COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Morgan, 2021 ONCA 531

DATE: 20210723

DOCKET: C63977

Watt, Roberts and Zarnett JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Patricia Morgan

Appellant

Breana Vandebeek, for the appellant

Tom Lemon and Eli Lo Re, for the
    respondent

Heard: April 21, 2021 by video
    conference

On appeal from the conviction entered on
    May 17, 2017 by Justice Irving W. Andr
é
of the Superior
    Court of Justice, sitting with a jury.

REASONS
    FOR DECISION

[1]

The appellant appeals her conviction for the
    importation of just over one kilogram of cocaine that she had ingested in the
    form of about 127 capsules. At issue is the voluntariness of the video
    statement that she gave to an RCMP officer following her arrest at Pearson
    International Airport. She submits the statement was not voluntary because it
    was made under oppressive circumstances and in exchange for an improper
    inducement.

[2]

For the reasons that follow, we dismiss the
    appeal.

Factual background

[3]

The appellant had ingested the cocaine capsules while
    in Jamaica before her return to Toronto on July 12, 2014. On arrival at Pearson
    International Airport at around 7:00 p.m., she spoke briefly with Canada Border
    Services Officer (BSO) Cullen and answered routine questions. She told him
    that she had gone down to Jamaica with her children about three weeks before
    but was returning alone and that she was employed by an airline. BSO Cullen
    referred the appellant to secondary inspection where he searched her bags and
    asked the appellant further standard questions about the packing and contents
    of her bags. The appellant confirmed the bags were hers and that she had packed
    them and was aware of their contents. She provided further information about
    her employment, income, children, the purchase of her airline ticket, and her stay
    in Jamaica. BSO Cullen did not record his communications with the appellant.

[4]

At 9:18 p.m., BSO Cullen turned custody of the
    appellant over to BSOs Walker and
Woloszanskyj
who
    provided a secondary caution. She was moved to a search room and a pat-down
    search was conducted. She contacted duty counsel at 9:28 p.m., first leaving a
    message and then speaking with counsel at 9:58 p.m. At 10:03 p.m., a strip
    search was conducted. BSOs Walker and Woloszanskyj engaged the appellant in
    conversation but did not record it. BSO Walker testified that this was general
    conversation and casual  sitting, chatting.

[5]

Over the course of the next ten hours, the
    appellant was watched carefully. She was given food and water. She was given
    her sweater from her carry-on bag. She was asked on several occasions whether
    she wished to provide an x-ray or go to the hospital. She refused. She
    requested an opportunity to speak with duty counsel again at about 1:24 a.m.
    and spoke with counsel some ten minutes later. At about 3:33 a.m., the
    appellant passed the first sample of suspected cocaine and was placed under
    arrest. She was again given her rights to counsel and provided with a third opportunity
    to consult with counsel, which she accepted. She was asked again if she wanted
    to go to the hospital. She refused. At 4:42 a.m., BSO Walker requested the
    assistance of EMS and at 4:48 a.m. the EMS attendants arrived and assessed the
    appellant who again refused to go to the hospital.

[6]

The appellant remained in the custody of BSOs
    Walker and Woloszanskyj until 7:44 a.m. on July 13, 2014. At that point, she
    was transferred into the custody of RCMP Constables Castrillon and Edwards. Cst.
    Castrillon read the appellant her rights to counsel and gave a primary and
    secondary caution. At 8:08 a.m., the appellant was taken to the hospital by
    Cst. Edwards for an assessment to ensure she was fine. During the appellants
    time in hospital, Cst. Edwards engaged the appellant in casual conversation. At
    one point in the conversation, Cst. Edwards observed that, while she had no
    power over the appellants release, Canadian citizens without criminal records
    were typically released on bail. Cst. Edwards testified that she impressed upon
    the appellant that only the courts could rule on the appellants release. These
    conversations were not recorded and Cst. Edwards took limited notes.

[7]

The appellant was examined and cleared by
    medical personnel who discharged her back into custody at 1:03 p.m. She was
    transported back to the airport. There, the appellant was provided with
    additional opportunities to consult with counsel, which she declined. She was
    lodged in a dry cell with a bench, mattress, blankets, food and water so that
    she could pass the remaining pellets.

