. She did not remember when she had last
    worn them. She testified that she was in the habit of doing her laundry on
    Sundays, so if she had washed them when she had last done the laundry, then it
    would have been six days before the assault. She couldnt remember if the
    pyjamas had been washed in that load.

The Complainants Identification of the Appellant as the
    Perpetrator

[11]

The complainant testified that it was only when A.L. asked her what she
    had been yelling about, that her memory of the sexual assault crystallized.

[12]

She told A.L. that she had been sexually assaulted and they went to
    B.H.s home, as he had invited the appellant to the party. The complainant said
    the intruder was wearing a black and white striped shirt and had dark hair.

[13]

They looked the appellant up on Facebook and she identified him as the
    perpetrator. The complainant reported the sexual assault to the police.

DNA Found on the Complainants External Genitalia and Pyjamas

[14]

A swab taken from the complainants external genitalia generated a
    single male DNA profile (Profile 1). The appellant could not be excluded as
    the source of that DNA.

[15]

A sample from the complainants pyjama bottoms generated a different
    male DNA profile (Profile 2). The appellant could be excluded as the source
    of that DNA.

[16]

The
biologist, who was qualified as an expert in
body
    fluid identification and forensic DNA analysis testing and interpretation of
    those results, opined that it was unlikely for a detectable level of DNA to be
    transferred from brief touching in the absence of bodily fluid, especially when
    touching smooth or non-porous surfaces.

Charges Laid

[17]

The appellant was charged with sexual assault (s. 271 of the
Criminal
    Code
) and breaking and entering for the purpose of committing an
    indictable offence (s. 348(1)(b) of the
Criminal Code
).

THE TRIAL JUDGES REASONS

[18]

The trial judge held that the central issue was
    identity, and there were three grounds that together, led him to conclude that
    the appellant was the perpetrator:

i.

The complainant identified the perpetrator as the man
    wearing the striped shirt at the party, and the complainant subsequently
    identified the appellant as the perpetrator by looking at his Facebook page;

ii.

Earlier in the evening, the appellant entered the
    complainants room without consent. He got onto the bed with the complainant.
    When he was sent out of the room by A.L., the appellant told A.L. he had ruined
    his chance to have sex with her. This was just hours before the alleged
    assault; and

iii.

The male
DNA
detected on the
    complainants external genitalia swab matched the appellants DNA and there was
    no evidence to support benign transfer.

[19]

The trial judge held that even if the alleged sexual assault
    and the appellants earlier act of entering her room without her consent were
    not parts of a single distinct event, the evidence of the appellants conduct in
    entering the room, including his statement to A.L., was admissible as similar fact
    evidence on the issues of identity, animus and motive because its probative
    value outweighed its prejudicial effect
.
While the appellants statement was hearsay, it was admissible
    under the admission exception.

[20]

During the trial, the appellants counsel disclosed to the trial judge
    that she had previously represented one of the investigating officers in this
    case, on an unrelated matter. Trial counsel confirmed to the trial judge that
    the appellant was aware of the conflict and consented to her proceeding. The
    officer did not permit trial counsel to disclose the nature of the prior
    representation but provided a waiver to allow trial counsel to cross-examine
    him.

THE ISSUES ON
APPEAL

[21]

This court may allow a conviction appeal where it is of the opinion that
    the verdict is unreasonable or cannot be supported by the evidence, there is
    found to be an error of law, or there has been a miscarriage of justice:
Criminal
    Code,
s. 686(1)(a).

[22]

The appellant raises the following grounds of appeal:

i.

The
    trial judge misapprehended the expert biologists findings with respect to
    Profile 1 by concluding that the male DNA profile on the complainants external
    genitalia was from a bodily substance not skin cells;

ii.

The trial judge imposed an onus on the appellant to prove a benign
    explanation for the presence of a male DNA profile (Profile 1) on the
    complainants genitalia from which the appellant could not be excluded;

iii.

The trial judge misapprehended the evidence by failing to consider that
    there was exculpatory evidence of another male DNA profile (Profile 2) on the
    complainants pyjama bottoms from which the appellant was excluded; and

iv.

The appellant was deprived of his right to counsel by the trial judges
    failure to address trial counsels conflict of interest. The appellant applied
    for leave to file fresh evidence to address this issue on appeal.

[23]

I will address each argument in turn.

ANALYSIS

The First Issue: Did the trial judge misapprehend the DNA evidence
    of Profile 1?

[24]

The appellant claims the trial judge misapprehended the DNA evidence by
    concluding that the male DNA profile generated from a swab of the complainants
    external genitalia (Profile 1) from which the appellant could not be excluded,
    was from a bodily substance including saliva or blood. This is incorrect as the
    expert opinion was that the DNA was from
skin cells
or a
    body fluid other than semen that includes but is not limited to saliva
 or
    blood (emphasis added).

[25]

Misapprehension of evidence may include a failure to consider evidence
    relevant to a material issue, a mistake as to the substance of the evidence, or
    a failure to give proper effect to evidence:
R. v. Morrissey
(1995), 22
    O.R. (3d) 514 (C.A.), at p. 538; see also
R. v. Stennett
, 2021 ONCA
    258, at para. 50.

[26]

When misapprehension of evidence is alleged, the court should first
    consider the reasonableness of the verdict, under s. 686(1)(a)(i):
Morrissey,
at p. 540;
Stennett,
at para. 51. If the verdict is not
    unreasonable, the court should determine whether a miscarriage of justice was
    occasioned, under s. 686(1)(a)(iii):
Morrissey,
at p. 540;
Stennett,
at para. 51.

[27]

The misapprehension will result in a miscarriage of justice when the
    trial judge misapprehends the substance of material parts of the evidence and
    the errors play an essential part not just in the narrative of the judgment
    but in the reasoning process resulting in a conviction:
R. v. Lohrer,
2004
    SCC 80,

[2004] 3 S.C.R. 732, at para. 2, citing
Morrissey
, at
    p. 540; see also
Stennett
, at para. 52. If there is no miscarriage of
    justice, the court should determine whether the misapprehension amounts to an
    error in law, under s. 686(1)(ii):
Morrissey,
at p. 540;
Stennett,
at para. 51.

[28]

There is no dispute that the trial judges characterization of DNA
    Profile 1 was important to his finding of guilt.

[29]

The expert testified that the swab from the
    complainants external genitalia identified a single male DNA profile, from
    which the appellant could not be excluded, and that DNA possibly derived from
    skin cells or a body fluid other than semen that includes, but is not limited
    to saliva or blood.

[30]

The appellant asserts that the trial judge erroneously suggested that
    when submissions were being made the critical question was how does the
    saliva-based DNA get onto [the complainants] genitals and that this error was
    a material misapprehension of the evidence.

[31]

The appellant is correct that the above statement made by the trial
    judge was incorrect as the DNA swab from the complainants external genitalia
    was not tested for saliva, given the limits of that testing. There was
    therefore no evidence that amylase (a protein found in saliva) was found on the
    DNA swab.

