COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Precup, 2013 ONCA 411

DATE: 20130619

DOCKET: C54006

Cronk, Epstein and Lauwers JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Vlad Nicolae Precup

Appellant

Michael A. Crystal, for the appellant

Greg Skerkowski, for the respondent

Heard: February 14, 2013

On appeal from the convictions entered by Justice Roydon
    J. Kealey of the Superior Court of Justice, sitting with a jury, on May 20,
    2011.

Cronk J.A.:

I.        Introduction

[1]

Following a trial by judge and jury, the appellant was convicted of
    dangerous driving causing death and failing to remain at the scene of an
    accident that resulted in death.  He was sentenced to two years less one day imprisonment,
    plus three years probation.  A three-year driving prohibition was also
    imposed.  The appellant appeals from his convictions.

[2]

Although the appellant raised various grounds of appeal in his factum,
    during oral argument he narrowed the focus of his appeal to one main issue
    whether the trial judge erred in his treatment of bad character evidence concerning
    the appellant.

[3]

The evidence in question emerged on cross-examination at trial of a
    defence psychiatrist who offered his opinion concerning the appellants mental
    illness and its effect on the appellants state of mind and conduct at the time
    of the collision.  During cross-examination of this witness, the Crown elicited
    evidence, based on information in the appellants medical records, tending to
    show that the appellant has a propensity for violence.

[4]

The appellant asserts that the trial judge erred in his treatment of the
    witnesss evidence regarding this information: (1) by failing to instruct the
    jury on the limited permissible use of evidence of bad character, including by
    failing to tell the jury that the evidence at issue was based on hearsay, which
    could not be relied upon for the truth of its contents; and (2) by permitting
    Crown counsel, without a remedial instruction, to invite the jury to engage in prohibited
    propensity reasoning.

[5]

For the reasons that follow, I conclude that the trial judge did err in
    the ways urged by the appellant.  In my view, the trial judges non-directions
    are fatal to the jurys verdicts.  The Crown does not suggest that the curative
    proviso of s. 686(1)(b)(iii) of the
Criminal Code
, R.S.C. 1985,
    c. C-46 can be applied to uphold the appellants convictions.  Accordingly, a
    new trial is required.

II.       Factual Background

(1)

The Incident

[6]

The charges against the appellant arose from a late-night driving
    incident in the City of Ottawa.  While the appellant was stopped in his sports
    car (a Mazda RX-8) at a red light, an apparently intoxicated pedestrian,
    Mitchell Anderson, wandered in front of the vehicle.  Mr. Anderson made
    gestures at the car, seemingly in admiration of the vehicle.  It appears that
    he stood in front of the car and either touched the hood with his hand or
    possibly kissed his hand and then touched the hood.  He did not approach the
    appellant or the appellants girlfriend, who was seated in the front passenger
    seat.  Nor did he directly threaten the appellant or his girlfriend in any
    way.

[7]

It is undisputed that when the light changed to green, the appellant
    drove away from the intersection at a high rate of speed.  Several witnesses to
    the collision testified at trial.  They said that as the appellant left the
    scene, they saw his vehicle fishtail, heard the sound of screeching tires, smelled
    burning rubber, and observed that the appellants car appeared to be out of
    control.

[8]

Mr. Anderson was struck by the appellants car as it proceeded through
    the intersection.  On impact, Mr. Anderson was thrown into the air and fell to
    the ground, striking his head.  Tragically, he died shortly thereafter from his
    resulting head injuries.  The appellant learned of Mr. Andersons death some
    days later.

[9]

The police interviewed the appellant about the collision because he was
    one of only a limited number of people in Ontario who owned a vehicle similar
    to the car that struck Mr. Anderson.  In his initial police statement, the
    appellant denied any involvement in the collision.  The appellant repeated this
    denial in a second police statement given several months later.

[10]

However,
    about five months after the collision, the appellant gave a third statement to
    the police.  In this statement, he acknowledged for the first time that he was
    the driver of the car on the night in question and that his girlfriend was
    present at the time.  He acknowledged seeing Mr. Anderson and maintained that
    he was worried by his behaviour because [h]e didnt seem right.  He said that
    Mr. Anderson moved on after a few moments, out of his sight.  Only then did he move
    his car forward, through the intersection, after the light turned green.

[11]

In
    a statement given to the police at about the same time, the appellants
    girlfriend (now his wife) confirmed the appellants version of events.  In
    contrast, at least one eyewitness to the collision testified at trial that Mr.
    Anderson was still in front of the appellants car when the appellant drove
    away from the intersection on a green light.

(2)

The Evidence of Mental Illness and Bad Character

[12]

Neither
    the appellant nor his girlfriend testified at trial.  The defence called Dr.
    Reghuvaran Kunjukrishnan, a psychiatrist at the Royal Ottawa Medical Centre,
    who testified concerning the appellants mental illness and the effect of that illness
    on the appellants state of mind and conduct during the collision.  Prior to
    trial, Dr. Kunjukrishnan had conducted a psychiatric assessment of the
    appellant, interviewed the appellants wife, and reviewed the appellants
    previous medical records from the Royal Ottawa Medical Centre.

[13]

During
    his examination-in-chief, Dr. Kunjukrishnan offered the opinion that the
    appellant has suffered from chronic, paranoid schizophrenia since 1996, for
    which he has received medical treatment over the years, including
    anti-psychotic medications.  Dr. Kunjukrishnan said that although the positive
    symptoms of the appellants mental illness were in partial remission, the
    negative symptoms of the illness, including social anxiety, hyper-vigilance and
    paranoia, persist.  According to Dr. Kunjukrishnan, these negative symptoms may
    have affected the appellants ability to appreciate the risk caused by his
    driving on the night in question, and accounted for the manner of his departure
    from the intersection.

[14]

Dr.
    Kunjukrishnan also testified that the appellant told him that: (1) Mr. Anderson
    was acting in a bizarre and threatening manner; (2) he feared that Mr. Anderson
    might attack him or his girlfriend; (3) he drove away from the scene rapidly in
    order to flee from the threat posed by Mr. Anderson; and (4) he did not realize
    at the time that Mr. Anderson had been struck by his car.