[8]

Starting at 6:49 p.m., the appellant gave a
    videotaped statement to Cst. Edwards. Prior to giving the statement, the
    appellant was given another opportunity to speak with counsel, which she
    declined. Cst. Edwards spoke to the appellant before taking her statement but
    without taking notes. However, the video recording captured a portion of this
    exchange, including Cst. Edwards statement that youll go in front of a judge
    or [justice of the peace], and at some point youll be released. We discussed
    that earlier right?. Cst. Edwards then added at that point youll get your
    luggage back. The appellant proceeded to give a statement in which she gave
    information about her involvement in the importation scheme.

[9]

After the appellant had given the video
    statement, and at her request, Cst. Edwards placed her childrens
    passports into her luggage for safekeeping until the appellants release. Cst.
    Edwards again told the appellant that the issue of her release was up to the
    courts, and that she would be provided her luggage and the passports upon
    release. When the appellant was released three days later, she attended at the
    police station and was given her passport and her luggage with her childrens
    passports.

First trial and mistrial

[10]

The first trial took place before Barnes J.
    sitting with a jury. The Crown brought a preliminary application to establish
    the voluntariness of four sets of statements made by the appellant, including:
    1) her statements to BSO Cullen, 2) her statements to BSOs Walker and
    Woloszanskyj, 3) her statements to Csts. Castrillon and Edwards before the
    video, and 4) the videotaped statement. BSOs Walker and Woloszanskyj and Csts.
    Castrillon and Edwards testified on the voluntariness
voir dire
. The
    appellant also testified. In reasons reported at 2017 ONSC 432, Barnes J.
    concluded that there was an inadequate record of the first three sets of
    statements made by the appellant to BSOs Cullen, Walker and Woloszanskyj and
    that those statements would not be admitted. Barnes J. determined that the video
    statement made to Cst. Edwards was voluntary and admitted it.

[11]

The first trial ended in a mistrial because of the
    late Crown disclosure of Cst. Edwards disciplinary history: in 2011, she had
    been reprimanded for having improperly used her special clearance pass to
    expedite her sons passage through the airport.

Second trial and conviction

[12]

The second trial proceeded before Andr
é J.,
    and a second voluntariness
voir dire
was held
    to determine the admissibility of the appellants video statement. The Crown no
    longer sought to admit the appellants other statements ruled inadmissible by
    Barnes J. The parties agreed that the transcripts of the evidence of BSOs
    Walker and
Woloszanskyj and Cst. Castrillon would be admitted
    into evidence at the
voir dire
to obviate the need for those officers
    to testify again. Cst. Edwards testified at the
voir dire
. The
    appellant did not testify on the second
voir dire
nor was the
    transcript of her evidence on the
voir dire
from the first trial put
    into evidence. The trial judge determined that the appellants video statement
    was voluntary and admitted it into evidence.

[13]

At trial, the appellant contested the Crown case.
    She testified that she had ingested the cocaine under duress. She was convicted
    by the jury.

Analysis

[14]

It is well established that to render admissible
    a statement made by an accused to a person in authority the Crown need only
    adduce some evidence that the alleged statement was made and prove beyond a
    reasonable doubt that the statement was voluntary. Voluntariness requires that
    the statement is made without fear of prejudice or hope of advantage and that
    it represents the product of an operating mind that has not been overborne by
    oppressive and inhumane circumstances or police trickery. See:
R. v.
    Spencer
, 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 11-15;
R. v.
    Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3, at paras. 47-67;
R. v.
    Gauthier
, [1977] 1 S.C.R. 441, at p. 448;
R. v. Moore-McFarlane
(2001),
    160 C.C.C. (3d) 493, at paras. 53-54.

[15]

Here there is no question about the threshold
    reliability of the recording of the appellants video statement. The appellant challenges
    its voluntariness. She says the trial judge erred in failing to find that the video
    statement was given under oppressive circumstances because she was not
    permitted to sleep and was deprived of her blood pressure medication in the
    almost 24 hours that preceded the giving of the video statement. She argues the
    trial judge should have disregarded the officers evidence about the circumstances
    surrounding the video statement because of their failure to make proper notes
    of their conversations with her and the inconsistencies among their accounts.