[32]

Amylase was only found on the pyjama bottoms from which Profile 2 was
    generated. The appellants DNA was excluded from Profile 2.

[33]

The appellants trial counsel made similar comments and the Crown did
    not correct them.

[34]

In his reasons for judgment however, the trial judge correctly
    interpreted the evidence relating to Profile 1. The trial judge held, at para.
    59, that:

The DNA swab that contained [the appellants] DNA derived
    from skin cells or a body fluid including, but not limited to saliva
. The
    biologists opinion was that she could not determine whether any blood or
    saliva present on the swab originated from [the complainant] or the male DNA
    donor. [Emphasis added.]

[35]

These statements in the reasons for judgment, accurately reflect the
    experts evidence that Profile 1 possibly originates from skin cells or a body
    fluid other than semen that includes, but is not limited to saliva and that,

In general terms if amylase is present on that swab, if we
    accept that amylase is detected if its a lower level it could be from saliva
    or other body fluids. And if theres a mixture of DNA then I would not be able
    to determine who the source of the body fluid is.

[36]

Moreover, the trial judge made no mention in his reasons for judgment of
    saliva-based DNA being located on the complainants external genitalia. On the
    contrary, every time the trial judge referenced the forensic evidence linking
    the appellant to the offence, he referred only to the accuseds DNA, [the
    appellants] DNA or the male DNA swabbed from the complainants external
    genitalia.

[37]

It is clear from the reasons for judgment that the trial judge
    understood that there was no way to know whether the DNA from Profile 1 taken
    from the complainants external genitalia was derived from skin cells or bodily
    fluid, including saliva or blood. The trial judges reasons are clear that his
    findings in relation to Profile 1 are not about the transfer of DNA from
    saliva; they are about DNA transfer generally.

[38]

In sum, while there was an instance of misapprehension of evidence
    regarding the nature of the DNA evidence of Profile 1 by the trial judge and
    the parties during submissions, that misapprehension was cured in the reasons
    for judgment. The trial judge did not misapprehend the evidence regarding the
    DNA evidence of Profile 1 in his reasons for judgment.

[39]

As such, I would dismiss the first ground of appeal.

The Second Issue: Did the trial judge err by imposing an onus on the
    appellant to provide a benign explanation for the presence of DNA on the
    complainants external genitalia?

[40]

The appellants theory at trial and on appeal is that the appellants
    DNA must have made its way to the complainants external genitalia by way of
    innocent transfer.

[41]

The appellant submits that the trial judge reversed the burden of proof,
    by suggesting that unless the appellant could establish an innocent explanation
    for the presence of DNA on the complainants genitalia, the only reasonable
    conclusion was that the presence of the appellants DNA was confirmation of the
    appellants identity as the perpetrator.

[42]

The appellant submits, as the trial judge noted, that the appellant is
    not required to provide an innocent explanation for the presence of his DNA.

[43]

The appellant relies on the Supreme Courts decision in
R. v.
    Villaroman
, 2016 SCC 33, [2016] 1 S.C.R. 1000, which he says, supports his
    argument that the trial judge reversed the burden of proof.

[44]

In
Villaroman,
Cromwell J. held, at paras. 37-38:

When assessing circumstantial evidence, the trier of fact
    should consider other plausible theor[ies] and other reasonable
    possibilities which are inconsistent with guilt. I agree with the appellant
    that the Crown thus may need to negative these
reasonable
possibilities,
    but certainly does not need to negative every possible conjecture, no matter
    how irrational or fanciful, which might be consistent with the innocence of the
    accused. Other plausible theories or
other reasonable possibilities
    must be based on logic and experience applied to the evidence or the absence of
    evidence, not on speculation
.

Of course, the line between a plausible theory and
    speculation is not always easy to draw. But the basic question is whether the
    circumstantial evidence, viewed logically and in light of human experience, is
    reasonably capable of supporting an inference other than that the accused is guilty.
    [Citations omitted; italics emphasis in original; underline emphasis added.]

[45]

Cromwell J. noted, at para. 42, citing
R. v. Dipnarine,
2014
    ABCA 328, 584 A.R. 138, at paras. 22-25, that the trier of fact should not act
    on alternative interpretations of the circumstances that are unreasonable, and
    that alternative inferences must be reasonable, not just possible.

[46]

As Cromwell J. explained in
Villaroman
, at para. 71, it
    is for the trier of fact to draw the line that separates reasonable doubt from
    speculation
and
determine whether the alternative
    inferences proposed by the appellant raised a reasonable doubt about guilt
.

[47]

A trial judges rejection of an alternative
    theory inconsistent with guilt does not necessarily mean that there was a
Villaroman
error; it may mean that there was no reasonable inference
    other than guilt, given the evidence or lack of evidence and in light of human
    experience and common sense:
R. v. S.B.1,
2018
    ONCA 807, 143 O.R. (3d) 81, at para. 138.

[48]

Deference is owed to a trial judges conclusion
    that there are no reasonable alternative inferences other than guilt:
S.B.1,
at para. 139. This court held, in
R. v. Loor,
2017 ONCA 696, at para. 22, [a]n appellate court is justified in
    interfering only if the trial judges conclusion that the evidence excluded any
    reasonable alternative was itself unreasonable.

[49]

In this case, the trial judge recognized that, given that the Crowns
    evidence was primarily circumstantial, the accused can only be found guilty
    where the guilt of the accused is the only reasonable conclusion to be drawn
    from the whole of the evidence.

[50]

He considered the evidence and the absence of evidence in light of human
    experience and rejected as speculative the theory that the presence of the
    appellants DNA on the complainants external genitalia was due to innocent
    transfer.

[51]

The trial judge relied on the following uncontroverted evidence adduced
    at trial:

i.

The
    complainant testified that she had not met the appellant before the evening in
    question. She had seen him at the party but had no interaction with him before
    retreating to her bedroom. She testified that she went to bed fully dressed;
    and

ii.

A.L. testified that when he entered the complainants bedroom 30 seconds
    after seeing the appellant enter the room, the complainant was under the covers
    and the appellant was beside her, over the covers, lying semi-prone. The
    appellant was about 10 cm from her and was not moving. He looked like he was
    trying to spoon or cuddle her except that she was lying on her back. A.L. did
    not recall seeing the appellant make any movements but could not remember where
    the appellants hands were.

[52]

The trial judge also considered the evidence of the expert who opined
    that:

i.

Skin-to-skin
    DNA transfer is possible, but DNA transfer occurs more readily when it is
    moist;

ii.

The expert did not have a high expectation of finding a detectable level
    of DNA from brief touching in the absence of bodily fluid;

iii.

The expert would not expect a significant transfer of DNA from the brief
    touching of an item, especially an item that is smooth or non-porous, for
    instance a table;

iv.

Urine is not a good source of DNA. The expert would not expect to be
    able to generate a DNA profile from a urine stain; and

v.

Although it is possible to transfer DNA via a chain of contact (i.e.
    transfer from person A to object, and then from object to person B), the more
    points of contact on the chain, the less DNA will be transferred to the person
    at the end of the chain.