[15]

Dr.
    Kunjukrishnan indicated that he had considered anger management issues as a
    possible diagnosis for the appellant, based on reports in the appellants
    medical records of past incidents of friction, arguments and some minor
    physical altercations between the appellant and his wife.  He attributed these
    incidents to the appellants underlying schizophrenic illness rather than to
    any independent anger management problems.

[16]

On
    cross-examination, the Crown challenged the extent of Dr. Kunjukrishnans knowledge
    of the appellants psychiatric condition and medical history.  The Crown also
    attacked his claims that the appellant had no independent anger management
    problem, that schizophrenia was his prevailing psychiatric condition on the
    night in question, and that his prior violent behaviour towards his wife was
    only minor in nature.

[17]

In
    so doing, the Crown elicited information from Dr. Kunjukrishnan, based on entries
    in the appellants medical records, of various prior physical altercations
    between the appellant and a co-worker, strangers on a bus, the appellants
    three-year old nephew, a convenience store owner, and the appellants wife (the
    Prior Incidents).

[18]

Crown
    counsel suggested to Dr. Kunjukrishnan that some of these Prior Incidents,
    which the Crown described as aggressive outbursts, indicated that the appellant:
    (1) had reacted inappropriately, with anger on some occasions; (2) is
    volatile and has a hair trigger, in terms of [his] temper; (3) has had
    consistent anger management issues, notwithstanding other psychotic
    disorders, for 15 years; (4) has exhibited signs of serious anger issues; and
    (5) had engaged in random acts of aggression towards strangers  with no
    provocation.  Dr. Kunjukrishnan agreed with each of these suggestions.

(3)

Defence Pre-Charge Objection

[19]

After
    the completion of Dr. Kunjukrishnans testimony, the defence closed its case.
    The Crown offered no reply evidence and the jury was excused for lunch prior to
    the closing submissions of counsel.  The trial judge then indicated that he
    intended to provide counsel with a draft of his jury charge in the areas that
    may be of concern to [them], including those parts of the charge relating to
    Dr. Kunjukrishnans evidence.

[20]

A
    short time later, after the trial judge had provided the draft charge to
    counsel, defence counsel voiced concern regarding the instructions to be
    provided to the jury pertaining to the Prior Incidents.  The following exchange
    occurred:

MR. GIANCATERINO: Sure.  Can I just ask Your Honour one
    question.  I mean weve heard a little bit about it this afternoon, I dont
    think it became an issue until this afternoon, but the  I guess that what I
    would classify as bad character evidence of Doctor  Vlad Precup
my
    friend had read out some passages to Doctor Kunjukrishnan detailing some
    violence, detailing some other acts
, Im not sure whether or not we
    anticipated that coming out in terms of this draft,
but I think there has
    to be a specific type of warning or instruction to the jury of the use that
    they can make of that
.

THE COURT:
Thats not evidence
.  He was really out to
    cross-examine  this is part of the record  the medical records that he got
    late.

MR. GIANCATERINO: Right.

THE COURT:
Hes reading to the doctor what was in the
    medical records
, some of  I mean  and then he said he didnt  he read
    some of it, he didnt read all of it,
but I mean it was just to alert him
    to another side to Mr. Precup
.

MR. GIANCATERINO:
Well, my concern is that the jury might
    make bad use  like they may misuse that evidence
.

THE COURT:
Well, I told  and Ill tell the jury again and
    I may specifically identify  I mean those are part of the medical records that
    were read to  it also is not evidence, its just  its to suggest to Doctor [Kunjukrishnan]

that maybe he didnt know everything about this man that he was testifying
    about
.

MR. GIANCATERINO:
Thats fine
.
    [Emphasis added.]

(4)

Crown Counsels Closing Address

[21]

During
    his closing address to the jury, Crown counsel at trial (not counsel on appeal)
    urged the jury to conclude that the appellants conduct at the time of the
    collision was unrelated to his schizophrenia, which was being treated by
    medication under the supervision of health care professionals.  He told the
    jury that the appellants anger management problem has nothing to do with his
    mental illness.  It has everything to do with his impulsivity and his volatile
    nature and his hair trigger temper.

[22]

Later
    in his address, Crown counsel suggested that Dr. Kunjukrishnans evidence
    established that there was no doubt that the appellant has anger management
    issues apart from his schizophrenia.  Counsel told the jury:

But you all heard how the anger management issues remain.
[Dr.
    Kunjukrishnan] even said Mr. Precup is volatile.  Well, we know that.  We know
    Mr. Precup is volatile.  He has a hair trigger.  It doesnt take much for him
    to hurt someone
.  [Emphasis added.]

[23]

Elsewhere
    in his closing, Crown counsel invited the jury to consider the appellants
    conduct in this fashion:

Again, ask yourselves about his behaviour after the incident as
    well as during the incident when youre determining his guilt.
Ask
    yourselves
about his lack of symptoms;

about

his professionally
    monitored treatment;
and about his separate anger management issue.  That
    will surely lead you down a path to finding Mr. Precup guilty beyond any
    reasonable doubt for dangerously driving and causing the death of Mr. Anderson
    as well as fleeing the scene
.  [Emphasis added.]

[24]

Crown
    counsel returned to this theme at the end of his closing address.  He concluded
    with these remarks:

A man obsessed by his vehicle, a man who treats it as an
    extension of himself, felt his integrity violated when Mitch Anderson merely
    touched the hood of his car.
His reaction wasnt based on schizophrenia.
    His reaction was of a man angered by the boldness of this stranger touching his
    car.  His inability to manage his anger is a function not of his disease, but
    of his own personality
.

He employs physical violence to sort out his issues
.
    And when you apply your common sense to the evidence youve heard, you will
    know beyond a reasonable doubt, that Vlad Precup is guilty of both of these
    offences.  [Emphasis added.]

III.      Issues

[25]

As
    advanced during oral argument, there is one main issue on appeal.  The
    appellant argues that the trial judge erred in his treatment of the information
    concerning the Prior Incidents and Dr. Kunjukrishnans related evidence: (1) by
    failing to properly instruct the jury on the limited permissible use of that
    evidence, including failing to tell the jury that the information regarding the
    Prior Incidents on which the evidence was based was hearsay, which could not be
    relied upon by the jury for the truth of its contents; and (2) by permitting
    Crown counsel, without a remedial instruction, to invite the jury to engage in
    prohibited propensity reasoning.