[16]

We are not persuaded by these submissions.

[17]

The trial judge was entitled to accept the officers
    evidence concerning their treatment of and interactions with the appellant
    while she was in their custody. It is of no moment that Barnes J. had ruled
    some of the appellants other statements to be inadmissible at the first trial
    due to the inadequacy of the officers notes. At the second trial, the Crown no
    longer sought to prove the admissibility of those utterances that Barnes J. had
    already determined were insufficiently documented, and the officers notes and
    recollections were adduced simply to establish the circumstances surrounding
    the appellants videotaped statement. The parties agreed to admit the
    transcripts of the officers evidence of these circumstances, and the appellant
    elected not to testify on the
voir dire
. It was open to the trial
    judge to rely on the officers evidence of the context leading up to the
    videotaped statement, even if such notes had been insufficient to establish the
    admissibility of the appellants other statements at the first trial.

[18]

The trial judge thoroughly reviewed the
    circumstances surrounding the appellants video statement, including that the officers
    regularly checked on the appellant to ensure that she was well and did not
    require medical attention. These actions were reasonable and necessary to monitor
    the appellants health; she had ingested about a kilogram of cocaine and was at
    risk of suffering grave consequences if any of the pellets broke open while in
    her system.

[19]

Importantly, there was no evidence before the
    trial judge that the appellant was exhausted or ill and could not voluntarily
    give her statement. Indeed, the appellants discharge from hospital belies this
    suggestion. Moreover, the evidence of the officers and the video statement
    itself support the trial judges conclusion that there was no evidence that a
    lack of sleep created an oppressive situation. The appellant did not complain
    of hunger, fatigue or any other condition, and seemed alert and responsive. Nor
    was there any evidence that the appellant had requested her blood pressure
    medication or that it was refused. The unchallenged evidence of the officers was
    that the appellant did not request her medication but, if she had done so, it
    would have been given to her. She does not allege that she was threatened or subjected
    to harsh, aggressive, or overbearing interrogation. Indeed, after the
voir
    dire
, the appellant agreed at trial that Cst. Edwards was nice to her and
    not the sort of officer that you expect when you get arrested.

[20]

At all times the appellant was treated with
    respect and concern about her physical wellbeing. She was given numerous
    opportunities to speak with counsel and did so on three occasions. At no time,
    including on the video statement, did she indicate that she did not wish to speak
    to Cst. Edwards. As the trial judge correctly concluded, there was no evidence
    of any oppressive circumstances or that the statement was not the product of an
    operating mind. The trial judge properly distinguished the appellants case
    from the distinctively different factual circumstances in
R. v. Ebanks
,
    2012 ONSC 3887, where incriminating statements were extracted in an atmosphere
    of threats and oppression that did not exist in the present case.

[21]

The appellant submits that the trial judge erred
    in failing to find that she was given an improper inducement in exchange for
    her statement. She says that as an inducement for her video statement, Cst.
    Edwards promised that she would be released and her luggage, which contained
    her childrens passports, would be returned to her. She argues that the trial
    judge erred in failing to reject Cst. Edwards evidence as incredible and
    unreliable because of her disciplinary history and her failure to make notes of
    their conversations.

[22]

We disagree. Again, the appellant has not
    identified any error. Rather, she complains only of the trial judges
    assessment and weighing of the evidence. It was open to the trial judge to
    accept Cst. Edwards evidence about her conversations with the appellant and
    her denial that any inducement was given in exchange for the video statement.
    The trial judge was aware of Cst. Edwards disciplinary history but was not
    obliged to discount her evidence because of it. With respect to the isolated
    passages from the video statement on which the appellant relies as evidence of
    inducement, the trial judge, correctly in our view, did not interpret them in
    the way urged by the appellant. Significantly, as the trial judge noted, Cst.
    Edwards clearly stated on the video statement that it was not up to her but the
    courts to determine when the appellant would be released and could retrieve her
    passport and her luggage with her childrens passports.