[53]

The trial judge noted that his analysis was conducted on the basis of
    the evidence presented and that, as the trier of fact, he must rely on the
    evidence and cannot speculate.

[54]

He concluded that there was no evidence to support the appellants
    theory of innocent transfer of DNA that matched the appellants onto the
    complainants genitalia because,

Any innocent transfer had to have happened before [the
    complainant] exited the party. They were strangers. The closest they came to
    one another was they were in the same building. There was no contact between
    them during the party. I conclude that when [the complainant] retired [the
    appellants] DNA was not affixed to her genitals. AL observed [the appellant]
    on top of the covers and [the complainant] under the covers when he entered the
    room. She was unconscious. [The appellant] was trying to spoon [the
    complainant]. No kissing or other opportunity for exchange of bodily fluid is
    in evidence. That exchange happened in the blink of thirty seconds. There is no
    evidence of contact with her genitals or any part of her body in that
    encounter. The only depiction offered for the presence of [the appellants] DNA
    on [the complainants] genitals derives from [the complainant].

[55]

He therefore concluded that the only reasonable explanation for the
    presence of the appellants DNA on the complainants external genitalia was
    that the appellant committed the offence.

[56]

In so doing, the trial judge did not require the appellant to prove an
    innocent explanation for the presence of his DNA nor did he reverse the burden
    of proof.

[57]

On the contrary, the evidence adduced at trial supports the trial
    judges conclusion that there was no evidentiary basis to support a reasonable
    conclusion that the DNA in Profile 1 found on the complainants external
    genitalia could have been the result of benign transfer

[58]

As such, I would also dismiss this ground of appeal.

The Third issue: Did the trial judge err by failing to consider that
    the appellant was excluded as a source of the DNA found on the complainants
    pyjamas?

[59]

The appellant claims the trial judge misapprehended the evidence by
    failing to give effect to the evidence from the pyjama bottoms. The appellant
    claims it was incumbent on the trial judge to rule out the possibility that
    Profile 2 was not the perpetrator, particularly given the evidence of the
    different methods of transfer rendering it just as likely that the donor of
    Profile 2 was the perpetrator.

[60]

I do not agree.

[61]

A trial judges reasons must be read as a whole, in the
    context of the evidence, the issues and the arguments at trial, together with
    an appreciation of the purposes or functions for which they are delivered:
R.
    v. Laboucan,
2010 SCC 12, [2010] 1 S.C.R. 397, at para.
    16, citing
R. v. R.E.M.,
2008 SCC 51, [2008] 3
    S.C.R. 3, at para. 16.

[62]

A trial judge is not required to expound on
    uncontroversial evidence, or detail his or her finding on each piece of
    evidence or controverted fact, so long as the findings linking the evidence to
    the verdict can be logically discerned:
R.E.M.,
at para. 20.

[63]

In this case,
the complainant testified that the
    pyjama bottoms on the floor had been left there from maybe the day before,
    she did not remember when she had last worn or washed them, and she likely last
    washed them at least six days before the assault.

[64]

Given that the complainant said she did not know when they were last
    worn or washed, there was nothing to connect the pyjama bottoms to this
    assault. (This is contrasted with the evidence of a single DNA profile (Profile
    1) on the complainants external genitalia which matched the appellants DNA.)

[65]

As such, the trial judge did not err by failing to discuss the DNA
    profile on the pyjama bottoms (Profile 2).

[66]

While the appellant was under no obligation to testify, in considering
    the reasonableness of the verdict, this court may infer from his failure to
    testify that he could not provide an innocent explanation for his conduct
    leading to the presence of a DNA match on the complainants genitalia. The
    appellants failure to provide an innocent explanation at trial undermines the
    alternative inferences he says were available on the evidence:
R. v.
    Ezechukwu
, 2020 ONCA 8, at para. 29; see also
R. v. Dell
(2005),
    194 C.C.C. (3d) 321 (Ont. C.A.), at para. 35;
R. v.

An
,
    2015 ONCA 799, at paras. 15-16; and
R. v.

Wu
, 2017
    ONCA 620, at para. 16.

[67]

For these reasons, I would dismiss this ground of appeal.

The Fourth Issue: Whether the fresh evidence should be admitted and
    whether trial counsel was in a conflict of interest

[68]

The appellant seeks leave to file fresh evidence and submits that the
    fresh evidence supports his claim that he was denied effective assistance of
    counsel as a result of his trial counsel being in a conflict of interest that
    was not properly resolved at trial. The Crown concedes that this court may
    consider the fresh evidence tendered by the appellant.

[69]

The test for conflict of interest on appeal is a) whether there was an
    actual conflict of interest between the respective interests represented by
    counsel, and b) whether counsels ability to effectively represent the
    interests of the appellant was impaired as a result of the conflict:
R. v.
    W. (W.)
(1995), 25 O.R. (3d) 161 (C.A.), at p. 173. If both criteria are
    established, then the appellant has been denied the right to make full answer
    and defence and a miscarriage of justice has occurred:
W. (W.),
at p.
    173. The focus is not on the appearance of conflict, but on whether counsels
    representation was in fact adversely affected:
W. (W.),
at p. 176.

[70]

In
R. v. Neil,
2002 SCC 70, [2002] 3 S.C.R. 631, at para. 29,
    Binnie J. writing for the court established a bright line rule preventing a
    lawyer or law firm from acting against a second client contrary in interest to
    an existing client without their consent:

The bright line is provided by the general rule that a lawyer
    may not represent one client whose interests are directly adverse to the
    immediate interests of another current client
even if the two mandates
    are unrelated
 unless both clients consent after receiving full
    disclosure (and preferably independent legal advice), and the lawyer reasonably
    believes that he or she is able to represent each client without adversely
    affecting the other. [Emphasis in original.]

[71]

However, counsels duty to a former client is different. The Supreme
    Court in
Canadian National Railway Co. v. McKercher LLP
, 2013 SCC 39,
    [2013] 2 S.C.R. 649 held, at para. 23, that:

The law distinguishes between former clients and current
    clients. The lawyers main duty to a former client is to refrain from misusing
    confidential information. With respect to a current client, for whom
    representation is ongoing, the lawyer must neither misuse confidential
    information, nor place himself in a situation that jeopardizes effective
    representation.

[72]

If trial counsels representation of a client may be compromised due to
    a duty to a former client, counsel should advise the new client and obtain
    their consent:
R. v. Faudar,
2021 ONCA 226, 403 C.C.C. (3d) 43, at
    para. 62. If counsel believes that their duty to the former client will in fact
    compromise the new retainer, counsel should decline to act for the new client:
Faudar,
at para. 62.

[73]

In this case, the officer was a former client by the time of trial.
    Therefore, the bright line rule does not apply. The only concern was the
    possible misuse of confidential information. There is no suggestion that the
    appellants trial counsel misused confidential information in this case.

[74]

In any event, the appellant consented to have counsel continue to
    represent him after counsel informed him that she had previously represented an
    investigating officer in this case.