IV.     Analysis

[26]

The
    appellant concedes that once the defence led expert evidence that his
    schizophrenia might have affected his appreciation of the risk of his driving
    and accounted for the manner of his driving at the time of the incident, it was
    open to the Crown to challenge Dr. Kunjukrishnans diagnosis of schizophrenia and
    to explore the alternative diagnosis of anger management.

[27]

I
    agree.  The defence relied on Dr. Kunjukrishnans evidence to suggest that the
    appellant suffered from a psychiatric condition that cast doubt on his
    culpability for the offences charged.  Dr. Kunjukrishnans evidence thus put the
    appellants psychiatric condition on the night in question in play.

[28]

Dr.
    Kunjukrishnan identified a possible differential diagnosis of anger management
    issues for the appellant, grounded in his evaluation of the appellant and his
    review of the historical entries in the appellants medical records.  The
    entries concerning the Prior Incidents, which Dr. Kunjukrishnan had not
    reviewed prior to his testimony at trial, cast a different light on the nature and
    effect of the appellants medical condition from that advanced by Dr.
    Kunjukrishnan during his examination-in-chief.

[29]

In
    addition, Dr. Kunjukrishnans admitted failure to read the appellants entire
    medical record, including the entries concerning the Prior Incidents, was
    relevant to the creditworthiness of his opinion about the appellants mental
    illness and its effect on the appellants driving behaviour.

[30]

The
    Crowns cross-examination of Dr. Kunjukrishnan on the Prior Incidents was a
    concerted attempt to undermine the witnesss credibility and the reliability of
    his expert opinion.  The cross-examination, therefore, was unobjectionable.

[31]

However,
    the appellant argues that the trial judge erred by failing to instruct the jury
    that the facts from the appellants medical records concerning the Prior
    Incidents put to Dr. Kunjukrishnan on cross-examination were unproven hearsay
    and could not be relied upon by the jury as evidence.  The appellant submits
    that the prejudicial effect of this error was exacerbated by Crown counsels
    closing address, described above, which invited the jury to engage in
    prohibited propensity reasoning based on the Prior Incidents.

[32]

The
    Crown counters that the jury charge was adequate in the circumstances.  The
    charge was sufficient, the Crown submits, to alert the jury that the only permissible
    use it could make of Dr. Kunjukrishnans evidence concerning the Prior
    Incidents was to assess the weight to be attached to his opinion that the
    appellants schizophrenia might have affected the appellants state of mind and
    driving behaviour at the time of the collision.

[33]

The
    Crown next contends that Crown counsels closing address at trial was directed
    to the contention that Dr. Kunjukrishnans opinion should be accorded little
    weight.  Counsels impugned remarks, it is said, were designed to underscore
    that there was evidence of a possible alternative diagnosis  difficulties with
    anger management  that accounted for the appellants conduct on the night in
    question.

[34]

I
    conclude that the trial judges failure to provide a limiting instruction on the
    permissible use of Dr. Kunjukrishnans evidence regarding the Prior Incidents,
    coupled with the absence of a remedial instruction concerning the Crowns
    closing address, require a new trial.  I am not satisfied that the jury would
    have understood that the entries in the appellants medical records concerning
    the Prior Incidents, as discussed by Dr. Kunjukrishnan in his evidence, were
    unproven hearsay that could not be used for the truth of their contents or to
    reason from general character or disposition to guilt.  I say this for the
    following reasons.

(1)     Non-direction Regarding the Prior Incidents

[35]

I
    begin with two controlling principles.  First, the adequacy of the jury charge
    in this case must be assessed in the context of the function of a jury charge.
    As Watt J.A. of this court put it in
R. v. J.S.
, 2012 ONCA 684, 296
    O.A.C. 184, at para. 35: Proper instructions leave the jury with a sufficient
    understanding of the facts as those facts relate to the issues the jury has to
    decide.  He added, at para. 36:

In the end, the jury must understand:

i.

the factual issues to be determined;

ii.

the legal principles applicable to the issues and the evidence adduced
    at trial;

iii.

the
    positions of the parties; and

iv.

the
    substantial parts of the evidence relevant to the positions of the parties on
    the issues to be decided.

[36]

Second,
    in the recent case of
R. v. Prokofiew
, 2012 SCC 49, [2012] 2 S.C.R.
    639, the Supreme Court again confirmed that when considering the adequacy of a
    jury charge, the charge must be considered in its entirety.

[37]

With
    these important principles in mind, I conclude that the jury charge in this
    case was deficient in two significant respects.  The charge failed to caution
    the jury against utilizing bad character evidence for propensity reasoning.  It
    also failed to identify the information in the appellants medical records
    about the Prior Incidents as hearsay, which could not be relied upon for the
    truth of its contents.

[38]

The
    trial judge recognized the need for a specific caution about the Prior Incidents.
    During his pre-charge exchange with defence counsel, quoted above, the trial
    judge twice acknowledged, correctly, that the facts put to Dr. Kunjukrishnan
    concerning the Prior Incidents were not evidence.  He indicated that these
    facts were put to the witness to alert him to another side to Mr. Precup.  The
    trial judge went on to say that he would tell the jury that the relevant
    exchanges were to suggest to Doctor [Kunjukrishnan] that maybe he didnt know
    everything about the appellant.

[39]

On
    the basis of the trial judges comments, defence counsel replied, [t]hats
    fine.  In light of those comments, defence counsel no doubt would have assumed
    that a limiting instruction on the permissible use of the evidence concerning
    the Prior Incidents would form part of the jury charge.  Yet the charge
    contained no explicit instruction to the jury about the impropriety of using the
    information about the Prior Incidents as evidence or for the truth of the facts
    set out in the relevant entries in the appellants medical records.  The trial
    judge did not tell the jury that the facts concerning the Prior Incidents were
    hearsay or that they were put to Dr. Kunjukrishnan to bolster the Crowns
    attempts to undermine Dr. Kunjukrishnans opinion evidence by demonstrating
    that his review of the appellants medical records and his knowledge of the
    appellant were incomplete.

[40]

The
    Crown acknowledges that the evidence of the Prior Incidents was based on
    hearsay, that the relevant entries in the appellants medical records were not
    admissible for the truth of their contents and, accordingly, that they could be
    used by the jury only to assess the weight to be given to Dr. Kunjukrishnans
    opinion evidence.