[23]

A trial judges finding of voluntariness is
    essentially a factual one requiring a contextual analysis of the particular
    circumstances surrounding the making of the statement in issue. A disagreement
    with the trial judge regarding the weight to be given to various pieces of
    evidence is not grounds to reverse a finding on voluntariness. Absent a legal
    error in determining the test for voluntariness or a palpable and overriding
    error of fact, the trial judges finding of voluntariness is subject to
    considerable appellate deference:
Spencer
, at paras. 16-17;
Oickle
,
    at paras. 22 and 71;
R. v. M.D.
, 2012 ONCA 841, 293 C.C.C. (3d) 79, at
    para. 42;
R. v. Othman
, 2018 ONCA 1073, 371 C.C.C. (3d) 121, at
    para. 11. We see no such error here.

Disposition

[24]

For these reasons, the appeal is dismissed.

David
    Watt J.A.

L.B.
    Roberts J.A.

B. Zarnett
    J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Wiseau Studio, LLC v. Harper, 2021 ONCA 532

DATE: 20210723

DOCKET:
M52634
, M52157 & M52464 (C68580)

Doherty, Pepall and Trotter JJ.A.

BETWEEN

Wiseau Studio, LLC and Tommy Wiseau d.b.a.
    Wiseau-Films

Plaintiffs/Defendants by Counterclaim (Appellants)

and

Richard Harper, Fernando Forero McGrath, Martin
    Racicot d.b.a. Rockhaven Pictures, Room Full of Spoons Inc., Parktown Studios
    Inc. and Richard Stewart Towns

Defendants/Plaintiffs by Counterclaim (Respondents)

No one appearing for the appellants

Matthew Diskin and Meredith Bacal, for the respondents

Heard: In writing

A motion by the respondents for an order dismissing the
    appeal.

REASONS FOR DECISION

[1]

On June 2, 2021, this panel affirmed that part of the order of Thorburn
    J.A., dated January 15, 2021, requiring the appellants to post security for
    costs of the trial and the appeal as a condition precedent to proceeding with
    the appeal. The security was to be posted by July 7, 2021. The order further
    provided that the respondents could move
ex parte
in writing before
    this panel for an order dismissing the appeal if the security was not posted by
    July 7, 2021.
[1]

[2]

The appellants have commenced an application for leave to appeal to the
    Supreme Court of Canada from our order requiring security for costs. The
    appellants also sought a stay of the order requiring security for costs pending
    its application for leave to appeal to the  Supreme Court of Canada. The stay
    was refused by Fairburn A.C.J.O. on July 7, 2021.

[3]

This panel also received correspondence from counsel for the appellants
    on July 7, 2021, indicating the appellants could not comply with the security
    for costs order and seeking a stay of that order. The appellants were advised
    that any motion to stay or vary this courts order had to be made on proper
    notice and in accordance with the applicable rules. As of July 19, 2021, no
    motion had been brought.

[4]

The security for costs order has not been complied with by the
    appellants. We see no reason not to dismiss the appeal for want of compliance
    with that order. The appeal is dismissed.

[5]

The respondents are entitled to the costs of this motion and any costs
    associated with the appeal. We fix those costs at $5,000, inclusive of
    disbursements and relevant taxes.

Doherty J.A.

S.E. Pepall J.A.

G.T. Trotter J.A.

[1]

The material filed by the respondents did not include a copy
    of the formal order made by this panel on June 2, 2021. If that order has not
    been taken out, the respondents should do so forthwith.


COURT OF APPEAL FOR ONTARIO

CITATION:
Bayford v.
    Boese, 2021 ONCA 533

DATE: 20210722

DOCKET: C67599

Doherty,
    Nordheimer and Harvison Young JJ.A.

BETWEEN

Brenda Bayford

Plaintiff (Respondent)

and

Brian Boese
, Kaitlyn Boese, Alexander Boese,

Erin McTeer and Michelle McTeer

Defendants (Appellant)

Earl A. Cherniak, Q.C., Ian M.
    Hull and Doreen Lok Yin So, for the appellant

Taayo Simmonds, for the
    respondent

Heard: in writing

On appeal
    from the judgment of Justice Sylvia Corthorn of the Superior Court of Justice,
    dated October 1, 2019.