[75]

Trial counsel swore in her affidavit and testified in cross-examination
    on the affidavit in fresh evidence that she discussed the issue several times
    with the appellant. Trial counsel indicated that she communicated with the
    appellant in clear and simple language, as the appellants first language is
    not English. On a break during pretrial motions, she communicated with him with
    the assistance of the court interpreter.

[76]

The appellant in his affidavit in fresh evidence stated that he had no
    recollection of any of these conversations but acknowledged in
    cross-examination that it was possible the discussions had occurred. After
    these discussions, trial counsel reasonably believed she was able to continue
    acting for the appellant without adverse effect.

[77]

Further, I am not persuaded that trial counsels prior representation of
    the officer resulted in a conflict that compromised representation and impaired
    trial fairness: see
Faudar,
at para. 66.

[78]

On a review of the full trial record, it does not appear that trial
    counsel was torn by divided loyalty. Trial counsel cross-examined the officer
    on the fact that he interviewed A.L. and B.H. together at the same time.
    Although she did not cross-examine him as to whether the complainant was
    present during his interview of A.L. and B.H., she swore in her affidavit that
    this was an oversight on her part. In any event, the trial judge did not find
    the testimony of A.L. and B.H. determinative on its own of the appellants
    guilt. The trial judge noted, [t]he fact that AL and BH were interviewed
    together would be more of an issue if their evidence was contested or if their
    evidence was dispositive.

[79]

Counsel informed the trial judge that she had represented the officer on
    a completely unrelated matter, and that the officer and the appellant consented
    to trial counsel cross-examining the officer.

[80]

The trial judge held that he was not sure there was a conflict of
    interest but nonetheless asked trial counsel to obtain a waiver from the
    officer consenting to trial counsels cross-examination of him, which she did.
    The trial judge held that, Its a conflict if its a related matter and
    theres been a solicitor/client relation on that matter. But I dont know that
    a client owns the lawyer for all time on totally unrelated matters.

[81]

The Crown indicated that she was prepared to proceed to call the officer
    on the basis of the waiver, and on the basis of trial counsel advising on the
    record, [the appellant] is aware of the conflict and given that information
    hes still content that she proceed. Given the appellants consent, trial
    counsel cross-examined the officer.

[82]

The trial judge did not err in deciding to permit appellants counsel to
    continue to represent him on this matter. There was no actual conflict of
    interest that adversely affected trial fairness or resulted in a miscarriage of
    justice in this case. I would therefore dismiss this ground of appeal.

CONCLUSION

[83]

For the above reasons, the appeal is dismissed.

Released: November 8, 2021 David M. Paciocco J.A.

J.A. Thorburn J.A.

I agree. David M.
    Paciocco J.A.

I agree. I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: DeLuca v. Grillone, 2021 ONCA 798

DATE: 20211109

DOCKET: C69054

MacPherson, Simmons and Nordheimer JJ.A.

BETWEEN

Marco
    DeLuca and Rhondaroo Holdings Ltd.

Plaintiffs
    (Respondents)

and

Sergio Grillone
,
2390215 Ontario
    Inc.
,

1894931 Ontario
    Limited, Ravdeep Chera,

Chera Law Office,
    Kurt Love, Avison

Young
    (Canada) Inc. and John Doe Corporation

Defendants
    (
Appellants
)

AND BETWEEN

Sergio Grillone
,
2390215 Ontario
    Inc.
,

1894931
    Ontario Limited

Plaintiffs
    by Counterclaim (
Appellants
)

and

Marco DeLuca
, Omega Process Servers Inc.,

Rhondaroo Holdings Ltd.
, Emilio Bisceglia,

Bisceglia &
    Associates Professional Corporation,

John Cirillo and John
    Cirillo Professional Corporation,

Canadian
    Imperial Bank of Commerce and Daniel Dignard

Defendants
    by Counterclaim (
Respondents
)

Sergio Grillone, in person and for the appellant 2390215
    Ontario Inc.

R. Leigh Youd and Adam J. Wygodny, for the respondents
    Marco DeLuca and Rhondaroo Holdings Ltd.

Randy Schliemann, for The Bank of Nova Scotia

Heard: November 5, 2021 by video conference

On appeal from the order of Justice Markus Koehnen of the Superior
    Court of Justice, dated August 12, 2020.

REASONS FOR DECISION

[1]

The appellants appeal from the
    decision of a motion judge enforcing the terms of the settlement. At the
    conclusion of the appeal hearing, we dismissed the appeal for reasons to
    follow. These are our reasons.

[2]

The main issue on appeal is
    whether the motion judge erred in holding that an e-mail from counsel for the
    respondents confirmed that the parties had settled the proceeding on terms that
    would allow the motion judge to direct certain share purchase monies to be paid
    into court.

[3]

The e-mail read in part as
    follows:

Your Honour in connection with tomorrow's attendance before you
     the purchasing and selling parties have agreed to the price to be paid for
    the shares of 239 in 189. The parties will agree to an order that:

1. Subject to any contrary direction by His Honour the
    agreed price  shall be paid by Rhonderoo to 239 within 10 business days of
    Friday, July 17.

[4]

The appellants submit here, as
    they did in the court below, that the words "[s]ubject to any contrary
    direction by His Honour" meant there would be no settlement if the court
    determined the monies should not be paid directly to 239.

[5]

We do not accept that submission.
    It is clear from the record that Mr. Grillone, for the appellants,
    authorized counsel for the respondents to forward the above-noted e-mail. The
    motion judge held that the words [s]ubject to any contrary direction by His Honour
    meant it was open to him, as the motion judge, to direct, as he did, that the
    purchase monies be paid into court for the benefit of Mr. Grillone's creditors.

[6]

In our view, the interpretation
    the motion judge placed on the e-mail was open to him based on the record
    before him. We see no basis on which to intervene.

[7]

The appellants sought to introduce
    fresh evidence on appeal. Their application is dismissed. The first piece of
    evidence related to something that occurred after the settlement was made and
    was irrelevant to the question whether there was a settlement. The second piece
    of evidence related to a matter that was fully dealt with by the terms of the
    settlement. The proposed evidence does not meet the test for introduction of
    fresh evidence.

[8]

The appeal is therefore dismissed.
    Costs of the appeal and the motion for an extension are to the respondents on a
    partial indemnity scale fixed in the amount of $10,500 inclusive of
    disbursements and applicable taxes. No order as to costs of the Bank of Nova
    Scotia.

J.C. MacPherson J.A.

Janet Simmons J.A.

I.V.B. Nordheimer
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Elite Construction Inc. v. Canada (Attorney
    General), 2021 ONCA 803

DATE: 20211109

DOCKET: C69101

MacPherson, Simmons and Nordheimer JJ.A.

BETWEEN

Elite Construction Inc.

Plaintiff (Appellant)

and

The Attorney General of Canada (representing
    Public Works and Government Services Canada)

Defendant (Respondent)

John V. Sestito, for the appellant

Wendy Wright, for the respondent

Heard: November 5, 2021 by video conference

On appeal from the judgment of Justice Andrew Pinto of
    the Superior Court of Justice, dated January 22, 2021, with reasons reported at
    2021 ONSC 562.