[41]

That
    said, the Crown contends that the jury charge contained sufficient instructions
    regarding the impermissible use of hearsay evidence to offset the absence of a
    specific caution about the hearsay nature of the information concerning the
    Prior Incidents and the limited permissible use of evidence of bad character.
    I disagree.

[42]

I
    note, first, that no mid-trial instruction was furnished to the jury concerning
    Dr. Kunjukrishnans evidence about the Prior Incidents or about the hearsay
    nature of the facts pertaining to the Prior Incidents contained in the appellants
    medical records.

[43]

In
    my view, this is a case where, once the Crowns approach to Dr. Kunjukrishnans
    cross-examination and Crown counsels highlighting of the Prior Incidents
    revealed itself, it would have been preferable for the trial judge to have provided
    a limiting mid-trial instruction to the jury at the time when the evidence was
    received.  See Hon. Mr. Justice David Watt,
Helping Jurors Understand
(Toronto:
    Thomson Canada Limited, 2007), at 141.  A mid-trial instruction would have
    alerted the jury to the proper use of the evidence concerning the Prior
    Incidents and of the information on which that evidence was based, about which
    the jury could then have been reminded later in the charge.  A limiting
    mid-trial instruction might also have alerted the Crown to be more circumspect
    in its closing jury address.

[44]

Although
    defence counsel did not request a mid-trial corrective instruction, he
    expressly requested the inclusion of a cautionary instruction in the charge
    itself.  As I read the transcript of the pre-charge discussions, defence
    counsel was assured that a limiting instruction would be provided.  Yet, as I
    have said, the jury charge contains no explicit reference to the jurys use of
    the evidence concerning the Prior Incidents or of the underlying hearsay
    information in the appellants medical records.

[45]

There
    is no doubt that the trial judge warned the jury generally that hearsay
    evidence must be approached with caution.  The jury charge contains this
    general instruction:

When you assess the opinion of an expert witness, you should
    consider whether the opinion is based on proven facts.  If for example, the
    expert opinion is based on hearsay evidence or on propositions that have not
    been provided, or on testimony which you do not accept, then you should attach
    less or perhaps no weight to the opinion.

Please know that the opinion of an expert is admissible in
    evidence even if it is based on secondary or hearsay evidence.  The secondary
    evidence is only admissible however, to show the information on which the
    experts opinion is based.  It is not evidence as to the truth of the second
    hand evidence, nor does it prove the existence of the facts on which the
    opinion is based.

[46]

While
    general jury instructions of this type are helpful, there must nonetheless be a
    real effort to tie the substantial parts of the evidence to the issues to be
    decided by the jury.  This occurred, for example, when the trial judge addressed
    certain of the appellants hearsay statements to Dr. Kunjukrishnan,
    specifically, his assertions that he had been assaulted on an unrelated past occasion
    while sitting in his car at a red light, and his claim that he had been fearful
    of Mr. Anderson on the night of the collision.  The trial judge told the jury:

In this case, what Mr. Precup told Dr. Kunjukrishnan is hearsay
    and cannot be considered by you in determining what happened in this case.  It
    can only be used in assessing the opinion of the doctor.  In particular, Mr.
    Precups hearsay statement describing some incident which allegedly happened a
    few years ago whenever [
sic
] he was allegedly attacked and assaulted
    while his vehicle was stopped at a red light, is clearly, hearsay.

The same is true of his claim that he was [concerned] that the
    victim was coming towards the passenger side window and he was concerned for his
    own safety and that of his girlfriend, Ms. Lou.

These

were

foundational

facts

used

by

Dr.
    Kunjukrishnan in forming his opinion.

[47]

The
    trial judge continued as follows:

Before any weight can be given to an experts opinion, facts
    upon which the opinion is based, must be found by you to exist.  The more the
    expert has relied upon facts not proved in evidence before you, for example,
    the hearsay statements to which I have just made reference, the less weight if
    any you may attribute to the opinion.

If you find there is no factual basis or a limited factual
    basis in the evidence to support the experts opinion, then you would consider
    attaching no weight or less weight respectively, to such an opinion.  It is for
    you to decide.

[48]

But
    the trial judge failed to provide a similar or other warning to the jury
    regarding Dr. Kunjukrishnans evidence about the Prior Incidents and the
    entries in the appellants medical records on which that evidence was based.  This
    omission, in my opinion, gives rise to two serious concerns.  First, the facts about
    the Prior Incidents were highly prejudicial to the appellant.  They strongly
    suggested that he has a propensity for aggressive and unprovoked, violent
    behaviour, as the Crown argued had been in play at the time of the collision.

[49]

As
    reflected in the trial judges promise to provide a cautionary instruction, the
    nature of the Prior Incidents called out for a clear warning to the jury as to
    what uses the evidence of bad character could and could not be put.  As the
    Supreme Court emphasized in
R. v. Handy
, 2002 SCC 56, [2002] 2 S.C.R.
    908, at para. 141, propensity evidence is of a poisonous nature, requiring a
    high awareness of its potentially prejudicial effect.

[50]

However,
    the charge does not identify the Prior Incidents as hearsay or mention evidence
    of bad character in any way.  Nor does the charge contain any caution to the
    jury that it could not rely on the Prior Incidents for propensity reasoning.
    The jury was not told that the facts contained in the appellants medical records
    concerning the Prior Incidents were admissible only for the limited purpose of
    attempting to undermine the extent of Dr. Kunjukrishnans knowledge of the
    appellant and, hence, his opinion about the nature and effect of the appellants
    mental illness, by illustrating that his opinion had been cast too narrowly, or
    was based on incomplete information.

[51]

Second,
    the instructions provided to the jury, quoted above, were directed at the facts
    relied upon by Dr. Kunjukrishnan to support his opinion of the appellants
    proper diagnosis  chronic schizophrenia with persisting negative symptoms
    and his testimony that this mental illness may have affected the appellants
    state of mind and, hence, his criminal culpability for the collision.  In other
    words, the instructions provided by the trial judge were directed at hearsay or
    foundational facts relied on by Dr. Kunjukrishnan in forming his opinion.