COSTS ENDORSEMENT

[1]

On June 22, 2021, we released our decision in
    which we allowed the appeal in this matter and dismissed the respondents
    action. We invited written submissions regarding the costs of the appeal. The
    parties have agreed that the appellant should have his costs of the proceeding
    below and that those costs should be referred to the trial judge for assessment.

[2]

We have now received and reviewed the written
    submissions of the parties. The appellant seeks his costs of the appeal on a
    full indemnity basis in the amount of $113,500. He also seeks an order that, to
    the extent that the respondent is unable to satisfy the order for payment of
    costs of the trial and appeal, the appellant be entitled to recover the balance
    of the costs assessed from the Estate of Brian Boese.

[3]

The basis for the appellants request for costs
    on a full indemnity basis arises from the fact that the case put forward by the
    respondent at trial, and accepted by the trial judge, was that the Will in
    question, signed by the testator, was purportedly witnessed by two individuals.
    As found by this court, that was not the true state of affairs. In fact, the
    two individuals had signed as witnesses after the testator had passed away. The
    appellant says, in essence, that the respondent attempted to perpetrate a fraud
    upon the court.

[4]

We accept that a finding of fraud, or attempted
    fraud, may justify an award of costs on an elevated scale. Such a finding would
    be subsumed in the principle that costs on a substantial indemnity basis may be
    awarded "where there has been reprehensible, scandalous or outrageous
    conduct on the part of one of the parties":
Young v. Young
, [1993]
    4 S.C.R. 3, at p. 134;
Mars Canada Inc. v. Bemco Cash & Carry Inc.,
2018 ONCA 239, 140 O.R. (3d) 81, at para. 43.

[5]

On that point, however, we would reiterate the
    note of caution expressed in
Net Connect Installation Inc. v. Mobile Zone
    Inc.,
2017 ONCA 766, 140 O.R. (3d) 77, at para. 8, that there is a
    significant and important distinction between full indemnity costs and
    substantial indemnity costs. This court added:

Substantial indemnity costs is the elevated
    scale of costs normally resorted to when the court wishes to express its
    disapproval of the conduct of a party to the litigation. It follows that
    conduct worthy of sanction would have to be especially egregious to justify the
    highest scale of full indemnity costs.

[6]

This principle, though, will normally apply to
    the trial proceedings, not to the appeal proceedings. There was no conduct by
    either party on the appeal that would fall within the above principle. Any
    finding regarding the conduct of the respondent, and its proper effect on costs,
    is thus a matter for the trial judge to consider when she assesses the costs of
    the proceedings below.

[7]

That said, there is nonetheless an impact on the
    appeal proceedings from the nature of the evidence and the findings of the
    trial judge. Because the trial judge accepted the version of events advanced by
    the respondent, the appellants task on appeal was an onerous one. He was
    required to establish that the trial judge had made palpable and overriding
    errors of fact, including accepting the respondents, and the attesting
    witnesses, evidence. The significant task facing the appellant is a factor to
    consider in determining a reasonable amount for the costs of the appeal.

[8]

We also accept that, to the extent that the
    costs of the appeal, or of the trial, may not be satisfied by the respondent,
    the appellant ought to be able to recover those costs from the Estate. This
    litigation was, at least in part, caused by the testators failure to complete
    his intended new Will as directed by his lawyer. Assuming that the testator
    intended to proceed as outlined in the new Will, his failure to have that Will
    fully and properly executed led to this litigation. The blended costs award,
    in which a portion of costs is payable by the losing party and the balance is
    payable out of the estate, is applicable in this case:
Sawdon Estate v.
    Watch Tower Bible and Tract Society of Canada
, 2014 ONCA 101, 119 O.R. (3d)
    81, at para. 99. This is also a fair result since the actions of the appellant
    have benefitted the other beneficiaries of the Estate of Bruce Boese.

[9]

In the result, we award the appellant the costs
    of the appeal fixed at $50,000, inclusive of disbursements and HST. The
    appellant is also awarded his costs of the trial. Those costs are referred to
    the trial judge for assessment. To the extent that the costs of the appeal, or
    of the trial, are not satisfied by the respondent, the appellant may recover
    those costs from the Estate of Bruce Boese.

Doherty J.A.

I.V.B. Nordheimer J.A.

A. Harvison Young J.A.