REASONS FOR DECISION

[1]

The plaintiff appeals from the summary judgment granted by the motion
    judge that dismissed the plaintiffs action against the respondent for what was
    alleged to be outstanding amounts arising out of a construction contract. At
    the conclusion of the hearing, we dismissed the appeal with reasons to follow.
    We now provide our reasons.

[2]

The appellant challenges the motion judges conclusion on essentially
    three grounds. First, it submits that this was not a proper case for summary
    judgment because there were factual issues in dispute. We do not agree. The
    motion judge found that the essential facts were agreed in terms of what the
    parties had done at various points during the construction project. He also
    noted that the parties had filed extensive material on the motion. It was open
    to the motion judge, in those circumstances, to conclude that he could reach a
    fair and just determination of the issues raised by the parties, especially
    the effect of the terms of the contract on the appellants claims:
Hryniak
    v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 49. We note that
    the motion judge gave detailed and thorough reasons for all of his conclusions.
    On the record before him, it was open to him to conclude that no outstanding
    balances were owing.

[3]

Second, the appellant submits that the motion judge erred in concluding
    that the respondent had not waived its right to rely on the strict terms of the
    contract, especially the notice requirements contained therein. Again, we do
    not agree. The motion judge properly set out the legal requirements for a
    finding of waiver in a contractual setting and he made the requisite findings
    of fact with respect to those requirements. In particular, the motion judge
    found that the appellant had not provided the notice required under the
    contract for any claim for extra expenses or losses. He also found that the appellant
    never issued a Notice of Dispute as required by the contract regarding any
    Change Orders. Those findings of fact were grounded in the record that was
    before the motion judge.

[4]

Third, the appellant submits that the motion judge erred in striking out
    its claims for
quantum meruit
and unjust enrichment. Once again, we do
    not agree. The motion judge correctly concluded that there was no room for
    either of those equitable principles to apply where the parties were operating
    pursuant to a contractual agreement between them.

[5]

The appeal is dismissed. The respondent is entitled to its costs of the
    appeal in the agreed amount of $16,000 inclusive of disbursements and HST.

J.C. MacPherson J.A.

Janet Simmons J.A.

I.V.B. Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ceballo, 2021 ONCA 791

DATE: 20211109

DOCKET: C67808

Hoy, Trotter and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Latoya Ceballo

Appellant

Nathan Gorham, appearing as duty counsel

Scott Wheildon, for the respondent

Heard: September 8, 2021 by video conference

On appeal from the conviction entered on August 8, 2019,
    by Justice Jennifer Woollcombe of the Superior Court of Justice, with reasons
    at 2019 ONSC 4617.

Paciocco J.A.:

OVERVIEW

[1]

Latoya Ceballo was arrested at Pearson International Airport on February
    2, 2014, after arriving from St. Maarten with 3.2 kilograms of cocaine in her
    possession. The cocaine was discovered when she was searched incident to her
    arrest, which occurred after she admitted during a secondary customs inspection
    that she had drugs strapped to her body. She was charged with importing
    cocaine, contrary to s. 6(1) of the
Controlled Drugs and Substances Act
,
    S.C. 1996, c. 19
.

[2]

At her trial, Ms. Ceballo applied pursuant to s. 24(2) of the
Canadian
    Charter of Rights and Freedoms

to exclude from evidence the cocaine
    that was found on her person. That
Charter

application was
    based, in part, on her submission that, by the time she admitted to having the
    drugs, she was already detained but had not been promptly advised of the reason
    for her detention, or of her right to consult counsel without delay, contrary
    to ss. 10(a) and 10(b) of the
Charter
.

[3]

The Border Services Officer who took charge of Ms. Ceballos secondary
    inspection was Border Services Officer Gilbey (BSO Gibley). As I will explain
    below, to establish that Ms. Ceballo was detained, thereby triggering her s. 10
Charter

rights, Ms. Ceballos trial counsel (trial counsel)
    had to establish that prior to Ms. Ceballos admission that she was in
    possession of cocaine, BSO Gilbey either engaged in intrusive, non-routine
    investigation of Ms. Ceballo, or had formed a strong particularized suspicion
    that Ms. Ceballo was committing an offence, and had decided to commence an
    intrusive investigation.
[1]

[4]

Ms. Ceballos trial proceeded as a blended
Charter voir dire
. The
    parties agreed that if her s. 24(2)
Charter

application failed
    to lead to the exclusion of the evidence Ms. Ceballo should be found guilty. The
Charter

application failed because the trial judge concluded
    that Ms. Ceballo had not been detained when she admitted to possessing the
    cocaine, and she was convicted. She was given a global sentence of six years
    and three months imprisonment.

[5]

Ms. Ceballo has appealed both her conviction and her sentence. Those
    appeals have been bifurcated, on consent. This is her conviction appeal. She
    submits
[2]
that the trial judge erred in denying her
Charter

application
    by failing to consider the cumulative effect of the evidence in determining
    whether she was detained when she made the admission and by misapprehending
    material evidence. For reasons that follow I would dismiss Ms. Ceballos
    conviction appeal.

MATERIAL FACTS

[6]

Upon her arrival, Ms. Ceballo was the subject of a Canada Border
    Services Agency Target Synopsis (known as a lookout). The computerized lookout
    provided her flight details and identified her as a target for contraband.
    The lookout alluded to her criminal record for fraud, noted that she was
    travelling alone on a go-show ticket after not having travelled since 2010,
    that she had been on a five day trip to a country of high interest for
    contraband smuggling, and that she had been the very last person to board the
    plane sequentially.

[7]

The lookout included the following requests to the border service
    officials who would be dealing with Ms. Ceballo: (1) Please conduct a
    progressive secondary examination to build any reasonable grounds, considering
    all methods of concealment such as body packing, ingestion and stuffing; (2) Please
    utilize all resources such as XRAY and ION; and (3) Please verify means and
    funding of travel  and purpose for last minute travel.

[8]

BSO Gilbey was responsible for roving among arriving passengers in the
    baggage hall. He spoke briefly with Ms. Ceballo and marked her arrival card for
    a secondary customs inspection. After she claimed her luggage, he conducted the
    secondary inspection, which commenced at 10:24 p.m.

[9]

In his evidence-in-chief, BSO Gilbey testified that Ms. Ceballo remained
    calm during that inspection. He questioned her about the purpose and funding
    for her travel. She told him she had stayed alone in a resort. She said her
    boyfriend purchased the ticket for her because she was upset about having
    miscarried a child, an explanation BSO Gilbey found to be an odd story. He
    asked her what she and her boyfriend did for a living and about their income.
    He examined the contents of her purse, which were unremarkable, and conducted
    an ion swab at 10:33 p.m. The ion swab came back with a positive reading for
    cocaine. This reading signified that the purse had been in contact with cocaine
    at some undeterminable point in time. BSO Gilbey advised Ms. Ceballo of the
    result of the ion test and she told him she had borrowed the purse from a
    friend. She said she did not use drugs. At 10:42 p.m. he asked Ms. Ceballo if
    she had drugs with her today, and she replied no. At 10:47 p.m., while he was
    examining her luggage, BSO Gilbey asked Ms. Ceballo straight out if she had
    drugs strapped to her body. He testified that he asks such direct questions to
    gauge a travellers reaction. It was at this point that Ms. Ceballo
    admitted that she was in possession of drugs, and he arrested her.