[52]

The
    facts concerning the Prior Incidents were not relied on by Dr. Kunjukrishnan
    and formed no part of the foundation for his opinion.  They were merely
    unproven facts asserted by the Crown to undercut Dr. Kunjukrishnans opinion
    and the weight to be accorded to it by the jury.  Nowhere in the charge was the
    jury told that unproven facts
relied on by the Crown
to attack Dr.
    Kunjukrishnans opinion, like unproven facts relied on by Dr. Kunjukrishnan to
    form his opinion, also constituted hearsay that could not be treated as
    evidence.

[53]

In
    my view, in the absence of a limiting instruction and based on the charge as a
    whole, it cannot be said that the jury necessarily would have understood the
    limited permissible use of the information and evidence regarding the Prior
    Incidents.  To the contrary, absent such an instruction, there was a realistic
    concern, as expressed by defence counsel prior to the charge, that the jury
    might place evidential value on the Prior Incidents.

[54]

The
    Crown points out that defence counsel did not object on this basis, following
    the charge.  The Crown also submits that a specific instruction concerning the
    Prior Incidents could only have worked to the appellants disadvantage since an
    itemization of the Prior Incidents would have reminded the jury of the damaging
    nature of the entries in the appellants medical records regarding his apparent
    character and past violent behaviours.

[55]

While
    a relevant factor, defence counsels failure to renew his objection after the
    charge does not cure the trial judges non-direction.  It is well established
    that the failure to object to parts of a jury charge is not dispositive of a
    subsequent challenge to the propriety of the charge: see
e.g. R. v. Daley
,
    2007 SCC 53, [2007] 3 S.C.R. 523, at para. 58;
R. v. Jacquard
, [1997]
    1 S.C.R. 314, at paras. 3738.

[56]

I
    also do not accept that an itemization of the Prior Incidents was appropriate
    or necessary in order to provide an adequate jury instruction concerning the
    limited permissible use of evidence of bad character, the hearsay nature of the
    information regarding the Prior Incidents, and the dangers of prohibited
    propensity reasoning.

[57]

The
    appropriate jury instruction was a simple warning that the Crown was in no
    better position than the defence when it came to the use of hearsay.  In this
    case, as with the hearsay relied on by Dr. Kunjukrishnan, the unproven facts in
    the appellants medical records concerning the Prior Incidents could not be
    relied upon by the jury for the truth of their contents.  Nor could the Prior
    Incidents be used by the jury to reason that the appellants suggested character
    or past conduct made his commission of the charged crimes more likely.  The
    absence of a limiting instruction in this regard effectively left the jury with
    no guidance on troubling evidence of bad character:
R. v. Philip
,
    2010 ABCA 79, 477 A.R. 380, at paras. 78.

(2)     Crown Counsels Closing Address to the Jury

[58]

In
    my opinion, the trial judges failure to provide a limiting instruction on the
    permissible use of the information and evidence relating to the Prior Incidents
    was exacerbated by the absence of a remedial instruction concerning Crown
    counsels closing address.

[59]

I
    have earlier set out in these reasons the salient parts of Crown counsels
    closing.  I agree with the appellants submission that the impugned comments by
    Crown counsel invited the jury to conclude that the appellant purposely ran Mr.
    Anderson down in an uncontrolled fit of anger or rage.  I also agree with the
    appellants contention that the effect of Crown counsels closing was to paint
    the appellant as a volatile and angry individual with a hair trigger for
    violence.  Although Crown counsel did not explicitly mention the Prior
    Incidents, it cannot have been lost on the jury that these suggested
    characteristics were related directly to Dr. Kunjukrishnans evidence
    concerning the Prior Incidents during cross-examination.

[60]

Two
    examples will suffice to make this point.  First, Crown counsel twice told the
    jury that the appellant has a volatile nature and a hair trigger.  Indeed,
    he went further, stating that, [
W]e know Mr. Precup is volatile
 and

It doesnt take much for him to hurt someone
 (emphasis added).
    There was no admissible evidence of these facts.  These were assertions only, based
    on hearsay entries in the appellants medical records.  The fact that Dr.
    Kunjukrishnan agreed with these assertions did not convert the unproven facts
    of the Prior Incidents into affirmative, independent evidence.

[61]

Nonetheless,
    in my view, these facts were positioned by Crown counsel as if they had been
    affirmatively established in the evidence led at trial.  Recall again the
    claim, [W]e know Mr. Precup is volatile.  In my opinion, Crown counsel
    essentially invited the jury to use the Prior Incidents as evidence of the
    appellants character and disposition for violence and, hence, as indicative of
    his guilt.  This was improper.

[62]

Second,
    Crown counsel closed his jury address by asserting that the appellant, in
    addition to suffering from schizophrenia, had a separate anger management
    issue that was a function not of his disease, but of his own personality.
    Counsel then said: [The appellant] employs physical violence to sort out his
    issues.

[63]

The
    Crowns theory that the appellant had independent anger management issues apart
    from his schizophrenia was put to Dr. Kunjukrishnan in cross-examination.  Dr.
    Kunjukrishnan acknowledged that he considered anger management to be a possible
    diagnosis for the appellant.  However, he did not accept that it was, in fact,
    an appropriate diagnosis, separate and apart from schizophrenia.  Similarly,
    while the medical charts contained references to historical anger management
    issues, they were not affirmatively established by Dr. Kunjukrishnans
    testimony as a separate  issue from schizophrenia.

[64]

Crown
    counsel, however, invited the jury to conclude that the appellant suffered from
    uncontrolled anger management issues, which, rather than schizophrenia,
    accounted for his conduct at the time of the collision.  Moreover, Crown
    counsels suggestion that the appellant employs physical violence to sort out
    his issues was directly grounded in the Prior Incidents.  The Prior Incidents
    were not evidence.  And there was no independent evidence of any pattern by the
    appellant of resolving his issues with physical violence.

[65]

Taken
    as a whole, Crown counsels impugned statements were tantamount to encouraging the
    jury to engage in impermissible propensity reasoning.  They cried out for an
    explicit, remedial instruction or, alternatively, a clear instruction on the
    limited use of Dr. Kunjukrishnans evidence about the Prior Incidents.  The
    absence of these instructions is fatal to the jurys verdicts, necessitating a
    new trial.

(3)      Other Issues

[66]

As
    I have said, during the appeal hearing, the appellant did not press the other
    grounds of appeal raised in his factum.  In any event, as I would allow the
    appeal for the reasons set out above, it is unnecessary to address the other
    grounds advanced by the appellant.

V.      Disposition

[67]

For
    the reasons given, I would allow the appeal, set aside the verdicts entered and
    direct a new trial.

Released:

JUN 19 2013                                    E.A.
    Cronk J.A.

EAC                                                I
    agree Gloria Epstein J.A.

I
    agree P. Lauwers J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Reynolds, 2013 ONCA 433

DATE: 20130624

DOCKET: C56027

Blair, Hoy and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Frank Reynolds

Appellant

P. Berk Keaney, for the appellant

Avene Derwa, for the respondent

Heard: June 3, 2013

On appeal from the conviction entered on June 5, 2012, by
    Justice W.F. Fitzgerald of the Ontario Court of Justice.

ENDORSEMENT

[1]

Mr. Reynolds appeals his conviction for dangerous operation of a motor
    vehicle causing bodily harm, contrary to s. 249 of the
Criminal Code
.

The Setting

[2]

The incident giving rise to the conviction occurred on January 30, 2011.
    Mr. Reynolds was parked in a moderately busy shopping plaza containing a number
    of stores, including a Walmart store.  He backed his vehicle out of his parking
    spot into a lane that ran perpendicular to the row of stores and faced the
    Wal-Mart store.  The lane opened into a broader roadway that could, perhaps, be
    described as a thoroughfare running parallel to the row of stores.  As Mr.
    Reynolds began to turn left into the thoroughfare lane, his vehicle struck a
    pedestrian who had just left the Wal-Mart store and who was walking quickly
    across the thoroughfare.

[3]

Unbeknownst to Mr. Reynolds  who testified he did not know he had
    struck the pedestrian and did not feel any impact -- the pedestrian became
    lodged under his vehicle and was dragged some distance as he turned left and
    entered the thoroughfare lane.  His vehicle almost immediately ran over a speed
    bump and the pedestrian was dislodged.  Thinking that the odd behaviour of his
    vehicle was due to some ice that had become caught in his wheel-well, Mr.
    Reynolds unfortunately backed his vehicle up towards the speed bump in an
    attempt to dislodge the ice, and ran over the pedestrian again.  He did not
    realize there was a problem until several onlookers reached his car and began
    banging on the window.  He then brought the car forward off the pedestrian.

[4]

Mr. Reynolds testimony  not rejected by the trial judge  was that he
    was proceeding carefully and slowly, checking his mirrors and looking for
    pedestrian traffic and vehicular traffic in his own lane.  As he approached the
    thoroughfare lane, intending to turn left onto it, he noticed a van in the
    parallel lane to his left that was preparing to turn right into the
    thoroughfare.  He thought that the driver of the van was giving him the go
    ahead to proceed first and that it was safe to turn.  He took no other
    precautions to ascertain whether the thoroughfare itself was clear of traffic.

[5]

The unfortunate incident occurred.  Miraculously, the pedestrian was not
    killed or seriously injured.

Analysis and Law

[6]

On behalf of the appellant, Mr. Keaney argues that the trial judge erred
    in failing to conduct any meaningful analysis of the
mens rea
component
    of the offence of dangerous driving, as established by the Supreme Court of
    Canada in
R v. Beatty
, 2008 SCC 5, [2008] 1 S.C.R. 49, and
R v. Roy
,
    2012 SCC 26, [2012] S.C.J. No. 26.  That component requires a consideration of
    whether the accuseds failure to foresee the risk and take steps to avoid it
    (if it could have been avoided) constituted a marked departure from the
    standard of care to be expected of a reasonable person in the accuseds
    circumstances.  His argument is a combination of the submission that the trial
    judge failed to address his mind to the
mens rea
component of the
    offence and the submission, based on
R v. Sheppard
, 2002 SCC 26, that the
    trial judges reasons were insufficient to enable the court, and the appellant,
    to appreciate whether he did or did not.

[7]

In his factum, Mr. Keaney raised the argument that the trial judge
    failed to conduct a
W.D.
 analysis.
[1]
He did not press that issue in oral argument, however.

[8]

For the reasons that follow, we agree that the appeal must be allowed.

The
W.(D.)
Factor

[9]

The trial judge stated at the beginning of his reasons that [he did
    not] find this a matter which involves any consideration of
W.(D.)
.  We
    will not dwell on this issue, except to say that, in our view, it is unwise for
    a trial judge, in most cases where the accused testifies or where there is
    evidence favouring the defence, not to conduct a
W.(D.)
analysis.  That said,
    there is authority for the view  at least where it is an objective element of
    the defence that is in play  that the
W.(D.)
formulation does not
    always work; in some circumstances, it may be possible to find an accused
    guilty even where the trier of fact accepts his or her evidence: see
R v.
    Dunchie
, 2007 ONCA 887, at para. 15, and
R v. Sadiqi
, 2013 ONCA
    250,at para. 21.

[10]

It
    could be argued that this is one of those cases where the
W.(D.)
analysis
    would not have been dispositive in the end, because the trial could have
    accepted the testimony of the appellant in full, yet still weighed whether, in
    all the circumstances, the appellants failure to foresee the risk constituted
    a marked departure from the reasonable driver standard.

[11]

We
    need not resolve this issue here, however, because in our view the appellant is
    correct in his submission regarding the trial judges analysis  or, lack of
    analysis  of the
mens rea
factor.  The trial judge failed to assess
    whether the appellants evidence, in the context of all of the driving
    circumstances and the place where the incident occurred  assuming he accepted
    the appellants evidence in its entirety  raised a reasonable doubt as to
    whether the requisite mental element of the offence of dangerous driving had been
    made out.

Mens
    Rea

[12]

In
    his reasons, the trial judge carefully reviewed the evidence of the appellant
    and, briefly, that of the pedestrian.  He appears to have viewed the
    appellants testimony favourably and, indeed, made no findings of credibility against
    him.  Nor was there any issue with respect to the evidence of the pedestrian.

[13]

The
    trial judge considered the provisions of s. 249(1)(a) of the
Criminal Code
which state:

Every one commits an offence who operates

(a) A motor vehicle in a manner that is
    dangerous to the public, having regard to all the circumstances, including the
    nature, condition and use of the place at which the motor vehicle is being
    operated and the amount of traffic that at the time is or might reasonably be
    expected at that place.