[10]

During cross-examination, trial counsel attempted to secure complete details
    about the questions BSO Gilbey had asked. This effort met with limited success
    because BSO Gilbey testified that he could not remember questions that produced
    the information he had recorded. BSO Gilbey also confirmed that there was a gap
    of approximately five minutes in his notes, between 10:42 p.m. to 10:47 p.m.,
    and testified that he could not recall if there was conversation during that
    five-minute period. He believed he was examining her baggage at the time.

[11]

When the suggestion was put to BSO Gilbey that he had told Ms. Ceballo
    that she would be searched, he responded that [i]ts fair to say that [he]
    might explain the customs process to her, including his authority to conduct
    more invasive searches under s. 98 of the
Customs Act
, R.S.C. 1985,
    c.1 (2nd Supp.) (s. 98). He could not recall specifically having done so but
    testified that this was his practice. He responded to the suggestions that he
    might have told Ms. Ceballo that she was going to be subject to a pat down by
    saying I dont recall. When it was suggested to him that he might have told
    Ms. Ceballo that she would be subject to a strip search he said [i]ts
    possible, but added that [g]enerally, its explaining the process. When the
    suggestion was repeated that he possibly told Ms. Ceballo she was going to be
    subject to a more invasive search he answered, Its possible that I explained
    the process.

[12]

BSO Gilbey was asked periodically during his testimony about his level
    of suspicion that Ms. Ceballo was committing a criminal offence, and whether he
    believed he had grounds to detain her pursuant to s. 98. BSO Gilbey denied
    having a particularized or strong suspicion that Ms. Ceballo was committing an
    offence, or sufficient grounds to detain Ms. Ceballo prior to her admission
    that she had cocaine on her body. He explained why individual indicia of
    possible criminality that he discovered prior to her arrest were not
    significant. For example, he testified that individuals placed on lookout may
    simply be wanted on a warrant, and many innocent people are coded that way;
    innocent people often have odd stories or strange answers; and he often fails
    to find narcotics after a positive ion test result, and the main impact of the
    ion test was to give him another question to ask.

[13]

During submissions, trial counsel challenged the credibility of BSO
    Gilbeys testimony. He submitted that BSO Gilbey had designed his notes to
    avoid scrutiny and was refusing to say what he said to [Ms. Ceballo] during
    the five-minute time-period when he took no notes. He asked the trial judge to
    infer that somewhere during the five-minute gap the questions BSO Gilbey asked
    Ms. Ceballo got more harsh and more specific. He also challenged the
    credibility of BSO Gilbeys testimony that he did not believe he had strong
    suspicion or grounds to detain Ms. Ceballo until she admitted that she had
    drugs strapped to her body.

[14]

The trial judge did not accept trial counsels submissions. She found
    that although BSO Gilbeys notes were deficient, his testimony was credible.
    She recognized the gaps in his testimony but said, [I]t is the applicant who
    must establish that she was detained. She found that the evidentiary record did
    not support a finding that Ms. Ceballo was detained. She accepted BSO Gilbeys
    testimony that he did not believe subjectively that he had grounds to detain
    Ms. Ceballo for a
Customs Act

search, and found that he
    lacked grounds, objectively, to detain [her] prior to her admission to having
    narcotics. She held, as well, that there is no evidence that [he] conducted
    anything other than a normal and routine screening procedure. She therefore
    denied the
Charter

application and ultimately convicted Ms.
    Ceballo.

ISSUES

[15]

Ms. Ceballo submits that the trial judge erred in finding that she was
    not detained prior to arrest because she examined the indicia of detention in a
    piecemeal fashion rather than evaluating the cumulative impact of the evidence.

[16]

She also argues that the trial judge misapprehended the evidence by
    making a finding that BSO Gilbey said that he does not recall, what, if
    anything further he asked in the period between 10:42 and 10:47 p.m. She
    submits that the trial judge further misapprehended the evidence by finding
    that BSO Gilbey testified that he did not recall reading the lookout, although
    he believed he had.

[17]

Although Ms. Ceballo marshalled the alleged misapprehensions of evidence
    in support of her claim that the trial judge did not consider the indicia of
    detention cumulatively, it is convenient to address the issues as follows:

A.

Did the trial
    judge err by considering the evidence piecemeal?

B.

Did the trial
    judge misapprehend evidence?

ANALYSIS

The Relevant Legal Principles

[18]

As Doherty J.A. explained in
R. v. Jones
(2006), 81 O.R. (3d)
    481 (C.A.), at paras. 30-35, given the importance of Canadas effective control
    over its borders, no one entering Canada reasonably expects to be left alone by
    the state. As a result, routine inspection of persons entering Canada is not
    stigmatizing, and principles of fundamental justice permit greater interference
    with personal autonomy and privacy than would ordinarily be acceptable in a
    free and democratic society. The concept of detention is tailored to this
    reality.

[19]

Accordingly, the restraint a traveller is under to either comply
    satisfactorily with a customs inspection or be denied entry into Canada does
    not constitute detention:
R. v. Kwok

(1986), 31 C.C.C. (3d) 196
    (Ont. C.A.), at p. 207. Nor is it enough to trigger a detention that the
    traveller has been subjected to secondary screening:
Dehghani v. Canada
    (Minister of Employment and Immigration)
, [1993] 1 S.C.R. 1053, at p. 1073.
    In the context of a traveller crossing the border, there are two alternative
    ways of identifying when the line has been crossed and a detention will occur.

[20]

The first approach is settled and non-controversial. It depends
    primarily on the intrusiveness of [the] state action:
Jones
, at para.
    32. Barnes J. described the intrusiveness test with clarity in
R. v.
    Sinclair
, 2016 ONSC 877, at para. 43, affd 2017 ONCA 287 (
Sinclair
    (ONCA)
), leave to appeal to SCC refused, 37625 (November 23, 2017), by
    observing that when the questioning and searches become less routine and more
    intrusive, the person is detained and that individuals s. 7, 8 and 10(b)
Charter
rights are engaged.

[21]

The line between detention and routine investigation is not always
    bright. However, in assessing whether a border investigation has reached the
    point where it is intrusive enough to trigger a detention, it must be
    appreciated that given the importance of border security, a robust concept of
    permissible routine forms of inspection operates. For example, the use of
    x-rays and ion scans capable of detecting drugs are routine forms of
    inspection:
R. v. Peters
, 2018 ONCA 493, at paras. 3, 11;
Sinclair
    (ONCA)
, at para. 6. So, too, is questioning related to the contents of
    luggage, or the provenance of those contents:

Peters
, at para.
    3. Similarly, questions intended to expose possible contraband or immigration
    issues, including questions about marital or employment status, income, or the
    purpose of a trip, or questions intended to probe the credibility of the
    answers a traveller has provided, are routine: see
Jones
, at paras.
    20-21, 37;
R. v. Sahota
, 2009 CanLII 44280 (Ont. S.C.), at para. 6.