[14]

He
    also alluded to the
Roy
and
Beatty
decisions dealing with the
actus
    reus
and the
mens rea
, and the concept of marked departure.  Respectfully,
    however, he erred in focusing his analysis almost entirely on the
manner of
    operation
of the vehicle  a consideration that goes to the
actus reus
of the offence and not directly to the
mens rea
component.

[15]

For
    example, immediately after citing the provisions of s. 249, the trial judge
    said:

So what the Parliament of Canada is direct[ing] me to do is to
    determine and to examine
the manner of the operation
of the accuseds
    motor vehicle considering all of the circumstances that existed or might
    reasonably be expected at that place.  The nature, condition and use of the
    place at which the motor vehicle is being operated and the amount of traffic
    that at the time is or might reasonably be expected to be at that place.
    [Emphasis added]

[16]

Then,
    at the conclusion of his reasons  after completing his review of the
    appellants evidence  the trial judge made his only comment with respect to
    the marked departure test.  He said:

In examining the issues to which Ive been directed by both of
    these cases of the Supreme Court of Canada  the
Rou
and the
Beatty
matters, dealing with the
actus reus
and the
mens rea
, and the
    concept of marked departure, it seems to me on all of this evidence
that
    its inescapable that the manner of the operation
in all these
    circumstances that existed at that parking lot at this time or might reasonably
    be expected was a manner that was dangerous to the safety of the public and it
    seems to me, further,
that the operation of the vehicle
in the manner [as]
    Ive described it constitutes a marked departure from what a reasonably prudent
    motor vehicle operator would do. [Emphasis added.]

[17]

This
    approach fastens on the prohibited conduct aspect of the dangerous driving
    offence and fails to address the important fault element, which is necessary to
    elevate lack of care to the level necessary to merit criminal punishment.
Beatty
and
Roy
clarify that the
actus reus
of the offence is the conduct
    set out in s. 249(1)(a) of the
Criminal Code
, i.e., the manner in which
    the vehicle is operated in all of the circumstances; the
mens rea
requires proof the manner of driving was the result of a degree of care
    exercised by the accused that constitutes a marked departure from the
    standard of care that a reasonable person would have exercised in the same
    circumstances.  See
Roy
, and its summary of the
Beatty
principles, at paras. 26  38.

[18]

The
actus reus
exercise and the
mens rea
exercise are therefore quite
    different.  Why this is so is a function of the fact that the offence of
    dangerous driving involves the criminalization of driving conduct.  As Cromwell
    J. described it in
Roy
, at para. 30:

A fundamental point in
Beatty
is that dangerous driving
    is a serious criminal offence.  It is, therefore, critically important to
    ensure that the fault requirement for dangerous driving has been established.
    Failing to do so unduly extends the reach of the criminal law and wrongly
    brands as criminals those who are not morally blameworthy.  The distinction
    between a
mere
departure, which may support civil liability, and the
marked
    departure
required for criminal fault is a matter of degree.
The trier
    of fact must identify how and in what way the departure from the standard goes
markedly
beyond mere carelessness
. [Italics in original; underlining added]

[19]

Here,
    the trial judge did not engage in the exercise of [identifying] how and in
    what way the appellants failure to foresee and respond to the risk amounted
    to a departure from the standard [that] goes
markedly
beyond mere
    carelessness.  Respectfully, he failed to address the
mens rea
component of the offence at all.  Instead, he appears to have conflated the
actus
    reus
and
mens rea
components of the offence and to have concluded
    that, because the vehicle had been operated in a dangerous manner the offence
    had been made out.  This is the type of reasoning that
Beatty
and
Roy
sought to overcome.

[20]

The
    point is made by Cromwell J. in
Roy
at para. 27:

Beatty
addressed concern that the Courts reasons in
Hundal
[2]

did not sufficiently emphasize the importance of giving careful attention
    to the fault requirement of dangerous driving.
Hundal
did not expressly
    differentiate between the two elements of the offence  the prohibited conduct
    and the required fault.  There was concern that judges and juries might infer
    the existence of the fault element too quickly and without sufficient analysis,
    simply from the fact that a motor vehicle had operated in a dangerous manner.
    The Court in
Beatty
sought to ensure that a meaningful analysis of
both
elements would be performed in every case and it did this by defining the
    separating the conduct and mental elements of the offence. [Italics in
    original]

[21]

This
    is not to say that the manner of operation of the vehicle is not a factor in
    determining the marked departure fault element.  Quite often it will be.  But
    it may not be enough standing alone, and the trier of fact must go on and
    examine all of the circumstances relating to the accused at the relevant time.
    In dealing with the proof of the marked departure fault element made the
    following observation in
Roy
, at para. 40:

Generally, the existence of the required objective
mens rea
may be inferred from the fact that the accused drove in a manner that
    constituted a
marked departure
from the norm.  However, even where the
    manner of driving is a marked departure from normal driving, the trier of fact
    must examine all of the circumstances to determine whether it is appropriate to
    draw the inference of fault from the manner of driving.  The evidence may raise
    a doubt about whether, in the particular case, it is appropriate to draw the
    inference of a marked departure from the standard of care from the manner of
    driving.

[22]

As
    we have already observed, the difficulty here is that the trial judge failed to
    conduct the required meaningful analysis of the
mens rea
component.  Without
    that analysis, we cannot know whether the evidence gave rise to a reasonable
    doubt about whether the Crown had established the mental element of the
    offence.

[23]

The
    entire incident was recorded by a security camera surveying the parking lot.
    Ms. Derwa asked that we view the DVD, which we did, and argues that it, in
    effect, speaks for itself in terms of proving the offence.  Unsettling as it is
    to observe the force of the impact between the vehicle and the pedestrian and to
    follow the incident as it unfolded, we are not persuaded that the contents of
    the surveillance sequence are sufficient, alone, to replace the need for the
    foregoing type of
mens rea
analysis.  Whether the impact between his
    vehicle and the pedestrian was the product of momentary inattention on the
    appellants part, flowing from his distraction by the van in the adjoining
    lane, or whether it was the product of other factors constituting a marked
    departure from the norm, is not self-evident from the video recording or from
    the evidence as a whole, on its face.  An assessment of the mental element of
    the offence in the context of all of the circumstances  including Mr.
    Reynolds evidence that he proceeded carefully and slowly, checking his mirrors
    and looking for pedestrian and vehicular traffic in his own lane, before
    entering the thoroughfare  was required.  Respectfully, the trial judge failed
    to conduct such an assessment.