[22]

By contrast, searches conducted pursuant to s. 98 of the
Customs Act
,
    including strip searches, body cavity searches, and bedpan vigils, are
    intrusive and will trigger a finding of detention:
R. v. Simmons
,
    [1988] 2 S.C.R. 495, at p. 521;
R. v. Monney
, [1999] 1 S.C.R. 652.

Of more immediate relevance to the instant case, questions cross the line and
    become intrusive when they amount to a coercive or adversarial interrogation,
    contain improper inducements, or exert unfair pressure:
Jones,
at
    paras. 41-42;
R. v. Darlington
, 2011 ONSC 2776, at paras. 75, 79.

[23]

In
Jones
,

Doherty J.A. recognized that there may be a
    second approach for identifying detention. Speaking in the context of
    investigative questioning, he left open the possibility that, although it will
    not be enough to establish detention that the border services officer has
    targeted the traveller for criminal investigation, if the border services
    officer has decided, because of some sufficiently strong particularized
    suspicion, to go beyond routine questioning of a person and to engage in a more
    intrusive form of inquiry, it may well be that the individual is detained when
    subject to that routine questioning:
Jones
,

at para. 42.

[24]

In
Sinclair (ONCA)
, this court appears to have applied this
    approach in an endorsement decision. It upheld Barnes J.s conclusion that a
    detention occurred when a border services officer asked what was arguably a
    routine question in circumstances where objectively the border services officer
    had sufficiently strong particularized suspicion and subjectively decided to
    conduct a more intrusive inquiry. It also approved of his reasoning, quoting
    the heart of Barnes J.s analysis, at para. 9:

In the present case, upon an objective review of all the
    circumstances of the interaction between Officer Rodgers and Ms. Sinclair, I
    conclude that Officer Rodgers had a sufficiently strong particularized
    suspicion to warrant a more intrusive form of inquiry after she showed Ms.
    Sinclair the x-ray images and Ms. Sinclair asked, Whats in it? At this
    point, on the basis of her sufficiently strong suspicion, Officer Rodgers decided
    to conduct a more intrusive inquiry.

[25]

In
Peters
, the trial judge used the alternative test that
    Doherty J.A. left open in
Jones
to determine whether Mr. Peters was
    detained. On appeal, again in an endorsement decision, a panel of this court described
    this more subjectively focused detention inquiry as the correct analysis:
Peters
,
    at para. 8. Similarly, in

Sahota
, at para. 48, van Rensburg J.,
    as she then was, found the accused to have been detained once the border
    services officer concluded he had reasonable and probable grounds to arrest him
    after finding suspicious bulges in a suitcase and x-raying the suitcase.

[26]

It may be that for a detention to occur, another step is required.
    Namely, in addition to having a sufficiently strong particularized suspicion,
    and a subjective decision to engage in an intrusive investigation or detain the
    subject, the border services officer may have to engage in some action that
    makes that intention known to the traveller. This requirement is consistent
    with the foundation for the constitutional concept of detention, resting as it
    does in the physical or psychological detention of the accused:
Simmons
,
    at pp. 515-21. There is also authority, including the decision of this court in

Kwok
,
to support the need for some act by the border services
    agent that indicates their intention to engage in more intrusive investigation
    or to detain the subject.

[27]

In
Kwok
,

the
    Crown conceded that the appellant, who was ultimately found to be importing heroin,
    was detained when a senior immigration officer decided to detain him. Finlayson
    J.A. could not accept that position. He stated, at p. 207:

Surely there must be
some action on the part of the
    immigration authorities to indicate that the restriction on the immigrants
    freedom has gone beyond that required for the processing of his application for
    entry
. In my opinion, the appellant was detained when [the senior
    immigration officer], having filled out the detained convention letter, invited
    the appellant  into his office with the intention of advising them of his
    decision to detain them (emphasis added).

[28]

In
Dehghani
, at p. 1068, Iacobucci J., writing for the court,
    cited this passage from
Kwok
with apparent approval. He then
    distinguished
Kwok

on the basis that there was no action on
    the part of the immigration authorities to indicate that the restriction on [the
    appellants] freedom ha[d] gone beyond that required for the processing of his
    application for entry:
Dehghani
, at p. 1072.

[29]

The need for some action by the border services agent that demonstrates
    their decision to engage in more intrusive measures also finds support in
Simmons
.
    There Dickson C.J. found, for a majority of the court, that a traveller was
    detained once informed that she would be strip searched. He noted, at p. 521,
    that when this occurred, the appellant could not have refused and continued on
    her way. He made a similar finding in the companion case of
R. v. Jacoy
,
    [1988] 2 S.C.R. 548, at pp. 557-58, that the detention was triggered when the
    accused was ushered into an interview room for the purposes of conducting a
    search. In each case the trigger for detention was not the formulation of the
    subjective intention to engage in intrusive investigation, but rather the steps
    that had been taken to commence the intrusive investigation, which steps would
    have made the subject aware that the border services officer had decided to go
    beyond a routine investigation.

[30]

I need not attempt to resolve the full reach of this second, alternative
    mode of identifying detention. As I will explain, in my view even if no conduct
    by the border services agent is needed to trigger a detention where objectively
    the border services agent has a sufficiently strong particularized suspicion,
    and has made the subjective decision to engage in an intrusive investigation, the
    trial judge did not err in this case in finding that Ms. Ceballo was not
    detained.

A.

Did the trial judge ERR by considering the evidence piecemeal?

[31]

I agree that it would be erroneous for a trial judge to approach a
    detention determination by looking at the indicia of detention piecemeal or
    individually, without considering the evidence cumulatively:
R. v. Chehil
,
    2013 SCC 49, [2013] 2 S.C.R. 220, at paras. 67-69;
Darlington
, at
    para. 75. However, in my view the trial judge did not do so.

[32]

In support of her position, Ms. Ceballo relied on the fact that the trial
    judge addressed the key indicia of detention serially  in this case the
    lookout, the ion scan, and the conversation. This, however, is not a dependable
    indication that the trial judge has failed to consider those indicia
    cumulatively. The significance of each individual indicia of detention must be
    assessed individually before their cumulative effect can be gauged. Here the
    trial judge properly described the task before her, noting explicitly that
    determining whether a traveller is detained for constitutional purposes, is
    fact-specific and includes consideration of all of the evidence.

[33]

Ms. Ceballos central submission in support of this ground of appeal appears
    to be that despite what the trial judge said, she must have evaluated the
    evidence piecemeal because if she had evaluated the evidence cumulatively she
    would inevitably have concluded that Ms. Ceballo was detained. Again, I
    disagree.