Disposition

[24]

For
    these reasons, the appeal is allowed and a new trial ordered.

R.A. Blair
    J.A.

Alexandra
    Hoy J.A.

M.H. Tulloch J.A.

[1]
See
R v. W.(D.)
, [1991] 1 S.C.R. 742, at para. 28.

[2]

R v. Hundal
, [1993] 1 S.C.R. 867.


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), (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 complainant 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, 172,
    172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or
    347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151
    (seduction of a female between 16 and 18), 153 (sexual intercourse with
    step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent
    or guardian procuring defilement) or 167 (householder permitting defilement) of
    the
Criminal Code
, chapter C-34 of the Revised Statutes of Canada,
    1970, as it read immediately before January 1, 1988; or

(b)     two
    or more offences being dealt with in the same proceeding, at least one of which
    is an offence referred to in any of subparagraphs (a)(i) to (iii).

(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 complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, 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).

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. Roberts, 2013 ONCA 453

DATE: 20130628

DOCKET: C56247

Laskin, Tulloch and Strathy JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Winston Roberts

Appellant

J. Thomas Wiley, for the appellant

Roger A. Pinnock, for the respondent

Heard: June 26, 2013

On appeal from the conviction entered on June 23, 2011 by
    Justice Kendra Coats of the Superior Court of Justice, sitting with a jury.

APPEAL BOOK ENDORSEMENT

[1]

The appellant submits that the Crowns closing address to the jury
    undermined the principle of jury unanimity. We disagree.  The decisions of this
    court in
Robinson
and
Sandhu
are directly contrary to the
    appellants submission.  Further, we note that at trial defence counsel
    conceded that the only live issue was consent.

[2]

The appeal is dismissed.


COURT OF APPEAL FOR ONTARIO

CITATION: Runnalls (Re), 2013 ONCA 386

DATE: 20130611

DOCKET: C56203

Blair, Hoy and Tulloch JJ.A.

IN THE MATTER OF: Nelson Runnalls

AN APPEAL UNDER PART XX.1 OF THE
CODE

Nelson Shaun Runnalls, acting in person

Michael Davies, as
amicus curiae

Grace Choi, for the Attorney General

Janice E. Blackburn, for the General Forensic Unit of
    North Bay Regional Centre

Heard and released orally: June 4, 2013

On appeal against the disposition of the Ontario Review
    Board dated, July 26, 2012.

ENDORSEMENT

[1]

The appellant appeals the Ontario Review Boards disposition of July 26,
    2012 ordering that he continue to be detained subject to conditions.

[2]

Amicus
argues that the Board failed to address the two
Charter
applications brought by the appellant, misapprehended the evidence, and erred
    by failing to grant a conditional discharge.

[3]

We are not persuaded that the Board erred and accordingly dismiss this
    appeal.

[4]

The appellant, who was assisted by
amicus
before the Board,
    made no submissions to support his
Charter
applications.  One
    application alleged breach of s. 8 of the
Charter
without providing
    any particulars of the alleged breach.  The other application did not specify
    the
Charter
right allegedly breached.  As remedies, the appellant
    sought an order striking the current diagnosis in the hospital report, an order
    for an independent assessment and an order for a fresh transcription of the
    trial of the index offence.  The Board concluded that the issues that the
    appellant asked it to deal with were already comprised in the annual review,
    beyond the jurisdiction of the Board or irrelevant to the issues before the
    Board.  We note that this court had just recently dismissed an appeal by the
    appellant of a prior disposition order which declined to order an independent
    assessment.  We see no merit to this ground of appeal.

[5]

Nor are we persuaded that the Board misapprehended the evidence in any
    material way.

[6]

Finally, the Boards conclusion that continued detention  as opposed to
    an absolute or conditional discharge  was warranted is adequately supported by
    its reasons.  We note in particular the Boards reference to the evidence of
    the need, in the circumstances, for the hospital to approve where the appellant
    will reside.

[7]

We see no need to consider the fresh evidence in light of our
    disposition on this appeal.

[8]

For these reasons, the appeal is dismissed.

R.A. Blair J.A.

Alexandra Hoy J.A.

M. Tulloch J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Sandro Steel Fabrication
    Ltd. v. Chiesa, 2013 ONCA 434

DATE: 20130621

DOCKET: C56680

Laskin, Rosenberg and Tulloch JJ.A.

BETWEEN

Sandro Steel Fabrication Ltd.

Plaintiff (Respondent)

and

Edward Chiesa and Edward Engineering

Defendants (Appellants)

Peter J. Mitchell, for the appellants

Sean Lawler, for the respondent

Heard and released orally: June 14, 2013

On appeal from the order of Justice Edward Koke of the
    Superior Court of Justice, dated January 30, 2013.

ENDORSEMENT

[1]

The appellant submits that s. 11(1) of the
Limitations Act, 2002
,
    should only be triggered by express written agreement referencing the specific
    claim sought to be tolled and, in this case, the alleged agreement to mediate
    the Sandro mediation damages was void for want of mutual intention to the
    agreement in all essential terms required by the law of contract.  As such, the
    motions judge erred in his conclusions that the mutual intention of the parties
    to mediation the Sandro remediation damages could be applied from the
    surrounding circumstances is not supported by the evidence and goes against the
    weight of the evidence.  We disagree.

[2]

In our view, the motions judge made a finding that there was an
    agreement to mediate the claim resulting from the collapse of the building
    which included the Sandro remediation damages.  This finding is owed deference.
    Based on the evidence before him, this was a reasonable conclusion.  As such,
    by virtue of s. 11(1) of the
Limitations Act, 2002
, the limitation
    period was suspended.

[3]

The appellant also argues that in para. 69 of the motions judges
    decision, he suggested s. 11(1) applies even in situations where there is
    ambiguity surrounding the existence of an agreement.

[4]

This decision should not be taken as endorsing that statement.  The
    disposition of this case turns on the finding by the motions judge that, based
    on the evidence, there was an agreement to mediate all the claims.

[5]

As such, the appeal is dismissed.   Costs are fixed at $7,250 to the
    respondents, inclusive of all applicable taxes and disbursements.

John Laskin J.A.

M. Rosenberg J.A.

M. Tulloch J.A.