[34]

I am not persuaded that a cumulative view of the evidence reasonably
    required the trial judge to find that BSO Gilbey went beyond routine
    investigation and engaged in a more intrusive form of inquiry.

[35]

In considering whether routine forms of inspection were exceeded the
    trial judge was correct to emphasize that the burden was on Ms. Ceballo, the
Charter

claimant, to establish that she was detained. Yet Ms. Ceballo chose not to
    present evidence on this issue. The only material evidence the trial judge was
    left with came from BSO Gilbey, and that evidence established only routine
    searches of Ms. Ceballos belongings and routine questioning. It may well be
    that the line would have been crossed if Ms. Ceballo had proved that during
    questioning BSO Gilbey told her that she was going to be strip searched.
    However, BSO Gilbeys concession during cross-examination that it was possible he
    said this to her is not affirmative evidence that he did so, and in any event,
    his evidence, fairly interpreted, was that he believed he only described his s.
    98 powers but did not threaten to use them. Nor would it have been appropriate
    for the trial judge to speculate that some other unproven intrusive form of
    investigation may have occurred during the five-minute period during which BSO
    Gilbey took no notes. She was correct in declining the invitation to do so. I
    see no error in the trial judges determination that Ms. Ceballo failed to
    prove that BSO Gilbey exceeded routine forms of investigation.

[36]

Nor am I persuaded that the only reasonable conclusion that the trial
    judge could have come to was that objectively, BSO Gilbey had formed a sufficiently
    strong particularized suspicion and that he had subjectively decided to engage
    in an intrusive investigation.

[37]

With respect to the strength of BSO Gilbeys suspicion, I do not accept
    Ms. Ceballos apparent premise that targeting a traveller for
    investigation for a specific kind of offence amounts to a particularized suspicion.
    Whether it does so will depend on the cogency of the information supporting the
    suspicion. As Doherty J.A. pointed out in
Jones
, at para. 40:

In a general sense, everyone who is questioned at the border
    and whose luggage is examined is the target of an investigation. It only makes
    good sense that those responsible for enforcing border regulations will focus
    their routine questions and searches on persons who have for some reason
    attracted their interest.

[38]

There is therefore an important difference between having general
    suspicion that a person seeking entry could be engaged in criminality and
    having the sufficiently strong particularized suspicion that can open the door
    to a finding of detention. For this reason, the mere fact that the traveller
    has been targeted for investigation, even for a suspected general category of
    offence, does not constitute a sufficiently strong particularized suspicion:
Sahota
,
    at para. 47.

[39]

In my view, the trial judge was entitled to find that Ms. Ceballo was
    not detained. The tip or lookout was not particularly significant. It disclosed
    only that Ms. Ceballo presented with a general profile that warranted attention.
    Similarly, it was open to the trial judge on the evidence before her to find,
    as she did, that the ion scan result did not have particular significance. The
    trial judge also considered the exchange that occurred between BSO Gilbey and
    Ms. Ceballo. She was entitled, on this record, to conclude that prior to Ms.
    Ceballos admission that she had cocaine in her possession BSO Gilbey did not
    have objective grounds to detain her. Although it would have been preferable for
    the trial judge to have said expressly that she was not satisfied that BSO
    Gilbey had a sufficiently strong particularized suspicion to trigger a
    detention, that was the clear purport of her comments, and I would take no
    issue with that outcome.

[40]

Similarly, the trial judge was entitled to accept BSO Gilbeys testimony
    that he did not believe subjectively that he had grounds to detain Ms. Ceballo
    prior to her admission that she had cocaine strapped to her body. Ms. Ceballo
    has not challenged that factual finding, and during oral argument, duty counsel
    made clear that BSO Gilbeys credibility was not an issue in this appeal. Once
    again, although it would have been better had the trial judge spoken directly
    about whether BSO Gilbey had formed an intention to engage in more intrusive
    investigation prior to Ms. Ceballos admission, it is clear that she was not
    persuaded that he had.

[41]

I would therefore dismiss this ground of appeal.

B.

Did the trial judge misapprehend evidence?

[42]

I do not agree with Ms. Ceballos submission that the trial judge erred
    by misapprehending evidence.

[43]

The trial judges finding that BSO Gilbey said he does not recall what,
    if anything further he asked in the period between 10:42 and 10:47 p.m. is
    true to his testimony. The fact that BSO Gilbey was prepared to concede the
    possibility that lines of conversation suggested to him may have occurred is
    not evidence to the contrary. Indeed, as he explained in his testimony, the
    reason BSO Gilbey left open the possibility that he had discussed the
Customs
    Act

process was that he could not remember if anything had been
    discussed, and this is something that he would ordinarily discuss.

[44]

Things are modestly more complex with the trial judges comment that BSO
    Gilbey testified that he did not recall reading the lookout [or Target
    Synopsis], although he believed that he had. This finding accurately describes
    the testimony that BSO Gilbey gave during his evidence-in-chief. But it does
    not accurately describe what BSO Gilbey said in cross-examination when he agreed
    with the suggestion that he read the target synopsis before he spoke to Ms.
    Ceballo.

[45]

It may therefore be that the trial judge misapprehended the evidence by
    failing to consider BSO Gilbeys answers in cross-examination, but it is also
    possible that she may simply have preferred his evidence-in-chief. It is
    controversial whether I should make a finding that the trial judge
    misapprehended the evidence in the circumstances. But I need not decide. A
    misapprehension of evidence will not lead to a miscarriage of justice unless it
    is a mistake as to the substance of material parts of the evidence and those
    errors play an essential part in the reasoning process resulting in a
    conviction:
R. v. Morrissey
(1995), 22 O.R. (3d) 514 (C.A.), at p. 541;
R. v. Lohrer
, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. Even if
    the trial judge did misapprehend the evidence as to whether BSO Gilbey read the
    lookout, that misapprehension did not play an essential role in the reasoning
    process. It would have done so if the trial judge had decided that the lookout
    should not factor into her determination of whether BSO Gilbey had a
    sufficiently strong particularized suspicion because he was unsure whether he
    even read it. But that is not how the trial judge proceeded. She considered the
    lookout in coming to her conclusion. In particular, she accepted BSO Gilbeys
    testimony that the lookout was not significant, and reasoned correctly, that a
    person is not detained simply because they are flagged for secondary inspection
    because of a lookout.

[46]

The trial judge did not err by misapprehending evidence.

CONCLUSION

[47]

I would dismiss Ms. Ceballos conviction appeal.

Released: November 9, 2021 A.H.

David M. Paciocco
    J.A.

I agree. Alexandra
    Hoy J.A.

I agree. Gary Trotter
    J.A.

[1]
As I will also explain below, it may be the case that in order to establish
    detention based on a strong particularized suspicion, it must be shown that the
    person conducting the customs inspection in some way communicated to the
    subject that the decision to detain them or subject them to more intrusive
    investigation has been made.

[2]

The conviction appeal was an inmate appeal, and Ms. Ceballo
    was generously and ably assisted by duty counsel on her behalf. It is convenient
    to refer to the arguments made on appeal as her submissions.